CONTRACT OF PURCHASE AND SALE
THIS CONTRACT OF PURCHASE AND SALE (this "Contract") is by and between
MAHARISHI GLOBAL DEVELOPMENT FUND ("Seller") and REALTY AMERICA GROUP, L. P.
AND/OR ITS PERMITTED ASSIGNS ("Purchaser").
Terms used in this Contract that are defined later in this Contract
shall have the meaning contained in the later definition.
ARTICLE 1
SALE AND PURCHASE
SECTION 1.1 Subject to the terms and provisions hereof, Seller agrees
to sell to Purchaser, and Purchaser agrees to purchase from Seller, the
following:
(a) All of the real property owned by Seller, containing
approximately 233,673 square feet, commonly known as 0000 X. Xxxxxxx
Xxxxxxxxxx, Xxxxxx, Xxxxx, and more particularly described on EXHIBIT A
attached hereto and made a part hereof (the "Real Property"), together
with all right, title and interest of Seller in and to any and all
roads, easements, streets and ways bounding the Real Property, and
rights of ingress and egress thereto; provided, however, that to the
extent the Survey reflects a different description for the Real Property
than that which is reflected on EXHIBIT A attached hereto, the field
notes for the Survey (once approved as provided herein below) shall be
substituted for the legal description set forth on attached EXHIBIT A;
(b) All Improvements (herein so called) commonly known as
Hotel Santa Fe (the "Hotel") owned by Seller and situated upon the Real
Property, including, but not limited to, those certain buildings,
structures, fixtures, parking areas, sidewalks, signs, landscaping and
other improvements of every kind and nature presently situated on, in or
under or hereafter erected, or installed or used in, on or about the
Real Property; and
(c) All Personal Property (herein so called) owned by Seller
with respect to the Real Property or Improvements, including without
limitation, (i) all licenses, permits, certificates of occupancy and
other approvals issued by any governmental or quasi-governmental
authority pertaining to the use, operation or maintenance of the
Property which are in Seller's possession or control; (ii) all keys and
combinations to all doors, cabinets, safes, enclosures and other locking
items or areas on or about the Real Property or the Improvements which
are in Seller's possession or control; (iii) all plans, engineering,
environmental and other reports, surveys and specifications pertaining
to the Property which are in Seller's possession or control; and (iv)
all warranties and guaranties, if any, relating to the Real Property,
Improvements or Personal Property. As used in this paragraph, the term
"in Seller's possession or control," or similar language, is limited to
items in Seller's possession or control to the knowledge of Xxxxx
Xxxxxxxxx, the representative of Seller, without any special
investigation on his part. The items being sold in this paragraph 1.1(c)
exclude those items listed in EXHIBIT C hereto.
SECTION 1.2 The Real Property, the Improvements, and the Personal
Property are hereinafter sometimes collectively referred to as the "Property."
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ARTICLE 2
CONSIDERATION FOR CONVEYANCE
SECTION 2.1 The Purchase Price (herein so called) to be paid by
Purchaser to Seller for the Property shall be $17,000,000.00 payable in cash by
certified or wired funds at Closing (as hereafter defined).
ARTICLE 3
XXXXXXX MONEY
SECTION 3.1 Within five (5) business days after the mutual execution
of this Contract by Seller and Purchaser, Purchaser will deliver to the Title
Company its check in the amount of $50,000 (the "Initial Xxxxxxx Money"), which
Initial Xxxxxxx Money shall be increased to $250,000.00 (the "Additional Xxxxxxx
Money" and together with the Initial Xxxxxxx Money, the "Xxxxxxx Money") upon
the expiration of the Due Diligence Period, if this Contract has not been
terminated prior to the expiration of the Due Diligence Period pursuant to
Section 8.1 hereof. If Purchaser fails to deposit the Additional Xxxxxxx Money
after giving the notice provided in Section 8.1, then Seller may at any time
before Closing, terminate this Agreement and retain the initial Xxxxxxx Money.
The Title Company shall hold the Xxxxxxx Money in an interest-bearing account
reasonably satisfactory to Seller and Purchaser. All interest which accrues on
the Xxxxxxx Money shall constitute a portion of the Xxxxxxx Money and shall be
disbursed with the Xxxxxxx Money as provided elsewhere herein.
ARTICLE 4
SURVEY, TITLE COMMITMENT, TITLE DOCUMENTS AND TITLE POLICY
SECTION 4.1 Within ten (10) days after the Effective Date, Seller
shall, at its sole cost and expense, cause to be prepared and delivered to
Purchaser a current as-built survey of the Real Property and Improvements (the
"Survey"). The Survey shall be prepared by a Registered Professional Land
Surveyor licensed in the State of Texas and shall conform to the standards for a
Category 1A, Condition II Survey according to the current Manual of Practice for
Land Surveying in Texas of the Texas Society of Surveyors. The Survey shall form
the basis for the legal description of the Property.
SECTION 4.2 Within fifteen (15) days after the Effective Date,
Seller, at Seller's sole cost and expense, shall furnish to Purchaser a current
commitment with respect to the Real Property and Improvements (the "Title
Commitment") for the issuance of an Owner's Policy of Title Insurance to
Purchaser through Republic Title, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx
00000; Attention: Xxxxxxxx Xxxxxxx (the "Title Company"), together with legible
copies of all documents (the "Title Documents") constituting exceptions to
Seller's title as reflected in the Title Commitment, including legible copies of
the current plat, if any, filed in the map and plat records.
SECTION 4.3 Purchaser shall have a period of ten (10) days (the
"Title and Survey Review Period") from its receipt of the last of the Survey,
the Title Commitment and the Title Documents (collectively, "Title and Survey")
to review the Title and Survey and to object in writing to Seller as to any
matters therein to which Purchaser objects (the "Objections"). If Purchaser
fails to so object prior to the expiration of the Title and Survey Review
Period, Purchaser shall be deemed to have approved and accepted Title and
Survey, and all matters shall be deemed Permitted Exceptions (herein so called).
