Excess land contract
XXXXXXX MONEY CONTRACT
This Contract of Sale (the "Contract") is made and entered into by and
between VERIQUEST PROPERTY COMMERCE 1995-I, a Texas joint venture having its
principal office at 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Seller"),
and UNITED INVESTORS REALTY TRUST, a Texas real estate investment trust having
its principal office at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
("Buyer"). This Contract is dated as of the later of the two dates set forth
immediately above each of the signatures of the parties hereto, on the signature
page hereof (the "Contract Date"). In consideration of the agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE I
The Property
1.1 Property. Subject to the terms and provisions of this Contract, Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, all of the
following described property (collectively, the "Property"):
(a) A certain tract of land located in Fort Bend County, Texas,
being described more fully on Exhibit "A" which is attached hereto and
incorporated herein by reference ( the "Land"). The Land also includes any
interest of Seller in and to (i) any strips or gores between the property
described on Exhibit "A" and all abutting properties and (ii) any land
lying in or under the bed of any street, alley, road or right of way,
opened or proposed, abutting or adjacent to the Land;
(b) Any and all buildings, fixtures, improvements, structures and
personal property situated on the Land;
(c) All rights in and to roads, rights-of-way, ingress and egress
easements relating to the Land, and all other rights of access thereto;
(d) All mineral rights owned and held by Seller relating to the
Land, whether surface or subsurface, or otherwise;
(e) All site plans, surveys, soil and substrata studies, plans and
specifications, engineering plans and studies and other plans, diagrams or
studies of any kind, if any, in Seller's possession or control which
relate to the Land;
(f) All rights, privileges, tenements, hereditaments, reversionary
interests, appendages, appurtenances, riparian or littoral rights
belonging in or in anywise appertaining to the Land; and
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(g) All rights, titles and interests of Seller in and to any award
or awards heretofore or hereafter made by any municipal, county, state or
federal authority or board to the present and all subsequent owners of the
Land.
1.2 Additional Xxxxxxx Money ContrReference is here made to that certain
Contract of Sale between Veriquest-Colony Plaza One 1997, a Texas joint venture,
as seller therein (the "Shopping Center Seller") and Buyer as buyer therein (the
"Additional Shopping Center Contract"), dated as of the Contract Date hereof,
pertaining to the shopping center, known as the Colony Plaza Shopping Center,
which adjoins the Property and is shown on the site plan attached hereto as
Exhibit "A-1" (the "Adjoining Shopping Center").
ARTICLE II
Purchase Price
2.1 Purchase Price. The total purchase price ("Purchase Price") for the
Property equals the sum of One Million Fifty Thousand and No/100 Dollars
($1,050,000.00), payable in cash in full at Closing.
2.2 Xxxxxxx Money Deposit. On the date of this Contract, Buyer hereby
delivers to Safeco Land Title Company, having its principal office at 0000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx Xxxxxxxx,
Executive Vice President and Escrow Officer (the "Title Company"), the sum of
$10,000.00 as Buyer's Xxxxxxx Money Deposit (herein so called) which shall be
held by the Title Company in escrow in an interest-bearing account. Interest
earned thereon shall be held for the benefit of Buyer, provided that at the
Closing, the xxxxxxx money deposit and interest thereon shall be credited
against the Purchase Price. If the Closing is not held by reason of a Permitted
Termination, the Xxxxxxx Money Deposit and interest shall be returned to Buyer.
If the Closing is not held for any other reason, the Xxxxxxx Money Deposit shall
be disbursed as provided for herein and the interest shall be paid to the party
otherwise entitled to receive the Xxxxxxx Money Deposit.
2.3 Additional Payments.
(a) Notwithstanding anything contained herein to the contrary, it is
specially agreed that Seller is entitled to be paid the Xxxxxxx Money
Deposit, together with the additional sum of $15,000 payable by Buyer to
Seller as a "Break-Up Fee", as soon as practicable after the Closing Date
herein provided, if the following events occur: (i) this Contract is not
consummated after Buyer sends the Notice to Continue set forth in Section
3.6(b), except by reason of Seller's default hereunder, and (ii) Buyer
purchases the Adjoining Shopping Center under the terms of the Additional
Shopping Center Contract, or other terms approved by the parties thereto.
Otherwise, Seller is entitled to payment of the Xxxxxxx Money Deposit and
the Break-Up Fee as provided under Section 8.1 hereof.
