Exhibit 10.1
PURCHASE AND SALE AGREEMENT
AND
ESCROW INSTRUCTIONS
(Arbors on Forest Ridge)
This Purchase and Sale Agreement ("Agreement") and Escrow
Instructions ("Escrow Instructions") are made and entered into by and between
Western Rim Investors 1992-5, L.P., a California Limited Partnership, dba Arbors
on Forest Ridge ("Seller") and Cornerstone Realty Group, Inc., a Virginia
corporation ("Buyer").
BACKGROUND
A. Seller owns certain real property, with improvements thereon and
personal property used in connection therewith, located in Tarrant County, Texas
and commonly known as the Arbors on Forest Ridge Apartments (containing 210
apartment units) and more particularly defined as the "Property" below.
B. Seller's affiliate, Western Rim Investors 1991-4, L.P., a California
Limited Partnership, dba Wildwood Apartments ("Wildwood Seller") owns and
operates certain real property located in Tarrant County, Texas, with
improvements thereon and personal property used in connection therewith,
commonly known as the Wildwood Apartments (containing 120 apartment units)
("Wildwood Property").
C. Seller's affliate, Western Rim Investors 1993-2, L.P., a California
Limited Partnership, dba Toscana Apartments ("Toscana Seller") owns and operates
certain real property located in Xxxxxx County, Texas, with improvements thereon
and personal property used in connection therewith, known as the Toscana
Apartments (containing 192 apartment units) ("Toscana Property").
D. Buyer desires to purchase the Property together with all improvements
and all related rights and appurtenances, including without limitation, Seller's
interest in adjacent streets, alleys, rights-of-way, strips, gores and access
easements, and any improvements on the Property.
E. Seller desires to sell the Property to Buyer on the condition that
Buyer also purchase the Wildwood Property and the Toscana Property
simultaneously therewith as a "package" purchase and sale.
1. AGREEMENT.
This agreement of Purchase and Sale and Escrow Instructions dated
January 21, 1997, Escrow No. TC96-81550, is between Seller and Buyer with Safeco
Land Title of Tarrant, a Texas corporation, as escrow agent ("Escrow Agent").
This Agreement and Escrow Instructions shall constitute the agreement on the
part of the Seller to sell and on the part of the Buyer to purchase the Property
described and defined hereinbelow. In the event of any conflict or any
inconsistency between the terms and provisions of any other Escrow Instructions
and the terms and provisions of this Agreement, the terms and provisions of this
Agreement shall control.
2. PROPERTY.
The property which is the subject of this Agreement is defined to mean
the following: (i) the real property located in Tarrant County, Texas as more
particularly described by legal description on Exhibit A attached hereto and
made a part thereof, together with (ii) all improvements and fixtures located
thereon ("Improvements"), (iii) the personal property owned by Seller and used
in connection therewith as described on Exhibit B attached hereto ("Personal
Property"), (iv) all rights of Seller in and to any and all leases for space in
and to the Property ("Leases") by tenants ("Tenants") thereunder, (v) all
existing warranties, including manufacturer's warranties ("Warranties") relating
to the Improvements or Personal Property, but only to the extent assignable,
(vi) all right, title and interest of Seller, if any, in and to the use of the
name by which the Property is commonly known, "Arbors on Forest Ridge
Apartments," ("Tradename"), (vii) the existing phone numbers ("Phone Numbers")
used in connection with the operation of the Property, but only to the extent
assignable and (viii) all rights, privileges, easements and appurtenances
thereto, if any (collectively, the "Property").
3. OPENING OF ESCROW; CLOSING; PACKAGE SALE; INDEPENDENT CONSIDERATION.
a. For purposes of this Agreement, the Opening, of Escrow (the
"Opening of Escrow") shall be deemed to be the date set forth below on which the
Xxxxxxx Money Deposit (as hereinafter defined) and three (3) fully executed
copies of this Agreement and the Other Agreements (as hereinafter defined) are
delivered to and accepted by Escrow Agent. The consummation of the transaction
contemplated by this Agreement (the "Closing") shall occur at 10:00 a.m., Texas
time, on the date which is seven days after the expiration of the Feasibility
Termination Date (as hereinafter defined) (the "Closing Date"); provided,
however, if Buyer in good faith needs additional time to prepare for the Closing
of the transaction and the funding of the Purchase Price, then Buyer may extend
the Closing Date by up to seven (7) days by sending written notice of such
extension to Seller on or before the originally scheduled Closing Date; and
provided further that any such extension shall constitute an extension for the
same period of time of the Closing Date under the Other Agreements so that in
any case the closing of the sale and conveyance of the Property, the Wildwood
Property and the Toscana Property shall occur simultaneously. The Closing shall
occur at the off'ces of Escrow Agent or at such other place as Seller and Buyer
may agree in writing. Closing shall be deemed to have occurred when (i) all
Closing documents contemplated by this Agreement have been delivered to,
received by, and executed by the appropriate parties; (ii) all conditions to
such Closing contemplated by this Agreement have been satisfied or waived in
writing (including, without limitation the simultaneous closing of the sale and
purchase from Seller to Buyer of the Wildwood Property and the Toscana Property
as hereinafter discussed); (iii) the deed required pursuant to paragraph 8 has
been recorded; and (iv) the funds required to be paid under this Agreement have
been properly delivered to Escrow Agent and are available for distribution by
Escrow Agent.