If Purchaser notifies Seller in writing of any Objections prior to the
expiration of the Title and Survey Review Period, Seller shall then have a
period of ten (10) days after its receipt of such notice to cure the
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Objections, or to notify Purchaser in writing of any Objections Seller cannot
cure (the "Cure Notice"). Any matters not included in Purchaser's Objections
shall be deemed Permitted Exceptions. Seller agrees to use its best efforts to
cure the Objections; provided, however, in no event shall Seller be obligated to
spend any money whatsoever to cure Objections, or institute litigation or other
proceedings to cure Objections, provided further, however, and notwithstanding
the foregoing, Seller will be required to satisfy any monetary liens at or
before Closing, by any means which Seller deems appropriate. Upon Purchaser's
receipt of the Cure Notice, Purchaser shall have until the expiration of the Due
Diligence Period (as hereinafter defined) to either (i) terminate this Contract,
and be entitled to the immediate return of the Initial Xxxxxxx Money which shall
be immediately delivered to Purchaser by Seller, with neither party hereto being
thereafter obligated to the other, except as to Purchaser's indemnification
liability pursuant to Section 8.1 hereof, or (ii) waive the Objections by
written notice to Seller and proceed to Closing with all uncured Objections
constituting Permitted Exceptions. If Purchaser fails to notify Seller of its
election prior to the expiration of the Due Diligence Period, Purchaser shall be
deemed to have terminated this Contract pursuant to (i) above. Notwithstanding
anything contained herein to the contrary (and except as permitted pursuant to
the terms and provisions of Article 10), Seller may not, at any time after the
Effective Date, place any new encumbrances and/or restrictions on the Property
without the prior written consent of Purchaser, except in the normal course of
the business of the hotel operated on the Property and for normal maintenance of
the Property (but only so long as any of the foregoing are cancelable effective
on or before the Closing Date). Permitted Exceptions shall include for all
purposes: (a) the standard exceptions on the current Texas standard printed form
of Owner Policy of Title Insurance and (b) taxes for the year of Closing and
subsequent years.
SECTION 4.4 At Closing, Seller shall furnish Purchaser, at Seller's
cost and expense (excluding any additional premium for the deletion or addition
of any provision, rider, or addendum desired by Purchaser), with an Owner's
Policy of Title Insurance (the "Title Policy") issued on the standard form in
use in the State of Texas, from a title insurance underwriter reasonably
acceptable to Purchaser, insuring good and indefeasible title to the Real
Property and Improvements in the Purchaser, subject only to the Permitted
Exceptions. If Purchaser desires removal or addition of any provision, rider, or
addendum, Purchaser shall pay the additional premiums.
ARTICLE 5
ADDITIONAL ITEMS TO BE FURNISHED
TO PURCHASER BY SELLER
SECTION 5.1 Within ten (10) days after the Effective Date, Seller
shall deliver to Purchaser complete and legible copies of all records, reports,
permits, documents and information reasonably requested by Purchaser, relating
to the Property, to the extent Xxxxx Xxxxxxxxx (the authorized representative of
Seller) is in possession or control of such items, including, without
limitation, the following:
(a) Copies of all engineering, soils and inspection reports
relating to the Real Property or Improvements;
(b) Copies of all environmental reports and other
environmental information relating to the Real Property or Improvements;
(c) Copies of any existing insurance certificates with
respect to the Real Property and Improvements; and
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(d) Copies of any leases, contracts or other agreements
relating to the Real Property or Improvements; provided, with respect to
any residential leases, Seller shall only be required to deliver to
Purchaser a Hotel guest list certified as being true and correct by
Xxxxx Xxxxxxxxx for the residential leases in form and substance
reasonably acceptable to Purchaser (and having attached thereto Seller's
customary residential lease form).
Notwithstanding the foregoing, Purchaser acknowledges and agrees that Xxxxx
Xxxxxxxxx has previously delivered to Purchaser those items described in EXHIBIT
B attached hereto.
ARTICLE 6
CONDEMNATION AND CASUALTY PRIOR TO CLOSING
SECTION 6 If prior to the Closing of this transaction, all or any
substantial part of the Premises is condemned, damaged, or destroyed, Purchaser
shall have the option of either receiving an assignment of the proceeds of any
condemnation award or insurance policies up to the amount of the Purchase Price
with any remainder to Seller and proceed to closing without any reduction in the
total consideration provided herein or declare this contract terminated by
delivering written notice of termination pursuant to this paragraph to Seller
within ten (10) days of the date Seller notifies Purchaser in writing of such
condemnation, damage, or destruction. If necessary, the Closing Date will be
extended to allow for such ten (10) day period. In the event of such
termination, Purchaser shall be entitled to a refund of the Xxxxxxx Money and
any Early Termination Fee. However, notwithstanding anything to the contrary
herein, if any damage or destruction is the result of activities of Purchaser,
Purchaser's agent, or Purchaser's consultants, then Purchaser shall be obligated
to perform this Agreement as if the damage or destruction had not occurred.
Further, if the Closing fails to take place for any reason, Purchaser will be
liable to Seller for any damages or destruction to the Premises resulting from
the activities of Purchaser, Purchaser's agents, or Purchaser's consultants.
"Substantial" as used in the first sentence of this paragraph shall mean new
condemnation, damage, or destruction that did not exist prior to the Effective
Date of this Agreement and which is in an amount of $100,000.00 or more.
Purchaser acknowledges that the Premises is currently in damaged condition, and
Purchaser accepts such condition and any new condemnation, damage, or
destruction that is not substantial as defined in this paragraph.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 7.1 As of the Effective Date hereof, Seller represents and
warrants to Purchaser, both as of the Effective Date and as of the Closing,
that:
(a) Except as otherwise permitted pursuant to the terms and
provisions of Section 10 hereof, there will at Closing be no leases or
rental agreements, either then in effect or scheduled to commence in the
future with regard to the Property, except those leases set forth on
attached EXHIBIT B (including any Hotel guest leases);
(b) Except as otherwise permitted pursuant to the terms and
provisions of Section 10, there will at Closing be no contracts or
agreements, such as maintenance, service, banquet or special events, or
management agreements, relating to the Property, except those set forth
on attached EXHIBIT B.
(c) Seller has received no written notice of any pending or
threatened condemnation or other eminent domain proceedings instituted
against the Property.
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(d) Seller has received no written notice of any threatened,
and there currently is no pending, litigation which involves or affects
the Real Property, the Improvements or the Personal Property, except
Cause No. CC-04-00433-A, in the case styled XXXX XXXXX VS. HEAVEN ON
EARTH INNS, INC., D/B/A HOTEL SANTA FE, pending in the Xxxxxx Xxxxx Xx.
0 xx Xxxxxx Xxxxxx, Xxxxx.
(e) Seller shall cause all bills and invoices pertaining to
services rendered by third parties with respect to the Real Property or
the Improvements to be paid, except those bills contested and listed on
EXHIBIT D hereto.
(f) Seller and the individuals executing this Contract have
the legal power, right, and authority to enter into this Contract and
the instruments referenced herein and to bind Seller to the terms and
conditions herein.
The foregoing representations and warranties are limited to the knowledge of
Xxxxx Xxxxxxxxx, the authorized representative of Seller, without any special
investigation on his part.