(b) If (i) Buyer elects to proceed with this Contract after delivery
of its Notice to Continue described in Section 3.6(b), or (ii) Buyer
elects not to proceed with this Contract and purchases the Adjoining
Shopping Center under the terms of the Additional Shopping Center
Contract, or other terms approved by the parties thereto, then Buyer is
obligated to pay directly to or reimburse Seller within 15 days of
presentment of invoices therefor, all taxes and common area assessments
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associated with the Property and assessed by the owner, and its
representatives, successors and assigns, of the Adjoining Shopping Center
(the "Additional Sums"), which accrue as of the closing date of the sale to
the Buyer of the Adjoining Shopping Center under the Additional Shopping
Center Contract, through either (i) the two year period following the
closing date of such Adjoining Shopping Center Contract, or (ii) the
Closing Date of this Contract, whichever occurs earlier. Failure of Buyer
to make any such payments entitle the Seller to terminate this Contract
within 10 days of written demand therefor, without waiver of its right to
demand and receive the additional payments set forth in Sections 2.3(a) and
(b) hereof, or receive a credit at the Closing for such amounts.
Notwithstanding anything contained in this Section 2.3(b) to the contrary,
if this Contract is not consummated solely by reason of the default of
Seller, then Seller is liable and obligated to reimburse Buyer for all sums
paid by it under this Section 2.3(b) and Buyer shall otherwise have no
liability or obligation to pay any of the Additional Sums.
ARTICLE III
Title, and Survey
3.1 Title Commitment. Within three (3) days after the Contract Date,
Seller agrees to order, at the sole cost and expense of Buyer, a current
commitment for Title Insurance for the Project (the "Title Commitment")
countersigned by the Title Company, as agent for the Title Underwriter, which
Title Commitment shall be furnished to Buyer. The Title Commitment shall contain
the express commitment of the Title Company to issue a Texas Form T-1 Owner's
Policy of Title Insurance to the extent permitted by Texas law for the Project,
which shall otherwise be in form and content consistent with Section 4.5 below.
The Title Commitment shall be accompanied by legible copies of all instruments
that create or evidence title exceptions affecting the Real Property.
3.2 Survey. Within three (3) days after the Contract Date, Seller agrees
to furnish to Buyer a copy of the existing survey for the Project in its
possession prepared by Xxxx Xxxxx of Xxxxx Surveying (the "Existing Survey").
Buyer has the right to obtain, at its sole cost and expense, an update of the
Existing Survey to a date subsequent to the Contract Date and certified to Buyer
and the Title Company (the "Survey"). The Survey certification shall be in such
form as Buyer may require. The metes and bounds description of the Land
contained in the Survey, if different from that attached as Exhibit "A" hereto,
shall be used for purposes of describing the Real Property in the general
warranty deed conveying title to the Real Property from Seller to Buyer.
3.3 Review of Title Commitment and Survey. Buyer shall have a period of
fifteen (15) days (the "Title Review Period") after the Contract Date in which
to review the Title Commitment and the Survey and give written notice to Seller
specifying Buyer's objections (the "Objections"), if any, to the Title
Commitment and the Survey. If Buyer shall fail to give written notice of
Objections to Seller prior to the expiration of the Title Review Period, then
all exceptions to title shown on Schedules B and C of the Title Commitment shall
be deemed to be Permitted Exceptions.
3.4 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer
shall have timely notified Seller in writing of Objections to the Title
Commitments or the Survey, then Seller may, but shall not be obligated to, at
any time prior to the expiration of the Inspection Period (the "Cure Period"),
give written notice ("Seller's Title Cure Notice") to Buyer of Seller's
intention to satisfy the Objections prior to the Closing Date. If Seller fails
to timely give Buyer the Seller's Title Cure Notice, then Buyer shall have the
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option, within five days of expiration of the Inspection Period, or within five
days of receipt of Seller's written notice of Seller's election not to satisfy
the Objections, if sooner, to either (i) waive the unsatisfied Objections, in
which event those unsatisfied Objections shall become Permitted Exceptions, or
(ii) terminate this Contract, in which event the Xxxxxxx Money Deposit shall be
returned to Buyer and Seller and Buyer shall have no further obligations, one to
the other, with respect to the subject matter of this Contract.
3.5 Title Policy. At the Closing, Seller shall cause, provided that Buyer
pays the cost thereof, a standard T-1 form Owner's Policy of Title Insurance
(the "Owner's Title Policy") to be furnished to Buyer by the Title Company. The
Owner's Title Policy shall be issued by the Title Underwriter and shall insure
that Buyer has good and indefeasible fee simple title to the Property, subject
only to the Permitted Exceptions. The Owner's Title Policy shall contain no
exceptions other than (i) visible and apparent easements, as shown on the
Survey, and (iii) Permitted Exceptions. At Buyer's option and cost, the "survey
exception" in the Owner's Title Policy shall be modified to read "shortages in
area only". The tax exception shall be limited to taxes for the year of Closing
and subsequent years not yet due and payable and subsequent assessments for
prior years due to change in land usage or ownership.