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b. The parties acknowledge and agree that (i) the sale of the
Property is a part of a "package sale" of the Property, the Wildwood Property
and the Toscana Property, (ii) as of even date herewith, Buyer is entering into
separate Purchase and Sale Agreements ("Other Agreements") with Wildwood Seller
and Toscana Seller to purchase the Wildwood Property and Toscana Property,
respectively, (iii) Buyer shall have no right to close the purchase the Property
unless Buyer simultaneously closes the purchase of both the Wildwood Property
and Toscana Property in accordance with the terms of the Other Agreements, (iv)
Seller's obligations hereunder shall be conditioned on Buyer's performing all of
its obligations under the Other Agreements and, simultaneously with the Closing
hereunder, closing the purchase of the Wildwood Property and Toscana Property in
accordance with the terms of the Other Agreements, (v) any termination by Buyer
of either of the Other Agreements pursuant to an express right to terminate
thereunder shall be deemed to also constitute a termination of this Agreement by
Buyer pursuant to the corresponding provision hereof and (vi) any default by
Buyer under either of the Other Agreements shall be deemed to also constitute a
default by Buyer under this Agreement. The provisions of this subsection shall
control in the event of any conflicting provisions contained herein or in the
Other Agreements.
c. Contemporaneously with the execution of this Agreement, Buyer
shall deliver to Seller a check in the amount of Fifty and No/100 Dollars
($50.00) ("Independent Consideration"), which amount the parties bargained for
and agreed to as consideration for Seller's execution, delivery and performance
of this Agreement. This Independent Consideration is in addition to and
independent of any other consideration or payment provided for in this
Agreement, is nonrefundable, and shall be retained by Seller notwithstanding any
other provision of this Agreement.
4. INFORMATION SUPPLIED BY SELLER/PRE-CLOSING MATTERS.
As soon as reasonably possible after the Opening of Escrow, Seller shall
either deliver or make available to Buyer the following:
a. Current rent roll schedules ("Rent Rolls") certified as being
true and correct by Seller (as of the last day of the month immediately
preceding the month in which such schedule is furnished to Buyer) and showing
for each apartment unit within the Property (i) its vacancy or occupancy, (ii)
the monthly rental amount therefore; (iii) if the space is occupied, the
commencement and termination date of the Lease covering that space and the
name(s) of the Tenant(s) thereunder; and (iv) the amount of any rent or other
charges, if any, in arrears or prepaid thereunder.
b. Letter in form substantially the same as that attached hereto as
Exhibit C addressed to Buyer's accountants, X.X. Xxxxxx & Company, P.C.,
concerning certain financial certifications as provided therein, executed by
Seller.
c. A current Termite Inspection Report or Reports for the Property
indicating that there is no evidence of termites on the Property or, if there is
evidence that termites are present, that termites have been killed or treated.
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d. Sufficient books and records for the operation of the Property
for at least 12 months of operation so that Buyer can generate a report in
compliance with accounting regulation S-X of the Securities and Exchange
Commission.
5. REVIEW, APPROVAL AND FINANCING CONTINGENCIES.
Buyer and Seller acknowledge that, until the Feasibility Termination
Date (as hereinafter defined), Buyer's obligations hereunder shall be
conditioned on Buyer's satisfaction with all aspects of the Property and the
transaction hereunder and its review of the same, including but not limited to,
(i) Buyer's investigation of the economic feasibility of purchasing the
Property; (ii) Buyer's inspection of the Property, and its review of any
engineering reports, architectural reports, soils and environmental analyses,
research of relevant codes, ordinances, or regulations; (iii) Buyer's approval
of the forms of various documents to be executed at Closing; (iv) Buyer's
obtaining financing; (v) Buyer's review of the Title Commitment and Survey (as
hereinafter defined) and any other title matters which may affect the Property;
(vi) Buyer's review of the books and records kept in connection with the
operation of the Property; (vii) Buyer's review of the Leases; and (vi) Buyer's
review of any other matter which Buyer may deem to affect the desirability of
the Property. Accordingly, notwithstanding anything to the contrary contained in
this Agreement, at any time on or before 5:00 p.m. on the date which is
twenty-one (21) days after the Opening of Escrow (the "Feasibility Termination
Date"), Buyer shall have the right, at its sole discretion, to terminate this
Agreement for any reason whatsoever by delivering written notice of termination
to Escrow Agent and Seller on or before the Feasibility Termination Date. Upon
such termination, this Agreement and Escrow Instructions shall be immediately
canceled, Escrow Agent shall return to Buyer the Xxxxxxx Money Deposit and (if
theretofore deposited) the Additional Xxxxxxx Money Deposit and interest accrued
thereon, Buyer shall deliver to Seller copies of any nonproprietary studies,
reports or tests pertaining to the Property, and Buyer and Seller shall have no
further obligation or liability to the other in connection with the purchase and
sale of the Property, except such specific indemnification provision as are
provided for in this Agreement. Failure by Buyer to terminate this Agreement on
or before the Feasibility Termination Date shall be deemed to be a waiver of its
right to terminate under this paragraph, whereupon the Xxxxxxx Money Deposit (as
defined in paragraph 6), subject to Seller's performance hereunder and except as
otherwise specifically provided herein, shall be deemed to be nonrefundable.
6. PURCHASE PRICE.
a. The parties acknowledge that the sale of the Property is part of
a "package sale" of the Property, the Wildwood Property and the Toscana Property
as discussed above. The aggregate purchase price ("Purchase Price") for the
Property, Wildwood Property and Toscana Property shall be seventeen million four
hundred twenty-five thousand dollars ($17,425,000). Payment of the Purchase
Price and the Xxxxxxx Money Deposit and Additional Xxxxxxx Money Deposit as
provided below shall constitute payment for all three properties without
allocation among such properties.
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i. Upon Opening of escrow, Buyer shall deposit with Escrow
Agent one-hundred fifty thousand dollars ($150,000) (the "Xxxxxxx Money
Deposit"). The Xxxxxxx Money Deposit is to be disbursed to Seller or Buyer in
accordance with the terms hereof prior to Closing.
ii. Upon the Feasibility Termination Date (if Buyer does not
terminate this Agreement pursuant to paragraph 5 above) and as a condition to
Buyer's continued rights hereunder and under the Other Agreements, Buyer shall
deposit with Escrow Agent an additional sum of one-hundred fifty thousand
dollars ($150,000) (the "Additional Xxxxxxx Money Deposit"). The Additional
Xxxxxxx Money Deposit is to be disbursed to Seller or Buyer in accordance with
the terms hereof prior to Closing.
iii. Upon the Feasibility Termination Date and in the event
Buyer has not terminated this Agreement and the Other Agreements, the entire
Xxxxxxx Money Deposit including the Additional Xxxxxxx Money Deposit shall be
deemed non-refundable.
iv. On or before the Closing Date, Buyer shall deposit with
Escrow Agent for the account of Seller, Wildwood Seller and Toscana Seller in
cash or funds immediately available in Ft. Worth, Texas, the balance of the
Purchase Price increased or reduced by such funds as are required to take into
account the prorations and other adjustments required by this Agreement and the
Other Agreements.
b. All funds deposited in escrow on account of the Purchase Price
or otherwise shall be deposited by Escrow Agent in an interest bearing account
in a federally insured commercial bank reasonably approved by Buyer. Any
interest earned on such funds shall be remitted to Buyer if Buyer is entitled to
the return of the funds pursuant to this Agreement; otherwise, the interest
shall be credited to the Purchase Price in the event Closing shall occur.