SECTION 7.2 PURCHASER ACKNOWLEDGES THAT FOR SELLER'S PURPOSES, THE
PROPERTY HAS NOT BEEN USED OR UNDER THE DIRECT CONTROL OF SELLER FOR A
CONSIDERABLE LENGTH OF TIME, AND THAT SELLER HAS LITTLE, IF ANY, KNOWLEDGE OF
THE PHYSICAL CONDITION OR ECONOMIC CHARACTERISTICS OF THE PROPERTY. SELLER
HEREBY DISCLOSES TO PURCHASER THAT THE PROPERTY IS IN DISREPAIR AND THAT
UTILITIES AND OTHER FACILITIES MAY BE LACKING OR INADEQUATE TO OPERATE ANY
BUSINESS AT THE PROPERTY. PURCHASER ACCEPTS THE PROPERTY "AS IS" IN ITS PRESENT
CONDITION AND WITH ALL DEFECTS AND, EXCEPT AS TO WARRANTIES OF TITLE AND OTHER
REPRESENTATIONS AND WARRANTIES AS SPECIFIED AND LIMITED HEREIN. SELLER MAKES NO
WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, OR ARISING BY OPERATION OF
LAW, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY, SUITABILITY FOR PURCHASER'S INTENDED BUSINESS PURPOSE, OR
FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT OF THE PROPERTY. SELLER SHALL NOT
BE REQUIRED TO MAKE ANY REPAIRS, IMPROVEMENTS, AND ALTERATIONS NEEDED TO PUT THE
PROPERTY IN A CONDITION SUITABLE FOR PURCHASER'S INTENDED BUSINESS PURPOSES.
SELLER SHALL HAVE NO OBLIGATION WHATSOEVER FOR ANY MAINTENANCE, REPAIR,
ALTERATION, OR IMPROVEMENT OF THE PROPERTY EXCEPT AS TO WARRANTIES OF TITLE AND
OTHER REPRESENTATIONS AND WARRANTIES AS SPECIFIED AND LIMITED HEREIN. SELLER
DISCLAIMS ANY WARRANTY, GUARANTY, OR REPRESENTATION, ORAL OR WRITTEN, PAST,
PRESENT, OR FUTURE, OF, AS TO, OR CONCERNING THE NATURE AND CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL, AND GEOLOGY, AND THE
SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, OR COMPLIANCE OF THE PROPERTY WITH
ANY APPLICABLE LAWS, ORDINANCES, RULES, OR REGULATIONS OF ANY GOVERNMENTAL
AUTHORITY. SELLER MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE
EXISTENCE OR NON-EXISTENCE OF OR NEED FOR REMOVAL OF ANY WASTE, HAZARD, OR
CONTAMINANT ON, IN, OR UNDER THE PROPERTY. PURCHASER AGREES THAT IT WILL INSPECT
THE PROPERTY AND MAKE DUE INQUIRIES REGARDING SAME, AND THAT, EXCEPT AS
OTHERWISE PROVIDED HEREIN, IT WILL RELY SOLELY ON ITS OWN INVESTIGATION OF THE
PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER OR
SELLER'S AGENTS.
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SECTION 7.3 The representations and warranties contained in Section
7.1 hereof shall be true and correct on the date of Closing, and the obligation
of Purchaser to close this transaction is expressly conditioned upon said
representations and warranties being true and correct on the Closing Date,
provided, however, that if Purchaser closes this transaction with actual
knowledge that any representation or warranty is inaccurate, then Purchaser will
have waived any claims as to that representation or warranty. Subject to Section
15.13 hereof, the representations and warranties contained in Section 7.1 hereof
shall survive Closing, and any claim by Purchaser for an alleged breach of any
warranty or representation by Seller must be brought within two years and one
day from said alleged breach. Purchaser must give Seller written notice of said
alleged breach of any warranty or representation within ninety-one (91) days of
the alleged breach. Said notice is a condition precedent to bringing any claim
for said alleged breach, and the failure to give such notice is a waiver of any
claim for such an alleged breach.
SECTION 7.4 The provisions of Section 7.2 will survive the Closing
and will be included in the Deed and other Closing documents in substantially
the form contained in this Contract.
ARTICLE 8
DUE DILIGENCE PERIOD
SECTION 8.1 Notwithstanding anything to the contrary contained
herein, and in consideration of $100.00 paid by Purchaser to Seller as
independent consideration for this Contract, Purchaser shall have ninety (90)
days after the Effective Date (the "Due Diligence Period") within which to (i)
conduct any and all engineering, environmental, and economic and feasibility
studies and inspections of the Property which Purchaser may, in its sole
discretion, deem necessary to determine whether or not the Property is suitable
for Purchaser's intended use thereof, and (ii) to review all items furnished to
Purchaser pursuant to Article 5 of this Contract. Seller hereby grants to
Purchaser and Purchaser's agents the right to enter upon and conduct such
inspections and studies beginning on the Effective Date until Closing or the
earlier termination of this Contract, and Seller shall exercise reasonable
efforts to, at no cost or expense to Seller, cooperate fully with Purchaser
regarding any investigation Purchaser may wish to make of the Property.
Purchaser agrees to exercise due care and reasonable prudence in performing such
investigations, and may not contact any employees of Seller other than Xxxxx
Xxxxxxxxx. If Purchaser does not notify Seller in writing on or before the
expiration of the Due Diligence Period that Purchaser desires to consummate the
transaction contemplated by this Contract, this Contract shall automatically
terminate without further action of either party, the Initial Xxxxxxx Money
shall be immediately returned to Purchaser by the Title Company, and the parties
hereto shall have no further obligations one to the other hereunder, except as
to Purchaser's indemnification liability pursuant to this Section 8.1, and as
otherwise provided herein. If Purchaser timely notifies Seller of its acceptance
of the Property, then the Xxxxxxx Money shall be non-refundable (and shall be
applied as provided in this Contract), subject only to a Purchaser termination
pursuant to Article 6 or a Seller Default. Purchaser hereby indemnifies, holds
harmless, and agrees to defend Seller from and against any loss, cost, or
expense resulting from any entry by Purchaser, or any agent of Purchaser, upon
the Property or action taken during the Due Diligence Period, or otherwise, or
any lien asserted by any third party as a result thereof. This provision shall
survive the termination of this Contract and Closing.
