CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
by and between
VISTA APX,
A TEXAS LIMITED PARTNERSHIP
("Seller"),
TRANSCONTINENTAL REALTY INVESTORS, INC.,
A NEVADA CORPORATION
("Purchaser")
and
COMMONWEALTH LAND TITLE INSURANCE CORPORATION
("Escrow Agent")
VISTA HILLS APARTMENTS
EL PASO, TEXAS
TABLE OF CONTENTS
ARTICLE I Sale of the Property Page
Section 1.1 Property 1
ARTICLE II Purchase Price
Section 2.1Purchase Price 2
ARTICLE III Xxxxxxx Money Deposit 2
Section 3.1 Amount and Timing 2
Section 3. Application and Interest 2
ARTICLE IV Title and Survey 3
Section 4.1 Title Commitment 3
Section 4.2 Survey 3
Section 4.3 Review of Title and Survey 3
Section 4.4 Objections to Status of Title and Survey 3
Section 4.5 Other Permitted Exceptions 4
Section 4.6 Monetary Encumbrances 4
ARTICLE V Inspection By Purchaser 4
Section 5.1 Inspection Period 4
Section 5.2 Approval of Inspections 6
Section 5.3 Matters to be Delivered by Seller 6
ARTICLE VI Representations and Warranties; Disclaimers and Waivers 7
Section 6.1 Representations and Warranties of Purchaser 7
Section 6.2 Representations and Warranties of Seller 7
Section 6.3 No additional representations or warranties of Seller 10
Section 6.4 No Reliance on Documents 11
Section 6.5 Effect and Survival of Disclaimers 11
ARTICLE VII Conditions Precedent to Purchaser's and Seller's Performance 11
Section 7.1 Conditions to Purchaser's Obligations 11
Section 7.2 Conditions to Seller's Obligations 12
ARTICLE VIII Closing 12
Section 8.1 Time and Place 12
Section 8.2 Items to be Delivered at the Closing 12
(a) Seller 12
(b) Purchaser 14
Section 8.4 Prorationslosing 15
Section 8.5 Possession and Closing 16
Section 8.6 Delinquent Rent 16
(a) Application of Delinquent Rent 16
(b) Collection of Delinquent Rent 17
ARTICLE IX Condemnation or Casualty 17
Section 9.1 Condemnation 17
Section 9.2 Casualty 18
ARTICLE X Defaults and Remedies 18
Section 10.1 Default by Purchaser 18
Section 10.2 Default by Seller 18
Section 10.3 Costs of Enforcement 19
ARTICLE XI Brokerage Commissions 19
Section 11.1 Brokerage Commission 19
ARTICLE XII Operation of the Property Prior to the Closing 19
Section 12.1 Operation of the Property Prior to the Closing 19
ARTICLE XIII Miscellaneous 21
Section 13.1 Notices 21
Section 13.2 Governing Law 22
Section 13.3 Entirety and Amendments 22
Section 13.4 Parties Bound 22
Section 13.5 Assignment 22
Section 13.6 Headings 22
Section 13.7 Survival 22
Section 13.8 Interpretation 22
Section 13.9 Exhibits 23
Section 13.10 Time of Essence 23
Section 13.11 Multiple Counterparts 23
Section 13.12 Risk of Loss 23
Section 13.13 Business Days 23
Section 13.14 No Recordation of Contract 23
ARTICLEcXIVn Escrow Termsal 25
Section 14.1 Acceptance of Escrow 25
Section 14.2 Holding Funds 25
Section 14.3 Disbursement of Xxxxxxx Money 25
Section 14.4 Limited Liability 25
Section 14.5 Indemnity 26
Section 14.6 Escrow Fee 26
INDEX OF DEFINED TERMS
Section
Additional Xxxxxxx Money Deposit 3.1
Assignment of Leases 8.2(a)(ii)
Xxxx of Sale 8.2(a)(iii)
Business Days 13.13
Closing 8.1
Closing Date 8.1
Contract Recitals
Current Funds 3.1
Delinquent Rent 8.6(a)
Deposits 1.1(c)
Xxxxxxx Money Deposit 3.1
Effective Date Recitals
Escrow Agent Recitals
Exhibits 13.9
Existing Phase I 5.3(i)
Hazardous Substances 6.2(g)
Improvements 1.1(a)
Inspection Period 5.1.1
Land 1.1(a)
Notice Letters 8.2(a)(vii)
Owner's Policy 4.5
Permitted Exceptions 4.3
Personalty 1.1(b)
Policy 4.1
Property 1.1
Property Manager 5.1.1
PurchasenPrice 8.4.42.1
Purchaser Recitals
Related Parties 13.15.2.A
Rent Roll 6.2(e)
Return the Xxxxxxx Money Deposit 4.4
Schedules 13.9
Seller Recitals
Service Contracts 1.1(d)
Significant Portion 9.1(b)
Submission Matters 5.3
Substantial Portion 9.2(b)
Survey 4.2
Tenant Leases 1.1(c)
Tenants 1.1(c)
Title Commitment 4.1
Title Company 4.1
CONTRACT TO PURCHASE AND SELL PROPERTY AND ESCROW AGREEMENT
This Contract to Purchase and Sell Property and Escrow Agreement
("Contract") is made and entered into as of the 8th day of September, 1998
("Effective Date"), by and between VISTA APX, a Texas limited partnership
("Seller"), TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
("Purchaser") and COMMONWEALTH LAND TITLE INSURANCE CORPORATION ("Escrow
Agent").
Purchaser desires to purchase and Seller desires to sell certain real
property pursuant to the terms of this Contract.
In consideration of the mutual covenants and agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
SALE OF THE PROPERTY
SECTION 1.1PROPERTY. Subject to the terms of this Contract, Seller agrees
to sell to Purchaser, and Purchaser agrees to purchase from Seller all of the
following described property (collectively, the "Property"):
(A) The land ("Land") located in El Paso, Texas more particularly
described on Exhibit A hereto commonly known as Vista Hills Apartments, together
with all improvements and fixtures located on the Land ("Improvements"), and all
rights, titles and interests of Seller appurtenant to the Land and Improvements,
including, without limitation, all appurtenant easements, adjacent roads,
highways and rights-of-way;
(B) All tangible personal property of any kind ("Personalty") owned by
Seller and attached to or located on the Land or Improvements, including but not
limited to the personal property listed on Schedule 1.1(b) hereto; provided,
however, the Personalty does not include computer software owned or leased by
Seller's property manager;
(C) The lessor's interest in all leases or other agreements demising space
in or providing for the use or occupancy of the Improvements or Land ("Tenant
Leases"), and all deposits, whether security or otherwise ("Deposits"), paid by
tenants ("Tenants") under the Tenant Leases, together with all collateral
therefor, all guarantees by third parties of the agreements and obligations
thereunder of Tenants and, except to the extent otherwise set forth in SECTION
8.6, all rentals, advance rentals, receivables, reimbursements and other items
payable by Tenants;
(D) All service contracts, warranties, and guaranties in effect at Closing
relating to the Land, the Improvements or the Personalty, to the extent the same
are assignable ("Service Contracts");
(E) All certificates, permits, licenses, franchises, authorizations and
approvals relating to the Property and/or the Personalty or the ownership, use,
access, occupancy or operation thereof, running to or in favor of Seller or the
Property and/or the Personalty, and which Purchaser hereafter elects to accept;
and
(F) All drawings, plans and specifications covering the Property and in
Seller's possession; all rights to the name "Vista Hills Apartments" with
respect to the Property, and all trademarks, trade names, service marks,
registrations, logos, good will and other rights associated therewith (including
the right to xxx for past and present infringements thereof); all other
intellectual property used in connection with the ownership and operation of the
Property; all telephone numbers; all tenant files; all operating and maintenance
files; and all books, records and other files which are used in connection with
the operation of the Property and the conduct of the business of Seller relating
to the Property;
ARTICLE II
PURCHASE PRICE
SECTION 2.1 PURCHASE PRICE. The total Purchase Price ("Purchase Price") to
be paid by Purchaser to Seller for the Property shall be Five Million One
Hundred Fifty Thousand Dollars ($5,150,000.00), subject to prorations and
adjustments set forth in ARTICLE VIII of this Contract. The Purchase Price
shall be payable at the Closing by delivery to Escrow Agent of Current Funds.
ARTICLE
XXXXXXX MONEY DEPOSIT
A. SECTION AMOUNT AND TIMING. Within two (2) business days after the Effective
Date, Purchaser shall deliver to Escrow Agent Eighty-Five Thousand Dollars
($85,000) ("Xxxxxxx Money Deposit") in cash, check or Current Funds, to be held
by Escrow Agent in escrow to be applied or disposed of by Escrow Agent as
provided in this Contract. If Purchaser fails to deposit the Xxxxxxx Money
Deposit with Escrow Agent as herein provided, then this Contract shall
automatically terminate and neither Seller nor Purchaser shall have any further
obligations hereunder except that the provisions of SECTIONS 5.1.5 and 11.1 of
this Contract shall survive the termination of this Contract. "Current Funds"
shall mean wire transfers, certified funds or a cashier's check in a form
acceptable to Escrow Agent which would permit Escrow Agent to immediately
disburse such funds.
A. SECTION APPLICATION AND INTEREST. If the purchase and sale contemplated
hereunder is consummated, then the Xxxxxxx Money Deposit shall be applied to the
Purchase Price at Closing. In all other events, the Xxxxxxx Money Deposit shall
be disposed of by Escrow Agent as provided in this Contract. The Xxxxxxx Money
Deposit shall be invested by Escrow Agent in a manner reasonably acceptable to
Purchaser and Seller. All interest earned on the Xxxxxxx Money Deposit is part
of the Xxxxxxx Money Deposit, to be applied or disposed of in the same manner
as the Xxxxxxx Money Deposit under this Contract.
I. ARTICLE
TITLE AND SURVEY
A. SECTION TITLE COMMITMENT. Within two (2) days following the Effective Date,
Seller shall deliver to Purchaser a copy of the existing title insurance policy
in Seller's possession, if any. Promptly after the Effective Date, Purchaser
shall obtain a current ALTA Commitment for Title Insurance ("Title Commitment")
from Escrow Agent ("Title Company"). The Title Commitment shall set forth the
state of title to the Property, including a list of conditions or exceptions to
title affecting the Property that would appear in an Owner's Policy of Title
Insurance ("Policy"), if one were issued. Seller shall pay all costs
associated with obtaining the Commitment and the Policy, except that Purchaser
shall be responsible for the cost of any special endorsements to the Policy.
A. SECTION SURVEY. Within ten (10) days following the Effective Date, Seller
shall deliver to Purchaser a copy of the most complete survey of the Land and
Improvements in Seller's possession, if any. Prior to the end of the Inspection
Period, Purchaser shall have the option to obtain an updated Survey (any such
updated or new survey hereinafter referred to as the "Survey"). Purchaser shall
pay all costs associated with updating and recertifying the existing Survey.
A. SECTION REVIEW OF TITLE AND SURVEY. Purchaser shall have until the end of
the Inspection Period to notify Seller in writing of any objections Purchaser
has to any matters affecting title to the Property, including any matters shown
or referred to in the Title Commitment or on the Survey. Any title encumbrances,
exceptions or other matters reflected in the Title Commitment or Survey to which
Purchaser does not object in writing within the aforementioned period shall be
deemed to be permitted exceptions to the status of Seller's title (such
encumbrances, exceptions or other matters, together with such other matters
permitted pursuant to other provisions of this Contract, shall be referred to
as the "Permitted Exceptions").
