Form 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 20, 2000
ANGELES PARTNERS IX
(Exact name of registrant as specified in its charter)
California 0-9704 95-3417137
(State or other jurisdiction (Commission (I.R.S. Employer
incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
N/A
(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets.
The Registrant sold one of its investment properties, Pines of Northwest
Crossing, located in Houston, TX on July 20, 2000. Pines of Northwest was sold
to Winston Acquisition Corporation an unrelated party, for $9,500,000.
The General Partner is currently evaluating the cash requirements of the
Partnership to determine what portion of the net proceeds, if any, would be
available to distribute to the partners in the near future.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended September 30,
2000.
(c) Exhibits
10.14(a) Purchase and Sale Contract between Registrant and Winston
Acquisition Corporation.
10.14(b) First Amendment to Purchase and Sale Contract between Registrant
and Winston Acquisition Corporation.
10.14(c) Second Amendment to Purchase and Sale Contract between Registrant
and Winston Acquisition Corporation.
10.14(d) Third Amendment to Purchase and Sale Contract between Registrant
and Winston Acquisition Corporation.
10.14(e) Fourth Amendment to Purchase and Sale Contract between Registrant
and Winston Acquisition Corporation.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANGELES PARTNERS IX
By: Angeles Realty Corporation
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: August 7, 2000
PURCHASE AND SALE CONTRACT
BETWEEN
HOUSTON PINES, LTD.,
a California limited partnership
AS SELLER
AND
WINSTON ACQUISITION CORPORATION,
a Texas corporation
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement") is
entered into as of the 3rd day of April, 2000 (the "Effective Date") by and
between HOUSTON PINES, LTD., a California limited partnership, having a
principal address at 2000 South Colorado Boulevard, Tower Two, Suite 2-1000,
Denver, Colorado 80222 ("Seller") and Winston Acquisition Corporation, a Texas
corporation, having a principal address at 5495 Beltline Road, Suite 330,
Dallas, Texas 75240 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual covenants and
agreements hereinafter set forth, Seller and Purchaser hereby agree as follows:
RECITALS
R-1. Seller holds legal title to the parcel or parcels of real estate located in
Harris County, Texas, as more particularly described in Exhibit A attached
hereto and made a part hereof. Improvements have been constructed on the land
described in this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
"Closing Date" (as hereinafter defined) the Property will be conveyed by special
warranty deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser, on the terms and
conditions set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined elsewhere herein, terms with initial capital
letters in this Purchase Contract shall have the meanings set forth in this
Article 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday
or Federal holiday or legal holiday in the State in which the Land is located.
1.1.2 "Closing" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in accordance with
the terms and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and conditions
of this Purchase Contract and on which date full payment of the Purchase Price
for the Property shall have been paid to and received by Seller in immediately
available U.S. funds.
1.1.4 "Deed" has the meaning given such term in Section 7.2.1.1.
1.1.5 "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit "B", if any, attached hereto.
1.1.6 "Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, computers (to the extent
located on the Property and owned by Seller), fax machines (to the extent
located on the Property and owned by Seller), copiers (to the extent located on
the Property and owned by Seller), apparatus, appliances and other articles of
tangible personal property now located on the Land or in the Improvements as of
the date of this Purchase Contract and used or usable in connection with any
present or future occupation or operation of all or any part of the Property,
but only to the extent transferable. The term "Fixtures and Tangible Personal
Property" does not include (i) equipment leased by Seller and the interest of
Seller in any equipment provided to the Property for use, but not owned or
leased, by Seller, as described on Schedule 1.1.6(a) or (ii) property owned or
leased by Tenants and guests, employees or other persons furnishing goods or
services to the Property, as described on Schedule 1.1.6(b) or (iii) property
and equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management of
the Property or (iv) the property and equipment, if any, expressly identified in
Exhibit "C".
[1.1.7 [INTENTIONALLY DELETED]
1.1.8 "Improvements" means all buildings and improvements, located on
the Land taken "as is".
1.1.9 "Land" means all of those certain tracts of land described on
Exhibit "A" attached hereto, and all rights, privileges and appurtenances
pertaining thereto.
1.1.10 "Lease(s)" means the interest of Seller in and to all leases,
subleases and other occupancy agreements, whether or not of record, which
provide for the use or occupancy of space or facilities on or relating to the
Property and which are in force as of the Effective Date for the applicable
Property or thereafter as permitted in Section 8.1.1.11.
1.1.11 "Management Contract" means the agreement(s) between
Seller and Manager pertaining to the Land and Improvements.
1.1.12 "Manager" means AIMCO Residential Group, LP, a Delaware
limited partnership, or one of its affiliates.
1.1.13 "Miscellaneous Property Assets" means all contract rights,
leases, concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, but only to the extent transferable, excluding, however, (i)
receivables, (ii) Property Contracts, (iii) Leases, (iv) Permits, (v) Fixtures
and Tangible Personal Property, (vi) Security Deposits, (vii) cash or other
funds, whether in petty cash or house "banks," or on deposit in bank accounts or
in transit for deposit, (viii) refunds, rebates or other claims, or any interest
thereon, for periods or events occurring prior to the Closing Date, (vix)
utility and similar deposits, or (x) insurance or other prepaid items (but not
excluding claims, or the right to proceeds payable, against or under policies of
insurance with respect to any event or set of facts occurring prior to the
Closing) or (xi) Seller's proprietary books and records, (xii) escrows held by
Mortgagee for real property taxes, insurance and mortgage insurance premiums,
and (xiii) the Management Contract, except to the extent that Seller receives a
credit on the closing statement for any such item. The term "Miscellaneous
Property Assets" shall also include the following, but only to the extent owned
by Seller and in Seller's possession: site plans, surveys, soil and substrata
studies, architectural renderings, plans and specifications, engineering plans
and studies, floor plans, tenant data sheets, landscape plans and other plans or
studies of any kind, if any, which relate to the Land and or the Improvements or
the Fixtures and Tangible Personal Property. The term "Miscellaneous Property
Assets" shall also include all of Seller's rights, if any, in and to the name
"The Pines of Northwest Crossing."
1.1.14 "Mortgage" shall have the meaning given such term in Section
6.4.
1.1.15 "Mortgagee" means the current holder of record of the
Mortgage.
1.1.16 "Permits" means all licenses and permits granted by
governmental authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned by Seller and
used in or relating to the ownership, occupancy or operation of the Property or
any part thereof not subject to a Lease.
1.1.17 "Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
1.1.18 "Property" means the Land and Improvements and all rights of
Seller relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips and
gores adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts, Leases, Security Deposits, Permits other than
Excluded Permits and the Miscellaneous Property Assets owned by Seller which are
located on the Property and used in its operation.
1.1.19 "Property Contracts" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property
and which are not cancelable on 90 days' or shorter Notice, except Leases.
1.1.20 "Purchase Contract" means this Purchase and Sale Contract by
and between Seller and Purchaser.
1.1.21 "Purchase Price" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property as set forth in Section
3.1.
1.1.22 "Security Deposits" means all (i) prepaid rent held as
security, (ii) security deposits, and (iii) pet deposits, if any, held by Seller
under any of the Leases.
1.1.23 "Seller's Note Obligations" shall mean the promissory note or
notes more particularly described on Schedule 1.1.23.
1.1.24 "Survey" shall have the meaning ascribed thereto in Section
6.12.
1.1.25 "Tenant" means any person or entity entitled to occupy any
portion of the Property under a Lease.
1.1.26 "Title Commitment" or "Title Commitments" shall have the
meaning ascribed thereto in Section 6.1.
1.1.27 "Title Insurer" shall have the meaning set forth in Section
3.1.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and
Purchaser agrees to purchase the Property from Seller, in accordance with the
terms and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Nine Million Five Hundred Thousand and No/100 Dollars ($9,500,000.00), which
shall be paid by Purchaser, as follows:
3.1.1 Not later than 5:00 PM, April 5, 2000 (Houston, Texas time),
Purchaser shall deliver to Stewart Title Guaranty Company ("Escrow Agent" or the
"Title Insurer") a deposit in the sum of One Hundred Ninety Thousand and No/100
Dollars ($190,000.00), in cash, (such sum being hereinafter referred to and held
as the "Deposit"). Purchaser and Seller each approve the form of Escrow
Agreement attached as Exhibit "D". Seller and Purchaser agree that the amount of
One Hundred and No/100 Dollars ($100.00) shall be paid by Purchaser to Seller
concurrently with the deposit into escrow of the Deposit, as consideration for
Seller's execution and delivery of this Purchase Contract (the "Independent
Contract Consideration"). The Independent Contract Consideration is independent
of any other consideration or payment provided for in this Purchase Contract
and, notwithstanding anything to the contrary herein, is non-refundable in all
events.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of
the Deposit to the party entitled thereto under the terms hereof. Escrow Agent
shall invest the Deposit in an interest-bearing bank account acceptable to
Seller and Purchaser at one or more federally insured national banking
association(s) or such other investment as jointly directed by Seller and
Purchaser should Seller and Purchaser each in their respective sole discretion
determine to issue such joint investment instructions to the Escrow Agent, and
all interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for herein or by the mutual written
consent of the parties hereto, given or withheld in their respective sole
discretion), monies held as the Deposit shall be applied to the Purchase Price
on the Closing Date and the balance of the Purchase Price, less adjustments
provided for herein, shall be paid at Closing to Seller in immediately available
funds. If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to failure of performance by Seller, Purchaser
shall be entitled to the remedies set forth in ARTICLE 12 hereof.
3.1.4 If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of performance by
Purchaser, the Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE 12
below.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to the Closing. It is specifically agreed that Seller shall not be obligated to
prepay the Seller's Note Obligations until the Closing Date and then only from
the proceeds of the Purchase Price.
ARTICLE 5
INSPECTIONS
5.1 Purchaser, and its agents, contractors, engineers, surveyors,
attorneys, and employees ("Consultants") shall have the right from time to time
to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
5.1.3 To review and make copies (at Purchaser's expense) of all
insurance policies, Leases, leases from the calendar years 1998 and 1999 (to the
extent available) and vendor invoices for the calendar years 1998 and 1999 (to
the extent available) other than Seller's proprietary information.
5.2 Purchaser shall indemnify and hold Seller harmless for any actions
taken by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys selected by Seller) and hold Seller harmless
from any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like. Seller shall have the
right, without limitation, to disapprove any and all entries, surveys, tests,
investigations and the like that in their reasonable judgment could result in
any injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. Purchaser shall exercise
commercially reasonable efforts to minimize disruption to the Tenants in
connection with Purchaser's or its Consultants' activities pursuant to this
Section. No consent by the Seller to any such activity shall be deemed to
constitute a waiver by Seller or assumption of liability or risk by Seller.
