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) August 31, 2000
UNITED INVESTORS GROWTH PROPERTIES II
(Exact name of registrant as specified in its charter)
Missouri 0-19242 43-1542902
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation)
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)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Riverwalk Apartments, located in Houston, Texas, was sold by the Registrant on
August 31, 2000. The property was sold to JMA Properties, Inc., a Texas
corporation, an unrelated party, for $4,350,000.
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
10.19 Purchase and Sale Contract between Registrant and JMA Properties Inc.,
a Texas corporation, dated May 17, 2000.
10.20 Amendment to Purchase and Sale Contract between Registrant and JMA
Properties, Inc., dated June 8, 2000.
<PAGE>
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.
UNITED INVESTORS GROWTH PROPERTIES II
By: United Investors Real Estate, Inc.
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
and Director
Date:
<PAGE>
Exhibit 10.19
PURCHASE AND SALE CONTRACT
between
RIVERWALK ASSOCIATES, L.P. (A MISSOURI LIMITED PARTNERSHIP),
a Missouri limited partnership
as Seller
and
JMA PROPERTIES, INC.,
a Texas corporation
as Purchaser
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement") is
entered into as of the seventeenth day of May, 2000 (the "Effective Date") by
and between RIVERWALK ASSOCIATES, L.P. (A MISSOURI LIMITED PARTNERSHIP), a
Missouri limited partnership, having a principal address at 2000 South Colorado
Blvd., Tower Two, Suite 2-1000, Denver, Colorado 80222 ("Seller") and JMA
PROPERTIES, INC., a Texas corporation, having a principal address at 3023
Woodcreek Lane, Suite 405, Houston, Texas 77073 ("Purchaser").
NOW, THEREFORE, WITNESSETH: That for and in consideration of the
mutual covenants and agreements hereinafter set forth, Seller and Purchaser
hereby agree as follows:
RECITALS
R-1. Seller holds fee 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.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of the Property, as Purchaser deems necessary and
desirable.
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 or hereafter 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, or (ii) property owned or leased by Tenants and
guests, employees or other persons furnishing goods or services to the Property,
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 Omitted.]
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 Property or
thereafter as permitted in Section 6.5.
1.1.11 "Management Contract" means the agreement(s) between
Seller and Manager pertaining to the Land and Improvements.
1.1.12 "Manager" means Insignia Management Group, L.P., 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
therein, for periods or events occurring prior to the Closing Date, (ix) utility
and similar deposits, (x) insurance or other prepaid items, (xi) Seller's
proprietary books and records, and (xii) 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,
and all escrow accounts and reserves maintained by Seller with the holder of the
Seller's Note Obligation. The term "Miscellaneous Property Assets" shall also
include all of Seller's rights, if any, in and to the name "RIVERWALK
APARTMENTS" and any telephone numbers associated with the Property.
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, Property Contracts, Leases, Security Deposits, Permits other than
Excluded Permits, and the Miscellaneous Property Assets.
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 ninety (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, (iii) pet deposits, if any, and (iv) any other
deposits held by Seller under any of the Leases.
1.1.23 "Seller's Note Obligation" 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 6.1.
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 6.1.
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
Four Million Three Hundred Fifty Thousand and No/100 Dollars ($4,350,000.00),
which shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Stewart Title
Guaranty Company ("Escrow Agent" or the "Title Insurer") a deposit in the sum of
Forty-Three Thousand Five Hundred and No/100 Dollars ($43,500.00), in cash,
(such sum being hereinafter referred to and held as the "Initial Deposit").
Purchaser and Seller each approve the form of Escrow Agreement attached as
Exhibit "D". On or before the last day of the Feasibility Period (and provided
that this Agreement has not been terminated by Purchaser) Purchaser shall
deposit into escrow with the Escrow Agent the additional sum of Forty-Three
Thousand Five Hundred and No/100 Dollars ($43,500.00), in cash (the "Additional
Deposit"). As used herein, the term "Deposit" shall mean, collectively, the
Initial Deposit and the Additional Deposit. 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 and the Independent Contract
Consideration shall be applied to the Purchase Price on the Closing Date and the
balance of the Purchase Price, less adjustments provided for herein and the
outstanding balance of the Seller's Note Obligation after deducting therefrom
the sum of all escrows and reserves for taxes and insurance only held by the
holder of the Seller's Note Obligation as of the Closing Date, 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 the
termination of this Purchase Contract by Purchaser pursuant to ARTICLE 5,
ARTICLE 6, or Section 9.2.4, the Deposit shall be returned and refunded to
Purchaser. If the sale of the Property is not closed by the date fixed therefor
(or any such extension date) owing to the failure of performance by Seller,
Purchaser shall be entitled to the remedy elected by it under and as 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 Seller has advised Purchaser that, as of the Effective Date, the
Property is encumbered by certain liens securing the Seller's Note Obligation.