3.6 Inspection.
(a) Buyer shall have the right, during the Inspection Period, to make such
examinations, studies, appraisals, inspections, engineering, environmental and
insurance underwriting tests and investigations (the "Inspections") of the
Property as Buyer may deem advisable. Such Inspections shall include, without
limitation, review of true copies of the latest real estate tax bills, common
area assessments, service contracts affecting the Property, and any and all
other contracts and agreements relating to the Property. Seller shall cooperate
with Buyer in making available the Property for Buyer's Inspections, including
any and all books and records relating thereto. Buyer may also reinspect the
Property prior to Closing to verify that the Property has remained in the same
physical shape, ordinary wear and tear excepted, as the Property was during the
Inspection Period. The term "Inspection Period" means the fifteen (15) day
period following the Contract Date.
(b) If Buyer elects for this Contract to remain in full force and effect
beyond the Inspection Period, then Buyer, at its sole option, shall deliver
written notice (the "Notice to Continue") thereof to Seller and Title Company,
on or before the expiration of the Inspection Period. Once the Notice to
Continue has been given, and the Xxxxxxx Money Deposit and the Break-up Fee
shall become at risk and payable to Seller, if owed under the provisions of
Section 2.3(a) and Buyer shall be obligated to pay any Additional Sums, if owed
under the provisions of Section 2.3(b). If, however, Buyer does not timely
deliver the Notice to Continue prior to the expiration of the Inspection Period,
or if Buyer notifies Seller and Title Company that Buyer has no further interest
in purchasing the Property, then, in either event, the Xxxxxxx Money Deposit
shall be returned to Buyer, and thereafter Seller and Buyer shall have no
further obligations, one to the other, with respect to the subject matter of
this Contract. Failure to deliver the notice to the Seller herein prior to the
expiration of the Inspection Period shall be deemed to be Buyer's election to
terminate this Contract.
(c) Seller hereby grants to Buyer the right to enter upon the Property at
any reasonable time during the term of this Contract prior to Closing to make
surface or subsurface inspection thereof, or for other purposes incident to
Buyer's requirements relative to the acquisition and use of the Property. The
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Property shall be restored to its present condition after any tests, at Buyer's
sole expense Buyer shall indemnify and hold harmless the Seller from and against
all loss, liability, damage, injury and claims resulting from Buyer's testing or
inspection of the Property; provided, however, this indemnity shall not include,
and shall specifically exclude, any loss, liability, damage etc. arising out of
or resulting from Seller's gross negligence or willful misconduct and the
discovery of any condition that may require remediation under applicable
environmental laws. This indemnity shall survive the Closing or termination of
this Contract for a period of six months, after which this indemnity shall
automatically terminate.
3.7 Reports. Within 5 days of the date of this Contract, Seller agrees to
furnish to Buyer copies of all site plans, surveys, environmental reports, plans
and studies in its possession which relate to the Property.
ARTICLE IV
Representations and Warranties
4.1 Representations and Warranties of Seller.
Seller hereby represents and warrants as of the date hereof and as of the
Closing Date that:
(a) There are no contracts or agreements outstanding (whether for
sale, exchange or otherwise) which affect any portion of the Property or
its operation;
(b) The continued ownership, operation, use and occupancy of the
Property does not violate any zoning, building, health, flood control,
fire or other law, ordinance, order or regulation or any restrictive
covenant. There are no violations of any federal, state, county or
municipal law, ordinance, order, regulation or requirement, affecting any
portion of the Property and no written notice of any such violation has
been issued by any governmental authority;
(c) There is no action, suit, proceeding or claim affecting the
Property or any portion thereof, nor affecting Seller or relating to the
ownership, operation, use or occupancy of the Property pending or being
prosecuted in any court or by or before any federal, state, county, or
municipal department, commission, board, bureau or agency or other
governmental instrumentality nor, to the knowledge of Seller, is any such
action, suit, proceeding or claim threatened or being asserted. There is
no proceeding pending or presently being prosecuted for the reduction of
the assessed valuation of taxes or other assessments payable in respect of
any portion of the Property;
(d) No portion of the Property is the subject of any actual or
proposed condemnation or eminent domain proceeding, or any other
litigation or proceeding, (whether for widening of streets, installation
of utilities or otherwise affecting the Property or any portion thereof,
and Seller has not received any written notice and has no knowledge that
any such proceeding is contemplated);
(e) There are adequate means of ingress and egress, for vehicular
and pedestrian traffic, to and from the Land and each adjoining street,
road or highway. All routes of ingress and egress to and from the Land, to
the extent they pass through adjoining land, do so in accordance with
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valid public easements or valid private easements which constitute