Purchaser hereby agrees to restore the Property to the same condition existing
immediately prior to Purchaser's exercise of its rights pursuant to this ARTICLE
5 at Purchaser's sole cost and expense. Purchaser shall maintain commercial
general liability insurance with broad form contractual and personal injury
liability endorsements with respect to Purchaser's activities on the Property
pursuant to this Section 5.2, with coverages of not less than $1,000,000.00 for
injury or death to any one person and $3,000,000.00 for injury or death to more
than one person and $500,000.00 with respect to property damage, by water or
otherwise. The provisions of this Section shall survive the Closing or
termination of this Purchase Contract for a period of one (1) year from the
Execution Date.
5.3 Purchaser shall not permit any mechanic's or materialmen'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 any other party in
connection with any studies or tests conducted by or for Purchaser. Purchaser
shall give notice to Seller a reasonable time prior to entry onto the Property,
shall deliver proof of insurance coverage required above to Seller and shall
permit Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all 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 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. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
best efforts to prevent its Consultants, agents and employees from divulging
such information to any unrelated 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 Purchase Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers.
5.4 Seller shall deliver to Purchaser within ten (10) calendar days from
the Effective Date copies of (a) Seller's form residential lease agreement(s)
used at the Property, (b) all Property Contracts, (c) engineering studies in
Seller's possession or control relating to the Property and prepared for Seller
by third parties (other than proprietary information of Seller), and (d) those
items set forth in Schedule 5.4 (collectively, the "Materials"). If the sale of
the Property is not closed by the date fixed therefor, Purchaser shall, within
five (5) calendar days, return all such Materials to Seller.
ARTICLE 6
TITLE
6.1 Purchaser acknowledges that it has been provided with (a) a
preliminary title report or commitment (the "Title Commitment") prepared by the
Title Insurer to issue an Owner's Policy of Title Insurance (the "Title Policy")
insuring title to the Property to be good and indefeasible in an unstated
amount, subject only to the Permitted Exceptions (described below) and other
liens and encumbrances not constituting objections to title in accordance with
Section 6.5, together with legible copies of all instruments identified therein
as exceptions, and (b) Seller's existing survey of the Land and Improvements. On
or before 5:00 p.m. April 7, 2000 (Houston, Texas time), Purchaser shall give
written notice (the "Objection Notice") to the attorneys for Seller of any
conditions of title (including any zoning of the Property which does not permit
the use of the Property as a multi-family residential facility, if applicable)
subject to which Purchaser is not obligated to take the Property pursuant to the
provisions of this Purchase Contract (the "Objections") separately specifying
and setting forth each such objection.
6.2 All matters disclosed on the Title Commitment which are not objected
to in the Objection Notice as timely delivered, and any matter affecting title
to the Property, even though not reflected in the Title Commitment if resulting
from any act or failure to act of Purchaser, shall be deemed to be Permitted
Exceptions, other than (a) the Mortgage, and (b) unpaid liens for real estate
and personal property taxes for years prior to the fiscal year in which the
Closing Date occurs and any other matter which Seller is obligated to pay and
discharge at the Closing under this Purchase Contract, and the amount thereof
chargeable to Seller, plus interest and penalties thereon, if any, shall be
deducted from the Purchase Price on the Closing Date and paid to the Title
Insurer for the payment of such matters. Purchaser agrees to accept title to the
Land and Improvements, so long as the same is indefeasible, and the Deed shall
be subject to the Permitted Exceptions. If Seller gives Purchaser notice (the
"Response Notice") that Seller is unable or unwilling to cure any Objection set
forth in the Objection Notice, or if Seller fails to or does not give Purchaser
a Response Notice, Purchaser may, as its exclusive remedy, elect by written
notice to Seller, within five (5) days after the Objection Notice is given,
either (a) to accept such title as Seller is able to convey without any
reduction or abatement of the Purchase Price, or (b) to terminate this Purchase
Contract in which event the Deposit shall be returned to Purchaser. If Purchaser
fails to give notice of its election to terminate this Agreement within such
five (5) day period, Purchaser shall be deemed to have waived such objections
and to have elected to proceed to close the transactions contemplated by this
Purchase Contract.
6.3 After the Execution Date, Seller shall promptly cause Title Insurer to
reissue the commitment in the name of Purchaser for the amount of the Purchase
Price. Seller agrees that it shall be solely responsible for payment of the
basic premium relating to the issuance of the Title Policy, and Purchaser agrees
that it shall be solely responsible for payment of all costs, fees and premiums
relating to all endorsements or amendments thereof.
6.4 Notwithstanding the foregoing, any deeds of trust and/or mortgages
(including any and all mortgages which secure the Seller's Note Obligations)
against the Property (whether one or more, the "Mortgage") shall not be deemed
Permitted Exceptions, whether Purchaser gives written notice of such or not, and
subject to the provisions of Section 9.1.8 and Section 9.2.5, shall be paid off,
satisfied, discharged and/or cured by Seller at or before Closing, including any
prepayment fees and costs associated therewith.
6.5 Seller covenants that it will not voluntarily create or cause any lien
or encumbrance to attach to the Property between the date of this Purchase
Contract and the Closing Date (other than Leases and Property Contracts in the
ordinary course of business); any such monetary lien or encumbrance so attaching
by voluntary act of Seller (hereinafter, a "Voluntary Intervening Lien") shall
be discharged by the Seller at or prior to Closing on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance, security
interest, exception, objection or other matter, to make any expenditure of money
or institute litigation or any other judicial or administrative proceeding and
Seller may elect not to discharge the same; provided, however, if any lien or
encumbrance (other than a Voluntary Intervening Lien) attaches to the Property
between the date of this Purchase Contract and the Closing Date, Seller shall be
required to satisfy or discharge said lien or encumbrance at or prior to the
Closing, provided that Seller shall not be required to expend more than $50,000
in connection with such satisfaction or discharge. If the amount required to
satisfy or discharge such lien or encumbrance exceeds $50,000, Purchaser shall
have the option of either (a) paying the excess amount over $50,000 required to
satisfy or discharge such lien, and proceeding to the Closing, or (b)
terminating this Purchase Contract, in which case, the Deposit shall be returned
and refunded to Purchaser and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability under Section 5.2 of
this Purchase Contract. Seller shall have no option to terminate this Purchase
Contract if Purchaser has elected to pay the amount in excess of $50,000 to
satisfy or discharge such lien or encumbrance.
6.6 Purchaser may, at its sole cost and expense, cause the survey
delivered to it by Seller to be revised, updated and/or recertified in
accordance with Purchaser's instructions (the "Survey"). In such event, an
original counterpart of the Survey shall be promptly delivered by Purchaser to
Seller and its attorney. In the event the perimeter legal description of the
Property contained in the Survey differs from that contained in the deed or
deeds by which Seller took title to the Property, the latter description shall
be used in the Deed.
6.7 Purchaser, at Purchaser's sole cost and expense, may also cause to be
prepared an environmental report for the Property. Seller agrees to cooperate in
obtaining permission from Consultants who prepared any existing environmental
reports with respect to the Property (the "Environmental Reports") in the
possession of Seller for Purchaser to rely on such Environmental Reports.
Purchaser shall have the right to terminate this Purchase Contract by delivery
of written notice to Seller's attorney not later than April 17, 2000, 5:00 p.m.
(Houston, Texas time) if the Environmental Reports (or other environmental
investigation conducted by Purchaser on Purchaser's behalf) contain any
reasonable evidence of the use or contamination of hazardous substances on or
about the Property which are, or reasonably may be, in violation of applicable
law, provided the Purchaser's written notice set forth in specific detail the
matters of use or contamination of hazardous substances which constitute (or may
reasonably constitute) a violation of applicable law.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs.
7.1.1 The Closing shall occur on June 2, 2000, through an escrow
with Escrow Agent, whereby the Seller, Purchaser and their attorneys need not be
physically present at the Closing and may deliver documents by overnight air
courier or other means.
7.1.2 The Closing Date may be extended without penalty at the option
of Seller to a date not later than thirty (30) days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller, or such later
date as is mutually acceptable to Seller and Purchaser.
7.1.3 All normal and customarily proratable items, including,
without limitation, rents and other income from the Property ("Rents"),
operating expenses, personal property taxes, other operating expenses and fees,
shall be prorated as of the Closing Date, Seller being charged or credited, as
appropriate, for all of same attributable to the period up to the Closing Date
(and credited for any amounts paid by Seller attributable to the period on or
after the Closing Date, if assumed by Purchaser) 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. All unapplied Security Deposits, if
any, shall be transferred by Seller to Purchaser at the Closing or Seller shall
be given a credit therefor against the Purchase Price, as Seller may elect.
Purchaser shall assume at Closing the obligations under the Property Contracts
assumed by Purchaser, provided that any payments under the Property Contracts
have been prorated. Any real estate ad valorem or similar taxes for the
Property, or any installment of assessments payable in installments which
installment is payable in the calendar year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. The proration of real property
taxes or installments of assessments 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, that in the event that 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, the proration shall be made using figures
from the preceding year. The provisions of this Section 7.1.3 shall apply during
the Proration Period (as defined below). Rents and all related charges shall be
prorated based on actual collections as of the Closing Date.
7.1.4 If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute such
proration is unavailable, or if any errors or omissions in computing prorations
at the Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
7.1.5 If on the Closing Date any Tenant is in arrears in any Rent
payment under any Tenant lease (the "Delinquent Rent"), 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: (i) first, to the period of time after the
Closing Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after Closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
7.1.6 Seller shall pay the cost of all transfer taxes (e.g., excise
stamp taxes) and Purchaser shall pay the cost of all recording costs with
respect to the Closing. Seller and Purchaser shall share equally in the costs of
the Escrow Agent for escrow fees but not any other fees and charges of the Title
Insurer.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of
the following items, as applicable:
7.2.1.1 Special Warranty Deed in the form attached as Exhibit
"E" (the "Deed"). The acceptance of such deed at Closing, shall be deemed to be
full performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for those
that this Purchase Contract specifically provides shall survive Closing.
7.2.1.2 A Bill of Sale without recourse or warranty in the
form attached as Exhibit "F", covering all Property Contracts, Leases, Security
Deposits, Permits (other than Excluded Permits) and Fixtures and Tangible
Personal Property required to be transferred to Purchaser with respect to such
Property. Purchaser shall countersign the same so as to effect an assumption by
Purchaser of, among other things, Seller's obligations thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force
and effect) without recourse or warranty in the form attached as Exhibit "G" of
all of Seller's right, title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall countersign the same
so as to effect an assumption by Purchaser, including, without limitation, of
Seller's obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A title affidavit or, at Seller's option, an
indemnity, as applicable, in the customary form reasonably acceptable to Seller
to enable Title Insurer to delete the standard exceptions to the title insurance
policy to be issued pursuant to the Title Commitment (the "Title Policy") (other
than matters constituting any Permitted Exceptions and matters which are to be
completed or performed post-Closing); provided that such affidavit does not
subject Seller to any greater liability, or impose any additional obligations,
other than as set forth in this Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status
pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended.