A. SECTION OBJECTIONS TO STATUS OF TITLE AND SURVEY. Subject to the terms
hereof, Seller shall be obligated to deliver marketable and insurable title to
Purchaser, subject only to the Permitted Exceptions. If Purchaser objects to any
matter affecting title to the Property within the time set forth in SECTION 4.3,
then Seller shall have fifteen (15) days to notify Purchaser whether or not
Seller will cure, prior to Closing, any such title objection. If Seller
notifies Purchaser that it elects not to cure any such objection, then Purchaser
may, at its option exercisable in writing within five (5) days following the
date of receipt by Purchaser of written notice from Seller stating that Seller
is unable or unwilling to cure such objections, either (a) accept such title as
Seller can deliver, in which case all exceptions to title which Seller has
stated it will not cure shall be deemed to be Permitted Exceptions, or (b)
terminate this Contract by notice in writing to Seller in which event Escrow
Agent shall Return the Xxxxxxx Money Deposit. If Purchaser fails to notify
Seller, within such five (5) day period, that Purchaser has elected to proceed
under either subpart (a) or (b) of the immediately preceding sentence, then
Purchaser shall be deemed to have elected to proceed under subpart (b), and this
Contract shall be terminated.
If Seller notifies Purchaser that it elects to cure any such objections but
after using its best efforts is unable to cure such objections by Closing or if
Seller fails to notify Purchaser of its intentions with respect to such
objections and fails to cure such objections by Closing, then Purchaser may, at
its option, either (x) accept such title as Seller can deliver in which case the
parties shall proceed with Closing and all exceptions to title which are not
removed shall be deemed to be Permitted Exceptions, or (y) terminate this
Contract by notice in writing to Seller at Closing, in which event Escrow Agent
Return the Xxxxxxx Money Deposit.
"Return the Xxxxxxx Money Deposit" means Escrow Agent shall return the
Xxxxxxx Money to Purchaser and neither party shall have any further rights,
duties or obligations hereunder except as otherwise provided in SECTIONS 5.1.5
and 11.1 hereof.
A. SECTION OTHER PERMITTED EXCEPTIONS. The Permitted Exceptions shall include
those matters which become Permitted Exceptions pursuant to SECTIONS 4.3 and 4.4
above and, in addition, the following: (a) the Tenant Leases; (b) taxes and
assessments for the year in which the Closing occurs and subsequent years; (c)
liens and encumbrances arising after the date hereof to which Purchaser consents
in writing; and (d) any liens or encumbrances of a definite or ascertainable
amount and caused by Seller, provided that Seller causes such liens or
encumbrances to be cured or discharged from the public record at closing, or to
be insured over by the Title Company, so that such liens or encumbrances do not
appear as an exception in the Policy.
A. SECTION MONETARY ENCUMBRANCES. Notwithstanding any contrary provision
contained in this Contract, if the Title Commitment discloses any mortgage, deed
of trust, judgement lien, mechanics lien, or other monetary encumbrance
liquidated in amount, then Seller shall cure or have insured over such
encumbrance shown on the Title Commitment by Closing.
I. ARTICLE
INSPECTION BY PURCHASER
A. SECTION INSPECTION PERIOD.
1. Purchaser shall have a period of time commencing on the Effective Date and
expiring at 5:00 p.m., El Paso, Texas time on the thirtieth (30th) day
thereafter (the "Inspection Period") within which to examine the Property.
During the Inspection Period and at all reasonable times prior to Closing,
Seller shall allow Purchaser and Purchaser's agents access to the Property
during normal business hours to (i) conduct soil and engineering, hazardous
waste (including asbestos and formaldehyde), marketing, feasibility, zoning and
other studies or tests and to otherwise determine the feasibility of the
Property for Purchaser's intended use and (ii) review and/or photocopy at the
office of Seller's property manager ("Property Manager") during normal business
hours, all currently effective Tenant Leases, lease amendments, improvement
agreements, and any other currently effective agreements relating to the use or
occupancy of the Property, which documents Property Manager will make available
to Purchaser for this purpose
Notwithstanding the foregoing, (a) the costs and expenses of Purchaser's
investigation shall be borne solely by Purchaser, (b) prior to the expiration of
the Inspection Period, Purchaser shall restore any damage to the Property caused
by Purchaser or its agents to the condition which existed prior to Purchaser's
entry thereon and investigation thereof, (c) Purchaser shall not unreasonably
interfere with, interrupt or disrupt the operation of Seller's business on the
Property, and such access by Purchaser and/or its agents shll be subject to the
rights of Tenants under Tenant Leases, (d) Purchaser shall not permit any
mechanic's or materialman's liens or any other liens to attach to the Property
by reason of the performance of any work or the purchase of any materials by
Purchaser or its agents in connection with any studies or tests conducted
pursuant to this SECTION 5.1, (e) Purchaser shall have the right to enter vacant
units and, with the consent of the respective tenants, leased units, provided
that Purchaser shall give notice to Seller forty-eight (48) hours prior to entry
onto the Property and shall permit Seller to have a representative present
during all investigations and inspections conducted with respect to the
Property, (f) Seller agrees Property Manager and its maintenance supervisor will
be available to answer questions which Purchaser may reasonably ask concerning
the Property, and (g) Purchaser shall take all reasonable actions and implement
all reasonable protections necessary to ensure that all actions taken in
connection with the investigations and inspections of the Property, and all
equipment, materials and substances generated, used or brought onto the Property
in the course of such investigations and inspections pose no material threat to
the safety of persons or the environment and cause no damage to the Property or
other property of Seller or other persons.
1. If following the effective date of the Title Commitment (a) any additional
title encumbrances (other than as caused by Purchaser) become effective against
the Property, Seller shall cause such matter to be cured or insured over so that
such matters do not appear as an exception in the Owner's Policy or (b) a survey
update reveals any new adverse matters, Seller shall cure such matter by
Closing. Seller shall cause any such encumbrance of a monetary nature to be
satisfied or discharged from the public record at Closing.
1. All information made available by Seller to Purchaser in accordance with
this Contract or obtained by Purchaser in the course of its investigations shall
be treated as confidential information by Purchaser (except to the extent
Purchaser is required by law or legal process to disclose such information, or
reasonably needs to disclose such information in order to give information to
its agents, officers, directors, lenders, or employees for the transaction
contemplated herein). Prior to Closing, Purchaser shall use reasonable efforts
to prevent its agents and employees from divulging such information to any third
parties except as reasonably necessary to third parties engaged by Purchaser for
the limited purpose of analyzing and investigating such information for the
purpose of consummating the transaction contemplated by this Contract, including
Purchaser's attorneys and representatives, prospective lenders, investors and
engineers.
1. Purchaser shall have the right to reject any Service Contracts (except the
laundry contract related to the Property, which is hereby deemed accepted by
Purchaser) during the Inspection Period. Any and all Service Contracts not
rejected by Purchaser before the end of the Inspection Period, shall be deemed
accepted by Purchaser. Any and all Service Contracts accepted or deemed accepted
by Purchaser shall be assumed by Purchaser at Closing. Provided, however, the
management agreement related to the Property shall be terminated at Closing.
1. Purchaser shall indemnify, defend and hold harmless Seller and its general
and limited partners and each of their affiliates and their respective
affiliates' officers, directors, employees, agents and representatives from and
against any claims, liabilities, causes of action, damages, liens, losses,
fines, fees and expenses (including, without limitation, attorneys' fees and
expenses) incident to, resulting from or in any way arising out of any
intentional, reckless or negligent infliction of injury or distress to persons
or damage to property caused by Purchaser or its agents on the Property. The
agreements contained in this SECTION 5.1.5 shall survive the Closing forever
(subject to any applicable statutes of limitation) and shall not be merged
therein and shall also survive any termination of this Contract.
A. SECTION APPROVAL OF INSPECTIONS. If Purchaser determines at any time prior
to the end of the Inspection Period that the Property is satisfactory to
Purchaser, then Purchaser may ratify this Contract by delivery of written notice
to Seller within the Inspection Period given in accordance with the provisions
of SECTION 13.1. If Purchaser fiasl to send notice of ratification,
this Contract shall terminate, in which event Escrow Agent shall return the
Xxxxxxx Money Deposit. If Purchaser timely delivers to Seller written notice of
ratification within the Inspection Period, the conditions of this SECTION 5.2
shall be deemed satisfied, and Purchaser may not thereafter terminate this
Contract pursuant to this SECTION 5.2.
A. SECTION MATTERS TO BE DELIVERED BY SELLER. No later than ten (10) days
from the Effective Date, Seller shall deliver to Purchaser the following items
(collectively, the "Submission Matters"):
a) A copy of the form used for Tenant Leases with respect to the Property;
a) An inventory of all Personalty current to within five (5) days prior to the
Effective Date;
a) Copies of any and all Service Contracts, all of which are identified on
SCHEDULE 5.3(C);
a) Copies of all warranties and guarantees in Seller's possession relating to
the Property, or any part thereof, or to the Personalty owned by Seller and
located on or used in connection with the Property;
a) Copies of all plans and specifications in Seller's possession with respect
to the Property and copies of all licenses and permits in Seller's possession or
control with respect to the ownership and operation of the Property, including
building permits and certificates of occupancy;
a) A certificate of hazard, liability and other insurance policies held by
Seller with respect to the Property;
a) Copies of the most recent real estate and personal property tax statements
in Seller's possession applicable to the Property (including, if applicable, any
rental tax and special assessment statements);
a) The Rent Roll to be attached hereto as SCHEDULE 6.2(E);
a) A copy of the Phase 1 site assessment in Seller's possession, if any
("Existing Phase 1"); and
a) The most current operating statements for the Property reflecting month and
year to date revenue and expenses and the year-end operating statement for 1997.
ARTICLE
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND WAIVERS
A. SECTION REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to Seller as of the date hereof as follows, provided, Purchaser
shall also certify to Seller at Closing that there has been no material change
in any of the following representations and warranties, and each of the
representations and warranties of Purchaser below shall survive the Closing for
only nine (9) months except as to any such representation or warranty as to
which Seller has within such nine (9) month period asserted with reasonable
basis a claim against Purchaser:
(a) Purchaser is a corporation, duly authorized and validly existing under
the laws of the State of Nevada;
(b) Purchaser has full right and authority to enter into this Contract and
to consummate the transactions contemplated herein;
(c) Each of the persons executing this Contract on behalf of Purchaser is
authorized to do so; and
(d) This Contract constitutes a valid and legally binding obligation of
Purchaser, enforceable in accordance with its terms.