part of the Property and will be conveyed to Buyer at the Closing
and will inure to the benefit of Buyer;
(f) Within Seller's current actual knowledge, no Hazardous Material
(as defined below) has been installed, used, generated, manufactured,
treated, handled, refined, produced, processed, stored or disposed of, in,
on or under the Property, including without limitation, the surface and
subsurface waters of the Property except in compliance with Hazardous
Material Law, nor has any activity been undertaken on or adjacent to the
Property which would cause (i) the Property to become a hazardous waste
treatment, storage or disposal facility within the meaning of, or
otherwise bring the Property within, any Hazardous Material Law (as
defined below), (ii) a release or threatened release of Hazardous Material
from or on to the Property within the meaning of, or otherwise bring the
Property under, any Hazardous Material Law, or (iii) the discharge of
Hazardous Material which would require a permit under any Hazardous
Material Law. To the best of Seller's knowledge, there are no conditions
with respect to the Property which would cause a violation or support a
claim under any Hazardous Material Law, and no underground storage tanks
or underground deposits of Hazardous Materials are or were located on the
Property, or to Seller's current actual knowledge, adjacent to the
Property, and subsequently removed or filled. For purposes of this
representation, "Hazardous Materials" means and includes asbestos or any
substance containing asbestos, polychlorinated biphenyls, any explosives,
radioactive materials, chemicals known or suspected to cause cancer or
reproductive toxicity, pollutants, effluents, contaminants, emissions,
infectious wastes, any petroleum or petroleum-derived waste or product or
related materials and any items defined as hazardous, special or toxic
materials, substances or waste under any Hazardous Material Law, or any
material which shall be removed from the Property pursuant to any
administrative order or enforcement proceeding or in order to place the
Property in a condition that is suitable for ordinary use. "Hazardous
Material Laws" collectively means and includes any present and future
local, state, federal or international law or treaty relating to public
health, safety or the environment including without limitation, the
Resource Conservation and Recovery Act, as amended ("RCRA"), 42 U.S.C.
ss.6901 et seq., the Comprehensive Environmental Response, Compensation,
and Liability Act ("CERCLA"), 42 U.S.C. ss.9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the
Hazardous Materials Transportation Act, 49 U.S.C. ss.1801 et seq., the
Clean Water Act, 33 U.S.C. ss.1251 et seq., the Clean Air Act, as amended
42 U.S.C. ss.7401 et seq., the Toxic Substances Control Act, 15 U.S.C.
ss.2601 et seq., the Safe Drinking Water Act, 42 U.S.C. ss.300f et seq.,
the National Environmental Policy Act, 42 U.S.C. ss.4321 et seq., the
Noise Control Act, 42 U.S.C. ss.4901 et seq., and the Emergency Planning
and Community Right-to-Know Act, 42 U.S.C. ss.11001 et seq., and the
amendments, regulations, orders, decrees, permits, licenses or deed
restrictions now or hereafter promulgated thereunder;
(g) Seller is not prohibited from consummating the transactions
contemplated in this Contract, by any law, regulation, agreement,
instrument, restriction, order or judgment;
(h) There are no adverse parties in possession of the Property or of
any part thereof and no parties in possession thereof except Seller, and
no party has been granted any license, lease, or other right relating to
the use or possession of the Property;
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(i) There are no attachments, executions, assignments for the
benefit of creditors, receiverships, conservatorship or voluntary or
involuntary proceedings in bankruptcy or pursuant to any other debtor
relief laws contemplated or filed by Seller or pending against Seller or
the Property;
(j) Seller will completely discharge at or prior to Closing (whether
or not payable in installments or otherwise) any liens, charges, security
interests or other encumbrances affecting the Property, other than
assessments levied by local municipal authorities;
(k) No portion of the Property has been designated or assessed for
"agricultural use" or as "qualified open space land" within the meanings
of Article VIII, section 1-d or section x-x-1 of the Texas Constitution,
or the statutes codified as Section 23.46 or 23.55 of the Texas Property
Tax Code, as amended, for any portion of the six (6) calendar years
preceding the date of this Contract;
(l) To the best of Seller's knowledge, there are no surface or
subsurface faults, fissures or other geological defects or flaws which
affect the Property;
(m) Seller has full right, title and authority to enter into this
Contract, and that no other party has any right, option, interest, or
claim to all or any part of the Property, whether subject to xxxxxxx money
contract, option agreement, right of first refusal, reversionary or future
interests, or right of reverter; and
(n) Seller is not a foreign person or entity pursuant to the Foreign
Investment in Real Property Tax Act, or the Tax Reform Act of 1984, and
Buyer is not obligated to withhold any portion of the Purchase Price for
the benefit of the Internal Revenue Service.
All of Seller's warranties and representations shall survive any inspection or
investigation made by or on behalf of Buyer for a period of six months after the
Closing of the transaction contemplated herein.