7.2.1.7 Except for the items expressly listed above to be
delivered at Closing, delivery of any other required items shall be deemed made
by Seller to Purchaser, if Seller leaves such documents at the Property in their
customary place of storage or in the custody of Purchaser's representatives.
7.2.1.8 Evidence that the Management Agreement has been
terminated.
7.2.1.9 A Rent Roll (as defined in Schedule 5.4) dated as of
the Closing Date.
7.2.1.10 Resolutions, certificates of good standing, and such
other organizational documents as Title Insurer shall reasonably require
evidencing Seller's authority to consummate this transaction.
7.2.1.11 To the extent in Seller's possession or control,
originals or copies of the Leases and Property Contracts, lease files,
warranties, guaranties, operating manuals and keys to or regarding the Property.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to the Title
Company (for disbursement to Seller upon the Closing) the following items with
respect to the Property being conveyed at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3
hereof plus or minus the adjustments or prorations required by this Purchase
Contract. If at Closing there are any liens or encumbrances on the Property that
Seller is obligated or elects to pay and discharge, Seller may use any portion
of the Purchase Price for the Property(s) to satisfy the same, provided that
Seller shall have delivered to Title Company, on such Closing instruments in
recordable form sufficient to satisfy such liens and encumbrances of record (or,
as to any mortgages or deeds of trust, appropriate payoff letters, acceptable to
the Title Insurer), together with the cost of recording or filing such
instruments. The existence of any such liens or encumbrances shall not be deemed
objections to title if Seller shall comply with the foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit "F".
7.2.2.4 A countersigned counterpart of the Assignment in the
form attached as Exhibit "G".
7.2.2.5 Such other instruments, documents or certificates as
are required to be delivered by Purchaser to Seller in accordance with any of
the other provisions of this Purchase Contract.
7.2.3 Notice to Tenants. At Closing, Seller and Purchaser shall
execute and deliver a letter, dated as of the date of Closing and addressed to
all Tenants, informing such Tenants of the transfer of the Property and the
assignment of the Leases to Purchaser, together with an instruction to pay all
amounts due or to become due under the Leases to Purchaser, including an
acknowledgment by Purchaser of receipt of all security deposits (specifying the
exact dollar amount of the security deposit) and that Purchaser is responsible
for the Tenant's security deposit, and in compliance with Section 92.105 of the
Texas Property Code. The letter shall be in the form of Exhibit "H" attached
hereto.
7.3 Related Purchase Contracts. Contemporaneously with the execution of
this Purchase Contract, Purchaser is entering into separate purchase contracts
(the "Related Contracts") to purchase the additional properties listed on
Schedule 7.3 (the "Related Properties") from the sellers listed on Schedule 7.3
(the "Related Sellers"). Notwithstanding that separate contracts are being
entered into for the sale and purchase of the Property and the Related
Properties, it is the intent of Seller and Purchaser that the Property and the
Related Properties be purchased, and the closing of such sales and purchases
occur, concurrently except as otherwise provided therein. Accordingly, in the
event that any of the purchase contracts for the Related Properties are
terminated or cancelled by Purchaser for any reason, or if Purchaser shall be in
default under any of such purchase contracts for any reason, then Seller shall
have the right, but not the obligation, to terminate this Purchase Contract, and
Seller shall have the right to delivery of the Deposit pursuant to the
provisions of ARTICLE 12 hereof; otherwise, Purchaser shall have the right to a
return of the Deposit unless Seller is otherwise entitled to the delivery
thereof pursuant to the other provisions of this Purchase Contract. In the event
that any Related Sellers shall be in default under any purchase contract for a
Related Property, Purchaser shall have the right, but not the obligation, to
terminate this Purchase Contract, and Purchaser shall have the right to a return
of the Deposit or to otherwise treat such default as a default under this
Purchase Contract in accordance with the provisions of Article 12 hereof. Any
default under a purchase contract between Seller and any Related Party for the
purchase of a Related Property shall be deemed a default under this Purchase
Contract unless expressly waived in writing by the non-defaulting party.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 Representations, Warranties and Covenants Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this
Purchase Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the following
as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller is lawfully and duly organized, and, if
applicable, in good standing under the laws of the state of its formation set
forth in the initial paragraph of this Purchase Contract; and has or at the
Closing shall have the power and authority to sell and convey the Property and
to execute the documents to be executed by Seller and prior to the Closing will
have taken as applicable, all corporate, partnership, limited liability company
or equivalent entity actions required for the execution and delivery of this
Purchase Contract, and the consummation of the transactions contemplated by this
Purchase Contract. The compliance with or fulfillment of the terms and
conditions hereof will not conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, any purchase
contract to which Seller is a party or by which Seller is otherwise bound.
Seller has not made any other purchase contract for the sale of, or given any
other person the right to purchase, all or any part of any of the Property;
8.1.1.2 Seller owns indefeasible fee title to the Property,
including all real property contained therein required to be sold to Purchaser,
subject only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be limited to
the right to terminate this Purchase Contract within five (5) days of receipt by
Purchaser from the Title Insurer of such information, and receive a return of
the Deposit, and Seller shall have no other liability as a result thereof,
either before or after Closing);
8.1.1.3 There are no adverse or other parties in possession of
the Property, except for occupants, guests and tenants under the Leases
(provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the right to terminate this Purchase
Contract within five (5) days of receipt by Purchaser from the Title Insurer of
such information and receive a return of the Deposit, and Seller shall have no
other liability as a result thereof, either before or after Closing);
8.1.1.4 The joinder of no person or entity other than Seller
is necessary to convey the Property, fully and completely, to Purchaser at
Closing, or to fulfill Seller's obligations under this Purchase Contract, and
Seller has all necessary right and authority to convey and assign to Purchaser
all contract rights and warranties required to be conveyed and assigned to
Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for
Seller pursuant to the Foreign Investors Real Property Tax Act of 1980, as
amended;
8.1.1.6 To Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation actions
either pending or threatened against the Property, as applicable;
8.1.1.7 Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller and which remain unpaid beyond the date for which payment was due and
in respect of which liens may or could be filed against any of the Property, as
applicable;
8.1.1.8 To Seller's knowledge, Seller has not received any
written notice of any proposed taking, condemnation or special assessment with
respect to the Property;
8.1.1.9 To Seller's knowledge, Seller has not received any
written notice of any uncured violations of any federal, state, county or
municipal law, ordinance, order, regulation or requirement affecting the
Property;
8.1.1.10 To Seller's knowledge, Seller has not received any
written notice of any default by Seller under any of the Property Contracts that
will not be terminated on the Closing Date;
8.1.1.11 Seller agrees (a) to maintain its existing insurance
policies covering the Property in full force and effect through the Closing
Date, (b) to continue to maintain the Property in substantially the same manner
as Seller has been operating the Property immediately prior to the Effective
Date under written Leases at rates comparable to those currently in effect with
respect to the Property, (c) to not collect or accept any Rent other than in the
normal course of business, (d) to disclose and make available to Purchaser any
amendments to or new Leases entered into since the Effective Date, (e) not to
enter into any Property Contracts after the Effective Date which may not be
terminated on the giving of thirty (30) days written notice, (f) to terminate
all laundry leases pertaining to the Property prior to the Closing (to the
extent the same may be so terminated), and (g) to cause any of the units on the
Property that are vacant as of three days prior to the Closing Date to be in
"make ready" condition on the Closing Date; and
8.1.1.12 To Seller's knowledge, all documents relating to the
Property that were delivered by Seller to Purchaser in connection with this
Purchase Contract, are true, correct and complete in all material respects, and
none contain any untrue statement of a material fact or omit to state a material
fact.
8.1.1.13 To Seller's knowledge, the information contained in
the Rent Roll to be delivered to Purchaser pursuant to Section 5.4 will be true
and correct in all material respects.
8.1.2 Except for the representations and warranties expressly set
forth above in Subsection 8.1.1, the Property is expressly purchased and sold
"AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms and
conditions set forth herein are the result of arm's-length bargaining between
entities familiar with transactions of this kind, and said price, terms and
conditions reflect the fact that Purchaser shall have the benefit of, and is not
relying upon any information provided by Seller or Broker or statements,
representations or warranties, express or implied, made by or enforceable
directly against Seller or Broker, including, without limitation, any relating
to the value of the Property, the physical or environmental condition of the
Property, any state, federal, county or local law, ordinance, order or permit;
or the suitability, compliance or lack of compliance of the Property with any
regulation, or any other attribute or matter of or relating to the Property
(other than any covenants of title contained in the deeds conveying the Property
and the representations set forth above). Purchaser represents and warrants that
as of the date hereof and as of the Closing Date, it has and shall have reviewed
and conducted such independent analyses, studies, reports, investigations and
inspections as it deems appropriate in connection with the Property. If Seller
provides or has provided any documents, summaries, opinions or work product of
consultants, surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the Property,
including, without limitation, the offering prepared by Broker, Purchaser and
Seller agree that Seller has done so or shall do so only for the convenience of
both parties, Purchaser shall not rely thereon and the reliance by Purchaser
upon any such documents, summaries, opinions or work product shall not create or
give rise to any liability of or against Seller, Seller's partners or affiliates
or any of their respective partners, officers, directors, participants,
employees, contractors, attorneys, consultants, representatives, agents,
successors, assigns or predecessors-in-interest. Purchaser shall rely only upon
any title insurance obtained by Purchaser with respect to title to the Property.
Purchaser acknowledges and agrees that no representation has been made and no
responsibility is assumed by Seller with respect to current and future
applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Leases or, without limiting any of the
foregoing, occupancy at Closing. Prior to Closing, Seller shall have the right,
but not the obligation, to enforce its rights against any and all Property
occupants, guests or tenants. Except as otherwise set forth herein, Purchaser
agrees that the departure or removal, prior to Closing, of any of such guests,
occupants or tenants in the normal course of business shall not be the basis
for, nor shall it give rise to, any claim on the part of Purchaser, nor shall it
affect the obligations of Purchaser under this Purchase Contract in any manner
whatsoever; and Purchaser shall close title and accept delivery of the deed with
or without such tenants in possession and without any allowance or reduction in
the Purchase Price under this Purchase Contract. Purchaser hereby releases
Seller from any and all claims and liabilities relating to the foregoing
matters.
8.1.3 Seller agrees that Purchaser shall be entitled to rely on the
foregoing representations and warranties made by Seller herein and that
Purchaser has so relied. Seller and Purchaser agree that those representations
and warranties contained in Section 8.1 shall survive Closing for a period of
six (6) months (the "Survival Period"). Seller shall have no liability after the
Survival Period with respect to the representations and warranties contained
herein except to the extent that Purchaser has filed a lawsuit against Seller
during the Survival Period for breach of any representation or warranty. In the
event that Seller breaches any representation contained in Section 8.1 and
Purchaser had knowledge of such breach prior to the Closing Date, Purchaser
shall be deemed to have waived any right of recovery, and Seller shall not have
any liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of
Seller shall not be deemed to imply any duty of inquiry. For purposes of this
Purchase Contract, the term Seller's "knowledge" shall mean and refer to only
actual knowledge of the Designated Representative (as hereinafter defined) of
the Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to (a) Harry Alcock, or (b) Debbie Wheatley, of
Manager.