7. TITLE REVIEW; SURVEY.
a. Seller will deliver with this agreement a commitment for title
insurance with copies of all recorded Schedule B items set forth therein ("Title
Report") pertaining to the Property. Seller will deliver with this Agreement to
Buyer the existing surveys of the Property, if any (the "Surveys").
b. Buyer shall be entitled to object to any makers disclosed by the
Title Report or Surveys by delivering written notice of such objection to Seller
and Escrow Agent on or before the date which is ten (10) days after the Opening
of Escrow. Said notices of objection shall specify in reasonable detail any
maker to which Buyer objects. If Escrow Agent subsequently issues any amended
commitment for title insurance disclosing any additional Schedule B matters or
if Buyer subsequently receives an amended survey reflecting additional Schedule
B matters, Buyer shall be entitled to reasonably object to any matters not
previously disclosed in the initial Title Report or the initial Surveys by
delivering written notice of such objection to Seller and Escrow Agent on or
before ten (10) days after Escrow Agent has delivered to Buyer the amended title
commitment or ten (10) days after Buyer's receipt of the amended survey, said
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notice to specify in reasonable detail any maker to which Buyer objects. Buyer
shall be deemed to have approved the Title Report and Surveys and any amendments
if it fails to notify Seller and Escrow Agent in writing of its objections
within the respective periods provided herein.
c. After receipt of Buyer's objections, if any, Seller shall at its
option, either (i) terminate this Agreement by sending written notice to Buyer
and Escrow Agent (subject to Buyer's right to cancel said termination provided
for below) if it cannot or is unwilling to cure the objections or (ii) attempt
to eliminate the matters to which Buyer has objected within fifteen (15) days
after receipt of Buyer's objections. Notwithstanding the foregoing, Seller shall
not be required to satisfy any pecuniary encumbrances until Closing. If Seller
elects to terminate this Agreement as provided above by sending written notice
to Buyer, this Agreement and the Escrow shall automatically terminate on the
date ten (10) days after Buyer and Escrow Agent receive written notice of such
termination, unless Buyer elects to cancel such termination and waive its
objections to said makers by written notice to Seller and Escrow Agent delivered
within the ten (10) day period. Seller agrees to use reasonable efforts to give
notice to Buyer as to its election of the above options in favor of Seller;
provided, however, if, within fifteen (15) days after receipt by Seller of
Buyer's objections, Seller has not either (i) sent written notice terminating as
provided above or (ii) sent written notice agreeing to cure said objections or
caused the makers to which Buyer has objected to be eliminated, then in such
event Seller shall be deemed to have sent notice to Buyer terminating this
Agreement, with such deemed notice to be deemed to have been sent and received
upon the expiration of said fifteen (15) day period, and in such event this
Agreement and Escrow shall terminate unless Buyer waives its objections by
written notice delivered to Seller and Escrow Agent on or before two (2) days
after the expiration of said fifteen (15) day period. In the event of any
termination pursuant to this paragraph, the Xxxxxxx Money Deposit delivered to
Escrow Agent shall be promptly refunded or returned to Buyer, Buyer shall
deliver copies of any nonproprietary studies, reports or tests pertaining to the
Property, and Seller and Buyer shall have no further obligation or liability to
one another regarding the sale or purchase of the Property, except as to the
specific indemnification provisions otherwise provided for in this Agreement.
8. CLOSING DOCUMENTS AND CLOSING ITEMS.
a. At the Closing, Seller shall deliver to Escrow Agent the
following:
(i) a special warranty deed ("Deed") duly executed,
acknowledged and in a form acceptable for recording,
substantially in the form of Exhibit D attached hereto
and made a part hereof, subject to the Permitted
Exceptions (as hereinafter defined) and Seller shall
deliver the Property free and clear of all liens;
(ii) Assignment and Assumption of Leases ("Assigntnent and
Assumption of Leases"), in form and substance
substantially the same as that attached hereto as
Exhibit E, and by this reference made a part hereof,
fully executed and acknowledged by Seller, conveying to
Buyer the Leases.
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(iii) Xxxx of Sale and Assignment ("Xxxx of Sale and
Assignment"), in form and substance substantially the
same as that attached hereto as Exhibit F., and by this
reference made a part hereof, fully executed and
acknowledged by Seller, conveying to Buyer the Personal
Property, Warranties, and Trade Name affecting the
Property.
(iv) Affidavit ("Affidavit") that as of the Closing Date
there are no judgements against the Seller or Property
or other unrecorded matters affecting the Property in
such form as Escrow Agent may require to issue the Title
Policy discussed below.
(v) A Termination Agreement ("Termination Agreement")
executed by the existing property manager for the
Property and terminating, effective as of the Closing,
the existing management agreement for the Property.