ARTICLE V
Conditions Precedent to Buyer's
Obligation to Close
5.1 Buyer's obligation to consummate the transactions contemplated
hereunder is conditioned upon satisfaction of each of the following conditions
at or prior to the Closing (or such earlier date as is specified with respect to
a particular condition):
(a) None of the representations and warranties of Seller set forth
in Article IV hereof shall be untrue or inaccurate in any material
respect.
(b) Seller shall not have failed to perform or comply with any of
its agreements or obligations in any material respect and within the time
periods provided herein.
(c) Notwithstanding anything contained herein to the contrary, if
this Contract terminates by reason of Buyer's failure to send the Notice
to Continue, the Xxxxxxx Money Deposit and interest thereon shall be paid
over to Buyer, less the sum of Fifty and No/100 Dollars ($50.00) (the
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"Option Sum"), which is to be retained by the Seller as consideration for
this Contract, which consideration is deemed earned as of the date of this
Contract.
(d) No geological flaw, fault, or defect, soil condition or other
physical defect which would prevent the Buyer from developing the Property
as a shopping center in Buyer's reasonable judgment shall have been
discovered during the Inspection Period.
5.2 Termination if Conditions Precedent not Satisfied or Waived. If any of
the conditions precedent to the performance of Seller's obligations under this
Contract have not been satisfied, waived, or deemed waived by the Buyer within
the time frame established herein, then the Buyer may, at its option, by written
notice delivered to the obligated party and Title Company, terminate this
Contract, in which event the Xxxxxxx Money Deposit shall be returned to Buyer
and thereafter Buyer and Seller shall have no further obligations, one to the
other, with respect to the subject matter of this Contract, subject to the
provisions of Article VIII hereof, and except as otherwise provided under
Section 2.3 hereof.
ARTICLE VI
Closing
6.1 Time and Place of Closing. Provided that all of the conditions of this
Contract shall have been satisfied prior to or on the Closing Date (herein so
called), the Closing (herein so called) of this transaction shall take place at
the offices of the Title Company in Dallas, Texas, on or before the second (2nd)
anniversary date following the closing of the transaction contemplated by the
Additional Contract, or such earlier date as may be specified by Buyer by not
less than ten (10) days advance written notice to Seller.
6.2 Events of Closing. At the Closing:
(a) Seller shall deliver to Buyer the following:
(1) A Special Warranty Deed in form and substance reasonably
approved by the parties, but listing only the Permitted Exceptions
as exceptions to title, duly executed and acknowledged by Seller,
conveying to Buyer the Property in indefeasible fee simple, free and
clear of any lien, encumbrance or exception other than the Permitted
Exceptions;
(2) A standard Texas Owner's Policy of Title Insurance issued
by the Title Company, at Buyer's cost, conforming to the
requirements of Article III above insuring Buyer's title in
indefeasible fee simple in the amount of the Purchase Price and
containing no exceptions other than the Permitted Exceptions;
(3) Tax certificates from all taxing authorities having
jurisdiction over the Property, showing payment of all ad valorem
taxes on said Property through the calendar year preceding the
Closing of this purchase and sale;
(4) Possession of the Property;
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(5) A UCC search of the Property reflecting no outstanding
security interests affecting the Property;
(6) A written consent of all of the individuals comprising the
Seller in form and substance satisfactory to Buyer and its counsel,
which reflects the authorization of the transactions herein by Seller
and evidence of the authority of the individual executing the closing
documents to execute and deliver this Contract and the documents
provided for hereunder;
(7) The affidavit in form and substance satisfactory to Buyer
that Seller is not a foreign person or entity subject to the Foreign
Investment in Real Property Tax Act or the Tax Reform Act of 1984; and
(8) Such other evidence of the authority and capacity of Seller
and its representatives as Buyer or the Title Company may reasonably
require.
(b) Buyer shall deliver the following:
(1) The Purchase Price, as required pursuant to Section 2.1
above, in immediately available funds, such as wire transfer or by
Buyer's certified or cashier's check, or Title Company check in U.S.
funds;
(2) Any sums due by Buyer to Seller under the provisions of
Section 2.3(b) or otherwise under the other provisions of this
Contract.
(3) Such other evidence of the authority and capacity of Buyer
and its representatives as the Seller or the Title Company may
reasonably require.