8.2 Representations, Warranties and Covenants of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of the
Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser
represents and warrants, in particular, that:
8.2.2.1 Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of Texas.
8.2.2.2 Purchaser, acting through any of its or their duly
empowered and authorized officers or members, has all necessary power and
authority to own and use its properties and to transact the business in which it
is engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no consent of
any of Purchaser's officers or members are required to so empower or authorize
Purchaser.
8.2.2.3 No pending or, to the knowledge of Purchaser,
threatened litigation exists which if determined adversely would restrain the
consummation of the transactions contemplated by this Purchase Contract or would
declare illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
8.2.2.4 Purchaser is duly authorized to execute and deliver,
acting through its duly empowered and authorized officers and members,
respectively, and perform this Purchase Contract and all documents and
instruments and transactions contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not (i) violate any of the
provisions of their respective certificates of incorporation or bylaws, (ii)
violate any provision of any law, governmental rule or regulation currently in
effect, (iii) violate any judgment, decree, writ, injunction, award,
determination or order currently in effect that names or is specifically
directed at Purchaser or its property, and (iv) require the consent, approval,
order or authorization of, or any filing with or notice to, any court or other
governmental authority.
8.2.2.5 The joinder of no person or entity other than
Purchaser is necessary to consummate the transactions to be performed by
Purchaser and Purchaser has all necessary right and authority to perform such
acts as are required and contemplated by this Purchase Contract.
8.2.3 Purchaser has not dealt with any broker, finder or any other
person, in connection with the purchase of or the negotiation of the purchase of
the Property that might give rise to any claim for commission against Seller or
lien or claim against the Property.
8.2.4 Purchaser will cooperate with Seller in obtaining the consent
of the holder(s) of the Seller's Note Obligations to the prepayment thereof (if
required).
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to
Purchaser at the Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations, warranties and covenants of
Seller contained herein shall be true in all material respects as of the Closing
Date (and Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same);
9.1.3 Seller shall have complied with, fulfilled and performed in
all material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Seller hereunder;
9.1.4 Neither Seller nor Seller's general partner shall be a debtor
in any bankruptcy proceeding or shall have been in the last 6 months a debtor in
any bankruptcy proceeding;
9.1.5 A taking of all or any part of the Property must not have
been commenced or threatened in writing;
9.1.6 The actual occupancy level of the Property shall not have
decreased by more than fifteen percent (15%) from the actual occupancy level on
the Effective Date;
9.1.7 Seller shall have terminated any Property Contracts which are
not being assumed by Purchaser as of the Closing Date (and which are capable of
being terminated by Seller without penalty or cost to Seller).
9.1.8 All consents to the sale of the Property (or applicable part
thereof) required for the prepayment of the Seller's Note Obligations which may
be required shall have been obtained, all on terms and conditions reasonably
acceptable to Purchaser.
9.1.9 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above. If any of the above conditions is not satisfied, then notwithstanding
anything to the contrary contained in this Purchase Contract, Purchaser may, at
its option (a) extend the Closing Date to permit satisfaction of such condition,
(b) waive such condition and proceed to Closing and accept title to the Property
with an agreed-upon offset or deduction from the Purchase Price (assuming Seller
and Purchaser can agree upon such offset or deduction amount, and neither party
has any obligation to come to an agreement), (c) waive such condition and
proceed to Closing and accept title to the Property without any offset or
deduction from the Purchase Price, or (d) notify Seller of Purchaser's election
to terminate this Purchase Contract and receive a return of the Deposit from the
Escrow Agent.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or nonbinding
any of the covenants or obligations of the Purchaser.
9.2.4 Seller shall have received all consents and approvals to the
consummation of the transactions contemplated hereby (a) of Seller's partners
(to the extent required by the partnership agreement of Seller) or (b) that are
required by law.
9.2.5 The conditions of Section 9.1.8 shall have been satisfied.
9.2.6 Notwithstanding anything to the contrary, there are no other
conditions on Seller's obligation to Close except as expressly set forth above.
If any of the above conditions is not satisfied, then notwithstanding anything
to the contrary contained in this Purchase Contract, Seller may, at its option
(a) extend the Closing Date to permit satisfaction of such condition, (b) waive
such condition and proceed to Closing, or (c) notify Purchaser of Seller's
election to terminate this Purchase Contract and receive the Deposit from the
Escrow Agent (which Seller shall retain as liquidated damages, as its sole and
exclusive remedy hereunder, in accordance with the provisions of Article 12
hereof, provided, however, that in the case of any failure to satisfy the
conditions contained in Sections 9.2.4 and/or 9.2.5 above and all of the other
conditions of Seller's obligation to close have been satisfied, Seller shall not
be entitled to receipt of the Deposit but the Deposit shall be returned to
Purchaser by the Escrow Agent.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only
with O'Boyle Properties, Inc., 14114 Dallas Parkway, Suite 520, Dallas, Texas
75240 ("Broker") in connection with this Purchase Contract. Seller and Purchaser
each represents and warrants to the other that other than Broker, it has not
dealt with or utilized the services of any other real estate broker, sales
person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
10.4 The Texas Real Estate License Act requires written notice to
Purchaser from any licensed real estate broker or salesman who is to receive a
commission Purchaser that Purchaser should have an attorney of its own selection
examine an abstract of title to the property being acquired or that Purchaser
should be furnished with or should obtain a title insurance policy. Notice to
that effect is, therefore, hereby given to Purchaser on behalf of Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall
be delivered to Purchaser at the Closing, subject to Purchaser's right of entry
for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the event Purchaser terminates this Purchase Contract for any
reason other than Seller's inability to convey title as required by this
Purchase Contract, or defaults hereunder on or prior to the Closing Date and
consummation of the Closing does not occur by reason of such termination or
default by Purchaser, Seller and Purchaser agree that it would be impractical
and extremely difficult to estimate the damages which Seller may suffer.
Therefore, Seller and Purchaser hereby agree that, except for the Purchaser's
obligations to Seller under Section 5.2, the reasonable estimate of the total
net detriment that Seller would suffer in the event that Purchaser terminates
this Purchase Contract or defaults hereunder on or prior to the Closing Date is
and shall be, as Seller's sole and exclusive remedy (whether at law or in
equity), the right to receive from the Escrow Agent and retain the full amount
of the Deposit. The payment of the Deposit as liquidated damages is not intended
as a forfeiture or penalty within the meaning of applicable law and is intended
to settle all issues and questions about the amount of damages suffered by
Seller in the applicable event, except only for damages under Section 5.2 above,
irrespective of the time when the inquiry about such damages may take place.
Upon any such failure by Purchaser hereunder, this Purchase Contract shall be
terminated, and neither party shall have any further rights or obligations
hereunder, each to the other, except for the Purchaser's obligations to Seller
under Section 5.2 above, and the right of Seller to collect the Deposit as
liquidated damages.
12.2 Provided that Purchaser has not terminated this Purchase Contract and
is not otherwise in default hereunder, if the Closing does not occur as a result
of Seller's default hereunder, Purchaser's sole remedy shall be to elect to
either (a) terminate this Purchase Contract and receive reimbursement of the
Deposit or (b) enforce specific performance of this Purchase Contract. In the
event Purchaser is unable to enforce the remedy of specific performance after
using commercially reasonable efforts to seek to enforce such remedy, then in
lieu of obtaining specific performance, Purchaser shall have the right to bring
suit for damages against Seller in an amount not to exceed a sum equal to One
Hundred Ninety Thousand and No/100 Dollars ($190,000.00), in addition to
receiving reimbursement of the Deposit.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 In the event that the Property is damaged or destroyed by fire or
other casualty prior to Closing, and the cost of repair is more than $150,000,
then Seller will have no obligation to repair such damage or destruction and, at
Purchaser's option, this Agreement shall terminate. In the event Purchaser
elects not to terminate this Agreement, this transaction shall be closed in
accordance with the terms of this Agreement, notwithstanding any such damage or
destruction and Purchaser shall receive all insurance proceeds pertaining
thereto (plus a credit against the Purchase Price in the amount of any
deductible payable by Seller in connection therewith) at Closing.
13.2 In the event that the Property is damaged or destroyed by fire or
other casualty prior to the Closing, and the cost of repair is less than
$150,000, this transaction shall be closed in accordance with the terms of this
Agreement, notwithstanding the damage or destruction; provided, however, Seller
shall make such repairs if they can be reasonably effected before the Closing.
If Seller is unable to effect such repairs, then Purchaser shall receive all
insurance proceeds pertaining thereto (plus a credit against the Purchase Price
in the amount of any deductible payable by Seller in connection therewith) at
Closing.
ARTICLE 14
LEAD-BASED PAINT DISCLOSURE
14.1 Seller and Purchaser hereby acknowledge completion of the Lead-Based
Paint Disclosure form attached as Exhibit "I" hereto and the delivery of such
executed form prior to the Effective Date.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the
Property is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in the
event that at such time there is any notice of any such acquisition or intent to
acquire by any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written Notice
within Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of
such event and recover the Deposit hereunder, or to settle in accordance with
the terms of this Purchase Contract for the full Purchase Price and receive the
full benefit or any condemnation award.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part of
this Purchase Contract for all purposes.
16.2 Assignability
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party, except
that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), (ii) Purchaser is not released
from its liability hereunder, and (iii) Seller consents thereto (which consent
shall not be unreasonably withheld or delayed).
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or a nationally recognized overnight carrier for next
business day delivery, on the first business day following deposit of such
Notice with such carrier, or (ii) if personally delivered, on the actual date of
delivery or (iii) if sent by certified mail, return receipt requested postage
prepaid, on the Fifth (5th) business day following the date of mailing, or (iv)
if sent by telecopier, then on the actual date of delivery (as evidenced by a
telecopier confirmation) provided that a copy of the telecopy and confirmation
is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
Houston Pines, Ltd. Winston Acquisition Corporation
c/o Apartment Investment and 5495 Beltline Road
Management Company Suite 330
2000 South Colorado Boulevard Dallas, Texas 75240
Tower Two, Suite 2-1000 Attn: Richard M. Barge
Denver, Colorado 80222 Facsimile No. (972) 726-9316
Attn: Mr. Harry Alcock
Facsimile No. (303) 692-0786
And With a copy to
Houston Pines, Ltd. Carrie, Cramer & Weatherbie
c/o Apartment Investment and 5956 Sherry Lane
Management Company Suite 1204
2000 South Colorado Boulevard Dallas, Texas 75225
Tower Two, Suite 2-1000 Attn: David W. Richardson, Esq.