(vi) The Non-Foreign Status Certification (as hereinafter
defined) executed by Seller.
b. Ad valorem and similar taxes and assessments relating to the
Property for the year in which the Closing occurs ("Taxes") shall be prorated
between Seller and Buyer as of the Closing Date, based on the latest rate
applied to the latest assessed valuation for the Property, with Seller to bear
the economic burden of all such Taxes for the period prior to and including the
Closing Date and with Buyer to bear the economic burden of all such Taxes for
all periods after the Closing Date. As soon as the actual amount of Taxes on the
Property for such year is final and known (and after any appeal with respect
thereto is final and the amount of such Taxes is final), Seller and Buyer
shall, to the extent the amount of actual Taxes differs from the amount
estimated at Closing and upon the request of either party, recalculate the
proration of such Taxes between Seller and Buyer in the same manner specified
above but based on such actual final amount of Taxes for such year. Upon such
recalculation, Buyer shall pay to Seller, or Seller shall pay to Buyer, as the
case may be, a sufficient amount of money so that when added to or subtracted
from the preliminary pro-rated amounts for each party determined at Closing,
Seller shall have paid for those Taxes applicable to the Property prior to and
including the Closing Date and Buyer shall have paid for those Taxes applicable
to the Property after the Closing Date. Subject to the pro-ration obligations
under this Section, Buyer shall assume and pay for all Taxes relating to the
Property for the year 1997 and subsequent years, and shall indemnify and hold
Seller harmless from and against the same. The provisions of this subparagraph
shall survive the Closing.
c. All prepaid rentals, if any, actually received by Seller for the
month in which the Closing occurs shall be prorated as of the Closing Date, with
Seller to obtain the economic benefit of all such rentals for all periods prior
to and including the Closing Date and with Buyer to obtain the economic benefit
of all such rentals for all periods after the Closing Date. To the extent
actually received by Seller prior to the Closing, Seller shall deliver to Buyer
at the Closing all advance payments or rentals, other than for the month in
which the Closing occurs. Claims for any delinquent rent and other sums which
are owing to Seller by Tenants of the
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Property for periods prior to the Closing Date ("Delinquent Rents") shall be
owned and retained by Seller and Seller shall be entitled to collect all of
same. Furthermore, Buyer agrees to pay Delinquent Rents (or Seller's pro rata
share thereof to the extent such Delinquent Rents are applicable to the month
during which the Closing occurred) to Seller if, and when, amounts are collected
from the delinquent Tenant that are required to be applied to Delinquent Rents
as provided in the immediately succeeding sentence. To the extent rentals are
collected by Buyer after Closing from Tenants owing Delinquent Rents, such
collections shall be applied in the following order of priority (i) such
collections shall first be applied to Delinquent Rents which were delinquent 30
days or less as of the Closing Date, (ii) any balance shall then be applied to
rents currently due at the time of the collection of such amounts and (iii) the
balance shall then be applied to Delinquent Rents which were delinquent for more
than 30 days as of the Closing Date. Buyer agrees to use reasonable efforts to
collect Delinquent Rents, but nothing contained herein shall operate to require
Buyer to institute a lawsuit to recover any such Delinquent Rents or to
terminate any Lease.
d. Seller shall deliver into escrow at Closing individual tenant
security deposits under the Leases held by Seller in trust, or provide Buyer
with a credit therefor. At Closing, Escrow Officer shall disburse the security
deposits to Buyer or provide a credit in favor of Buyer on the settlement
statement. At the Closing, Seller and Buyer shall execute and deliver Tenant
Notice Letters ("Tenant Notice Letters") to be sent to each Tenant under the
Leases (i) notifying such Tenants of the change in ownership with respect to the
Property, (ii) instructing such Tenants to perform all future obligations under
the Leases to Buyer and (iii) advising the Tenants of the transfer to Buyer of
applicable prepaid rent, security or cleaning deposits, and acknowledging
Buyer's future responsibility for the same, and otherwise in form complying with
Section 92.105 of the Texas Property Code. Promptly after Closing, Buyer shall
mail, by first class mail, the Tenant Notice Letters (or at Seller's option,
Seller may so deliver the same) to each Tenant under the Leases. Buyer shall
provide Seller with copies of all such Tenant Notice Letters and a certificate
of mailing within (10) calendar days following Closing.
e. Charges for utilities, if any, serving the Property shall be
determined as of the Closing Date, and Buyer shall be responsible for all
utility charges for the period after the Closing Date. The parties shall
mutually cooperate and execute and deliver such additional documents as may be
reasonably necessary or desirable to insure that all such utilities are switched
over into the name of Buyer as of the Closing Date, or as soon as possible
thereafter.
f. Prepaid cable television contract payments shall be prorated as
of the Closing Date and Buyer shall receive a credit against the Purchase Price
for its pro-rata share.
g. In general, any and all other items of current revenue and
expenses relating to the Property on the Closing Date shall be prorated as of
the Closing Date.
h. At Closing, Seller shall deliver vacated apartment units in the
Property in the following condition: (i) for units which have been vacated for
10 or more days as of the Closing Date, such units shall be delivered in "rent
ready" condition and (ii) for units which have been
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vacated for less than 10 days as of the Closing Date, such units shall be
delivered in the condition they were in upon move-out by the tenant therein.
i. At the Closing, Seller and Buyer shall execute and deliver
multiple counterparts of a Closing Memorandum and Indemnification Agreement
("Closing Memorandum") in form substantially the same as that attached hereto as
Exhibit G with respect to the prorations and other adjustments made at Closing.
j. Seller shall pay the premium for the Title Policy as provided
and subject to the limitations contained in paragraph 9 below. All other costs
incurred in the transfer of the Property from Seller to Buyer shall be paid in
accordance with the customs of real estate transactions presently in effect in
Tarrant County, Texas, as solely determined by Escrow Agent.
9. TITLE INSURANCE POLICY.
At the Closing, Seller shall furnish to Buyer a Texas Standard Owner
Policy of Title Insurance (on the form promulgated by the Texas State Board of
Insurance) issued by Chicago Title Insurance Company ("Title Policy"), in the
amount of the Purchase Price, insuring that title to the Property is held by
Buyer subject only to the printed exceptions normally contained in such policy,
the exceptions contained in the Title Report and any amendments to the Title
Report which are deemed to be approved pursuant to paragraph 7 above, and such
other matters as are provided for in this Agreement ("Permitted Exceptions"). If
Seller so requests, the Title Policy shall be issued as a single Title Policy
that covers all of the Property, the Wildwood Property and the Toscana Property,
and Buyer shall not have the right to a separate Title Policy for each such
properties. Buyer may elect to obtain from Escrow Agent a modification to the
Title Policy so that the standard printed exception for boundaries and other
survey type matters shall be limited to "shortages in area"; however, Buyer
shall be responsible for (i) obtaining at its sole cost and expense any
additional surveys needed to obtain such modification and (ii) paying any excess
premium required in order to obtain such modification or other additional
coverage.