6.3 Expenses. Seller shall pay the cost of tax certificates, one-half of
the escrow fee charged by the Title Company, its share of the prorations as set
forth in Section 6.4 hereof, and its own attorneys' fees. Buyer shall pay the
premium for the Owner's Policy of Title Insurance (including the fee for
amending the area and boundary exception), its proportionate share of the
prorations as set forth in Section 6.4 hereof, one-half of the escrow fee
charged by the Title Company, the recording fees for its Special Warranty Deed,
the cost of to update the Survey, the cost of the UCC search, and its own
attorneys fees. Except as otherwise provided in this Section, all other expenses
hereunder shall be paid by the party incurring such expenses. Additionally, any
expenses, charges and fees of closing, not specifically allocated herein or
incurred by a specific party, shall be borne by the parties according to general
custom in Missouri City, Texas, or, if no such custom exists, shall be borne
equally between the parties.
6.4 Prorations. Rental income, if any, and personal property ad valorem
taxes, if any, prorated to the Closing, based upon actual calendar days
involved. Seller shall be responsible for all ad valorem taxes for any period
prior to and including the date of Closing, except as otherwise provided in
Section 2.3(b). Buyer shall receive credit on the amount of the cash payments to
be made by Buyer pursuant hereto for the prorated amount thereof chargeable to
Seller. In connection with the proration of both real and personal property ad
valorem taxes, if actual tax figures for the year of closing are not available
at the Closing Date, a final proration of taxes shall be made using tax figures
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from the current year. Seller shall, on or before the Closing Date, furnish to
Buyer and the Title Company all information necessary to compute the prorations
provided for in this Section. All special taxes and assessments due to the date
of Closing, and any "roll-back" taxes contemplated under Section 4.1(n), shall
be paid by Seller.
In the event any property taxes levied against the Property have been
deferred pursuant to Section 23.46 or Section 23.55 of the Texas Property Tax
Code, as may be amended from time to time, or any similar law and this sale or
change in the use of the Property causes the amount of the deferred taxes to
become payable, Seller shall reimburse Buyer upon demand for the amount of such
deferred taxes plus any interest and penalty charged thereon. This Section 6.4
shall survive the Closing.
ARTICLE VII
Damage and Condemnation to Property
Seller agrees to give Buyer prompt written notice of any fire or casualty
affecting the Property between the date hereof and the Date of Closing or of any
actual or threatened taking or condemnation of all or any portion of the
Property. If prior to the Closing there occurs the taking or condemnation of all
or any portion of the Property, or notice of such action is delivered, or a
casualty shall occur that materially affects the Property, in such event Buyer
may at its option terminate this Contract by notice to Seller within twenty (20)
days after Buyer has received the notice referred to above or at the Closing,
whichever is earlier. If Buyer does not so elect to terminate this Contract,
then the Closing shall take place as provided herein but the amount of the
condemnation award or insurance proceeds actually received by Seller shall be
credited to the Purchase Price. All risk of loss contemplated by this Article
VII shall be borne by Seller until acceptance by Buyer of delivery of Seller's
deed at the Closing.
ARTICLE VIII
DEFAULTS AND REMEDIES
8.1 Default of Buyer. If Buyer fails or refuses to consummate the
transaction contemplated by this Contract, for any reason other than the
permitted termination of this Contract by Buyer pursuant to a right to do so
expressly set forth in this Contract, then such event shall constitute a default
by Buyer hereunder and the Seller may, as the Seller's sole and exclusive remedy
for such default, either (i) bring an action against the Buyer for specific
performance of the Buyer's obligations under this Contract, or (ii) terminate
this Contract by giving written notice thereof to Buyer and the Title Company at
or prior to the Closing Date, whereupon the Title Company shall deliver the
Xxxxxxx Money Deposit (including the interest earned thereon) to the Seller
which shall constitute liquidated damages hereunder and thereafter neither party
hereto shall have any further rights or obligations hereunder. Additionally,
should a termination of the Contract arise and Seller is entitled to remedies
available to it under this Section 8.1, and in fact elects the remedies
available to it under Section 8.1(ii), then Buyer shall remain liable and
obligated to pay to Seller the Break-up Fee under Section 2.3(a) and any unpaid
Additional Sums under Section 2.3(b) for the period specified therein. The
Break-up Fee and any unpaid Additional Sums owed by Buyer are due and payable
promptly after written demand is made, if Buyer is otherwise obligated to pay
same as prescribed herein. It is agreed that the Xxxxxxx Money Deposit, the
Break-up Fee and the Additional Sums are a reasonable forecast of just
compensation for the harm that would be caused by such default, which the
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parties agree is one that is incapable or very difficult of accurate estimation,
and that payment of the sums set out herein upon such default shall constitute
full satisfaction of Buyer's obligations hereunder.