A. SECTION REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as of the date hereof as follows, provided, Seller shall
also certify to Purchaser at Closing that there has been no material change in
any of the following representations and warranties, and each of the
representations and warranties of Seller below shall survive the Closing for
only nine (9) months except as to any such representation or warranty as to
which Purchaser has within such nine (9) month period asserted with reasonable
basis a claim against Seller:
a) Seller (i) is a duly organized and validly existing limited partnership
under the laws of the State of Texas; (ii) is duly bound by the actions and
execution hereof by the general partner of Seller who executed this Contract;
(iii) has the authority and power and has taken all actions and consents to
enter into this Contract and to consummate (including the execution of all
necessary documents and contracts) the transaction provided for herein; (iv) is
the owner of the landlord's interest in the Tenant Leases; and (v) to the extent
required to own, operate and sell the Property, is authorized to own and
transfer real estate under the laws of the State of Maryland and to otherwise
transact and conduct business in the State of Texas.
a) The execution and delivery by Seller of, and the performance and compliance
by Seller with the terms and provisions of this Contract do not violate any of
the terms, conditions or provisions of (i) any judgment, order, injunction,
decree, regulation or ruling of any court or other governmental authority to
which Seller is subject, or (ii) any agreement or contract listed on any
Schedule to this Contract or any other agreement or contract to which Seller is
a party or to which it or the Property is subject (except for the agreements
listed on any Schedule to this Contract, as the terms of such agreements speak
for themselves).
a) Seller is the sole owner of, and has title to, the Property free and clear
of all liens, encumbrances, claims and demands, other than the Permitted
Exceptions. Seller has not entered into any agreement to sell, mortgage, lease
(other than to residential tenants for personal occupancy) or otherwise encumber
or dispose of its interest in the Property or any part thereof, except for
Seller's existing loans, the Permitted Exceptions and this Contract.
A) (I) As of the date of this Contract, except for the matters set forth on
SCHEDULE 6.2(D)(I), Seller has not received any notice of (nor to its knowledge
are) any actions, suits, proceedings or claims pending or threatened against or
affecting Seller (in respect of the Property) or the Property at law or equity
or before or by any governmental authority. Provided, if Seller is unable to
restate this representation at Closing because such a matter has arisen
affecting Seller (but which is not a lien against the Property), then such
inability to restate shall not constitute a breach of this Contract or a failure
of an obligation hereunder.
(II) Seller has not received any notice of (nor to its knowledge are there) any
actions, suits, proceedings or claims which constitute a lien or encumbrance on
the Property, or would impair Seller's ability to perform its obligations
hereunder.
a) All of the information contained in the Rent Roll, including, without
limitation the tenants and occupants of the Property as of the date of the "Rent
Roll" to be attached hereto as SCHEDULE 6.2(E), the space leased, the Lease
expiration dates, the security deposits, arrearages, the rentals and the
concessions, if any, granted to the tenants is true and complete in all
material respects.
a) Seller is not aware of any existing landlord or tenant defaults under the
Tenant Leases.
a) To the actual knowledge of Seller, without independent investigation or
inquiry, and except for such matters as are disclosed in the Existing Phase I or
as may be disclosed by the environmental report to be performed by Purchaser or
its agents during the Inspection Period, (i) no Hazardous Substances exist on
the Property and no leak, spill, release or discharge of Hazardous Substances
has occurred on the Property, and (ii) neither the Property nor any land
adjacent to the Property is in violation or subject to any existing
investigation by any governmental authority under any applicable federal, state
or local law, regulation or ordinance pertaining to Hazardous Substances or
other environmental matters. "Hazardous Substances" means all chemical
substances, asbestos, oil, petroleum products, formaldehyde, PCB's, toxic,
carcinogenic, radioactive or hazardous waste or materials, existing in such
concentrations or amounts as would require removal or remediation under
applicable federal, state or local laws, regulations or ordinances, and also
shall include any underground storage tanks. Simultaneously herewith, Seller
and Purchaser shall complete and execute a "Disclosure of Information on Lead-
Based Paint and/or Lead-Based Paint Hazards", the form of which is attached
hereto as SCHEDULE 6.2(G).
a) There are no leases to Tenants, except as set forth on the Rent Roll.
a) At Closing there will be no claim against any portion of the Property or
Seller for or on account of work done, materials furnished or utilities supplied
to the Property. To the best of Seller's knowledge, there are no unpaid
assessments for public improvements against the Property. To the best of
Seller's knowledge, the Property is taxed by tax bills which cover the entire
Property and no additional real or personal property. To the best of Seller's
knowledge, there is no tax certiorari or other proceeding pending for the
reduction or increase of the assessed real estate tax valuation of the Property
or any portion thereof.
a) To the best of Seller's knowledge, no condemnation proceedings, eminent
domain proceedings or similar actions or proceedings are now pending or
threatened against the Property.
a) There are no Service Contracts or other agreements relating to the
ownership, operation or use of the Property, including any management, supply,
operating, leasing, commission, maintenance, security contract, equipment leases
(excluding the Leases and Operating Permits), except as set forth on SCHEDULE
5.3(C). Neither Seller nor the other party thereto is in default of its
obligations under such contracts.
a) Seller has not received any notice, nor is Seller aware, of the violation
of any operating permit or any applicable building, zoning or other ordinances,
resolutions, statutes or regulations of any government or governmental agency
with respect to the operation, use, maintenance, condition or operation of the
Property or any part thereof.
A. SECTION NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF SELLER. Except as
expressly specified in this Contract or the special warranty deed or other
documents to be delivered at closing, Seller has not made, and Seller hereby
specifically disclaims, any warranty, guaranty or representation, oral or
written, past, present or future, of, as to, or concerning, (a) 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; (b) the
existence, nature and extent of any right-of-way, lease, right to possession or
use, lien, encumbrance, license, reservation, condition or other matter
affecting title to the Property; and (c) whether the use or operation of the
Property complies with any and all laws, ordinances or regulations of any
government or other regulatory body. Except as expressly specified in this
Contract or the special warranty deed or other documents to be delivered at
Closing, PURCHASER AGREES TO ACCEPT THE PROPERTY, AND ACKNOWLEDGES THAT THE SALE
OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY SELLER, ON AN "AS IS, WHERE
IS, AND WITH ALL FAULTS" BASIS. EXCEPT AS EXPRESSLY SPECIFIED IN THIS CONTRACT
OR THE SPECIAL WARRANTY DEED OR OTHER DOCUMENTS TO BE DELIVERED AT CLOSING,
PURCHASER EXPRESSLY ACKNOWLEDGES THAT SELLER MAKES NO REPRESENTATION OR WARRANTY
OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF
LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES
OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE
SPECIAL WARRANTY DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY (EXCEPT AS SET FORTH IN SECTION 6.2(e))
OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE
PREMISES WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY
INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED BY
OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SPECIFIED IN ANY
WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER INCLUDING, WITHOUT
LIMITATION, THIS CONTRACT, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY
KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW
REGARDING OR WITH RESPECT TO ANY SUCH INFORMATION (INCLUDING, WITHOUT
LIMITATION, THE SUBMISSION MATTERS) PROVIDED OR TO BE PROVIDED BY SELLER
REGARDING THE PROPERTY.
Further, and without in any way limiting any other provision of this
Contract, except as expressly specified in this Contract, Seller has made and
makes no representation, warranty or guaranty, and hereby specifically disclaims
any warranty, guaranty or representation, oral or written, past, present or
future, with respect to the presence or disposal on or beneath the Property (or
any parcel in proximity thereto) of Hazardous Substances and shall have no
liability to Purchaser therefor (except for a breach of Seller's representations
or warranties set forth in SECTION 6.2(G). Without limitation of the preceding
sentence, except as expressly specified in this Contract, Seller specifically
disclaims any representation, warranty or guaranty regarding the accuracy of any
environmental reports which may be included within the Submission Matters. By
acceptance of this Contract and the special warranty deed to be delivered by
Seller at the Closing, Purchaser acknowledges that Purchaser's opportunity for
inspection and investigation of the Property (and other parcels in proximity
thereto) will be adequate to enable Purchaser to make Purchaser's own
determination with respect to the presence or disposal on or beneath the
the Property (and other parcels in proximity thereto) of Hazardous Substances.
A. SECTION NO RELIANCE ON DOCUMENTS. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including, without
limitation, the Submission Matters) delivered by Seller (except as set forth in
SECTION 6.2(E)), or its general partner or their respective affiliates or
representatives to Purchaser in connection with the transaction contemplated
hereby. Except as expressly stated herein, Purchaser acknowledges and agrees
that all materials, data and information (including, without limitation, the
Submission Matters) delivered by Seller, its general partner or their respective
affiliates or representatives, to Purchaser in connection with the transaction
contemplated hereby are provided to Purchaser as a convenience only and that any
reliance on or use of such materials, data or information by Purchaser shall be
at the sole risk of Purchaser.
A. SECTION EFFECT AND SURVIVAL OF DISCLAIMERS. Seller and Purchaser agree that
the provisions of SECTIONS 6.3 and 6.4 shall survive Closing and the termination
of this Contract forever.
ARTICLE
CONDITIONS PRECEDENT TO PURCHASER'S AND SELLER'S PERFORMANCE
A. SECTION CONDITIONS TO PURCHASER'S OBLIGATIONS. Purchaser's obligation under
this Agreement to purchase the Property is subject to the fulfillment of each of
the following conditions (any or all of which may be waived by Purchaser):
(A) Seller shall be ready, willing and able to deliver title to the
Property in accordance with the terms and conditions of this Contract;
(B) The representations and warranties of Seller contained herein shall be
true, accurate and correct as of the Closing Date;
(C) Seller shall have delivered all the documents and other items required
pursuant to SECTION 8.2(A), and shall have performed, in all material respects,
all other covenants, undertakings and obligations, and complied with all
conditions required by this Contract to be performed or complied with by Seller
at or prior to the Closing;
(D) TRUSTEE BOARD APPROVAL. Purchaser shall have received approval of its
Real Estate Board by the tenth (10th) day following the end of the Inspection
Period. If Purchaser has not received such approval, then Purchaser may
terminate this Contract by delivery of written notice to Seller prior to 5:00
p.m. local Dallas, Texas time on the eleventh (11th) day following the end of
the Inspection Period given in accordance with the provisions of SECTION 13.1,
in which event Escrow Agent shall Return the Xxxxxxx Money Deposit. If
Purchaser does not timely deliver to Seller written notice of termination within
said time period, the conditions of this SECTION 7.1(D) shall be deemed
satisfied, and Purchaser may not thereafter terminate this Contract pursuant to
this SECTION 7.1(D).
If any of the conditions set forth in (a) through (c) above are not
satisfied by Closing, then Purchaser may proceed pursuant to SECTION 10.2 of
this Contract or terminate this Contract and Escrow Agent shall Return the
Xxxxxxx Money Deposit.
A. SECTION CONDITIONS TO SELLER'S OBLIGATIONS. Seller's obligation under this
Contract to sell the Property to Purchaser is subject to the fulfillment of each
of the following conditions (all or any of which may be waived by Seller):
a) the representations and warranties of Purchaser contained herein shall be
true, accurate and correct as of the Closing Date;
a) Purchaser shall have delivered the funds required hereunder and all the
documents to be executed by Purchaser set forth in SECTION 8.2(B), and shall
have performed, in all material respects, all other covenants, undertakings and
obligations, and complied with all conditions required by this Contract to be
performed or complied with by Purchaser at or prior to the Closing; and
(C) Purchaser shall have delivered all the documents and other items
required pursuant to SECTION 8.2(B), and shall have performed, in all material
respects, all other covenants, undertakings and obligations, and complied with
all conditions required by this Contract to be performed or complied with by
Purchaser at or prior to the Closing.