10. RIGHT OF ENTRY.
Buyer and its engineers and agents shall have access to the Property at
reasonable times after Opening of Escrow for the purpose of conducting
geological, soil, drainage, engineering, building inspection and environmental
tests and other studies and surveys which Buyer, in its reasonable discretion,
deems necessary. Buyer shall immediately thereafter restore the Property to the
condition which existed prior to performing such tests and studies, and Buyer
shall indemnify, protect, hold harmless and defend Seller for, from and against
any loss, expense, including reasonable attorney's fees, claims, actions, suits
and liability resulting from activities by Buyer or its engineers or agents upon
the Property, and shall keep the Property free from Liens arising out of such
activities. Notwithstanding anything contained in this Agreement to the
contrary, this indemnity and obligation to restore and keep the Property free
from liens shall survive any termination of this Agreement.
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11. SALE PROPERTY CONDITION.
To best of Seller's knowledge, Seller represents and warrants to Buyer,
as of the date hereof and, except as otherwise set forth herein, as of the
Closing Date, as follows:
a. Seller is (i) a natural person or, if not a natural person, is
duly organized, validly existing and in good standing under the laws of the
state in which Seller was organized, whether as a corporation, partnership,
limited partnership, trust or other legal entity, (ii) has full power, authority
and legal right to carry on its business as now being conducted and to own the
property and assets it now owns, and (iii) is duly qualified or licensed to do
business and is in good standing in the jurisdiction where the property is
located unless Seller has been advised by legal counsel that such qualification
is not required by applicable state law;
b. Seller has full power, authority and legal right to execute,
deliver and perform this Agreement and all other documents and certificates
contemplated hereby, and the execution, delivery and performance thereof have
been duly authorized by Seller;
c. No other action is or was required to be taken by Seller to
permit the execution delivery and performance of its Agreement and all other
documents and certificates contemplated hereby, and the transactions
contemplated hereby and no consent or approval of any third party or
governmental authority is or was required or appropriate in connection with the
execution of this Agreement or to consummate the transactions contemplated
hereby;
d. This Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms;
e. Neither the execution or delivery of this Agreement nor the
consummation by Seller of the transactions contemplated hereby is or was in
violation of or in conflict with (i) any provision of any agreement (including,
without limitation, the organization documents under which Seller is organized),
instrument or other restriction of any kind to which Seller is a party, or by
which Seller or the Property is bound or (ii) in any material or adverse way,
statute, law, decree, regulation or order of any governmental authority, or
resulted or will result in a default under any agreement, or caused or will
cause the acceleration of any obligation or loan to which Seller is a party or
by which Seller or the Property is bound;
f. There are no actions, suits, proceedings, orders or
investigations pending or, to the best of Seller's actual knowledge, threatened
against or affecting Seller or the Property at law or in equity, or before or by
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, which might
materially adversely affect Sellers performance under this Agreement or the
consummation of the transactions contemplated hereby or the use or operation of
the Property; provided, however, Seller discloses that Seller and/or Wildwood
Seller and/or Toscana Seller has filed and is prosecuting a lawsuit against
certain former cable television service providers serving the Property and/or
the Wildwood Property and/or the Toscana Property, and Buyer agrees that
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Seller may continue to prosecute such lawsuit after the Closing and that Buyer
shall have no claim to any portion of any recovery in connection therewith; and
g. Seller is not in default under any agreement, deed of trust,
mortgage, security agreement published ordinance, resolution, or decree, bond,
note, indenture, order or judgment to which it is a party or by which the
Property or assets owned by it or used in the conduct of its business thereon is
affected.
h. To the best of Seller's actual knowledge, all leases, rent rolls
or income statements furnished by Seller are materially accurate.
i. There are no outstanding rent concessions of any kind with
respect to the Leases, and if any such concessions are found to exist Seller
shall reimburse Buyer therefor.
j. The mechanical components of the Property shall be in working
order at the time of Closing, normal wear and tear excepted (and taking into
consideration the age of such items).
k. Seller has no knowledge of any default under any of the Leases
except as specified in the Rent Roll or otherwise disclosed to Buyer in writing
prior to the Feasibility Termination Date.
l. Seller has not received any notice of any violation of any
ordinance, regulation, law or statute of any governmental agency pertaining to
the Property or any portion thereof.
m. At all times from the date hereof until Closing, Seller shall
materially maintain, operate and lease the Property in a manner and standard
consistent with Seller's historical operation of the Property.
These representations and warranties shall survive close of escrow for a
period of twelve (12) months. SELLER MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES WHATSOEVER.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER
ACKNOWLEDGES, REPRESENTS, WARRANTS AND AGREES THAT: (I) BUYER IS PURCHASING THE
PROPERTY, ANY IMPROVEMENTS NOW OR HEREAFTER MADE THERETO AT CLOSING IN "AS IS"
AND "WHERE IS" CONDITION, WITH ALL FAULTS WITHOUT ANY WARRANTY EXPRESSED OR
IMPLIED WHATSOEVER; (II) BUYER HAS MADE OR SHALL MAKE PRIOR TO CLOSING ITS OWN
EXAMINATION, INSPECTION AND INVESTIGATION OF THE PROPERTY, ALL IMPROVEMENTS, IF
ANY, LOCATED THEREON, THE SUBSURFACE OF THE PROPERTY AND ALL SOIL, ENGINEERING,
ENVIRONMENTAL OTHER CONDITIONS AND REQUIREMENTS FOR THE PROPERTY AND ANY
PERSONAL PROPERTY; (III) BUYER HAS OR SHALL INVESTIGATE ALL ZONING, BUILDING AND
GOVERNMENTAL REGULATORY MATTERS PERTAINING TO THE PROPERTY PRIOR TO CLOSING;
(IV) BUYER IS ENTERING INTO THIS AGREEMENT AND IS PURCHASING THE PROPERTY AND,
BASED UPON SUCH INSPECTIONS AND INVESTIGATIONS AND NOT IN RELIANCE ON ANY
STATEMENTS, REPRESENTATIONS, INDUCEMENTS OR AGREEMENTS OF SELLER AND/OR BROKER
IN CONNECTION WITH THE PROPERTY, ITS ZONING, ITS FITNESS OR MERCHANTABILITY FOR
ANY PARTICULAR USE OR PURPOSE, AVAILABILITY OF WATER
11
OR UTILITIES, SOIL OR ENVIRONMENTAL CONDITIONS, ENCROACHMENTS WHICH WOULD BE
DISCLOSED BY EITHER AN INSPECTION OF THE PROPERTY OR A SURVEY, FLOODING AND SUCH
OTHER MATTERS AS MIGHT BE DISCLOSED OR DETERMINED BY AN EXAMINATION OF THE
PROPERTY AND INDEPENDENT INQUIRY WITH RESPECT THERETO; (V) ANY ENGINEERING DATA,
ENVIRONMENTAL AUDIT, SOILS REPORTS, SURVEYS OR OTHER INFORMATION THAT SELLER OR
ANY OTHER PARTY MAY HAVE DELIVERED TO BUYER PERTAINING TO THE PROPERTY IS
FURNISHED WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER; AND (VI) SELLER
AND/OR BROKER SHALL HAVE NO RESPONSIBILITY, LIABILITY OR OBLIGATION RESPECTING
THE PROPERTY SUBSEQUENT TO CLOSING. BUYER SHALL MAKE ITS OWN INVESTIGATION
REGARDING THE PRESENCE OF ANY TOXIC WASTE OR HAZARDOUS MATERIALS ON THE
PROPERTY.