8.2 Default of Seller. If Seller fails or refuses to consummate the sale
of the Property to Buyer pursuant to this Contract at the Closing or fails to
perform any of Seller's other obligations hereunder for any reason other than
Buyer's failure to perform Buyer's obligations under this Contract, then Buyer
may, as Buyer's sole and exclusive remedy for such default, either (i) bring an
action against the Seller for specific performance of the Seller's obligations
under this Contract, (ii) terminate this Contract by giving written notice
thereof to Seller and the Title Company at or prior to the Closing Date,
whereupon the Title Company shall deliver the Xxxxxxx Money Deposit (including
the interest earned thereon) to Buyer and thereafter neither party hereto shall
have any further rights or obligations hereunder, or (iii) receive the return of
the Xxxxxxx Money Deposit and prosecute an action for damages if Seller has
conveyed or hypothecated the Property to a third party in violation of the terms
hereof.
8.3 Xxxxxxx Money. In the event either Seller or Buyer becomes entitled to
the Xxxxxxx Money Deposit upon cancellation of this Contract in accordance with
its terms, such party may deliver a letter of instruction to the Title Company
directing disbursement of the Xxxxxxx Money Deposit to the party entitled
thereto. The party delivering such notice to the Title Company shall
concurrently deliver a copy of the notice to the other party hereto. Upon the
expiration of three (3) business days after its receipt of the letter of
instructions, the Title Company may deliver the Xxxxxxx Money Deposit to the
party as specified in the letter of instructions unless, within such three (3)
business day period, the Title Company shall have received a written objection
to such delivery from the other party hereto. In such event, the Title Company
shall not deliver the Xxxxxxx Money Deposit to either party unless it has a
written authorization to do so signed by both parties or a court order has been
issued by a court of competent jurisdiction to deliver the Xxxxxxx Money Deposit
to one of the parties hereto. The Title Company may deposit the Xxxxxxx Money
Deposit into a court of competent jurisdiction and thereafter shall have no
further interest in or responsibility for this Contract or for the Xxxxxxx Money
Deposit.
8.4 Indemnification of Title Company. Each party hereto hereby indemnifies
and holds harmless the Title Company from any loss, damage or claim therefor
arising out of or in connection with the receipt and disposition of the Xxxxxxx
Money Deposit in accordance with the instructions set forth in this Contract.
These indemnities shall survive the termination of this Contract or a closing
pursuant hereto.
ARTICLE IX
Interim Responsibilities of Seller
Seller agrees that during the period between the date of this Contract and
the Closing Date:
(a) Seller may not further encumber the Property in any manner or
permit or suffer the filing or attachment of any lien of mechanic's or
materialmen. If the Property becomes subject to any such liens or
encumbrances in contravention of this subparagraph (a), Buyer may elect to
terminate this Contract or to consummate the transactions contemplated
hereunder and apply the Purchase Price or so much thereof as may be
necessary to retire any such liens or encumbrances;
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(b) Seller must maintain Seller's existing insurance coverage, if
any, with respect to the Property from the date hereof through the Date of
Closing or earlier termination of this Contract;
(c) Seller shall not file any restrictive covenants or impose, by
grant or otherwise, any deed restrictions affecting the Property, grant
any licenses, easements or other uses affecting the Property, without
Buyer's prior written consent; nor place or permit to be placed on the
Property any buildings, structure or other improvements, nor remove or
permit to be removed from the Property, any buildings, structures, trees,
shrubbery or other improvements of any kind whatever, without Buyer's
prior written consent; and
(d) Seller may not excavate or permit the excavation of the Property
and may not do or suffer to be done any act whereby the value of any party
of the Property may be lessened.
ARTICLE X
Brokerage Commission
Each party warrants to the other that neither of them nor their agents or
representatives have engaged or contacted any broker with respect to the
transaction contemplated herein, that no brokers have been involved with the
purchase and sale hereunder, and each party agrees to indemnify and hold the
other party harmless from any and all claims for brokerage fees arising out of
its actions. The provisions of this Article survive for a period of 6 months
following the Closing Date.
ARTICLE XI
Miscellaneous
11.1 No Assumption of Seller's Liabilities. Buyer is acquiring only the
Property from Seller and is not the successor of Seller. Buyer does not assume
or agree to pay, or indemnify Seller or any other person or entity against, any
liability, obligation or expense of Seller or relating to the Property in any
way except only to the extent, if any, herein expressly and specifically
provided herein.
11.2 Notices. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing, and shall be deemed to be
delivered and received when actually received, or, if earlier and regardless of
whether actually received, upon deposit in a regularly maintained receptacle for
the United States mail, registered or certified, return receipt requested,
postage fully prepaid, addressed to the addressee at its address set forth
below:
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If to Seller: VeriQuest-Property Commerce 1995-I
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
With Copy to: Xxx X. Xxxxxxx, Esq.
Kissner & Xxxxxxx, P.C.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Buyer: United Investors Realty Trust
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Chief Operating Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a Copy to: Xxxxx X. Xxxxxxx, Esq.