SECTION 8.2 PURCHASER ACKNOWLEDGES AND AGREES THAT, IN THE EVENT IT
PURCHASES THE PROPERTY, THAT, AS BETWEEN IT AND SELLER, IT BEARS THE TOTAL
RESPONSIBILITY AND COST OF ANY REMOVAL OF HAZARDOUS SUBSTANCES OR CONTAMINANTS
FROM THE PROPERTY AND OTHER ITEMS CONVEYED THEREWITH. WITHOUT LIMITING THE
FOREGOING, AFTER CLOSING, AS BETWEEN PURCHASER AND SELLER, THE RISK OF LIABILITY
OR EXPENSE FOR ENVIRONMENTAL PROBLEMS, EVEN IF ARISING FROM EVENTS BEFORE
CLOSING, WILL BE THE SOLE RESPONSIBILITY OF
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PURCHASER, REGARDLESS OF WHETHER THE ENVIRONMENTAL PROBLEMS WERE KNOWN OR
UNKNOWN AT CLOSING. ONCE CLOSING HAS OCCURRED, PURCHASER RELEASES SELLER FROM
LIABILITY FOR ANY DEFECTS AND FROM ANY LIABILITY FOR ENVIRONMENTAL PROBLEMS
AFFECTING THE PROPERTY, INCLUDING BUT NOT LIMITED TO LIABILITY UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERLA),
THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE TEXAS SOLID WASTE
DISPOSAL ACT, OR THE TEXAS WATER CODE. PURCHASER RELEASES SELLER FROM ANY
LIABILITY FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY ARISING AS THE
RESULT OF THEORIES OF PRODUCTS LIABILITY AND STRICT LIABILITY, OR UNDER NEW LAWS
OR CHANGES TO EXISTING LAWS ENACTED AFTER THE EFFECTIVE DATE THAT WOULD
OTHERWISE IMPOSE ON SELLER IN THIS TYPE OF TRANSACTION NEW LIABILITIES FOR
ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY.
ARTICLE 9
CERTAIN PURCHASER'S CONDITIONS PRECEDENT
SECTION 9.1 Purchaser's obligation to close the transaction herein
contemplated is conditioned upon the following:
(a) Except as disclosed to Purchaser by Seller pursuant to
Section 7.1(e), at Closing there being no unpaid bills or claims in
connection with the operation, maintenance or repair of the Property,
except bills or claims arising in connection with the day-to-day
operation and maintenance of the Property; and
(b) Prior to Closing Seller's continuing to operate and
maintain the Property in the same manner as Seller has been operating
and maintaining the Property prior to the Effective Date, except to the
extent changes to the operation and maintenance of the Property are
necessitated by the provision of this Agreement, including, but not
limited to, Section 10 hereof.
(c) With regard to Section 7.1(d) and (e), Seller having
taken whatever action may be necessary to prevent items disclosed in
those Sections from encumbering the property.
ARTICLE 10
CERTAIN AGREEMENTS REGARDING CONTRACTS AND LEASES
SECTION 10.1 Reference is made to the contracts, including the
banquet and special events contracts (collectively, the "Existing Contracts")
set forth on attached EXHIBIT B, and to the leases, including Hotel guest leases
(collectively, the "Existing Leases) set forth on attached EXHIBIT B. With
regard to the Existing Contracts and the Existing Leases, and any potential
contracts or leases entered into after the Effective Date, Seller and Purchaser
agree as follows:
(a) Except with regard to the Existing Contracts with
Reliant Energy and SBC, which are separately addressed in Sections
10.1(f) and (g) below, Seller may not at any time after the Effective
Date enter into any new contracts (the "New Contracts") without first
obtaining the prior written approval of Purchaser, except for New
Contracts entered into in the normal course of the business of operating
and/or maintaining the Property and Hotel (but then only so long as each
of said New Contracts is cancelable on 30 days' prior written notice,
except for New Contracts involving banquet or special events, which must
be cancelable on 60 days' prior written
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notice); provided, in the event Purchaser exercises its right to require
termination of the Existing Contracts and New Contracts prior to Closing
pursuant to Section 10.1(c) below (and Purchaser meets the requirements
of that Section), Seller may not thereafter enter into any New Contracts
whatsoever (including, without limitation, New Contracts regarding
banquet or special events).
(b) Except with regard to the Existing Lease with Voice
Stream, which is separately addressed in Section 10.1(e) below, Seller
may not at any time after the Effective Date enter into any new leases
(the "New Leases") without first obtaining the prior written consent of
Purchaser, except for New Leases involving Hotel guests (but then only
so long as each of said New Leases regarding Hotel guests are cancelable
on 30 days' prior written notice); provided, in the event Purchaser
exercises its rights to require termination of the Existing Leases and
New Leases prior to Closing pursuant to Section 10.1(c) below (and
Purchaser meets the requirements of that Section), Seller may not
thereafter enter into any New Leases whatsoever with Hotel guests.
(c) Upon (i) receipt of written notice from Purchaser, given
at least five (5) days before the expiration of the Due Diligence
Period, (ii) the deposit of the Additional Xxxxxxx Money, and (iii) the
payment of the Early Termination Fee, as provided below, Seller will
(except for the Existing Contracts with Reliant Energy and SBC,
separately addressed in Sections 10.1(f) and (g) below, and except for
the Existing Lease with Voice Stream, separately addressed in Section
10.1(e) below) send notices of termination (and copies of same to
Purchaser) with regard to all Existing Contracts (and New Contracts
permitted hereby) and Existing Leases (and New Leases permitted hereby);
Purchaser shall, subject to Section 10(d) hereof, deliver to Seller (to
be held by Seller, however, pursuant to the terms and conditions of this
Contract) a $200,000.00 early termination fee (the "Early Termination
Fee"), said Early Termination Fee to be non-refundable (but applicable
to the Purchase Price), subject to a Purchaser termination pursuant to
Article 6 or a Seller Default. Incident to such terminations, and
subject to Section 10(d) hereof, Seller shall be obligated to timely
take, at Seller's sole cost and expense (including termination fees and
legal fees), such reasonable actions as are necessary to insure that all
contract parties and/or tenants or lessees vacate the Property (and/or
terminate their respective Existing Contract, New Contract, Existing
Lease or New Lease, all as applicable) effective as of the applicable
termination dates. As set forth above, Seller is not required to take
any action pursuant to this Section 10(c) until such time as Purchaser
complies with (i), (ii), and (iii) above, but nothing in this Section
10(c) shall be interpreted as making the deposit of the Additional
Xxxxxxx Money optional with Purchaser.
(d) In the event Purchaser does not provide written notice
and the Early Termination Fee, both as provided in Section 10(c) hereof,
or fails after giving the notice in Section 8.1 hereof to deposit the
Additional Xxxxxxx Money, then Seller shall be relieved of any
obligations set forth in Section 10(c) hereof, and in that event,
Section 14.2 applies, and Purchaser agrees to take full responsibility
for any performance after Closing of any existing Contracts, New
Contracts, Existing Leases, or New Leases. However, provided that the
Purchaser has deposited the Additional Xxxxxxx Money in a timely manner
after having given the notice provided in Section 8.1 hereof, Purchaser
may, at any time at least five (5) days prior to Closing, give the
written notice and pay the Early Termination Fee, both as described in
Section 10(c) hereof, and in that event, Seller will send the notices
described in Section 10(c) hereof, and further, Seller will have the
responsibility at its sole cost, to take such reasonable actions as are
necessary to ensure the removal of any contract or lease obligation for
which Seller's notice triggers a termination date that is prior to
Closing. As to any contract or lease obligation to which Seller's notice
triggers a termination date that is after Closing, Purchaser shall be
responsible for, at its sole cost, taking such actions as it deems
necessary to remove such obligations, and Section 14.2 shall apply. The
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reference to contracts and leases in here specifically excludes the
existing contracts with Reliant Energy and SBC, and the existing lease
with VoiceStream.