12. BROKERAGE.
a. Seller shall pay to Western Rim Property Services, Inc.
("Broker"), an affiliate of Seller, a real estate broker's commission for the
sale of the Property by Seller to Buyer equal to five percent (5%) of the
Purchase Price, in cash at Closing, provided that such commission shall be
payable only if, as and when Closing shall occur hereunder. If Closing does not
occur for any reason whatsoever, Broker shall not be entitled to any commission
whatsoever or any portion of the Xxxxxxx Money Deposit forfeited to Seller.
Buyer and Seller each represent to the other that it has not dealt with any real
estate broker or any other party entitled to a commission, broker's fee or other
compensation in connection with the sale of the Property by Seller to Buyer
except Broker. Buyer and Seller each agree to indemnity, protect, defend and
hold the other harmless for, from and against any expense, including without
limitation, attorneys' and accountants' fees, claims, actions, suits or demands
for payment of any commission, finder's fee or other sum initiated by any
broker, commission agent or other person which such party or its representatives
has engaged or retained or with which it has had discussions concerning the
transaction contemplated by this Agreement except Broker. Notwithstanding
anything in this Agreement to the contrary, the representation and indemnity set
forth in this paragraph shall survive any termination of this Agreement.
Furthermore, notwithstanding anything to the contrary in this Agreement, Western
Rim Property Services, Inc., represents Seller only and does not represent Buyer
in any manner whatsoever.
b. Buyer acknowledges that it has retained or may retain Pinnacle
Realty or an affiliate thereof ("Pinnacle") in connection with Buyer's due
diligence review of the transaction. Buyer represents and warrants that Pinnacle
is not acting in a broker capacity in this regard and in any case any and all
amounts owed to Pinnacle or claimed to be owed by Pinnacle shall be the sole
responsibility of Buyer, and Seller shall have no responsibility therefor.
13. CHANGES IN THE PROPERTY.
Prior to Closing, risk of loss with regard to the Property shall be
borne by Seller. If, prior to Closing, the Property or any portion thereof is
destroyed or damaged, or becomes subject to a taking by virtue of eminent
domain, to any extent whatsoever, Buyer may, in Buyer's sole discretion, either
(i) terminate this Agreement and receive back Buyer's Xxxxxxx Money Deposit and
Additional Xxxxxxx Money Deposit, and neither party hereto shall have any
further rights or obligations hereunder, or (ii) proceed with the Closing of the
transaction, in
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which event Seller shall assign to Buyer all insurance or condemnation proceeds
available as a result of such destruction or taking (including proceeds from
loss of rents coverage), and in which event Buyer shall also receive a credit
against the Purchase Price for any deductible amounts from such insurance
proceeds.
14. POSSESSION.
Possession of the Property shall be delivered to Buyer upon Closing,
subject to the matters set forth in the Deed.
15. NOTICES.
Unless otherwise required by law, all notices required to be given
hereunder shall be in writing and shall be conveyed by (i) personal delivery
(including by any messenger service, courier service, overnight delivery or
facsimile with confirmation of receipt) to the address listed below for such
party or (ii) the United States Postal Service by certified or registered mail,
postage prepaid, with return receipt requested, to the address listed below for
such party or (iii) telecopied by facsimile transmission to such party at the
telecopy number listed below, provided that such transmission is confirmed by
telephone on the date of such transmission. The addresses and telecopy numbers
for the parties are as follows:
if to Seller:
(Overnight) Western Rim Investment Advisors, Inc.
0000 Xxxxx Xxxxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
Facsimile: (000) 000-0000
Phone: (000) 000-0000
(U.S. Mail) P. O. Xxx 000
Xxxxxxxxxxx, XX 00000
with a copy of any Xxxxx, Xxxx and Xxxxxxx
notice to Seller to: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Phone: (000) 000-0000
if to Escrow Agent: Safeco Land Title of Tarrant
000 Xxxx Xxxxxx
Xxxxxxxxx, #00
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx, President
Facsimile: (000) 000-0000
Phone: (000) 000-0000
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if to Buyer: Cornerstone Realty Income Trust, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
Phone: (000) 000-0000
with copies of any Xxxxxxxxxx & Xxxxxxxxxx
notice to Buyer to: 000 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
Phone: (000) 000-0000
and to:
Xxxxx XxXxxxxx & Oaks Xxxxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Phone: (000) 000-0000
Notice given by personal delivery shall be deemed to have been given
upon delivery to the appropriate address against receipt therefor (or upon
refusal of acceptance), and notice given by U.S. mail shall be deemed to have
been given two days after deposit in the U.S. mail, and notice by facsimile
transmission shall be deemed to have been given on the date of such transmission
provided that such transmission is confirmed by telephone on the date of such
transmission. Each party may designate from time to time, another address in
place of the address hereinabove set forth by notifying the other parties in the
same manner as provided in this paragraph.