If any of the above conditions set forth in this SECTION 7.2 are not
satisfied by Closing, then Seller may terminate this Contract and proceed
pursuant to SECTION 10.1 of this Contract.
ARTICLE
CLOSING
A. SECTION TIME AND PLACE. The consummation of the purchase and sale of the
Property ("Closing") shall take place through a deed and money escrow at the
offices of Title Company at 10:00 a.m on the date ("Closing Date") that is sixty
(60) days following the end of the Inspection Period, provided, if such day is
not a business day, Closing shall occur on the next business day thereafter.
Notwithstanding the above, Purchaser may extend the Closing Date for up to
thirty (30) days by depositing an additional Fifty Thousand Dollars ($50,000)
with Escrow Agent, which deposit shall be added to and become a part of the
Xxxxxxx Money Deposit. Further notwithstanding the above, each party shall
reasonably cooperate with the other party in accomplishing the Closing by mail
using appropriate escrows, if either party so requests.
A. SECTION ITEMS TO BE DELIVERED AT THE CLOSING.
a) SELLER. At the Closing, Seller shall deliver, or cause to be delivered, to
Purchaser each of the following items:
(1) A Special Warranty Deed duly executed and acknowledged by Seller in the
form attached hereto as Exhibit B.
(1) An Assignment and Assumption of Leases ("Assignment of Leases") duly
executed and acknowledged by Seller in the form attached hereto as Exhibit C.
(1) A Blanket Conveyance, Xxxx of Sale and Assignment ("Xxxx of Sale") duly
executed by Seller in the form attached hereto as Exhibit D.
(1) An Owner's Affidavit, executed by Seller, in a form acceptable to Title
Company to allow Title Company to the Title Policy without exception for
mechanics liens or tenants in possession (except for the Tenants under the
Tenant Leases).
(1) All keys and master keys to all locks located on the Property that are in
Seller's possession.
(1) All original Tenant Leases that are in Seller's possession.
(1) An executed form letter to the Tenants regarding the sale of the Property
("Notice Letters") in the form attached hereto as Exhibit F.
(1) All original Service Contracts relating to the Property that are in
Seller's possession.
(1) A Non-Foreign Affidavit in the form attached hereto as Exhibit E.
(1) Such resolutions and certificates of Seller or its partners reasonably
required by the Title Company as to the authority of the persons signing on
behalf of Seller to consummate this Contract.
(1) A rent roll prepared with respect to the Property in the form attached
hereto as SCHEDULE 6.2(E) which shall be certified by Seller as being true and
correct in all material respects as of Closing.
(1) At the Property, all tenant files and other files which are used in
connection with the ownership and operation of the Property or any part thereof
and the conduct of the business of Seller relating to the Property or any part
thereof.
(1) Duly executed closing statement.
(1) Seller's duly executed certificate of reaffirmation and remaking dated as
of the Closing Date, confirming that the warranties and representations of
Seller as made herein are true and correct as of the Closing Date.
(1) A credit on the closing statement to Purchaser in the amount of all
Deposits and all advance rentals received under Tenant Leases, together with a
certified list of each Tenant who has made such a Deposit or advance rental and
the amount thereof.
(1) Audited income and expense statements for the Property for the two most
recent calendars years and the period from January 1 to the Closing Date if
available to Seller; provided that if such audited statements are not available,
then during the twelve (12) months after the Closing Date Seller shall permit
Purchaser, without cost or charge, access to Seller's books and records covering
the Property for the two calendar year period immediately preceding the calendar
year in which the Closing Date occurs and for the period up to the Closing Date,
which, to the best of Seller's knowledge, books and records shall fairly
represent the operations of the Property, for the purpose of examination of said
books and records in order to prepare audited income and expense statements
covering said periods at Purchaser's cost and expense. The provisions of this
Section shall survive the Closing,
a) PURCHASER. At the Closing, Purchaser shall deliver to the Title Company for
delivery to Seller each of the following items:
(1) The cash portion of the Purchase Price in Current Funds.
(1) The Assignment of Leases, duly executed and acknowledged by Purchaser.
(1) Such additional funds in cash or Current Funds, as may be necessary to
cover Purchaser's share of the closing costs and prorations hereunder.
(1) Evidence satisfactory to the Title Company that the person or persons
executing this Contract and the closing documents on behalf of Purchaser have
full right, power and authority to do so.
(1) The Notice Letters duly executed by Purchaser.
A. SECTION COSTS OF CLOSING. The costs of: the escrow fees of Escrow Agent
(if any) shall be shared equally by Seller and Purchaser. The costs of the Title
Policy (except for special endorsements) and the costs of transfer taxes shall
be paid by Seller. The costs of the Survey, special endorsements to the Policy,
and recording the Special Warranty Deed shall be paid by Purchaser. All other
expenses incurred by Seller and Purchaser with respect to the Closing,
including, but not limited to, the attorneys' fees and costs and expenses
incurred in connection with negotiating, preparing and closing the transaction
contemplated by this Contract and not specifically allocated herein, shall be
borne and paid exclusively by the party incurring such expense.
1. All normal and customarily proratable items, including, without limitation,
collected rents, operating expenses and other expenses and fees, and payments
relating to any agreements affecting the Property which survive the Closing,
shall be prorated as of the Closing Date, Seller being charged and credited for
all of same attributable to the period up to, and including, the day prior to
the Closing Date (and credited for any amounts paid by Seller attributable to
the period thereafter) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date.
1. If any concession, rebate, allowance, free rent or any other economic
incentive was granted to a Tenant for any period extending after the Proration
Date, or which entitles a Tenant to recoup or recover an expense reducing the
rent otherwise payable by it under its Lease during any period extending after
the Proration Date, then at the Closing Purchaser shall receive a cash credit
equal to the total amount of all such concessions, rebates, allowances, free
rent and other economic incentives and rental offsets.
1. Any real estate ad valorem or similar taxes for the Property, or any
installment of assessments payable in installments which installment
attributable to the year of Closing shall be prorated to the date of Closing,
based upon actual days involved. In connection with the proration of real
property taxes or installments of assessments, such proration shall be based
upon the assessed valuation and tax rate figures for the year in which the
Closing occurs to the extent the same are available; provided, if actual figures
(whether for the assessed value of the Property or for the tax rate) for the
year of Closing are not available at the Closing Date, then the proration shall
be based upon an amount equal to One Hundred Five Percent (105%) of the amount
from the preceding year. The proration shall be final and unadjustable. If the
Property has been assessed for property tax purposes at such rates as would
result in "roll back" taxes upon the changes in land usage or ownership of the
Property, then Seller shall pay all such taxes and hereby indemnifies, holds
harmless and agrees to defend Purchaser from and against any and all causes of
action, expenses, fines and liabilities for or relating to such taxes.
1. Prorations should be governed by the following additional provisions:
(a) Utilities, if any, payable by Seller, shall be prorated. Seller shall
obtain meter readings on the Closing Date or the day immediately preceding the
Closing Date ("Proration Date"), and if such readings are obtained, there shall
be no proration of such items and Seller shall pay the bills therefor for the
period through the Proration Date, and Purchaser shall pay the bills therefor
for the period subsequent to the Proration Date as and when rendered. If Seller
is unable to obtain meter readings as of the Proration Date, utilities shall be
prorated at the Proration Date based upon the most recent utility bills,
adjusted for seasonality (such adjustment being reasonably acceptable to both
parties), and reprorated upon issuance of the actual bills. In addition, if
there are any utility charges submetered to Tenants and payable by them directly
to Seller, Seller shall use reasonable efforts to obtain readings thereof at the
Closing Date, and such items shall be prorated in mode and manner as with
respect to rents.
(a) Prepaid and unpaid expenses and charges respecting utilities and all other
expenses incurred in the operation of the Property shall be prorated at and as
of the Closing Date.
(a) In the case of any charges payable by Tenants to Seller applicable to
periods of time ending before the Closing Date but to become payable thereafter
when bills are rendered (such as service charges, supply charges and utility
charges), Seller shall after settlement prepare and promptly deliver to
Purchaser the information necessary to prepare the bills to the tenants. Seller
warrants and represents that to the best of its knowledge such information will
be true, complete and correct. All such charges shall be paid to Purchaser and
adjusted in the same manner as provided herein.
Except as otherwise provided herein, prorations shall be made as of 11:59 p.m..
on the day prior to the Closing Date.
The provisions of this SECTION 8.4 shall survive the Closing and the
termination of this Contract forever.
Except for those items for which this Contract specifically provides for
reprorations and for mistakes in prorations made at Closing (if discovered and
corrected within sixty (60) days following Closing), all prorations shall be
considered final and absolute as of Closing. Those items which specifically
require reproration in accordance with the terms hereof, upon the tendering from
the "owing" party to the "owed" party of the amounts due, shall be considered
final and absolute.
A. SECTION POSSESSION AND CLOSING. Possession of the Property shall be
delivered to Purchaser by Seller at the Closing, subject to the Permitted
Exceptions and the rights of the Tenants. Purchaser shall make its own
arrangements for the provision of public utilities to the Property and Seller
shall terminate its accounts with such utility companies that provide services
to the Property as of the end of business on the Closing Date.
A. SECTION DELINQUENT RENT.
a) APPLICATION OF DELINQUENT RENT. If on the Closing Date any Tenant is in
arrears in the payment of any rent under any Tenant Lease (the "Delinquent
Rent") payable by it, any Delinquent Rent received by Purchaser and Seller from
such Tenant after the Closing shall be applied to amounts due and payable by
such Tenant during the following periods in the following order of priority: (A)
first, to reimburse the party who made the collection effort for reasonable
attorneys' fees and costs and expenses expended in connection with the
collection thereof, (B) second, to the period of time after to the Closing Date,
and (C) third, to the period of time before the Closing Date. The provisions
of this SECTION 8.6(A) shall survive the Closing and the termination of this
Contract forever.
a) COLLECTION OF DELINQUENT RENT. Purchaser shall have no obligation to collect
past due rentals and other amounts from Tenants after the Proration Date. Seller
retains its rights in and to such past due rentals, but shall not disturb or
otherwise interfere with any Tenant in its occupancy and use and enjoyment of
its demised premises.