(e) Purchaser has been informed that Seller has sent one (1)
or more notices terminating the Existing Leases with Voice Stream due to
a default by Voice Stream thereunder. Notwithstanding anything contained
herein to the contrary, Seller acknowledges and agrees that , in the
event Voice Stream does not, within thirty (30) days after the Effective
Date, acquiesce in writing as to such termination, Purchaser may attempt
to negotiate modifications (reasonably acceptable to Seller) to said
Existing Lease directly with representatives of Voice Stream; provided,
if Purchaser is unable to obtain such modifications prior to the
expiration of the Due Diligence Period, Seller understands that
Purchaser may, at its option, terminate this Contract on or before the
expiration of the Due Diligence Period and receive the immediate return
of the Initial Xxxxxxx Money Deposit; provided further, however, in the
event Purchaser does not timely terminate this Existing Lease due to
same, Purchaser shall at the Closing (assuming Voice Stream has not,
prior to the Closing, acquiesced in writing to the termination of its
Existing Lease) assume the Existing Lease with Voice Stream.
(f) With regard to the Existing Contract with Reliant
Energy, Seller acknowledges and agrees that Purchaser may attempt to
negotiate modifications (reasonably acceptable to Seller) to said
Existing Contract directly with representatives of Reliant Energy;
provided, if Purchaser is unable to obtain such modifications prior to
the expiration of the Due Diligence Period, Seller understands that
Purchaser may, at its option, terminate this Contract on or before the
expiration of the Due Diligence Period and receive the immediate return
of the Initial Xxxxxxx Money Deposit; provided further, however, in the
event Purchaser does not timely terminate this Existing Contract due to
same, Purchaser shall at the Closing assume the Existing Contract with
Reliant Energy.
(g) With regard to the Existing Contract with SBC, Seller
acknowledges and agrees that Purchaser may attempt to negotiate
modifications (reasonably acceptable to Seller) to said Existing
Contract directly with representatives of SBC; provided, if Purchaser is
unable to obtain such modifications prior to the expiration of the Due
Diligence Period, Seller understands that Purchaser may, at its option,
terminate this Contract on or before the expiration of the Due Diligence
Period and receive the immediate return of the Initial Xxxxxxx Money
Deposit; provided further, however, in the event Purchaser does not
timely terminate this Existing Contract due to same, Purchaser shall at
the Closing assume the Existing Contract with SBC.
ARTICLE 11
CLOSING
SECTION 11.1 The consummation of the purchase and sale of the
Property in accordance with this Contract ("Closing") hereunder shall be on the
date which is sixty (60) days after the expiration of the Due Diligence Period
(the "Closing Date"), and shall take place at the offices of the Title Company,
or on such other date, or at such other place, as the parties may agree in
writing.
SECTION 11.2 At Closing, as a condition to Purchaser's obligations
hereunder, Seller shall deliver or cause to be delivered to Purchaser each of
the following items:
(a) A special warranty deed in a form reasonably acceptable
to Purchaser, duly executed and acknowledged by Seller, and in form for
recording, conveying good, indefeasible
9
fee simple title in the Real Property and Improvements to Purchaser,
subject only to the Permitted Exceptions, and which shall contain the
provisions of Sections 7.2 and 8.2 of this Contract;
(b) A xxxx of sale in a form reasonably acceptable to
Purchaser, duly executed by Seller, and conveying to Purchaser the
Personal Property;
(c) As applicable, an assignment and assumption of lease, in
a form reasonably acceptable to Purchaser, duly executed by Seller (or
an affiliate thereof, as applicable) and Purchaser, and assigning to
Purchaser all of Seller's right, title and interest in the Existing
Lease with Voice Stream (and evidencing Purchaser's assumption of the
obligations of Seller or an affiliate thereof, as applicable) under said
lease, and containing customary indemnity language for matters occurring
before and after the Closing;
(d) Item (d) is intentionally deleted;
(e) As applicable, an assignment and assumption, in a form
reasonably acceptable to Purchaser, duly executed and acknowledged by
Seller (or an affiliate thereof, as applicable) and Purchaser, and
assigning to Purchaser all of Seller's right, title and interest in the
Existing Contracts with Reliant Energy and SBC (and evidencing
Purchaser's assumption of the obligations of Seller under said Existing
Contracts, and containing customary indemnity language for matters
occurring before and after the Closing);
(f) Executed originals, or copies if Seller does not have
originals, of the items of Personal Property described in Section
1.1(c)(i), (iii) and (iv) hereof;
(g) The Title Policy in the form specified in Section 4.4;
(h) All keys to all locks on the Property, and copies of all
operating records pertaining to the Property, unless such items are and
will remain physically located at the Property;
(i) Such evidence or documents as may be reasonably required
by the Purchaser or the Title Company evidencing the status and capacity
of Seller and the authority of the person or persons who are executing
the various documents on behalf of Seller in connection with the sale of
the Property;
(j) A certification in a form to be provided or approved by
Purchaser, signed by Seller under penalties of perjury, containing the
following: (i) Seller's U.S. Taxpayer Identification Number; (ii) the
address of Seller; and a statement that Seller is not a foreign person
within the meaning of Sections 1445 and 7701 of the IRC (i.e., Seller is
not a nonresident alien, foreign corporation, foreign partnership,
foreign trust or foreign estate [as those terms are defined in Internal
Revenue Code of 1986 and applicable regulations]);
(k) A signed settlement statement;
(l) Item (l) is intentionally deleted; and
(m) Such other documents as are reasonably required by the
Title Company to consummate the transaction contemplated hereby.
10
SECTION 11.3 At Closing, as a condition of Seller's obligations
hereunder, Purchaser shall deliver to Seller each of the following items:
(a) The Purchase Price in cash by bank certified or wired
funds (with the Xxxxxxx Money and Early Termination Fee, as applicable,
being applied to same);
(b) Each as applicable, counterpart of the documents
described in Sections 11.2(c) and (e) above;
(c) Such evidence or documents as may reasonably be required
by Seller or the Title Company evidencing the status and capacity of
Purchaser and the authority of the person or persons who are executing
the various documents on behalf of Purchaser in connection with the
acquisition of the Property;
(c) A signed settlement statement; and
(d) Such other documents as are reasonably required to
consummate the transaction contemplated hereby.
SECTION 11.4 Seller and Purchaser shall prorate, as of midnight on
the day before the Closing Date (the "Apportionment Date"), all rents, taxes,
utilities, permit fees, and all other proratable items. In the event that actual
taxes for the year of Closing are unknown at date of Closing, the proration
shall be based on the amount of taxes actually paid for the previous year
subject to reproration at such time as the actual amount is known. All escrow
fees will be split one-half (1/2) between the parties. The recordation fee for
the Deed will be paid by Seller. Purchaser shall pay all costs incurred by it in
inspecting, testing, and analyzing the Property, all costs of any financing
obtained by Purchaser, and all costs of any Mortgagee Title Policy. Each party
shall pay its own attorneys' fees incurred in connection with this transaction.