16. DEFAULT BY BUYER.
Except as provided below in this paragraph, if on or prior to Closing,
Buyer shall default in performing or fulfilling any of the covenants or
obligations to be performed by it under this Agreement or the Other Agreements,
including without limitation, Buyer's failure to complete the purchase of the
Property, Wildwood Property and Toscana Property, Seller shall, as its sole
remedy, obtain the Xxxxxxx Money Deposit (including all additions thereto) and
any other sums theretofore deposited in Escrow or paid to Seller to such time,
as liquidated damages to Seller for such breach by Buyer, Buyer and Seller
agreeing that the amount of damages for such breach by Buyer is difficult to
determine at this time and that the aforesaid sum is a reasonable estimation of
the amount of liquidated damages of such breach under the circumstances existing
at the time this Agreement is entered into. Upon giving notice by Seller to
Buyer and Escrow
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Agent of such default, if such default is not cured within five (5) business
days after such notice, Escrow Agent shall deliver to Seller the Xxxxxxx Money
Deposit (including all interest earned thereon); whereupon, this Agreement and
the Other Agreements shall be deemed terminated, and Buyer and Seller shall have
no further obligation or liability to the other regarding the purchase and sale
of the Property, except such specific indemnification provisions as are provided
for in this Agreement. Notwithstanding the foregoing, Seller may pursue all
rights and remedies available at law or in equity against Buyer in the event of
a Breach or default by Buyer under the specific indemnification provisions
provided for in this Agreement as an additional remedy and not in lieu of the
foregoing liquidated damages remedy.
17. DEFAULT BY SELLER.
In the event that Seller defaults under this Agreement, Buyer shall have
as its sole remedies the right (i) to require specific performance by Seller
hereunder or (ii) to terminate this Agreement and to be repaid the Xxxxxxx Money
Deposit and Additional Xxxxxxx Money Deposit, together with any interest which
may have been earned thereon, plus a reimbursement of all reasonable actual
out-of-pocket expenses incurred by Buyer in connection with its inspection of
the Property, including engineering fees, legal fees and accounting fees. Buyer
hereby specifically waives any and all other rights and remedies in equity or at
law, subject, however, to its rights to recoup its attorneys fees as provided in
paragraph 19 below. Buyer acknowledges that Seller's inability or unwillingness
to deliver title to the Property in a condition required by Buyer shall not be
deemed to be a default by Seller hereunder and Buyer's sole remedy in such event
shall be to terminate the Agreement and to be repaid the Xxxxxxx Money Deposit
together with any interest earned thereon.
18. REPRESENTATIONS AND WARRANTIES AT CLOSING.
All of Buyer's representations and warranties contained in this
Agreement shall be true and correct at Closing as though made at and as of
Closing. All of Seller's representations and warranties contained in this
Agreement shall be true and correct at Closing as though made at and as of
Closing.
19. ATTORNEYS' FEES.
If either party to this Agreement shall breach its representations or
warranties hereunder or shall fail to fulfill or perform any of its covenants or
obligations in this Agreement, that party shall pay all costs, including,
without limitation, reasonable attorneys' fees and expert witness fees that may
be incurred to enforce the terms, covenants, conditions and provisions of this
Agreement or that may be incurred as a result of the default under or breach of
this Agreement in the event legal action is commenced.
20. ENTIRE AGREEMENT; AMENDMENT.
All exhibits attached to this Agreement are incorporated into this
Agreement by reference and made a part hereof. This Agreement, including all
exhibits hereto, is the entire Agreement
15
between parties pertaining to all matters agreed upon or understood in
connection with the sale and purchase of the Property. There are no oral
promises, conditions, representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution hereof or in effect
between the parties. No change or addition may be made to this Agreement except
by a written agreement executed by the parties.
21. TIME OF ESSENCE.
Time is of the essence with respect to the performance of all terms,
covenants, conditions and provisions of this Agreement. No provision of the
Escrow Instructions shall extend the Closing Date by more than five (5) business
days or provide either party hereto with any grace period not provided in this
Agreement.
22. FURTHER ASSURANCES.
The parties hereto shall execute, acknowledge and deliver such other
instruments and documents as may be necessary or appropriate to carry out the
full intent and purpose of this Agreement.
23. APPLICABLE LAW.
This Agreement and the rights of the parties hereto shall be
interpreted, governed and construed in accordance with the laws of the State of
Texas.
24. SECTION HEADINGS.
The section headings in this Agreement are inserted only for convenience
and reference and the parties intend that they shall be disregarded in
interpreting the terms, covenants, conditions and provisions of this Agreement.
25. SEVERABILITY.
Wherever possible, each provision of this Agreement shall be interpreted
in such manner as to be valid under applicable law, but if any provision shall
be invalid or prohibited hereunder, such provision shall be ineffective to the
extent of such prohibition or invalidation but shall not invalidate the
remainder of such provision or the remaining provisions.
26. WAIVER.
Either of the parties shall have the right to excuse or waive
performance by the other party of any obligation under this Agreement by a
writing signed by the party so excusing or waiving. No delay in exercising any
right or remedy shall constitute a waiver thereof, and no waiver by Seller or
Buyer of the breach of any covenant of this Agreement shall be construed as a
waiver of any preceding or succeeding breach of the same or any other covenant
or condition of this Agreement.
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27. ASSIGNMENT; BINDING EFFECT.
Buyer may only assign this Agreement and all of its rights, privileges
and benefits hereunder, or designate a nominee to take title for Buyer, without
Seller's prior written consent so long as its to a wholly owned subsidiary or
affiliate of Buyer. Seller hereby acknowledges and consents that Buyer may
assign its rights hereunder to Apple Residential Income Trust, Inc., a Virginia
corporation ("Apple"); provided, however, Buyer hereby represents and warrants
to Seller that Apple shall be a wholly owned subsidiary or affiliate of Buyer.
Any assignee consented to hereunder shall be required to assume and agree in
writing to perform all Buyer's obligations hereunder, and Buyer shall provide
Seller with a copy of the assignment and assumption agreement between Buyer and
such assignee. Upon any assignment hereunder, Buyer hereunder shall not be
released from any of its obligations or liabilities under this Agreement, nor
shall the Xxxxxxx Money Deposit be released to Buyer upon any assumption. Seller
may not assign and transfer any right, title and interest hereunder. Except as
otherwise provided herein, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. Seller shall not unreasonably withhold
its consent to any assignment of this Agreement by Buyer to an entity which
Buyer owns at least a 50% interest.