ARTICLE
CONDEMNATION OR CASUALTY
A. SECTION CONDEMNATION.
a) If all or any Significant Portion (as defined in SECTION 9.1(B)) of the
Property is condemned or taken by eminent domain or conveyed by deed in lieu
thereof, or if any condemnation proceeding is commenced for all or any
Significant Portion of the Property, prior to Closing, then Purchaser may elect
to terminate this Contract by written notice thereof to Seller within fifteen
(15) days after Purchaser receives notice of the condemnation, taking or deed in
lieu or institution of such condemnation proceeding (which notice Seller shall
deliver to Purchaser within seven (7) days of Seller's receipt thereof). If
Purchaser does not terminate this Contract pursuant to this SECTION 9.1(A), then
both parties shall proceed to close the transaction contemplated herein pursuant
to the terms hereof, in which event Seller shall, except as limited in SECTION
9.1(B) hereof, deliver to Purchaser at the Closing any proceeds actually
received by Seller attributable to the Property from such condemnation, eminent
domain proceeding or deed in lieu thereof (except for proceeds previously used
to restore or repair the Property ) and assign its interest in and to any such
proceeds, and there shall be no reduction in the Purchase Price.
a) For purposes of SECTION 9.1(A), "Significant Portion" of the Property shall
be deemed to be any portion of the Property with either a fair market value or
replacement cost in an amount equal to or great then $100,000 or which
involves the taking of any rental units at the Property or permanently prohibits
the primary access to the Property. Notwithstanding anything to the contrary
contained in SECTION 9.1(A), if Purchaser has not timely elected to terminate in
accordance with SECTION 9.1(A), and if the proceeds payable with respect to the
Property as a result of condemnation exceed the Purchase Price for the Property,
then the portion of such proceeds in excess of the Purchase Price shall be paid
to Purchaser at the Closing. The foregoing provision shall survive the Closing
and the termination of this Contract forever.
a) If less than a Significant Portion of the Property is condemned, taken by
eminent domain, conveyed by deed in lieu thereof or is the subject of a
condemnation proceeding, then neither party shall have the right to terminate
this Contract pursuant to this SECTION 9.1, but Seller shall deliver to
Purchaser at Closing any proceeds actually received by Seller attributable to
the Property from such condemnation or eminent domain proceeding or deed in lieu
thereof, and assign its interest in and to such proceeds to Purchaser, and there
shall be no reduction of the Purchase Price.
a) If all or any Substantial Portion (as defined in SECTION 9.2(B)) of the
Property shall be damaged or destroyed by fire or other casualty prior to
Closing, then Purchaser may terminate this Contract by written notice thereof to
Seller within fifteen (15) days after Purchaser receives notice of the casualty
(which notice Seller shall deliver to Purchaser within seven (7) days of
Seller's receipt thereof). If Purchaser does not terminate this Contract as
aforesaid, then both parties shall proceed to close the transaction contemplated
herein pursuant to the terms hereof, in which event Seller shall, except as
limited in SECTION 9.2(B) hereof, deliver to Purchaser at the Closing any
insurance proceeds actually received by Seller attributable to the Property from
such casualty (except for proceeds previously used to repair the Property) and
assign to Purchaser all of Seller's right, title and interest in and to any
claims which Seller may have under the insurance policies covering the Property,
and Purchaser shall receive a proration credit at Closing in the aggregate
amount of any deductible or self-insurance and there shall be no reduction in
the Purchase Price. If less than a Substantial Portion of the Property shall be
damaged or destroyed by fire or other casualty prior to Closing, then the
parties shall proceed in accordance with the second sentence in this SECTION
9.2(A).
a) For the purposes of SECTION 9.2(A), a "Substantial Portion" of the Property
shall be deemed to be any portion of the Property with either a fair market
value or replacement cost in an amount equal to or greater than $125,000.
Notwithstanding anything in SECTION 9.2(A) to the contrary, if Purchaser has not
timely elected to terminate in accordance with SECTION 9.2(A), and if the
proceeds payable with respect to the Property as a result of casualty exceed the
Purchase Price for the Property, then the portion of such proceeds in excess of
the Purchase Price shall be paid to Purchaser at the Closing. The foregoing
provision shall survive the Closing and the termination of this Contract
forever.
ARTICLE
DEFAULTS AND REMEDIES
A. SECTION DEFAULT BY PURCHASER. If Seller is not in default hereunder and
Purchaser refuses or fails to consummate the Closing under this Contract for
reasons other than as expressly permitted herein or set forth in SECTION 4.4,
SECTION 5.2, SECTION 7.1(A), (B) or (C) or ARTICLE IX hereof, then Seller may
terminate this Contract in which event neither party shall have any further
rights, duties, or obligations hereunder except as provided in SECTIONS 5.1.5
and 11.1 hereof, and, as its sole and exclusive remedy for Purchaser's failure
to close, Seller shall be entitled to receive and retain the Xxxxxxx Money
Deposit as liquidated damages (Seller and Purchaser hereby acknowledging that
the amount of damages in the event of Purchaser's default is difficult or
impossible to ascertain but that such amount is a fair estimate of such damage).
A. SECTION DEFAULT BY SELLER. If Purchaser is not in default hereunder and
Seller refuses or fails to consummate the Closing under this Contract other than
due to a termination by Seller permitted hereunder or a failure of a condition
precedent to Seller's obligation to close as set forth in ARTICLE VII, then
Purchaser may, at Purchaser's sole option, as its sole and exclusive remedy,
either (a) terminate this Contract whereupon Escrow Agent shall Return the
Xxxxxxx Money Deposit; or (b) enforce specific performance of this Contract
against Seller. Provided, if specific performance is unavailable as a remedy to
Purchaser, then Seller shall reimburse Purchaser for its out of pocket costs and
expenses incurred in connection with this transaction, not to exceed $100,000.
In no event shall Seller be liable to Purchaser for any punitive, speculative or
consequential damages or damages for loss of opportunity or lost profit.
A. SECTION COSTS OF ENFORCEMENT If it shall be necessary for either Purchaser
or Seller to employ an attorney to enforce its rights pursuant to this Contract,
the non-prevailing party shall reimburse the prevailing party for the prevailing
party's reasonable attorneys' fees and other reasonable out-of-pocket expenses
incurred by the prevailing party in pursuit of such enforcement.
ARTICLE
BROKERAGE COMMISSIONS
A. SECTION BROKERAGE COMMISSION. Seller and Purchaser each represent to the
other that each has no agreement with any broker, finder or other party
requiring payment of a commission with respect to the sale or purchase of the
Property, except that Seller may pay a fee to Insignia Capital Advisors, Inc.
and Purchaser may pay a fee to Carmel Realty Services. Seller agrees to
indemnify and defend Purchaser and its officers, directors, trustees,
shareholders, representatives and agents and hold each of them harmless from any
loss, liability, damage, cost or expense (including, without limitation,
reasonable attorneys' fees and expenses) arising out of or paid or incurred by
Purchaser by reason of any claim to any broker's, finder's or other fee in
connection with this transaction by any party claiming by, through or under
Seller. Purchaser agrees to indemnify and defend Seller and its general partner
and their respective affiliates and their and their affiliates' officers,
directors, employees, agents and representatives, and hold each of them harmless
from any and all loss, liability, damage, claim, cause of action, fine, fee,
lien, cost or expense (including, without limitation, reasonable attorneys' fees
and expenses ) arising out of or paid or incurred by any of them by reason of
any claim to any broker's, finder's or other fee in connection with this
transaction by any party claiming by, through or under Purchaser or its
affiliates. Notwithstanding anything to the contrary contained herein, the
indemnities set forth in this ARTICLE XI shall survive the Closing and the
termination of this Contract forever.
ARTICLE
OPERATION OF THE PROPERTY PRIOR TO THE CLOSING
A. SECTION OPERATION OF THE PROPERTY PRIOR TO THE CLOSING. During the term of
this Contract:
a) Seller shall not create or permit to be created, any liens, encumbrances,
defects in title, restrictions or easements affecting the Property (except for
mechanic's and materialmen's liens arising in the normal course of Seller's
business of operating the Property, and which will be paid by Seller in the
normal course of business and to the extent not paid by Closing, Seller will
cause to be discharged or insured over on or before the Closing in accordance
with SECTION 5.1.2 or accounted for as a proration credit to Purchaser).
a) Seller shall operate and maintain the Property in substantially the same
manner as operated and maintained prior to the Effective Date.
a) Without Purchaser's prior written consent, Seller shall not settle any
protest or appeal of the real estate tax assessment for the Property for the
current tax year or for any prior tax year if the settlement would increase, or
compromise Purchaser's ability to challenge, the assessment for the current tax
year or any future tax year.
a) Seller shall maintain all of Seller's insurance policies relating to or
affecting the Property in full force and effect until Closing.
a) All actions required pursuant to this Contract which are necessary to
effectuate the transaction contemplated herein will be taken promptly and in
good faith by Seller and Purchaser, and each shall furnish the other with such
documents or further assurances as each may reasonably require.
a) Seller shall manage, operate, repair and maintain the Property (making all
necessary repairs and replacements and performing all necessary maintenance) in
accordance with prudent management and operating standards and practices in the
area of the Property and will keep the Property in as good a condition as exists
on the Effective Date (reasonable wear and tear excepted), and will not, prior
to the Closing, delay or defer repair, replacement or maintenance work required
in the ordinary course.
a) After the Inspection Period, Seller shall not terminate or enter into any
renewal, extension, modification or replacement of any existing Service Contract
that would extend past Closing or enter into any new employment, maintenance,
service, supply or other agreement relating to the Property that would extend
past Closing without the express written permission of Purchaser and during the
Inspection Period, Seller shall notify Purchaser of any such terminations,
extensions, or modifications.
a) After the Inspection Period, Seller shall not without the prior written
consent of Purchaser in each instance, (a) enter into any new leases or
occupancy agreements for space at the Property at rents below those shown on the
Rent Roll for such unit, (b) modify, amend, terminate, renew, extend or waive
any rights under any existing Lease, (c) (d) grant any concession, rebate,
allowance or free rent to any Tenant for any period, or (e) accept the surrender
of or terminate any Lease except in the ordinary course of business. During the
Inspection Period, Seller shall notify Purchaser if it performs any of the
actions set forth in this SECTION 12.1(H).
a) Seller shall perform its obligations when due pursuant to the Service
Contracts, Leases, and Operating Permits, if any.
a) The Seller shall make all books and records relating to the ownership and
operation of the Property available to the Purchaser and its accountants, at
Purchaser's request, during normal business hours and without interfering with
the operations of the Property, and shall permit the Purchaser's accountants and
attorneys to examine and audit the same, at the Purchaser's sole cost and
expense.
a) Seller shall not enter into or record any easement, covenant, license,
permit, agreement or other instrument against the Property, or any portion
thereof, except as may be required to enable Seller to perform its obligations
under this Agreement.
ARTICLE
MISCELLANEOUS
A. SECTION NOTICES. Any notice provided or permitted to be given under this
Contract must be in writing and may be served by (a) delivering same via the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, (b) delivering the same
in person to such party via a hand delivery service, Federal Express or any
other nationally recognized courier service that provides a return receipt
showing the date of actual delivery of same to the addressee thereof, or (c)
facsimile transmission. Notice given in accordance herewith shall be effective
upon receipt at the address of the addressee. For purposes of notice, the
addresses of the parties shall be as follows:
If to Seller: c/o Insignia Financial Group, Inc.
One Insignia Financial Plaza
Greenville, South Carolina 29601
Attention: Xxx Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
With copies to: Xxxx X. Xxxxxxx, Esq.
Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to Purchaser: Xxxx Xxxxxxx
c/o Carmel Realty
00000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
With copies to: Xxxx X. Xxxxxxxxx, Esq.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Telephone No. (000) 000-0000
If to Escrow
Agent: Commonwealth Land Title Insurance Corporation
Attn: Xxx Xxxxx
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
A. SECTION GOVERNING LAW. THIS CONTRACT IS INTENDED TO BE PERFORMED IN THE
STATE OF TEXAS, AND THE LAWS OF SUCH STATE SHALL GOVERN THE VALIDITY,
CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS CONTRACT.
A. SECTION ENTIRETY AND AMENDMENTS. This Contract embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the transaction described herein, and may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought.
A. SECTION PARTIES BOUND. Subject to the provisions of SECTION 13.5 hereof,
this Contract shall be binding upon and inure to the benefit of Seller and
Purchaser, and their respective heirs, personal representatives, successors and
assigns.