Payment for the Owners Title Policy will be as set out in Section 4.4 of this
Contract.
ARTICLE 12
REAL ESTATE COMMISSION
SECTION 12.1 Seller hereby agrees to pay to REALTY AMERICA GROUP,
L. P. ("Broker") a commission in an amount equal to one percent (1%) of the
Purchase Price, payable if, as, and when Closing occurs. Each party hereto
represents to the other that, except as set forth above with respect to the
Broker, it has not authorized any broker or finder to act on its behalf in
connection with the sale and purchase transaction contemplated hereby and that
it has not dealt with any broker or finder purporting to act for any other
party. Each party hereto agrees to indemnify and hold harmless the other party
from and against any and all liabilities, costs, damages and expenses of any
kind or character arising from any claims for brokerage or finder's fees,
commissions or other similar fees in connection with the transactions covered by
this Contract (other than the Broker for whom Seller is solely responsible)
insofar as such claims shall be based upon alleged arrangements or agreements
made by such party or on its behalf, which indemnity shall (notwithstanding
anything to the contrary contained or implied elsewhere in this Contract)
expressly survive the Closing.
11
ARTICLE 13
REMEDIES ON DEFAULT
SECTION 13.1 If Seller fails in the performance of any of its
material obligations hereunder, including a breach of its representations and
warranties contained herein ("Seller Default"), then Purchaser shall either (i)
terminate this Contract and accept the return of the Xxxxxxx Money and the Early
Termination Fee, as applicable, and, except as otherwise provided in this
Agreement, neither party shall thereafter have any further obligations
hereunder, or (ii) xxx for specific performance, as its sole and exclusive
remedies. Subject to Section 7.3 hereof, Purchaser hereby waives the right to
bring a suit for damages (including a suit for consequential damages or lost
profits), and waives all other remedies at law or in equity. Notwithstanding the
foregoing, it shall not be considered a Seller Default hereunder in the event a
contracting party or tenant or lessee under any Existing Contract, New Contract,
Existing Lease or New Lease does not receive a termination notice letter herein
required, so long as such notices were sent or delivered in a manner reasonably
acceptable to Seller (and assuming Purchaser has received copies of any such
termination notice). Additionally, and notwithstanding the foregoing, Purchaser
may not xxx Seller for specific performance if the Seller Default in question
was caused by circumstances beyond the reasonable control of Seller. In the
event Purchaser elects to xxx for specific performances, Purchaser must notify
Seller in writing of its intention to do so within ninety-one (91) days after
the occurrence of the Seller Default and commence a legal action with respect
therefore within two years and one day after the occurrence of such Seller
Default. Such notice shall be a condition precedent to any action for specific
performance, and a failure to timely give such notice shall be deemed to be a
waiver of the rights of Purchaser to claim specific performance.
SECTION 13.2 If Purchaser fails in the performance of any of its
material obligations hereunder ("Purchaser Default"), then the Xxxxxxx Money
shall be paid to Seller by the Title Company (and Seller shall be entitled to
retain the Early Termination Fee, as applicable) as liquidated damages for such
Purchaser Default as Seller's sole and exclusive remedy, except as otherwise set
forth in this Agreement, and neither party shall thereafter have any further
obligations hereunder (except as otherwise provided herein). The parties agree
that the amount of liquidated damages described in the preceding sentences, as
applicable, is a reasonable sum considering all of the circumstances existing as
of the date hereof, including the relationship of such sum to the amount of harm
to Seller that reasonably could be anticipated, Seller's anticipated use of the
proceeds of sale and the fact that actual damages would be impossible to
determine.
ARTICLE 14
INDEMNIFICATION
SECTION 14.1 Except as otherwise set forth in this Agreement, and
except to the extent caused by the negligence or willful misconduct of
Purchaser, Seller hereby agrees to indemnify, protect, defend, save and hold
harmless Purchaser, and Purchaser's employees, officers, directors, partners,
members and shareholders, from and against any and all debts, duties,
obligations, liabilities, suits, claims, demands, causes of action, damages,
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees, expenses and court costs) in any way relating to, connected with, or
arising out of the Property and/or the ownership, leasing, use, operation,
maintenance, or management thereof, and which arise or accrue out of facts and
circumstances occurring prior to the Closing Date. The provisions of this
Section 14.1 shall survive Closing and are not subject to the restrictions on
claims and remedies set out in Section 13.1 hereof, but are subject to Section
15.13 hereof.
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SECTION 14.2 Except as otherwise set forth in this Agreement, and
except to the extent caused by the negligence or willful misconduct of Seller,
Purchaser hereby agrees to indemnify, protect, defend, save and hold harmless
Seller, and Seller's employees, officers, directors, partners and shareholders,
from and against any and all debts, duties, obligations, liabilities, suits,
claims, demands, causes of action, damages, losses, costs and expenses
(including, without limitation, attorney's fees and expenses and court costs) in
any way relating to, connected with, or arising out of the Property or the
ownership, leasing, use, operation, maintenance, or management thereof, which
arise or accrue out of facts and circumstances occurring after the Closing Date.
The provisions of this Section 14.2 shall survive Closing and are not subject to
the restrictions on claims and remedies set out in Section 13.2 hereof, but are
subject to Section 15.13 hereof.
ARTICLE 15
MISCELLANEOUS
SECTION 15.1 All notices, demands, or other communications of any
type (herein collectively referred to as "Notices") given by Seller to Purchaser
or by Purchaser to Seller, whether required by this Contract or in any way
related to the transaction contracted for herein, shall be void and of no effect
unless given in accordance with the provisions of this Section 15.1. All Notices
shall be in writing and delivered to the person to whom the notice is directed,
either (a) by telephonic facsimile communication, (b) by United States Mail, as
a registered or certified item, return receipt requested or (c) nationally
recognized overnight or local courier service. Any of the Notices may be
delivered by the parties hereto or by their respective attorneys. Any notice
delivered by telephonic facsimile communication shall be deemed effective after
being transmitted to the applicable telephone facsimile numbers set forth below.
Notices delivered by overnight or local courier shall be effective upon receipt.
Notices delivered by registered or certified mail shall be assumed effective two
(2) days after being deposited in a post office or other depository under the
care or custody of the United States Postal Service, enclosed in a wrapper with
proper postage affixed, with return receipt requested, provided that upon proof
of the date of actual delivery, the notice shall be effective as of such actual
delivery, or on the date of refusal to accept delivery of the notice, and, if
addressed to Seller, as follows:
MAHARISHI GLOBAL DEVELOPMENT FUND
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile Number: (000) 000-0000
With a copy to: Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, P.C.