United Investors Realty Trust
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx, Xxxxxxx & Xxxxxxxx, P.C.
Attn: Xxxxxx X. Xxxxxxx, Esq.
8th Floor Texas Commerce Bank Bldg.
000 Xxxx Xxxx
Xx Xxxx, Xxxxx 00000
(000) 000-0000
FAX: (000) 000-0000
11.3 Survival. All warranties, representations, indemnities, and
agreements contained herein or arising out of the sale of the Property by Seller
to Buyer shall survive the Closing hereof for a period of six months thereafter,
unless a longer period is expressly stated herein.
11.4 Governing Law; Venue. The laws of the State of Texas govern the
validity, enforcement, and interpretation of this Contract. The obligations of
the parties are performable and exclusive venue for any legal action arising out
of this Contract lie in Fort Bend County, Texas.
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11.5 Integration; Modification; Waiver. This Contract constitutes the
complete and final expression of the agreement of the parties relating to the
Property, and supersedes all previous contracts, agreements, and understandings
of the parties, either oral or written, relating to the Property. This Contract
cannot be modified, or any of the terms hereof waived, except by an instrument
in writing (referring specifically to this Contract) executed by the party
against whom enforcement of the modification or waiver is sought. The terms and
provisions of this Contract shall not merge with, be extinguished or otherwise
affected by any subsequent conveyance or instrument by or between the parties
hereto unless such instrument shall specifically so state and be signed by both
Buyer and Seller.
11.6 Counterpart Execution. This Contract may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
11.7 Headings; Construction. The headings which have been used throughout
this Contract have been inserted for convenience of reference only and do not
constitute matter to be construed in interpreting this Contract. Words of any
gender used in this Contract shall be held and construed to include any other
gender and words in the singular number shall be held to include the plural, and
vice versa, unless the context requires otherwise. If the last day of any time
period stated herein shall fall on a Saturday, Sunday, legal or banking holiday,
then the duration of such time period shall be extended so that it shall end on
the next succeeding day which is not a Saturday, Sunday, legal or banking
holiday.
11.8 Invalid Provisions. If any one or more of the provisions of this
Contract, or the applicability of any such provision to a specific situation,
shall be held invalid or unenforceable, such provision shall be modified to the
minimum extent necessary to make it or its application valid and enforceable,
and the validity and enforceability of all other provisions of this Contract and
all other applications of any such provision shall not be affected thereby.
11.9 Binding Effect. This Contract shall be binding upon and inure to the
benefit of Seller and Buyer, and their respective heirs, personal
representatives, successors and assigns. Buyer may assign its rights hereunder,
but Buyer shall not be relieved of any duties and obligations hereunder. Except
as expressly provided herein, nothing in this Contract is intended to confer on
any person, other than the parties hereto and their respective heirs, personal
representatives, successors and assigns, any rights or remedies under or by
reason of this Contract.
11.10 Further Acts. In addition to the acts recited in this Contract to be
performed by Seller and Buyer, Seller and Buyer agree to perform or cause to be
performed at the Closing or after the Closing any and all such further acts as
may be reasonably necessary to consummate the transactions contemplated hereby.
11.11 Date of Contract. The date of this Contract shall for all purposes
be the date of the execution hereof by the Title Company acknowledging receipt
of Buyer's Xxxxxxx Money Deposit.
11.12 Time. Time is of the essence in this Contract.
EXECUTED by Buyer on the ______ day of April, 1998.
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BUYER: UNITED INVESTORS REALTY TRUST, a Texas
real estate investment trust
By: /s/ Xxxxxxx Xxxxx, Chief Operating Officer
------------------------------------------------
Xxxxxxx Xxxxx, Chief Operating Officer
EXECUTED by Seller on the ___________ day of April, 1998
SELLER: VERIQUEST-PROPERTY COMMERCE 1995-1,
a Texas joint venture
By: /s/ Six CD, Ltd.
------------------------------------------------
Six CD, Ltd., a Joint Venturer
By: /s/ CD-GP, Inc.
------------------------------------------------
CD-GP, Inc., its general partner
By: /s/ S. Xxx Xxxxxxxx
------------------------------------------------
S. Xxx Xxxxxxxx, President
By: /s/ VeriQuest Private Capital Limited
------------------------------------------------
VeriQuest Private Capital Limited,
a Joint Venturer
By: /s/ VeriQuest Companies, Inc.
------------------------------------------------
VeriQuest Companies, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------------
Xxxxx X. Xxxxxxx, President
Receipt of a fully executed copy of the Contract and a check, subject to
collection for the Xxxxxxx Money Deposit received this _________day of
_________________1998.
TITLE COMPANY: SAFECO LAND TITLE COMPANY
By:
Name:
Title:
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EXHIBIT "A"
Legal Description
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