A. SECTION ASSIGNMENT. Purchaser may assign this Contract to an entity which
is majority owned or controlled by Purchaser. Provided, however, this Contract
may not be otherwise assigned in whole or in part by Purchaser without the prior
written consent of Seller. Any such assignment of this Contract by Purchaser
without Seller's prior written consent shall, at Seller's option, be null and
void and of no effect. In the event that this Contract is assigned by Purchaser,
then Purchaser shall be released from further liability or obligations
hereunder.
A. SECTION HEADINGS Headings used in this Contract are used for reference
purposes only and do not constitute substantive matter to be considered in
construing the terms of this Contract.
A. SECTION SURVIVAL. Except as otherwise expressly provided herein, no
representations, warranties, covenants, acknowledgments or agreements contained
in this Contract shall survive the Closing of this Contract and the delivery of
the Special Warranty Deed by Seller to Purchaser.
A. SECTION INTERPRETATION The parties acknowledge that each party and its
counsel have reviewed this Contract, and the parties hereby agree that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Contract or any amendments or exhibits hereto. In case any one or more
of the provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and this Contract
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein. When the context in which words are used in this
Contract indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter genders and vice versa.
A. SECTION EXHIBITS. All references to "Exhibits" or "Schedules" contained
herein are references to exhibits or schedules attached hereto, all of which are
hereby made a part hereof for all purposes.
A. SECTION TIME OF ESSENCE It is expressly agreed by the parties hereto that
time is of the essence with respect to this Contract and Closing hereunder.
A. SECTION MULTIPLE COUNTERPARTS This Contract may be executed in a number of
identical counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement, but, in making proof of this Contract,
it shall not be necessary to produce or account for more than one such
counterpart.
A. SECTION RISK OF LOSS Risk of loss or damage to the Property, or any part
thereof, by fire or any other casualty following the Closing will be on the
Purchaser; the risk of loss prior to the Closing remains on Seller.
A. SECTION BUSINESS DAYS All references to "business days" contained herein
are references to normal working business days, i.e., Monday through Friday of
each calendar week, exclusive of federal and national bank holidays.
A. SECTION NO RECORDATION OF CONTRACT. In no event shall this Contract or any
memorandum hereof be recorded in the public records of the place in which the
Property is situated, and any such recordation or attempted recordation shall
constitute a breach of this Contract by the party responsible for such
recordation or attempted recordation.
A. SECTION GENERAL
1. Seller acknowledges that Purchaser shall not be liable and Seller shall be
responsible for any employees or agents of Seller for or in respect of
salaries, bonuses, vacations, vacation pay and other leave programs, employee
benefit plans or programs, welfare benefits plans, retirement plans, excess
benefit plans, plans maintained to provide workers' compensation or unemployment
benefits and pay practices which Seller has funded or been obligated to fund for
its past or present employees, independent contractors or either of their
beneficiaries or dependents.
1. A. Seller shall indemnify, defend and hold harmless Purchaser and any
person or entity affiliated with or owning or controlling, in whole or in part,
directly or indirectly, Purchaser, the joint venturers, partners, trustees,
officers, directors, shareholders, employees, agents and attorneys at any time
and from time to time of any of the foregoing, and the heirs, legal
representatives, successors and assigns of each and all of the foregoing
(collectively "Related Parties") of and from any and all claims, demands,
damages, expenses (including without limitation reasonable attorneys' fees),
losses, injuries, liabilities, penalties, and costs (except for those claims,
demands, damages, expenses, losses, injuries, liabilities, penalties, and costs
referred to in SECTION 5.1.5) incurred or suffered by Purchaser or its Related
Parties arising out of or in connection with any one or more of the following:
1. any use, occupancy, ownership or operation of any of the Property or
any occurrence in, on or about the Property before the Closing;
2. any accident, injury (including death) or damage, regardless of the
cause thereof to any person or property occurring in, on or about the Property
before Closing.
Seller's obligation to indemnify and hold Purchaser and its Related Parties
harmless under this SECTION 13.15.2.A shall survive Closing or termination of
this contract
B. Provided, Seller shall have no obligation or liability under this Contract
to indemnify, defend or hold harmless Purchaser or its Related Parties of or
from any claims, demands, damages, losses, injuries, liabilities, penalties,
costs, expenses (including without limitation reasonable attorneys' fees),
incurred or suffered by Purchaser or its Related Parties arising out of or in
connection with the threatened or actual existence of Hazardous Materials or
other environmental conditions relating to the Property except to the extent
that such threatened or actual existence was known by Seller as of the Effective
Date or the Closing Date or is contrary to any representation or warranty made
by Seller herein.
C. Purchaser shall indemnify, defend and hold harmless Seller and any person
or entity affiliated with or owning or controlling, in whole or in part,
directly or indirectly, Seller, the joint venturers, partners, trustees,
officers, directors, shareholders, employees, agents and attorneys at any time
and from time to time of any of the foregoing, and the heirs, legal
representatives, successors and assigns of each and all of the foregoing
(collectively "Related Parties") of and from any and all claims, demands,
damages, losses, injuries, liabilities, penalties, costs and expenses (including
without limitation reasonable attorneys' fees), incurred or suffered by Seller
or its Related Parties arising out of or in connection with any one or more of
the following:
1. any use, occupancy, ownership or operation of any of the Property or
any occurrence in, on or about the Property after the Closing;
2. any accident, injury (including death) or damage, regardless of the
cause thereof to any person or property occurring in, on or about the Property
after Closing;
Purchaser's obligation to indemnify and hold Seller and its Related Parties
harmless under this SECTION 13.15.2.C shall survive Closing or termination of
this Contract.
13.15.3 Purchaser and Seller shall use their best efforts to promptly and
timely file all filings, reports, certificates and applications required to
carry out the transactions contemplated by this Agreement or to consummate the
transactions contemplated hereby required, if at all, by (i) the federal
securities laws, (ii) the United States or any commission, department, agency,
law, rule or regulation thereof, or (iii) the State of Texas or any commission,
agency or department thereof.
ARTICLE
ESCROW TERMS
A. SECTION ACCEPTANCE OF ESCROW. Escrow Agent hereby agrees to perform the
obligations of Escrow Agent under the terms of this Contract. Escrow Agent has
executed this Contract to evidence its acceptance of the terms of the escrow
created hereby; provided, however, notwithstanding anything to the contrary
contained herein, Escrow Agent shall not be a required party or signatory to any
modification of the terms of this Contract unless such modification directly
affects the obligations of Escrow Agent hereunder. Escrow Agent shall be given
fully executed copies of all modifications of this Contract to which it is not a
party promptly after execution thereof by Purchaser and Seller.
A. SECTION HOLDING FUNDS. Escrow Agent shall hold all cash portions of the
Xxxxxxx Money in a separate interest bearing account at Escrow Agent's regular
federally insured banking institution in Texas, and shall otherwise hold, invest
and disburse the Xxxxxxx Money as provided herein.
A. SECTION DISBURSEMENT OF XXXXXXX MONEY Escrow Agent shall disburse the
Xxxxxxx Money pursuant to the terms hereof.
A. SECTION LIMITED LIABILITY. In performing any of its duties hereunder,
Escrow Agent shall not incur any liability to anyone for any damages or
expenses, except as may arise due to willful misconduct or breach of trust
by Escrow Agent hereunder. Accordingly, Escrow Agent shall not incur any such
liability with respect to (i) any action taken or omitted in good faith upon
advice of its legal counsel relating to the responsibilities of Escrow Agent
under this Contract, or (ii) any action taken or omitted in reliance on any
instrument, including any written notice or instruction provided for in this
Contract, not only as to the due execution and validity of its provisions but
also as to the truth and accuracy of any information contained therein, which
Escrow Agent shall in good faith believe to be genuine, to have been signed or
presented by a person or persons having authority to sign or present such
instrument and to conform with the provisions of this Contract.
A. SECTION INDEMNITY Purchaser and Seller hereby indemnify Escrow Agent
against, and hold Escrow Agent harmless from, any and all claims, actions,
demands, loses, damages, expenses (including, without limitation, court costs,
attorneys' fees, and accountants' fees) and liabilities that may be imposed upon
performance of its duties hereunder, including, without limitation, any
litigation arising from this Contract or involving the subject matter hereof,
but excluding any such claims, actions, demands, losses, damages, expenses and
liabilities resulting from or arising out of any willful misconduct or breach of
trust by Escrow Agent hereunder. In the event of any litigation arising from
this Contract or involving the subject matter hereof, and in the event Purchaser
and Seller are opposing parties in such litigation, the party prevailing in such
litigation shall be reimbursed promptly upon demand by the other such party in
an amount equal to that amount which the prevailing party shall have paid Escrow
Agent with respect to such litigation and the subject matter thereof pursuant to
the indemnification agreement contained in this SECTION 14.5. The provisions of
this SECTION 14.5 shall survive the Closing or any termination, cancellation'
rescission or consummation of this Contract.
A. SECTION ESCROW FEE Seller and Purchaser shall each pay one-half of the
fees and expenses, if any, due to Escrow Agent in compensation for its services
pursuant hereto and shall each reimburse Escrow Agent for one-half of the
expenses incurred in discharging its duties and obligations hereunder.
IN WITNESS WHEREOF, the parties hereby execute this Contract as of the date
first above written.
SELLER:
VISTA APX, a Texas limited partnership
By: Angeles Partners X, a California limited partnership
By:
Name:
Title:
PURCHASER:
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
By:
Name:
Title:
ESCROW AGENT:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By:
Printed Name:
Title:
EXHIBIT A
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
EXHIBIT B
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
SPECIAL WARRANTY DEED
STATE OF ____________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ___________
VISTA APX, a Texas limited partnership (hereinafter called "Grantor"), for
and in consideration of the sum of TEN AND No/100 ($10.00) and other good and
valuable consideration in hand paid by TRANSCONTINENTAL REALTY INVESTORS, INC.,
a Nevada corporation (hereinafter called "Grantee"), whose mailing address is
000 Xxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx, the receipt and sufficiency of
which are hereby acknowledged, has GRANTED, SOLD AND CONVEYED and by these
presents does GRANT, SELL AND CONVEY unto Grantee that certain tract or parcel
of land situated in El Paso, Texas and more particularly described on Exhibit
"A" attached hereto and made a part hereof for all purposes, together with
Grantor's rights and interests in all improvements, structures and fixtures
located thereon and all rights, titles and interests of Grantor appurtenant
thereto (all of the above-described properties being hereinafter collectively
referred to as the "Property"). This conveyance is made and accepted subject to
(a) general real estate taxes on the Property for the current year which Grantee
assumes and agrees to pay, (b) zoning laws and regulations and ordinances of
municipal and other governmental authorities, if any, affecting the Property,
and (c) the matters set forth on Exhibit "B" attached hereto and made a part
hereof for all purposes (all of the foregoing being hereinafter collectively
referred to as the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee, its successors and
assigns forever, and Grantor does hereby bind itself, its successors and
assigns, to WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee, its successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof, by, through or under Grantor,
but not otherwise, subject, however, to the Permitted Exceptions.
Current ad valorem taxes on the Property having been prorated, Grantee
hereby assumes the obligation for payment thereof.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor to
be effective for all purposes as of the _____ day of _____________, 1998.