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile Number: (000) 000-0000
and addressed, if to Purchaser, as follows:
REALTY AMERICA GROUP, L. P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile Number: (000) 000-0000
13
Either party hereto may change the address for notice specified above by giving
the other party five (5) days advance written notice of such change of address.
SECTION 15.2 For purposes of determining the time for performance of
various obligations under this Contract, the "Effective Date" of this Contract
shall be the date the Title Company acknowledges hereon the receipt of three (3)
fully executed counterpart originals hereof, together with the Initial Xxxxxxx
Money.
SECTION 15.3 This Contract may be assigned by Purchaser provided
that Purchaser's assignee expressly assumes all of Purchaser's liabilities and
obligations under the Contract. However, Purchaser shall remain primarily liable
for performance of all its obligations hereunder, if such obligations are not
performed by Purchaser's assignee.
SECTION 15.4 This Contract shall be construed and interpreted in
accordance with the laws of the State of Texas and the obligations of the
parties hereto are and shall be performable in Dallas County, Texas.
SECTION 15.5 This Contract may not be modified or amended, except by
an agreement in writing signed by Seller and Purchaser. The parties may waive
any of the conditions contained herein or any of the obligations of the other
party hereunder, but any such waiver shall be effective only if in writing and
signed by the party waiving such conditions or obligations.
SECTION 15.6 Time is of the essence of this Contract.
SECTION 15.7 In the event it becomes necessary for either party
hereto to file a suit to enforce this Contract or any provisions contained
herein, the party prevailing in such action shall be entitled to recover, in
addition to all other remedies, reasonable attorneys' fees incurred in such
suit. In any action to enforce the provisions hereof, the parties hereby
expressly waive their right to jury trial.
SECTION 15.8 The descriptive headings of the several Sections and
Paragraphs contained in this Contract are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 15.9 This Contract, including Exhibits A, B, C, and D hereto,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith.
SECTION 15.10 Numerous counterparts of this Contract may have been
executed by the parties hereto. Each such executed counterpart shall have the
full force and effect of an original executed instrument.
SECTION 15.11 In the event that the last day of any period or
operative date computed under this Contract falls on a Saturday, Sunday or
nationally established holiday, the period or operative date shall be deemed
extended until the next business day following such date.
SECTION 15.12 Each party represents that it has full status,
standing, and authority to enter into this Contract and the transactions
contemplated hereby, and it is agreed that each party is relying on this
representation in entering into this Contract and the transactions contemplated
hereby. Seller warrants that it is not a foreign corporation as defined by the
United States Code regarding transfers and the reporting of transfers of U.S.
Currency from the U.S.
14
SECTION 15.13 In no event will either party to this Contract be
liable to the other party for loss of profits or consequential damages caused by
an alleged breach hereof or delay in performance hereof.
SECTION 15.14 Unless and until the Closing is consummated, each party
and its officers, directors, employees, agents and representatives will use good
faith efforts to hold in confidence all documents and information concerning the
Property and the transactions contemplated herein as may be furnished to it by
the other party hereunder or otherwise obtained in connection with the
transactions contemplated herein, except that (a) a party may disclose such
documents and information as may be required by applicable law; (b) a party may
disclose such documents and information to its respective parent, subsidiary or
affiliate entities if reasonably necessary for the consummation of this
transaction; and (c) a party may disclose such documents and information to its
lender, or to its accountants, attorneys, and other advisors, if, in the party's
reasonable judgment, such persons need to know such information, and then only
on the condition that the party informs them of the confidential nature of such
information, directs them to keep all such information in the strictest
confidence and to use such information only for the purpose intended. Purchaser
and Seller agree that the restrictions on disclosure set forth in this Section
15.14 shall not prohibit or restrict Seller's or Purchaser's giving notices or
making disclosures to others as may be necessary or appropriate to enable Seller
or Purchaser to comply with Seller's or Purchaser's rights and obligations under
this Contract. If the transactions contemplated by this Contract are not
consummated, each party shall use good faith efforts to maintain such
confidence, and all documents provided to either party by the other (and all
copies thereof) shall promptly be returned to the furnishing party. Neither
party shall make any press release or, except as specifically provided above,
other public announcement with respect to this Contract or the transactions
described herein, without the prior consent of the other party. Without limiting
the foregoing, and in order for Purchaser to retain good business relations,
Purchaser shall not contact or discuss this transaction with Seller's employees
(other than Xxxxx Xxxxxxxxx); or other persons working at the Property; or
vendors, suppliers, guests, occupants or tenants of the Property.
SECTION 15.15 All indemnities, representations and/or warranties of
Purchaser or Seller and all provisions of this Agreement that are stated to
survive Closing (but, in certain instances, as limited pursuant to the terms
hereof) shall survive Closing.
SECTION 15.16 If, during the Inspection Period, Seller receives a
bona fide third party contract to purchase the Property, which Seller wishes to
accept, and if such third party contract is (a) for an all cash purchase price
of at least $18,000,000, (b) contains a provision requiring the Purchaser to
deposit at least $100,000 of xxxxxxx money which is non-refundable from the date
of execution of the third party contract, except as to casualty, condemnation,
Seller default and/or approval of Title and Survey, and (c) contains a provision
pursuant to which the third party contract effects a closing date not to exceed
the number of days remaining until the Closing Date, then Seller shall provide
notice of same to Purchaser, together with evidence reasonably acceptable to
Purchaser that Seller has executed the third party contract and that the third
party contract contains the provisions set forth in (a), (b), and (c) above, and
within ten (10) days after its receipt of such notice and accompanying evidence,
Purchaser must deposit an amount equal to the non-refundable xxxxxxx money
deposited pursuant to the third party contract which is non-refundable subject
only to Section 6, Seller's default, and Purchaser's approval of Title & Survey.
Upon such deposit, Purchaser shall acknowledge to the Title Company that the
amount so deposited shall be immediately released by the Title Company to
Seller. Such acknowledgement will end any remaining Due Diligence Period, and
thereafter Purchaser is obligated to close this transaction within the time for
Closing set forth in the third party contract. Should Purchaser fail to make
such deposit and acknowledgement as set forth above, then this Contract between
the Seller and Purchaser shall terminate and all Xxxxxxx Money will be returned
to Purchaser; provided, should Purchaser fail to make such acknowledgement, but
the third party thereafter defaults under the third party contract or the third
party contract is thereafter modified in any way, then this Contract shall, at
Purchaser's sole option, be
15
reinstated and the timelines in this Contract correspondingly extended from the
reinstatement date through Closing.
SECTION 15.17 The exchange of versions of this Contract shall not
constitute offers until such time as signed and delivered by the party who
wishes to make the offer. In the event of such signing and delivery, such offer
shall remain in force for three business days, including the date of delivery,
and after such three days shall cease to be binding on the offeror.