28. CONSTRUCTION.
As used in this Agreement, the masculine, feminine or neuter gender and
the singular or plural numbers shall each be deemed to include the other
whenever the context so requires. This Agreement shall be construed as a whole
and in accordance with its fair meaning and without regard to any presumption or
other rule requiring construction against the party causing this Agreement or
any part of this Agreement to be drafted. The parties acknowledge that each
party has reviewed this Agreement and has had the opportunity to have it
reviewed by legal counsel. If any words or phrases in this Agreement are
stricken or otherwise eliminated whether or not other words or phrases have been
added, this Agreement shall be construed as if the words or phrases stricken or
otherwise eliminated were never included in this Agreement, and no implication
or inference will be drawn from the fact that the words or phrases were stricken
or otherwise eliminated.
29. DEFAULT INTEREST.
If any monies become payable by one party to the other person pursuant
to this Agreement and are not paid when due, then all sums unpaid shall bear
interest at the rate of twelve percent (12%) per annum, from the date when due
until paid; provided, however, the provisions of this paragraph shall not apply
with respect to the Additional Xxxxxxx Money Deposit.
30. NO PARTNERSHIP, THIRD PERSON.
It is not intended by this Agreement to, and nothing contained in this
Agreement shall, create any partnership, joint venture or other arrangement
between Seller and Buyer except as
17
specifically provided herein. No term or provision of this Agreement is intended
to benefit of any person, partnership, corporation or other entity not a party
hereto (including without limitation, any broker), and no such other person,
partnership, corporation or entity shall have any right or cause of action
hereunder.
31. TIME OF PERFORMANCE.
If the date for performance of any obligation hereunder or the last day
of any time period provided for herein shall fall on a Saturday, Sunday or legal
holiday, then said date for performance or time period shall expire on the first
day thereafter which is not a Saturday, Sunday or legal holiday. Except as may
otherwise be set forth herein, any performance provided for herein shall be
timely made and completed if made and completed no later than 5:00 P.M. (Texas
time) on the day for performance.
32. SURVIVAL.
Except as otherwise provided herein, all covenants, agreements,
representations and warranties set forth in this Agreement or in any certificate
or instrument executed or delivered pursuant to this Agreement shall survive the
Closing and shall not merge into any deed, assignment or other instrument
executed or delivered pursuant hereto.
33. RECORDING.
This Agreement shall not be filed or recorded in any public office in
the State of Texas.
34. CLOSING FUNDS.
The funds which will be required from Buyer and all other acts required
of Buyer in order to consummate the transaction contemplated by this Agreement
shall be deposited with Escrow Agent and performed no later than 10:00 A.M.
(Texas time) on the Closing Date. The Closing funds shall be available for
immediate distribution to Seller at Closing after payment of all liens including
mortgages, mechanic liens, etc. The net proceeds of sale that are to be
distributed to Seller at Closing shall be remitted by Escrow Agent in accordance
with Seller's instructions given at or prior to Closing.
35. IRS REAL ESTATE SALES REPORTING.
Buyer and Seller hereby appoint Escrow Agent as, and Escrow Agent agrees
to act as, "the person responsible for Closing" the transaction which is the
subject of this Agreement pursuant to Internal Revenue Code of 1986 Section
6045(e). Escrow Agent shall prepare and file the information return (IRS Form
1099-B) required by and otherwise comply with the terms of IRC SS6045(e). Escrow
Agent further agrees to indemnify and hold Buyer, Seller and there respective
attorneys harmless from and against all claims, costs, liabilities, penalties or
expenses resulting from Escrow Agent's failure to file the appropriate reports
and otherwise comply with the terms of the Internal Revenue Code pursuant to
this paragraph.
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36. NON-FOREIGN ENTITY.
Seller shall execute and deliver to Buyer at Closing an affidavit as
required by Internal Revenue Code Section 1445(b)(2) setting forth Seller's
taxpayer identification number, Seller's address and stating that it is not a
foreign person for purposes of that Section ("Non-Foreign Status
Certification").
37. COUNTERPART EXECUTION.
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed one and the
same Agreement.
38. ACCEPTANCE.
This offer to purchase the Property by the party first executing and the
terms set forth herein shall automatically terminate at 5:00 P.M. (Texas time),
on February 15, 1997, unless accepted by the other party by delivering to the
first executing party at its address referenced above a fully executed
counterpart of this Agreement no later than said date.
39. OTHER OFFERS.
Seller may accept and negotiate back-up offers and contracts should
Buyer default under this Agreement. No other offer or Contract would be in force
or effect if or until Buyer defaults.
40. CONFIDENTIALITY.
Buyer agrees to hold this Agreement and its contemplated acquisition
strictly confidential and only disclose the contemplated acquisition to its
attorneys, accountants, professional consultants and advisors, lenders and title
company. In no event, under any circumstances whatsoever, shall this sale prior
to closing be disclosed to any on-site employee of Western Rim Property
Services, Inc. or its vendors, suppliers, contractors, or any resident at any of
the Sellers properties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first set forth above.
BUYER:
Cornerstone Realty Group, Inc., a Virginia
corporation
By: /s/ X. X. Xxxxxxx
----------------
Name: X. X. Xxxxxxx
Title: S. VP
SELLER:
Western Rim Investors 1992-5, L.P., a California
Limited Partnership, dba Arbors on Forest Ridge
By: Western Rim Investment Advisors, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
------------------
Xxxxxx X. Xxxxx, President
ESCROW AGENT:
Escrow Agent hereby agrees to be bound by the provisions hereof
applicable to Escrow Agent and to perform its obligations as set forth herein
and hereby declares that Opening of Escrow has occurred this 7th day of February
1997.
Safeco Land Title of Tarrant
By: /s/Xxxxxxx Xxxxxx
-----------------
Name: Xxxxxxx Xxxxxx
Title: Commercial Operations Manager
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