GRANTOR:
VISTA APX, a Texas limited partnership
By: Angeles Partners X, a California limited partnership
By:
Name:
Title:
STATE OF
COUNTY OF
This ____ day of __________, 1998, personally came before me, ___________,
Notary Public of___________ County, State of ____________, who, being by me duly
sworn, says that he/she is ____ President of Angeles Partners X, a California
limited partnership, General Partner of Vista APX, a Texas limited partnership,
and that the seal affixed to the foregoing instrument in writing is the
corporate seal of said corporation, and that the writing was signed and sealed
by him/her in behalf of said corporation as General Partner of Vista APX by its
authority duly given. And the __________ President acknowledged the said
writing to be the act and deed of the corporation as General Partner of Vista
APX.
Witness my hand and official seal the day and year first above written.
My Commission Expires:________________________________
_______________________________________ Notary Public
[NOTARY SEAL]
EXHIBIT A
TO
SPECIAL WARRANTY DEED
PROPERTY DESCRIPTION
EXHIBIT B
TO
SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
To be added: Permitted Exceptions (as defined in the Contract).
EXHIBIT C
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
ASSIGNMENT AND ASSUMPTION OF LEASES
STATE OF ________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _______
That, VISTA APX, a Texas limited partnership (Assignor"), for and in
consideration of Ten and No/100 Dollars ($10.00) and other good and valuable
consideration, to Assignor in hand paid, the receipt and legal sufficiency of
which are hereby acknowledged, hereby transfers, assigns and sets over unto
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation ("Assignee"), all
of the right, title and interest of Assignor in and to all leases of, and
security deposits and prepaid rents relating to space in (together, the
"Leases") the real property ("Property") described on Exhibit A, attached
hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD the Leases, together with any and all of the rights and
appurtenances thereto in anyway belonging to Assignor (excluding the right to
receive rents paid under the Leases and which accrued before the date of this
Assignment), unto Assignee and Assignee's successors and assigns forever, and
Assignor does hereby bind Assignor and Assignor's legal representatives and
successors, to WARRANT AND FOREVER DEFEND all and singular the Leases unto
Assignee and Assignee's successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through or under
Assignor, but not otherwise. Assignor represents and warrants to Assignee that
the Leases have not been previously assigned (except to the extent the Leases
were assigned in conjunction with a loan to finance the purchase of the
Property) and that, except as set forth on the Rent Roll and disclosure attached
as Exhibit B, Seller has title to the Leases, not subject to claims, set-offs or
liens known to Assignor.
In consideration of the foregoing assignment, Assignee hereby assumes, and
agrees to perform all of the obligations of Assignor under the Leases,
including, but not limited to, the obligation to refund any security deposits
delivered by Assignor to Assignee. Assignee takes the Leases subject to any
existing defaults thereunder.
Assignor will indemnify, defend and hold harmless Assignee and its Related
Parties from and against any and all claims, demands, suits, actions,
proceedings, damages, liabilities, penalties, costs, expenses and fees
(including reasonable attorneys' fees) arising from the misapplication prior to
the Closing Date of any security deposits received by Assignor. Assignee will
indemnify, defend and hold harmless Assignor and its Related Parties from and
against any and all claims, demands, suits, actions, proceedings, damages,
attorneys'sfees) arising from the misapplication on or after the Closing Date of
any security deposits received by Assignee from Assignor.
"Related Parties" shall mean any person or entity affiliated with or owning
or controlling, in whole or in part, directly or indirectly, the indemnified
party, the joint venturers, partners, trustees, officers, directors,
shareholders, employees, agents and attorneys at any time and from time to time
of any of the foregoing, and the heirs, legal representatives, successors and
assigns of each of the foregoing.
EXECUTED effective as of this _____ day of _________, 1998 (the "Closing
Date").
ASSIGNOR:
VISTA APX, a Texas limited partnership
By: Angeles Partners X, a California limited
partnership
By:
Name:
Title:
ASSIGNEE:
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
By:
Name:
Title:
STATE OF
COUNTY OF
This ____ day of __________, 1998, personally came before me,
, Notary Public of County, State of ,
, who, being by me duly sworn, says that he/she is ____ President of
Angeles Partners X, a California limited partnership, General Partner of Vista
APX, a Texas limited partnership, and that the seal affixed to the foregoing
instrument in writing is the corporate seal of said corporation, and that the
writing was signed and sealed by him/her in behalf of said corporation as
General Partner of Vista APX by its authority duly given. And the __________
President acknowledged the said writing to be the act and deed of the
corporation as General Partner of Vista APX.
Witness my hand and official seal the day and year first above written.
My Commission Expires: ________________________________
____________________ Notary Public
[NOTARY SEAL]
STATE OF _________________
COUNTY OF _______________
This _____day of ____________, 1998, personally came before me
___________________, who, being by me duly sworn, says that he is ________
President of Transcontinental Realty Investors, Inc., and that the seal affixed
to the foregoing instrument in writing is the corporate seal of said
corporation, and that said corporation, and that said writing was signed by
him in behalf of said corporation by its authority duly given. And the______
President acknowledged the writing to be the act and deed of said corporation.
WITNESS my hand and Notarial Seal, this the _____day of _________________,
1998.
______________________________________
Notary Public
My Commission expires:
_______________________
[NOTARY SEAL]
EXHIBIT A
TO
ASSIGNMENT AND ASSUMPTION OF LEASES
PROPERTY DESCRIPTION
EXHIBIT B
TO
ASSIGNMENT AND ASSUMPTION OF LEASES
RENT ROLL
EXHIBIT D
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
BLANKET CONVEYANCE, XXXX OF SALE AND ASSIGNMENT
STATE OF _________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________
By a Special Warranty Deed (the "Deed") of even date with the date hereof,
VISTA APX, a Texas limited partnership ("Seller"), conveyed to TRANSCONTINENTAL
REALTY INVESTORS, INC., a Nevada corporation ("Purchaser"), the real property
(the "Real Property") described on Exhibit "A" attached hereto and made a part
hereof for all purposes, together with all improvements located thereon.
As consideration for (a) the conveyance of the Real Property, (b) the
conveyance of the personal property described herein, and (c) the assignments
contained herein, Purchaser has paid the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly acknowledged:
1. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER and
DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER, SET-
OVER and DELIVER unto the Purchaser, all of Seller's right, title and interest
in and to all items of tangible personal property located on or attached to the
Real Property including, without limitation, all items of personal property
described on Exhibit B hereto (all of the property described in this paragraph 1
is hereinafter referred to as the "Personal Property") (the Real Property and
Personal Property sometimes collectively referred to herein as the "Property").
Seller represents and warrants to Purchaser that the Property has not been
assigned (except to the extent the Property was assigned as security for a loan
relating to the Real Property or the Property) and that Seller has title to the
Property, not subject to claims, set-offs or liens (except the Permitted
Exceptions, defined in the Contract to Purchase and Sell Property and Escrow
Agreement by and between Seller and Purchaser dated August ___, 1998) known
to Seller.
2. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED and ASSIGNED and
by these presents does GRANT, CONVEY, SELL, TRANSFER and ASSIGN unto the
Purchaser all of the Seller's right, title and interest in and to the trade name
"Vista Hills Apartments".
3. The Seller has ASSIGNED, TRANSFERRED and SET-OVER, and by these
presents does ASSIGN, TRANSFER and SET-OVER unto the Purchaser (to the extent
they are assignable) all of its right, title and interest in and to all service
contracts, bonds, warranties and guaranties which relate to the Real Property or
Personal Property and are listed on EXHIBIT C hereto.
PURCHASER ACCEPTS THE PROPERTY DESCRIBED IN THIS DOCUMENT (THE "PROPERTY"),
AND ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO PURCHASER IS MADE BY
SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER EXPRESSLY
ACKNOWLEDGES THAT, EXCEPT FOR THE WARRANTY OF TITLE CONTAINED IN THE SPECIAL
WARRANTY DEED DELIVERED TO PURCHASER CONTEMPORANEOUSLY HEREWITH, AND EXCEPT FOR
SELLERS WARRANTIES AND REPRESENTATIONS CONTAINED IN THAT CERTAIN CONTRACT TO
PURCHASE AND SELL PROPERTY AND ESCROW AGREEMENT ENTERED INTO BETWEEN SELLER AND
PURCHASER AND THE CLOSING DOCUMENTS DELIVERED PURSUANT THERETO, SELLER MAKES NO
WARRANTY OR REPRESENTATION OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW WITH RESPECT TO THE PROPERTY REFERRED TO HEREIN,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER
THAN SELLER'S WARRANTY OF TITLE SET FORTH IN THE SPECIAL WARRANTY DEED DELIVERED
TO PURCHASER), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION,
UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS,
THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER,
OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
Purchaser hereby assumes and agrees to perform from the effective date
hereof forward all of the covenants and obligations arising after the date
hereof contained in the contracts assigned hereunder which are to be performed
by Seller and hereby indemnifies and agrees to defend Seller, its general
partner and their respective affiliates and their and their affiliates'
officers, directors, employees, agents and representatives, and agrees to hold
Seller, its general partner and their respective affiliates and their and their
affiliates' officers, directors, employees, agents and representatives, harmless
from and against any and all liability, cost, claim, cause of action, fine, fee,
lien, loss, damage or expense, including reasonable attorneys' fees and
expenses, suffered or incurred by any of them as a result of any alleged failure
of Purchaser to perform such covenants or obligations.
This Blanket Conveyance, Xxxx of Sale and Assignment is binding and shall
inure to the benefit of the parties hereto, and their respective successors and
assigns.
TO HAVE AND TO HOLD the Property unto Purchaser, its successors and assigns
forever, and Seller does hereby bind itself, its successors and assigns, to
forever WARRANT AND DEFEND the title to the Property unto Purchaser, its
successors and assigns, against any person whomsoever lawfully claiming, or to
claim the same or any part thereof, by, through or under Seller, but not
otherwise.
EXECUTED effective as of the ______ day of __________, 1998.
SELLER:
VISTA APX, a Texas limited partnership
By: Angeles Partners X, a California limited partnership
By:
Name:
Title:
PURCHASER:
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
By:
Name:
Title:
EXHIBIT A
TO
BLANKET CONVEYANCE, XXXX OF SALE AND ASSIGNMENT
Real Property Description
EXHIBIT B
TO
BLANKET CONVEYANCE, XXXX OF SALE AND ASSIGNMENT
Personal Property
EXHIBIT C
BLANKET CONVEYANCE, XXXX OF SALE AND ASSIGNMENT
EXHIBIT E
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
NON-FOREIGN AFFIDAVIT
STATE OF ________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________
On this date, VISTA APX, a Texas limited partnership ("Seller"), has sold
and conveyed certain real property situated in El Paso, Texas, to
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation ("Purchaser").
Section 1445 of the Internal Revenue Code of 1986 provides that a transferee of
a U.S. Real Property Interest must withhold tax if the transferor is a foreign
person. To inform Purchaser that withholding of tax is not required upon the
disposition of a U.S. Real Property Interest by Seller, the undersigned hereby
certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Seller's U.S. Employer Identification Number is ______________; and
3. Seller's office address is
_____________________________________________
Seller understands that this certification may be disclosed to the Internal
Revenue Service by Purchaser and that any false statement contained herein could
be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Seller.
Executed this ______ day of ______________, 1998.