EXECUTED on this the _____ day of June, 2004, by Seller.
SELLER:
MAHARISHI GLOBAL DEVELOPMENT FUND
By:
-------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Authorized Representative
EXECUTED on this the _____ day of June, 2004, by Purchaser.
PURCHASER:
REALTY AMERICA GROUP, L. P., a Texas
corporation
By:
-------------------------------------------
Name: Xxxx Xxxxxx
Title:
----------------------------------------
The Contract has been received by The Title Company this _____ day of
June, 2004, together with the Initial Xxxxxxx Money, which shall be the
Effective Date.
REPUBLIC TITLE
By:
------------------------------------------
Address: 0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
16
EXHIBIT A
LEGAL DESCRIPTION
BEING a tract of land situated in the XXXX X. XXXXX SURVEY, Abstract No. 1334
and being a portion of BLOCK 2939 to the City of Dallas and being a portion of
the some previously described as 5.388 acres by Substitute Trustee's Dead
recorded in Volume 90235, Page 2636 of the Deed Records of Dallas County, Texas
( DRDCT ) and being more particularly described as follows:
BEGINNING at a 1/2 inch iron rod set at the Intersection of the southerly
Right-of-Way line of MOCKINGBIRD LANE ( variable width Right-of-Way ) and the
westerly Right-of-Way line of the M.K.&T. RAILROAD ( 60' Right-of-Way );
THENCE departing the southerly Right-of-Way line of sold MOCKINGBIRD LANE and
along the westerly Right-of-Way line of said M.K.&T. XXXXXXXX Xxxxx 00'00'00"
Xxxx a distance of 1216.77 feet to a point for corner in the easterly
Right-of-Way line of U.S. HIGHWAY NO. 75 - NORTH CENTRAL EXPRESSWAY (variable
width Right-of-Way );
THENCE departing the westerly Right-of-Way line of said M.K.&T. RAILROAD and
along the easterly Right-of-Way line of said U.S. HIGHWAY NO. 75 - NORTH CENTRAL
EXPRESSWAY as follows:
North 13(0)08'58" East a distance of 336.00 feet to a point for corner;
North 23(0)54'11" East a distance of 15.53 feet to a point for corner;
North 29(0)13'01" East a distance of 588.43 feet to a point for corner;
North 63(0)45'59" East a distance of 32.01 feet to a point for corner
in the southerly Right-of-Way line of sold MOCKINGBIRD LANE;
THENCE departing the easterly Right-of-Way line of said U.S. HIGHWAY NO. 75 -
NORTH CENTRAL EXPRESSWAY and along the southerly Right-of-Way line of sold
MOCKINGBIRD LANE North 89(0)47'18" East a distance of 451.21 feet to the POINT
OF BEGINNING,
CONTAINING within these metes and bounds 5.364 acres or 233,673 square feet of
land more or less.
17
EXHIBIT B
LIST OF DELIVERED ITEMS
Purchaser acknowledges that the following items have been provided to it in
electronic form in a file entitled, Contracts v3.pdf, which contains images of
such items:
1. PERMITS
a. Boiler permits
b. Certificate of Occupancy
c. Swimming pool permit
d. Tax permit
2. SERVICE CONTRACTS
x. Xxxxx Elevator Service Contract
b. CWD trash removal
c. Dish Network satellite service
x. Xxxxxxx-Xxxxxxxx Company water treatment
e. Reliant Energy electric
f. Southwestern Xxxx phone service
3. LEASES
a. Gift Shop lease
b. Heaven on Earth Inns
c. Vending machine contract
d. VoiceStream cell phone antennas
i. Graphic representation of antennas
ii. Notice of Default
iii. Cancellation notice
e. Washer and dryer coin machines
4. HOTEL FORMS
a. Banquet rental agreement form
b. Room Rental Agreement
5. REFERENCES
a. Payroll
b. Insurance information
c. Banquet and Event Schedule
d. Hotel Guests list
6. OTHER
a. Elevator Inspection report from 5-28-03
i. Contract with Xxxxx Elevator for repairs
b. City of Dallas tax settlement
x. Xxxxx Fire lien release
18
EXHIBIT C
Inventory list that are owned by Seller and/or affiliates and employees which
will be removed by Seller at or before Closing:
1. Xxxx'x Room and Chancellor's Room on Mezzanine level of Hotel
a. Office chairs, desk, credenza and cabinets
b. Chairs, tables, shelves and supplies
c. All audio/video equipment
2. Storage closet next to Xxxx'x Room and Room 905
a. All miscellaneous supplied
b. Tools, equipment, shelves and containers
3. Fourth Floor
a. 401 - Chairs and TV
b. 402 - Kitchen supplies, equipment, shelves, counters and sink
c. 403 & 405 - Desk, night stands, dressers and foam
d. 406 - Storage supplies, shelves and cabinets
e. 408 & 410 - Foam and audio/video equipment
f. 4th Floor elevator lobby plants
4. Other items belonging to school
a. 7-8 room partitions being used for Banquets (in banquet storage room)
b. Power washer in maintenance office
c. Computer, printer and monitor in Vilma's office
d. Back-up hard drive in accounting computer
e. Two floor lamps, 2 line phone, end table and supplies in Mgr's Office
f. Washer/dryer set in Mgr. Apt. next to Room 332 (washer moved to
basement laundry) and, sofas, refrigerator and shelves in living room
area
5. Xxxxxxxxx
a. Furniture and office equipment in Rooms 1025, 1029, and 1031
b. Kitchen cabinets and kitchen items
c. Contents of storage rooms in elevator lobby of 10th floor
d. Contents of storage room across from phone room in basement
e. Epson color copier at front desk
f. Satellite dish and receivers on roof of tower
6. Other
a. Massage tables in crates in food storage room next to service elevator
on 1st floor
b. Hotel records and files in back offices
19
EXHIBIT D
UNITED ELEVATOR SERVICES:
$3,010.01 from June 2001 for services that were not rendered. Notice was
given that we did not intend to pay and as far as I know, they did not
respond.
XXXXXXX ENGINEERING COMPANY:
$473.05 from August 2002 for disputed services.
XXXX MECHANICAL:
$4,105.81 from March 2004 for services which resulted in damage to the
chiller unit they were here to service.
TXU:
$100,000 from June - September 2002 for disputed utility charges. They
have admitted billing irregularities as well as suspicious change of
meter 3 months before deregulation which disallowed the Hotel from
switching service providers and saving considerable money. It took 9
months to switch providers due to the meter during which time we paid
about 40% more in electric charges. We are hoping to settle in the next
couple of months.
CITY OF DALLAS:
Original outstanding xxxx was over $43,000 for occupancy taxes which we
have been paying off since August 2003. Our last payment will be made
the first week of July 2004.
20