Denver, Colorado 80222 Facsimile No. (214) 361-7842
Attn: Mr. Pat Stucker
Facsimile No. (303) 692-0786
With a copy to
Jackson Walker L.L.P.
112 E. Pecan, Suite 2100
San Antonio, Texas 78205
Attn: Eileen E. Scherlen, Esq.
Facsimile No. (210) 978-7790
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State in which the Land is located shall govern the
validity, construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict of laws
provisions thereof. All claims, disputes and other matters in question arising
out of or relating to this Purchase Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in a court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 Severability
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase 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 Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants. Any information provided by Seller to Purchaser under the terms of
this Purchase Contract is for informational purposes only. In providing such
information to Purchaser, Seller makes no representation or warranty, express,
written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded. Purchaser shall not in any way be
entitled to rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such information
public to any other person or entity other than its agents and legal
representatives, without Seller's prior written authorization, which may be
granted or denied in Seller's sole discretion.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred except as
expressly stated otherwise, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Purchase
Contract. No delay or omission to exercise any right or power accruing upon any
default, omission, or failure of performance hereunder shall impair any right or
power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. No
waiver, amendment, release, or modification of this Purchase Contract shall be
established by conduct, custom, or course of dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
16.18 Exchange
At Seller's sole cost and expense, Seller may structure and consummate the
sale of the Property to Purchaser as part of a like-kind exchange (an
"Exchange") intended to qualify under ss. 1031 of the Internal Revenue Code of
1986, as amended, provided that: (a) the Closing shall not be delayed or
affected by reason of an Exchange; (b) Seller shall effect an Exchange through
an assignment of this Agreement, and its rights under this Agreement, to a
qualified intermediary; and (c) Purchaser shall not be required to take an
assignment of the agreement relating to the exchange property or be required to
acquire or hold title to any real property for purposes of consummating an
Exchange. Purchaser shall cooperate fully and promptly with Seller's conduct of
the Exchange, provided that all costs and expenses generated in connection with
the Exchange shall be borne solely by Seller. If Seller uses a qualified
intermediary to effectuate the Exchange, any assignment of the rights or
obligations of Seller hereunder shall not relieve, release or absolve Seller of
its obligations to Purchaser. Seller shall indemnify and hold harmless Purchaser
from and against any and all liability arising from and out of the Exchange.
16.19 No Personal Liability of Officers, Trustees or Directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller which
is a California limited partnership, and Purchaser agrees that no individual
officer, trustee, director or representative of the partners of Seller shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
16.20 No Personal Liability of Officers, Trustees or Directors of Purchaser
Seller acknowledges that this Agreement is entered into by Purchaser which
is a Texas corporation, and Seller agrees that no individual officer, trustee,
director or representative of Purchaser shall have any personal liability under
this Agreement or any document executed in connection with this Agreement.
16.21 No Exclusive Negotiations
Seller shall have the right, at all times, to solicit backup offers and
enter into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Agreement, and that
Seller shall not enter into any contract or binding agreement with a third-party
for the sale of the Property unless such agreement is contingent on the
termination of this Agreement without the Property having been conveyed to
Purchaser.
16.22 IT IS THE INTENT OF SELLER AND PURCHASER THAT THE RIGHTS AND
REMEDIES WITH RESPECT TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHALL BE
GOVERNED BY LEGAL PRINCIPLES OTHER THAN THE TEXAS DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT. ACCORDINGLY, TO THE MAXIMUM EXTENT APPLICABLE
AND PERMITTED BY LAW (AND WITHOUT ADMITTING SUCH APPLICABILITY), PURCHASER
HEREBY WAIVES THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER
PROTECTION ACT, CHAPTER 17, SUBCHAPTER 3 (OTHER THAN SECTION 17.555, WHICH IS
NOT WAIVED), TEXAS BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS
SPECIAL RIGHTS AND PROTECTIONS. FOR PURPOSES OF THE WAIVERS SET FORTH IN THIS
AGREEMENT, PURCHASER HEREBY WARRANTS AND REPRESENTS UNTO SELLER THAT (A)
PURCHASER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT
ENABLE IT TO EVALUATE THE MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED UNDER
THIS AGREEMENT, (B) PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING
POSITION WITH SELLER REGARDING THE TRANSACTIONS CONTEMPLATED UNDER THIS
AGREEMENT, (C) PURCHASER IS REPRESENTED BY LEGAL COUNSEL THAT IS SEPARATE AND
INDEPENDENT OF SELLER AND SELLER'S LEGAL COUNSEL AND (D) PURCHASER HAS CONSULTED
WITH PURCHASER'S LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO PURCHASER'S
EXECUTION OF THIS AGREEMENT AND VOLUNTARILY CONSENTS TO THIS WAIVER.
[Remainder of Page Intentionally Left Blank]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Seller:
HOUSTON PINES, LTD.,
a California limited partnership
By: Angeles Realty Corporation,
a ______________ corporation,
its general partner
By:
Name:
Title:
Purchaser:
Winston Acquisition Corporation,
a Texas corporation
By:
Name:
Title:
EXHIBIT A
LEGAL DESCRIPTION FOR THE PINES OF NORTHWEST CROSSING
Tract I:
A tract of land containing 15.394 acres out of Reserve "I" , Block Nine (9),
Northwest Crossing, Section two (2), as recorded in Volume 218, Page 49 of the
Map Records of Harris County, Texas, and out of the Joseph Bays Survey, A-127,
Harris County, Texas, and being more particularly described by metes and bounds
as follows, to-wit:
BEGINNING at a point on the Southeast right-of-way line of Langfield Road, 60
foot wide, for the Northwest corner of said Reserve, "I" said beginning point
also being the center line of a 95 foot drainage easement according to said
plat;
THENCE, S 55 32' 08" East, with the center line of said 95 foot drainage
easement, a distance of 44.48 feet to a point of curve;
THENCE, Southeasterly, continuing with the center line of said 95 foot drainage
easement, along a curve to the left whose radius of 489.94 feet and central
angle is 21 22' 43", a distance of 182.81 feet to a point of reverse curve;
THENCE, Southeasterly, continuing with the center line of said 95 foot drainage
easement, along a curve to the right whose radius is 515.00 feet and central
angle is 18 19' 17", a distance of 166.18 feet to a point of tangent;
THENCE, S 58 25' 35" East, continuing with the center line of said 95 foot
drainage easement, a distance of 70.21 feet to a point of curve;
THENCE, Southeasterly, continuing with the center line of said 95 foot drainage
easement, along a curve to the left whose radius of 503.11 feet and central
angle is 17 46' 26", a distance of 156.07 feet to a point of reverse curve;
THENCE, Southeasterly, continuing with the center line of said 95 foot drainage
easement, along a curve to the right whose radius is 575.00 feet and central
angle is 16 22' 31", a distance of 164.34 feet to a point of tangent;
THENCE, S 59 49' 30" East, continuing with the center line of said 95 foot
drainage easement, a distance of 84.18 feet to a point of curve;
LEGAL DESCRIPTION
(continued)
THENCE, Southeasterly continuing with the center line of said 95 foot drainage
easement, along a curve to the left whose radius is 538.71 feet and central
angle is 24 11' 55", a distance of 227.52 feet to a point of reverse curve;
THENCE, Southeasterly, continuing with the cetner line of said 95 foot drainage
easement, along a curve to the right whose radius is 350.00 feet and central
angle is 26 27' 57", a distance of 161.67 feet to a point of tangent;
THENCE, S 57 33' 28" East, continuing with the center line of said 95 foot
drainage easement, a distance of 357.32 feet to a point of curve;
THENCE, Southeasterly, continuing with the center line of said 95 foot drainage
easement, along a curve to the right whose radius of 150.00 feet and central
angle is 55 10' 06", a distance of 144.43 feet to a point for the Southeast
corner of said Reserve "I" on the North right-of-way line of Pinemont Drive, 80
feet wide;
THENCE, S 87 36' 38" West, with the North right-of-way line of Pinemont Drive, a
distance of 1,197.86 feet to a point for corner;
THENCE, N 2 23' 22" West, a distance of 310.00 feet to a point for corner;
THENCE, S 87 36' 38" West, a distance of 398.61 feet to a point for corner on
the East right-of-way line of Langfield Road;
THENCE, Northerly, with the East right-of-way line of Langfield Road, along a
curve to the right whose radius is 490.00 feet and central angle is 0 35' 04",
and whose long chord bears N 0 15' 53" West, a distance, measured along the arc
of 5.00 feet to a point of compound curve;
THENCE, Northeasterly, continuing with the Easterly right-of-way line of
Langfield Road, along a curve to the right whose radius is 1,774.00 feet and
central angle is 18 00' 18", and whose long chord bears N 9 01' 48" East, a
distance, measured along the arc, of 557.47 feet to the PLACE OF BEGINNING and
containing 15.394 acres of land.
LEGAL DESCRIPTION
(continued)
Tract II:
BEING a tract or parcel of land containing 5.509 acres located in the Joseph
Bays Survey, A-127, Harris County, Texas, and being out of Reserve AE@, Block
Seven (7), Northwest Crossing, Section Two (2), according to the plat thereof
recorded in Volume 218, Page 49 of the Map Records of Harris County, Texas, said
5.509 acres of land being more particularly described by metes and bounds as
follows:
BEGINNING at a point on Hillmont Street, 60 feet wide, for the Southerly end of
the 10 foot cut-back at the intersection of the Northerly right-of-way line of
Hillmont Street with the Westerly right-of-way line of Langfield Road, 60 foot
wide;
THENCE, N 81 27' 18" West, with the Northerly right-of-way line of Hillmont
Street, a distance of 108.00 feet to a point of curve;
THENCE, Westerly, continuing with the Northerly right-of-way line of Hillmont
Street, along a curve to the right whose radius is 1,310 feet and central angle
is 7 31' 40", a distance of 172.11 feet to a point of reverse curve;
THENCE, Westerly, continuing with the Northerly right-of-way line of Hillmont
Street, along a curve to the left whose radius is 2,926 feet and central angle
is 6 52' 22", a distance of 350.98 feet to a point for corner;
THENCE, N 12 06' 23" East, a distance of 453.71 feet to a point for corner on
the Northeast line of said Reserve "E" and center line of the 95 foot drainage
easement according to the plat of said Northwest Crossing, Section Two (2);
THENCE, Southeasterly, with the Northeast line of said Reserve AE@ and the
center line of said 95 foot drainage easement, along a curve to the left whose
radius is 3,721.87 feet and central angle is 3 15' 26" and whose long chord
bears S 62 14' 38" East, a distance measured along the arc, of 211.59 feet to a
point of compound curve;
THENCE, Southeasterly, continuing with the Northeast line of said Reserve "E"
and the center line of said 95 foot drainage easement, along a curve to the left
whose radius is 2,787.33 feet and central angle is 3 29' 36" and whose long
chord bears S 65 37' 09" East, a distance measured along the arc, of 169.94 feet
to a point of tangent;
LEGAL DESCRIPTION
(continued)
THENCE, S 67 21' 57" East, continuing with the Northeast line of said Reserve
"E" and the center line of said 95 foot drainage easement, a distance of 154.22
feet to a point of curve;
THENCE, Southeasterly, continuing with the Northeast line of said Reserve "E"
and the center line of said 95 foot drainage easement, along a curve to the
right whose radius is 650.86 feet and central angle is 11 49' 49", a distance of
134.49 feet to a point for corner on the Westerly right-of-way line of Langfield
Road;
THENCE, Southwesterly, with the Westerly right-of-way line of Langfield Road,
along a curve to the left whose radius is 1,834.00 feet and central angle is 8
47' 24" and whose long chord bears S 14 1' 22" West, a distance measured along
the arc, of 281.36 feet to the Northerly end of the 10 foot cut-back at the
intersection of the Northerly right-of-way line of Hillman Street with the
Westerly right-of-way line of Langfield Road, 60 feet wide;
THENCE, S 54 05' 30" West, a distance of 14.28 feet to the PLACE OF BEGINNING
and CONTAINING 5.509 acres of land.