SELLER:
VISTA APX, a Texas limited partnership
By: Angeles Partners X, a California limited partnership
By:
Name:
Title:
STATE OF
COUNTY OF
This ____ day of __________, 1998, personally came before me,
, Notary Public of County, State of ,
, who, being by me duly sworn, says that he/she is ____ President of
Angeles Partners X, a California limited partnership, General Partner of Vista
APX, a Texas limited partnership, and that the seal affixed to the foregoing
instrument in writing is the corporate seal of said corporation, and that the
writing was signed and sealed by him/her in behalf of said corporation as
General Partner of Vista APX by its authority duly given. And the __________
President acknowledged the said writing to be the act and deed of the
corporation as General Partner of Vista APX.
Witness my hand and official seal the day and year first above written.
My Commission Expires: ________________________________
Notary Public
[NOTARY SEAL]
EXHIBIT F
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
RESIDENT NOTICE LETTER
_________________, 1998
__________________________
__________________________
__________________________
Re: Your lease ("Lease") of space in Vista Hills Apartments located
in the City of El Paso, Texas ("Apartments")
Dear Resident:
You are hereby notified that VISTA APX, a Texas limited partnership
("Owner"), as owner of the Apartments and the current owner of the landlord's
interest under the Lease, has sold the Apartments to TRANSCONTINENTAL REALTY
INVESTORS, INC., a Nevada corporation ("Purchaser") as of the date of this
Resident Notice Letter set forth above, and in connection with such sale the
Owner has assigned and transferred its interest in the Lease and any and all
unapplied security deposits thereunder or relating thereto in its possession to
Purchaser, and Purchaser has assumed and agreed to perform all of the landlord's
obligations under the Lease (including, but not limited to, any obligations set
forth in the Lease to repay or account for any security deposits thereunder)
from and after such date.
Accordingly, (a) all of your obligations under the Lease from and after the
date of this Resident Notice Letter (including your obligation to pay rent)
shall be performable to and for the benefit of Purchaser and Purchaser's
successors and assigns, and (b) all of the obligations of the landlord under the
Lease (including, but not limited to, any obligations to repay or account for
any unapplied security deposits thereunder) from and after the date of this
Resident Notice Letter shall be the binding obligations of Purchaser and
Purchaser's successors and assigns. The current amount of the security deposit
being held by Purchaser with respect to the Lease is $_______________.
The address of Purchaser for all purposes under the Lease (including the
payments of rentals, the recoupment of any security deposits and the giving of
any notices provided for in the Lease) is
______________________________________________________.
Very truly yours,
OWNER:
VISTA APX, a Texas limited partnership
By: Angeles Partners X, a California limited partnership
By:
Name:
Title:
PURCHASER:
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
By:
Name:
Title:
SCHEDULE 1.1(B)
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
PERSONALTY
SCHEDULE 5.3(c)
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
SERVICE CONTRACTS
SCHEDULE 6.2(d)(i)
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
SCHEDULE 6.2(e)
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
RENT ROLL
SCHEDULE 6.2(g)
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
DISCLOSURE OF INFORMATION ON LEAD-BASED PAINT
AND/OR LEAD-BASED PAINT HAZARDS
LEAD WARNING STATEMENT
Every purchaser of any interest in residential real property on which a
residential dwelling was built prior to 1978 is notified that such property may
present exposure to lead from lead-based paint that may place young children at
risk of developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead poisoning
also poses a particular risk to pregnant women. The seller of any interest in
residential real property is required to provide the buyer with any information
on lead-based paint hazards from risk assessments or inspections in the seller's
possession and notify the buyer of any known lead-based paint hazards. A risk
assessment or inspection for possible lead-based paint hazards is recommended
prior to purchase.
SELLER'S DISCLOSURE
(a) Presence of lead-based paint and/or lead-based paint hazards (check (i) or
(ii) below):
(i) ______ Known lead-based paint and/or lead-based hazards are present in
the housing (explain).
(ii) ______ Seller has no knowledge of lead-based point and/or lead-based
paint hazards in the housing.
(b) Records and reports available to the seller (check (i) or (ii) below):
(i) ______ Seller has provided the purchaser with all available records and
reports pertaining to lead-based paint and/or lead-based paint
hazards in the housing (list documents below).
(ii) ______ Seller has no reports or records pertaining to lead-based paint
and/or lead-based paint hazards in the housing.
PURCHASER'S ACKNOWLEDGMENT (initial)
(d) ______ Purchaser has received theipamphletlProtectaYour Family FromeLead
in Your Home.
(e) ______ Purchaser has (check (i) or (ii) below):
(i) ______ received a 10-day opportunity (or mutually agreed upon period) to
conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards; or
(ii) ______ waived the opportunity to conduct a risk assessment or inspection
for the presence of lead-based paint and/or lead-based paint
hazards.
AGENT'S ACKNOWLEDGMENT (initial)
(f) ______ Agent has informed the seller of the seller's obligations under
42 U.S.C. 4852d and is aware of his/her responsibility to ensure
compliance.
CERTIFICATION OF ACCURACY
The following parties have reviewed the information above and certify, to the
best of their knowledge, that the information they have provided is true and
accurate.
SELLER:
VISTA APX, a Texas limited partnership
By: Angeles Partners X, a California limited partnership
By:
Name:
Title:
PURCHASER:
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
By:
Name:
Title:
AMENDMENT
TO
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
THIS AMENDMENT TO CONTRACT TO PURCHASE AND SELL PROPERTY AND ESCROW
AGREEMENT ("Amendment") is entered into as of the 6th day of January, 0000
xxxxxxx XXXXX XXX, X XXXXX LIMITED PARTNERSHIP, a Texas limited partnership
("Seller") and TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
("Purchaser").
A. Seller and Purchaser entered into that certain Contract to Purchase and
Sell Property and Escrow Agreement dated September 8, 1998 ("Contract").
B. Seller and Purchase desire to amend certain provisions of the Contract.
C. Any capitalized terms not defined herein shall have the meanings ascribed
them in the Contract.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the receipt and sufficiency of which are hereby acknowledged, Seller and
Purchaser hereby agree as follows:
1. CLOSING. The Closing, as defined in SECTION 8.1 of the Contract, shall be
amended so that it shall occur no later than 10:00 a.m. E.S.T., February 1,
1999, time being of the essence. Unless Seller defaults, if Escrow Agent is
unable to disburse current funds to Seller's existing lender per the payoff
letter delivered at Closing, then Purchaser shall be responsible for any
additional costs or fees required by Seller's existing lender in excess of the
payoff amount shown on such payoff letter.
2. EXTENSION FEE. Within one (1) business day following the effective date of
this Amendment, Purchaser shall wire to Seller a non-refundable extension fee in
the amount of $50,000.00 ("Extension Fee") in accordance with the following
wiring instructions:
WIRING INSTRUCTIONS:
NATIONSBANK
ABA: 0539 044 83
VISTA HILLS APARTMENTS #6239
ACCOUNT NUMBER: 000 000 000 000
CONTACT: XXXXX BACHELOR
If Closing occurs, then Purchaser shall receive a credit from Seller at Closing
in an amount equal to the Extension Fee.
3. DEFAULT. If Purchaser fails to deliver the Extension Fee in accordance
with SECTION 2 above, then Purchaser shall be deemed in default of the Contract,
and Seller shall proceed in accordance with SECTION 10.1 of the Contract.
4. FULL FORCE AND EFFECT. The remaining terms and provisions of the Contract
shall remain in full force and effect, as amended hereby.
5. COUNTERPARTS. This Amendment may be executed in multiple counterparts. A
counterpart executed by facsimile transmission shall be deemed an original.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Amendment as of
the date first written above.
SELLER:
VISTA APX, A TEXAS LIMITED PARTNERSHIP, a Texas limited partnership
By: VISTA APX, Inc., a Texas corporation
By: __________________________________
Printed Name: __________________________
Title: _______________________________
PURCHASER:
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
By: _____________________________________
Name: ___________________________________
Title: ____________________________________
SECOND AMENDMENT
CONTRACT TO PURCHASE AND SELL PROPERTY
AND
ESCROW AGREEMENT
THIS SECOND AMENDMENT TO CONTRACT TO PURCHASE AND SELL PROPERTY AND ESCROW
AGREEMENT ("Second Amendment") is entered into as of the 1st day of February,
0000 xxxxxxx XXXXX XXX, X XXXXX LIMITED PARTNERSHIP, a Texas limited partnership
("Seller") and TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
("Purchaser").
A. Seller and Purchaser entered into that certain Contract to Purchase and
Sell Property and Escrow Agreement dated September 8, 1998 ("Contract").
B. Seller and Purchaser entered into that certain Amendment to Contract to
Purchase and Sell Property and Escrow Agreement dated January 6,
1999("Contract")
C. Seller and Purchase desire to amend certain provisions of the Contract.
D. Any capitalized terms not defined herein shall have the meanings ascribed
them in the Contract.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the receipt and sufficiency of which are hereby acknowledged, Seller and
Purchaser hereby agree as follows:
1. CLOSING. The Closing, as defined in SECTION 8.1 of the Contract, shall be
amended so that it shall occur no later than 10:00 a.m. E.S.T., March 1, 1999,
time being of the essence. Unless Seller defaults, if Escrow Agent is unable to
disburse current funds to Seller's existing lender per the payoff letter
delivered at Closing, then Purchaser shall be responsible for any additional
costs or fees required by Seller's existing lender in excess of the payoff
amount shown on such payoff letter.
2. EXTENSION FEE. Within one (1) business day following the effective date of
this Amendment, Purchaser shall (a) wire to Seller a non-refundable extension
fee in the amount of $100,000.00 ("Extension Fee") and (b) cause Escrow Agent to
wire to Seller the remaining $135,000.00 portion of the Xxxxxxx Money Deposit
which is currently held in escrow by the Escrow Agent, in accordance with the
following wiring instructions:
WIRING INSTRUCTIONS:
NATIONSBANK
ABA: 0539 044 83
VISTA HILLS APARTMENTS #6239
ACCOUNT NUMBER: 000 000 000 000
CONTACT: XXXXX BACHELOR
If Closing occurs, then Purchaser shall receive a credit from Seller at Closing
in an amount equal to $285,000.00.
3. DEFAULT. If Purchaser fails to deliver the Extension Fee or cause the
Escrow Agent to deliver the remaining portion of the Xxxxxxx Money Deposit in
accordance with SECTION 2 above , then Purchaser shall be deemed in default of
the Contract, and Seller shall proceed in accordance with SECTION 10.1 of the
Contract.
4. FULL FORCE AND EFFECT. The remaining terms and provisions of the Contract
shall remain in full force and effect, as amended hereby.
5. COUNTERPARTS. This Amendment may be executed in multiple counterparts. A
counterpart executed by facsimile transmission shall be deemed an original.
IN WITNESS WHEREOF, Seller and Purchaser have executed this Second
Amendment as of the date first written above.
SELLER:
VISTA APX, A TEXAS LIMITED PARTNERSHIP, a Texas limited partnership
By: VISTA APX, Inc., a Texas corporation
By: __________________________________
Printed Name: __________________________
Title: _______________________________
PURCHASER:
TRANSCONTINENTAL REALTY INVESTORS, INC., a Nevada corporation
By: _____________________________________
Name: ___________________________________
Title: ____________________________________