EXHIBIT B
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT C
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
Any and all proprietary software used by Seller in connection with the Property.
EXHIBIT D
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of April,
2000 by and among HOUSTON PINES, LTD., a California limited partnership
("Seller"), and WINSTON ACQUISITION CORPORATION, a Texas corporation
("Purchaser"); and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 3rd day of April,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Ninety Thousand and No/100 Dollars ($190,000.00) in
cash (the "Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Now, therefore, the parties agree to the following:
1.____Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Ninety Thousand Dollars ($190,000.00) in cash (constituting the
Deposit), to be deposited, held, invested, and disbursed for the benefit of
Seller and Purchaser and their respective successors and assigns, as provided
herein and as provided in the Purchase Contract.
2.___Investment of Escrow Fund. All funds received by Escrow Agent, including
the Deposit (collectively, the "Escrow Fund"), shall be held in insured accounts
and invested in an interest-bearing bank account acceptable to Seller and
Purchaser at one or more federally insured national banking association(s) or
such other investment jointly directed by Seller and Purchaser should Seller and
Purchaser each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3.____Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver the
Escrow Fund in immediately available funds by wire transfer in accordance with
the instructions of Seller, and (e) if Purchaser shall have canceled the
Purchase Contract on or before the expiration of the Feasibility Period (as
defined in the Purchase Contract), the Escrow Agent shall return and refund the
Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4.____Liability. Escrow Agent will be obligated to perform only the duties that
are expressly set forth herein. In case of conflicting demands upon Escrow
Agent, it may (i) refuse to comply therewith as long as such disagreement
continues and make no delivery or other disposition of any funds or property
then held (and Escrow Agent shall not be or become liable in any way for such
failure or refusal to comply with such conflicting or adverse claims or demands,
except for its failure to exercise due care, willful breach and willful
misconduct); and (ii) continue to so refrain and so refuse to act until all
differences have been adjusted by agreement and, Escrow Agent has been notified
thereof in writing signed jointly by Seller and Purchaser or (iii) to interplead
the portion of Escrow Fund in dispute.
5.____No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6.____Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
7.____Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
8.____Notices. Any required or permitted Notice or other communication under
this Escrow Agreement ("Notice") shall be given as follows. All Notices,
requests, demands and other communications hereunder shall be deemed to have
been duly given if the same shall be in writing and shall be delivered
personally or sent by federal express or other recognized national overnight
courier service maintaining records of delivery, or sent by registered or
certified mail, postage pre-paid, or sent by facsimile transmission (with a copy
of the facsimile confirmation and the facsimile transmission also sent by U.S.
Mail) and addressed as set forth below:
If to Seller: If to Purchaser:
Houston Pines, Ltd. Winston Acquisition Corporation
c/o AIMCO 5495 Beltline Road
2000 South Colorado Boulevard Suite 330
Tower Two, Suite 2-1000 Dallas, Texas 75240
Denver, Colorado 80222 Attn: Richard M. Barge
Attn: Mr. Harry Alcock Facsimile No. (972) 726-9316
Facsimile No. (303) 692-0786
______And ______With a copy to
Houston Pines, Ltd. Carrie, Cramer & Weatherbie
c/o AIMCO 5956 Sherry Lane
2000 South Colorado Boulevard Suite 1204
Tower Two, Suite 2-1000 Dallas, Texas 75225
Denver, Colorado 80222 Attn: David W. Richardson, Esq.
Attn: Mr. Mark Reoch Facsimile No. (214) 361-7842
Facsimile No. (303) 692-0786
With a copy to If to Escrow Agent:
Jackson Walker LLP Stewart Title Guaranty Company
112 E. Pecan St., Suite 2100 1980 Post Oak Boulevard
San Antonio, Texas 78205 Suite 610
Attn.: Eileen Scherlen, Esq. Houston, Texas 77056
Attn: ___________________
Facsimile No. (713) 552-1703
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $300.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
Houston Pines, Ltd.,
a California limited partnership
By:
Name:
Title:
Purchaser:
Winston Acquisition Corporation,
a Texas corporation
By:
Name:
Title:
Escrow Agent:
Stewart Title Guaranty Company
By:
Name:
Title:
EXHIBIT E
FORM OF SPECIAL WARRANTY DEED
(TEXAS)
THE STATE OF TEXAS ss.
ss.
COUNTY OF HARRIS ss.
Houston Pines, Ltd., a California limited partnership ("Grantor"), for and
in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable
consideration, the sufficiency of which is hereby acknowledged and confessed,
has GRANTED and CONVEYED, and by these presents does GRANT and CONVEY unto
Winston Acquisition Corporation, a Texas corporation ("Grantee"), its legal
representatives, successors and assigns forever, all those certain lots, tracts
or parcels of land in Harris County, Texas, more particularly described on
Exhibit A attached hereto and incorporated herein by this reference for all
purposes, together with all the improvements, structures and fixtures situated
thereon, and all appurtenances, rights and privileges thereunto attached or in
anywise belonging (the "Property");
EXCEPT THAT, this conveyance is expressly made subject to the Permitted
Exceptions described in Exhibit B hereto, to the extent the same are validly
existing and applicable to the Property (the "Permitted Encumbrances")
TO HAVE AND TO HOLD the above described premises unto the said GRANTEE,
its successors and assigns forever, and the GRANTOR does hereby bind itself, its
successors and assigns to forever warrant and defend said premises unto the said
GRANTEE, its successors and assigns against the lawful claims of any person now
claiming or to claim the same or any part thereof by through or under Grantor,
but not otherwise, subject only to the Permitted Encumbrances.
In addition, Grantor hereby conveys to Grantee, for the same consideration
set forth above and subject to the same consideration set forth above and
subject to the Permitted Encumbrances, all of Grantor's right, title and
interest, if any, in and to any minerals, oil, gas and other hydrocarbon
substances, development rights, air rights, water, water rights, wastewater or
other utility rights, water stock relating to the land, strips and gores,
streets, alleys, easements, rights-of-way, public ways, or other rights of
Grantor appurtenant, abutting or adjoining the Property.
EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE SET FORTH ABOVE, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT THE GRANT AND CONVEYANCE OF THE PROPERTY IS
"AS-IS", "WHERE-IS" AND "WITH ALL FAULTS" OF ANY KIND INCLUDING BUT NOT LIMITED
TO ANY MATTER, FACT OR CONDITION PERTAINING TO OR AFFECTED BY ANY APPLICABLE
LAW, RULE OR REGULATION PERTAINING TO WATER, AIR, WASTE OR ENVIRONMENTAL
PROTECTION (WHETHER ABOVE, WITHIN, UNDER OR ADJACENT TO THE PROPERTY). GRANTOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTIES, EXPRESS OR IMPLIED, AS TO THE
FITNESS, ENVIRONMENTAL COMPLIANCE, HANDICAPPED ACCESSIBILITY LAW COMPLIANCE,
ELECTROMAGNETIC FIELD EXPOSURE LEVELS, AREA, CONDITION, QUALITY, QUANTITY,
CHARACTER, SIZE, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, EXPENSES,
DESCRIPTION, MERCHANTABILITY OR HABITABILITY OF THE PROPERTY, FITNESS OF THE
PROPERTY FOR A PARTICULAR PURPOSE OR OTHERWISE. GRANTEE, BY ITS ACCEPTANCE
HEREOF, DOES HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR, ITS OFFICERS,
DIRECTORS AND TRUSTEES AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNEES FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN
TORT, UNDER CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY
SUCH REPRESENTATION (OTHER THAN THE SPECIAL WARRANTY OF TITLE SET FORTH HEREIN)
AND/OR ALLEGED REPRESENTATION.
Grantee, by its acceptance hereof, hereby assumes payment of all standby
charges, ad valorem real estate taxes and assessments with respect to the 2000
calendar year and subsequent calendar years not yet due and payable, each to the
extent attributable to all or any portion of the Property.
Grantee's address: 5495 Beltline Road, Suite 330
Dallas, Texas 75240
Executed as of ____ day of ________________, 2000.
Seller:
Houston Pines, Ltd.,
a California limited partnership
By:
Name:
Title:
THE STATE OF COLORADO ss.
ss.
COUNTY OF DENVER ss.
This instrument was acknowledged before me on the ____ day of
________________, 2000, by ____________________, ______________________ of
Angeles Realty Corporation, general partner of Houston Pines, Ltd. , a
California limited partnership, on behalf of said limited partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of _____________,
2000.
--------------------------------------
Notary Public in and for the State of ________
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
PERMITTED ENCUMBRANCES
EXHIBIT F
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by HOUSTON PINES, LTD., a
California limited partnership ("Seller"), in favor of WINSTON ACQUISITION
CORPORATION, a Texas corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of April 3, 2000 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in and to
purchase orders, maintenance, service or utility contracts or similar contracts
which relate to the ownership, maintenance, construction or repair or operation
of the Project, but only to the extent transferable.
b. Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of record, which
provide for use or occupancy of space or facilities on or relating to the
Project.
c. Security Deposits. All of Seller's rights and interests in and to any
and all (i) prepaid rent held as security, (ii) security deposits, and (iii) pet
deposits, if any, held by Seller under any of the leases assigned pursuant
hereto.
d. Licenses and Permits. All of Seller's rights and interests in and to all
licenses or permits granted by governmental authorities having jurisdiction over
the Project and utilized with respect to the Project.
e. Fixtures and Tangible Personal Property. All of Sellers rights and
interests in and to all fixtures, furniture, furnishings, fittings, equipment,
machinery, computers (to the extent located on the Property and owned by
Seller), fax machines (to the extent located on the Property and owned by
Seller), copiers (to the extent located on the Property and owned by Seller),
apparatus, appliances and other articles of tangible personal property now
located on the Project or in the improvements thereon and used in connection
with any present or future occupation or operation of all or any part of the
Project, but only to the extent transferable.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without recourse
or warranty, to Purchaser all of Seller's right, title and interest, if any, in
and to the Property, subject to any rights of consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property, pertaining to acts arising on and after the date hereof.
Seller further agrees to indemnify, defend and hold Purchaser harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property Assets arising prior to the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State in which the Property is located.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 2000
Seller:
Houston Pines, Ltd.,
a California limited partnership
By:
Name:
Title:
Purchaser:
Winston Acquisition Corporation, a Texas
corporation
By:
Name:
Title:
EXHIBIT G
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by HOUSTON PINES, LTD.,
a California limited partnership ("Seller"), in favor of WINSTON ACQUISITION
CORPORATION, a Texas corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of April 3, 2000 ("Purchase Contract"), in which Seller
has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "Project"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Purchase Contract.
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property relating to the ownership or operation of
the Property and owned by Seller, but only to the extent transferable. The term
"Miscellaneous Assets" shall also include the following, but only to the extent
owned by Seller and in Seller's possession: site plans, surveys, soil and
substrata studies, architectural renderings, plans and specifications,
engineering plans and studies, floor plans, tenant data sheets, landscape plans
and other plans or studies of any kind, if any, which relate to the Land and or
the Improvements or the Fixtures and Tangible Personal Property. The term
"Miscellaneous Property Assets" shall also include all of Seller's rights, if
any, in and to the name "The Pines of Northwest Crossing".
2. The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
3. Assignment. Seller hereby assigns, sells and transfers, without recourse
or warranty, to Purchaser all of Seller's right, title and interest, if any, in
and to the Miscellaneous Property Assets, subject to any rights of consent as
provided therein.
4. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets and agrees to perform all of the covenants and obligations of
Seller thereunder. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may arise
in connection with the Miscellaneous Property Assets, pertaining to acts arising
on and after the date hereof. Seller further agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets arising
prior to the date hereof.
5. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State in which the Project is located.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: ___________, 2000
Seller:
Houston Pines, Ltd.,
a California limited partnership
By:
Name:
Title:
Purchaser:
Winston Acquisition Corporation, a Texas
corporation
By:
Name:
Title:
EXHIBIT H
Tenants at The Pines of Northwest Crossing Apartments
7200 Pinemont
Houston, Texas 77040
Re: Your lease at _______________________
Dear Tenant:
Effective as of __________, 2000, Houston Pines, Ltd. a California limited
partnership (the "Seller"), has sold The Pines of Northwest Crossing Apartments
located at 7200 Pinemont, Houston, Texas 77040 and has assigned your lease to
Winston Acquisition Corporation, a Texas corporation (the "Purchaser"). In
connection with such sale and assignment, the Purchaser has assumed the Seller's
obligations as landlord under your lease and has also been transferred any
unapplied and refundable portion of your security deposit(s). The amount of your
security deposit is $______________________________.
All rent thereafter due should be made payable to the Purchaser and
forwarded to the following address:
========================
------------------------
All inquiries you may have should be addressed to the property manager at
the address set forth above.
Very truly yours,
Winston Acquisition Corporation,
a Texas corporation
By:
Name:
Title:
EXHIBIT I
LEAD-BASED PAINT DISCLOSURE
Every purchaser of any interest in residential 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 Purchaser with any
information on lead-based paint hazards from risk assessments or inspections in
the seller's possession and notify the Purchaser of any known lead-based paint
hazards. A risk assessment or inspection for possible lead-based paint hazards
is recommended prior to purchase.
1. Except as set forth in Exhibit A attached hereto, Seller has no knowledge of
the presence of lead-based paint and/or lead-based paint hazards in the housing
located on the Land. To the best of Seller's knowledge, except as set forth in
Exhibit B attached hereto, there are no records or reports available to Seller
pertaining to lead-based paint and/or lead-based paint hazards in the housing
located on the Land.
2. Purchaser affirms that it has received from Seller the pamphlet Protect your
Family from Lead in Your Home. 3. Purchaser affirms that it has received the
opportunity to conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards required by 24 CFR ss.
35.90(a).
Seller and Purchaser hereby certify that, to the best of their knowledge,
their respective statements made above are accurate.
Dated: .
Seller:
Houston Pines, Ltd.,
a California limited partnership
By:
Name:
Title:
Purchaser:
Winston Acquisition Corporation,
a Texas corporation
By:
Name:
Title:
SCHEDULE 1.1.6(a)
None
SCHEDULE 1.1.6(b)
None
SCHEDULE 1.1.23
Promissory Note dated September 30, 1993, in the original principal amount of
$5,045,940, executed by Houston Pines and payable to the order of Lexington
Mortgage Company. Assigned to Federal National Mortgage Association on December
13, 1993.
SCHEDULE 5.4
1. A current "Rent Roll" (herein so called) prepared (by Seller or its
management company) as of the first day of the month of the Effective Date,
which Rent Roll shall reflect, as of the date thereof, in relation to Leases and
or other tenancy agreements with respect to the Project executed and in effect
as of the Effective Date, unit numbers, tenant names, monthly rental, the amount
of the tenant's security deposit, and the expiration date of each Lease. The
Rent Roll shall be promptly updated upon the request of Purchaser, but not more
frequently than monthly. At Closing, Seller shall provide Purchaser with an
updated Rent Roll dated not earlier than five (5) days prior to Closing and
certified by Seller or Manager as substantially true and correct;
2. Copies of the tax statements for the Property for the current year (if
issued), 1998 and 1999 (to the extent available);
3. Copies of monthly operating statements, monthly income and expense
reports, and monthly rent rolls for calendar year 2000, year to date, together
with a year end annual rental report for the calendar years 1998 and 1999;
4. Copies of the original certificates of occupancy for the Property (to the
extent available);
5. A schedule listing monthly physical occupancy for calendar years 1998,
1999 and 2000 year to date (to the extent available);
6. Copies of water/sewer, gas and electricity bills for each month during
1999 and 2000 year to date (to the extent available);
7. All notices or correspondence from any taxing authority or tax appraisal
district for 1998, 1999 and 2000 (to the extent available and without
investigation beyond what is in the possession of Manager).
SCHEDULE 7.3
Project Seller
Prime Crest Apartments Ambassador VIII, L.P.
9001 Northgate Boulevard
Austin, Texas 78758
Royal Crest Apartments Ambassador VIII, L.P.
9300 Northgate Boulevard
Austin, Texas 78758
Easton Terrace I Apartments Easton Terrace I Associates Limited
Partnership
10429 Lone Tree
Dallas, Texas 75218
Easton Terrace II Apartments Easton Terrace III Associates Limited
Partnership
10429 Lone Tree
Dallas, Texas 75218
Northlake Terrace Apartments North Lake Terrace Associates Limited
Partnership
8501 Lullwater
Dallas, Texas 75238
Northwest Terrace Apartments Northwest Terrace Associates Limited
Partnership
8501 Lullwater
Dallas, Texas 75238
The Mills Apartments Ambassador VIII, L.P.
10225 Bissonnett
Houston, Texas 77036
The Pines of Northwest Crossing Houston Pines
7200 Pinemont
Houston, Texas 77040
Shirewood Townhomes Consolidated Capital Equity Partners, L.P.
1103 Dudley Drive
Shreveport, Louisiana 71104
ARTICLE 1 DEFINED TERMS...................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................4
ARTICLE 4 FINANCING.......................................................5
ARTICLE 5 INSPECTIONS.....................................................5
ARTICLE 6 TITLE...........................................................7
ARTICLE 7 CLOSING.........................................................9
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER........................................13
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................20
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................21
ARTICLE 14 LEAD-BASED PAINT DISCLOSURE....................................22
ARTICLE 15 EMINENT DOMAIN.................................................22
ARTICLE 16 MISCELLANEOUS..................................................22
FIRST AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 3rd day of April, 2000, by and between HOUSTON PINES,
LTD., a California limited partnership ("Seller"), and WINSTON ACQUISITION
CORPORATION, a Texas corporation ("Purchaser").
RECITALS
A.....Purchaser and Seller have entered into that certain Purchase and
Sale Contract (the "Purchase Contract") dated as of April 3, 2000, covering
certain parcels of real property located in Dallas County, Texas, as more
particularly described in the Purchase Contract. All capitalized terms used but
not defined in this Amendment shall have the meaning ascribed to them in the
Agreement.
B.....Purchaser and Seller desire to amend the Purchase Contract in
certain respects, as set forth below.
AGREEMENTS
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Buyer and Seller hereby agree as
follows:
1.....Section 6.1 shall be amended and modified such that the date of
"April 7, 2000", contained in the second sentence thereof, shall be changed to
"April 10, 2000".
2.....Section 7.1.2 shall be amended and modified to add an "(a) after the
word "extended" in the first line thereof, and, at the end of such Section
before the ".", the following:
"(b) at the option of Purchaser to a date not later than thirty (30) days
following the Closing Date specified above, such option to be subject to
and exercisable by the delivery, not less than five (5) Business Days
prior to the Closing Date, of (i) written notice to Seller and Escrow
Agent of Purchaser's election to exercise such option and (ii) deposit
with Escrow Agent of an increase to the Deposit in the additional amount
of $30,000.00, paid in immediately available funds. The increased amount
of the Deposit shall be non-refundable in all events and shall be paid to
Seller concurrently with the disbursement of the Deposit to either Seller
or Buyer in accordance with the terms of this Purchase Contract, but
shall be credited toward the Purchase Price at Closing."
3.....Section 7.3 is hereby amended and modified to insert "(other than by
reason of any termination pursuant to Section 6.7)" after the words "in the
event any of the purchase contracts for the Related Properties are terminated or
cancelled by Purchaser for any reason" in the third sentence thereof.
4.....Except as modified by this Amendment, the Purchase Contract is in
full force and effect as originally written. This Amendment may be executed (a)
by facsimile transmission, the same of which will be treated as an original and
(b) in one or more counterparts, each of which shall be deemed an original and
all of which combined shall constitute one and the same instrument. Each of the
parties executing this Amendment represents and warrants that it has been fully
authorized and has the requisite authority to bind the respective party to the
terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
Winston Acquisition Corporation, a Texas
corporation
By:
Name:
Title:
SELLER:
HOUSTON PINES, LTD.,
a California limited partnership
By:Angeles Realty Corporation, a ________
corporation, its general partner
By:
Name:
Title:
SECOND AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 17th day of April, 2000, by and between HOUSTON PINES,
LTD., a California limited partnership ("Seller"), and WINSTON ACQUISITION
CORPORATION, a Texas corporation ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (as amended, the "Purchase Contract") dated as of April 3, 2000,
covering certain parcels of real property located in Dallas County, Texas, as
more particularly described in the Purchase Contract.
B. The Purchase Contract was amended and modified by that certain First
Amendment to Purchase and Sale Contract, dated as of April 3, 2000, by and
between Purchaser and Seller.
C. Purchaser and Seller desire to again amend the Purchase Contract in
certain respects, as set forth below.
D. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Agreement.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Buyer and Seller hereby agree as
follows:
1. Section 6.2 of the Agreement shall be amended and modified such that
all references contained in such section to the date which is five (5) days
after Seller's Receipt of the Objection Notice shall be extended to 5:00 p.m.,
Dallas, Texas time, of April 18, 2000.
2. Section 16.6 of the Agreement and each other notice provision referring
to Seller contained in any of the Exhibits to the Agreement, even though not
specifically identified herein, shall be amended and modified to substitute for
the facsimile number of Seller contained therein the following number: (303)
691-5662.
3. Except as modified by this Amendment, the Purchase Contract is in full
force and effect as originally written. This Amendment may be executed (a) by
facsimile transmission, the same of which will be treated as an original and (b)
in one or more counterparts, each of which shall be deemed an original and all
of which combined shall constitute one and the same instrument. Each of the
parties executing this Amendment represents and warrants that it has been fully
authorized and has the requisite authority to bind the respective party to the
terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
Winston Acquisition Corporation,
a Texas corporation
By: ______________________________
Name: ______________________________
Title: ______________________________
SELLER:
HOUSTON PINES, LTD.,
a California limited partnership
By: Angeles Realty Corporation,
a ________ corporation,
its general partner
By: ________________________
Name: ________________________
Title:________________________
THIRD AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 19th day of May, 2000, by and between HOUSTON PINES,
LTD., a California limited partnership ("Seller"), and WINSTON ACQUISITION
CORPORATION, a Texas corporation ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of April 3, 2000, covering certain
parcels of real property located in Dallas County, Texas, as more particularly
described in the Purchase Contract.
B. The Purchase Contract was amended and modified by that certain First
Amendment to Purchase and Sale Contract (the "First Amendment"), dated as of
April 3, 2000, by and between Purchaser and Seller.
C. The Purchase Contract was again amended and modified by that certain
Second Amendment to Purchase and Sale Contract (the "Second Amendment"), dated
as of April 17, 2000, by and between Purchaser and Seller.
D. Purchaser and Seller desire to again amend the Purchase Contract in
certain respects, as set forth below.
E. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended by the First
Amendment and the Second Amendment (all references to the Purchase Contract
shall hereinafter refer to the Purchase Contract as amended by the First
Amendment and the Second Amendment).
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Buyer and Seller hereby agree as
follows:
1. Section 7.1.1 of the Purchase Contract is hereby amended such that the
date of the Closing stated therein shall be July 14, 2000.
2. Section 7.1.2. of the Purchase Contract is hereby amended such that
Subsection 7.1.2(b) thereof is hereby deleted in its entirety.
3. Except as modified by this Amendment, the First Amendment and the
Second Amendment, the Purchase Contract is in full force and effect as
originally written. This Amendment may be executed (a) by facsimile
transmission, the same of which will be treated as an original and (b) in one or
more counterparts, each of which shall be deemed an original and all of which
combined shall constitute one and the same instrument. Each of the parties
executing this Amendment represents and warrants that it has been fully
authorized and has the requisite authority to bind the respective party to the
terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
Winston Acquisition Corporation,
a Texas corporation
By: ______________________________
Name: ______________________________
Title:______________________________
SELLER:
HOUSTON PINES, LTD.,
a California limited partnership
By: Angeles Realty Corporation,
a California corporation,
its general partner
By: ________________________
Harry Alcock
Executive Vice President
FOURTH AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 14th day of July, 2000, by and between HOUSTON PINES,
LTD., a California limited partnership ("Seller"), and SW PINES PARTNERS, L. P.,
a Texas limited partnership ("Purchaser"), assignee of WINSTON ACQUISITION
CORPORATION, a Texas corporation ("Original Purchaser").
RECITALS:
A. Original Purchaser and Seller have entered into that certain Purchase
and Sale Contract (the "Purchase Contract") dated as of April 3, 2000, covering
certain parcels of real property located in Harris County, Harris, as more
particularly described in the Purchase Contract.
B. The Purchase Contract was amended and modified by that certain First
Amendment to Purchase and Sale Contract (the "First Amendment"), dated as of
April 3, 2000, by and between Original Purchaser and Seller.
C. The Purchase Contract was again amended and modified by that certain
Second Amendment to Purchase and Sale Contract (the "Second Amendment"), dated
as of April 17, 2000, by and between Original Purchaser and Seller.
D. The Purchase Contract was again amended and modified by that certain Third
Amendment to Purchase and Sale Contract (the "Third Amendment"), dated as of May
19, 2000, by and between Original Purchaser and Seller.
E. Original Purchaser assigned its interest in the Purchase Contract to
Purchaser pursuant to that certain Assignment of Purchase and Sale Contract
dated effective as of June 27, 2000.
F. Purchaser and Seller desire to again amend the Purchase Contract in
certain respects, as set forth below.
G. All capitalized terms used but not defined in this Amendment shall have
the meaning ascribed to them in the Purchase Contract, as amended by the First
Amendment, the Second Amendment and the Third Amendment (all references to the
Purchase Contract shall hereinafter refer to the Purchase Contract as amended by
the First Amendment, the Second Amendment and the Third Amendment).
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Buyer and Seller hereby agree as
follows:
1. The definition of "Closing Date" contained in Section 1.1 of
the Purchase Contract is hereby amended and restated in its
entirety as follows:
1.1.3. "Closing Date" means the effective date on which all
conditions to the consummation of the Closing, other than (a) the payment
of the Purchase Price, (b) the discharge and release of all liens
affecting the Property, (c) the termination of the Management Contract,
and (d) the issuance to Purchaser of the Title Policy, shall have been
satisfied.
2. Section 7.1.1 of the Purchase Contract is hereby amended and restated
in its entirety as follows:
7.1.1 The Closing shall occur on July 21, 2000, through an escrow with Escrow
Agent (the "Closing Escrow") established not later than July 14, 2000.
July 14, 2000 shall be the "Closing Date" and the effective date of the
conveyance of the Property from Seller to Purchaser. Seller, Purchaser
and their attorneys need not be physically present at the Closing or the
establishment of the Closing Escrow, and may deliver documents into the
Closing Escrow by overnight air courier or other means under letters of
instruction from the respective attorneys for Seller and Purchaser,
and/or either of them.
3. Section 7.1.2 of the Purchase Contract is hereby amended and restated
in its entirety as follows:
7.1.2 The Closing Date (and the Closing) may be extended without
penalty at the option of Seller to a date not later than thirty (30) days
following the Closing Date and Closing specified above to satisfy a
condition to be satisfied by Seller, or such later date as is mutually
acceptable to Seller and Purchaser.
4. Section 7.2.1 of the Purchase Contract is hereby amended and restated
in its entirety as follows:
7.2.1 On the Closing Date, Seller shall deliver into the Closing
Escrow each of the following items, as applicable, unless otherwise
provided below:
5. Section 7.2.1.8 of the Purchase Contract is hereby amended and restated
in its entirety as follows:
7.2.1.8 Evidence that the Management Agreement will be terminated
effective as of the Closing.
6. Section 7.2.2 of the Purchase Contract is hereby amended and restated
in its entirety as follows:
7.2.2. On the Closing Date, Purchaser shall deliver into the Closing
Escrow each of the following items, as applicable, unless otherwise
provided below:
7. Section 7.2.2.1. is amended to be deleted from Section 7.2.2 ., and,
in lieu thereof, to be replaced with the following:
7.2.2.1 Evidence of the availability of funds to make the payment of
the Purchase Price due from the Purchaser at the Closing. If Purchaser is
obtaining financing from a third party lender ("Purchaser's Lender") as
the source of the payment of the Purchase Price (the "Acquisition Loan"),
then such evidence shall consist of a letter from Purchaser's Lender
acknowledging all of the documentation required by Purchaser's Lender as a
conditioned to the making of the Acquisition Loan has been executed and/or
delivered, and all commitment fees due from Purchaser to Purchaser's
Lender have been paid, such that (a) the Acquisition Loan has
"pre-closed", meaning all conditions to the funding of the Acquisition
Loan have been satisfied other than the Purchaser's contemporaneous
acquisition of title to the Property free and clear of the Mortgage, and
(b) Purchaser's Lender is obligated to fund the Acquisition Loan under its
loan commitment to Purchaser.
8. Section 7.2.3 is hereby amended (a) to substitute for the words "at
Closing," contained in the first line thereof, the words, "on the Closing Date",
and (b) to insert the words "into the Closing Escrow" after the word "deliver"
in the second line thereof.
9. A new Section 7.2.4 is hereby added, after Section 7.2.3, to the
Purchase Contract:
7.2.4 Not later than the day of the Closing:
7.2.4.1 Seller shall effect and obtain the discharge and
release of the liens encumbering the Property to be discharged by
Seller pursuant to the terms of this Purchase Contract. Seller may
use any portion of the Purchase Price for the Property(s) to
consummate the same, provided that Seller shall have delivered or
caused to be delivered into the Closing Escrow, by the Closing Date,
instruments in recordable form sufficient to satisfy such liens and
encumbrances of record (or, as to any mortgages or deeds of trust).
7.2.4.2 Purchaser shall deliver or cause the delivery to the
Escrow Agent of the full Purchase Price as required by ARTICLE 3
hereof plus or minus the adjustments or prorations required by this
Purchase Contract.
10. Section 9.1 and Section 9.2 of the Purchase Contract shall be, and is
hereby, modified to insert the words "as of the Closing Date" in the following
provisions:
(a) at the end of Section 9.1.5;
(b) at the beginning of Section 9.1.6;
(c) at the beginning of Section 9.1.8, provided that the words ",
subject only to the consummation by Seller of the funding(s)
necessary to discharge the Sellers Note Obligations" are also
added after the words "shall have been obtained" in the last
line thereof;
(d) at the beginning of Section 9.2.3; and
(e) at the beginning of Section 9.2.4.
11. Section 13.1 of the Purchase Contract shall be, and is hereby, deleted
from the Purchase and Sale Contract, and Section 13.2 shall be, and is hereby,
modified to delete the words "and the cost of repair is less than $150,000," in
the second line thereof.
12. Section 15.1 of the Purchase Contract shall be, and is hereby,
modified to substitute for the word "Closing" contained in the first line
thereof, the words "the Closing Date".
13. Except as expressly modified by this Amendment, the First Amendment,
the Second Amendment and the Third Amendment, the Purchase Contract is in full
force and effect as originally written.
14. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original, and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
15. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
PURCHASER:
SW PINE PARTNERS, L.P.,
a Texas limited partnership
By: SW Pine Investments, Inc., a Texas
corporation,
its general partner
By:__________________________
Richard M. Barge
SELLER:
HOUSTON PINES, LTD.,
a California limited partnership
By: Angeles Realty Corporation,
a California corporation,
its general partner
By: ________________________
Harry Alcock
Executive Vice President