Subject to any restrictions on assumption that may be set forth in the documents
evidencing or pertaining to the Seller's Note Obligation (the "Loan Documents"),
Purchaser shall, at its sole cost and expense, use commercially reasonable
efforts (a) to promptly negotiate the assumption of the Seller's Note Obligation
on the Closing Date on terms reasonably acceptable to Purchaser, provided that
the terms of such assumption shall not require any increase in the rate of
interest payable thereunder, any increase in the amount of the payments of
principal and interest due thereunder, any decrease in the term of the maturity
thereof, or the payment of any costs or fees in excess of one percent (1%) of
the outstanding principal amount to be assumed, plus a fee of $2,000.00, plus
customary costs of the holder incurred in connection with attorneys' fees and
expenses such as Purchaser's assumption, (b) to obtain the release of Seller and
its affiliate guarantor from all liability with respect to the Seller's Note
Obligation effective as of the Closing Date, and (c) to obtain the approval of
the holder of the Seller's Note Obligation prior to the Closing Date necessary
to effect such assumption of the Seller's Note Obligation on the Closing Date.
Seller agrees to cooperate with such efforts. Any and all amounts or fees due
and payable in connection with the assumption of the Seller's Note Obligation
(other than scheduled payments of principal, interest, escrows, and reserves due
prior to the Closing Date) shall be paid by Purchaser. Notwithstanding the
foregoing, in the event that (a) after using commercially reasonable efforts,
Purchaser is unable to (i) assume the Seller's Note Obligation on terms
reasonably acceptable to Purchaser (as set forth earlier in this Section 4.1),
or (ii) obtain the release of Seller and its affiliate guarantor from all
personal liability under the Seller Note Obligation (and Seller has not elected
to waive such condition after notice to it from Purchaser that the holder of the
Seller's Note Obligation is unwilling to consent to such release), then, upon
delivery of written notice by Purchaser to Seller and Escrow Agent, this
Purchase Contract shall terminate, in which event the Deposit shall be returned
to Purchaser by the Escrow Agent and Seller and Purchaser shall evenly divide
the cancellation charges of the Escrow Agent and the Title Insurer, if any, and
this Purchase Contract shall automatically be of no further force and effect and
neither party shall have any further rights and obligations hereunder except as
provided in Section 5.3. In no event shall Seller be obligated to prepay the
Seller's Note Obligation.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for fifteen (15) calendar
days following Purchaser's receipt of the "Materials" (as hereinafter defined),
but in no event later than twenty-two (22) calendar days following the Effective
Date (the "Feasibility Period"), 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 ascertain and confirm the suitability of the Property
for Purchaser's intended use.
5.1.4 To review all Materials and, at the offices of the Manager
located at the Property, to review and copy (at Purchaser's expense) Seller's
books and records relating to the Property (other than Seller's proprietary
information) and all Leases.
5.2 Purchaser shall have the right to terminate this Purchase Contract for
any reason, or no reason, by giving written Notice to Seller and Escrow Agent on
or before 10:00 p.m. Central Daylight Time, on the date of expiration of the
Feasibility Period. If Purchaser exercises such right to terminate, this
Purchase Contract shall terminate and be of no further force and effect, subject
to and except for Purchaser's liability under Section 5.3, and Escrow Agent
shall promptly return the Deposit to Purchaser. If Purchaser fails to provide
Seller with written Notice of cancellation prior to the end of the Feasibility
Period in strict accordance with the Notice provisions of this Purchase
Contract, this Purchase Contract shall remain in full force and effect and
Purchaser's obligation to purchase the Property shall be non-contingent and
unconditional except only for satisfaction of the conditions expressly stated in
this ARTICLE 5 and in ARTICLE 9.
5.3 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 its 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 substantially 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 5.3, 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 Effective Date.
5.4 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 to Seller proof of insurance coverage required in Section 5.3 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.
5.5 Seller shall deliver to Purchaser within five (5) Business 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 and
environmental studies in Seller's possession or control relating to the Property
and prepared for Seller by third parties (other than proprietary information of
Seller), (d) the Loan Documents (to the extent in Seller's possession), and (e)
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 On or before five (5) calendar days from the Effective Date, Seller
shall cause to be delivered to Purchaser (a) a preliminary title report or
commitment (the "Title Commitment") prepared by Stewart Title Guaranty Company
(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 the
amount of the Purchase Price, subject only to the Permitted Exceptions
(described below) and other liens and encumbrances not constituting objections
to title in accordance herewith, together with legible copies of all instruments
identified therein as exceptions, and (b) a survey of the Land and Improvements,
prepared in accordance with and complying with the minimum requirements of ALTA
and complying with all of Mortgagee's Survey Requirements, in a form, and
certified as of a date satisfactory to the Title Insurer to delete standard
survey exceptions from the Title Policy, except for any Permitted Exceptions,
and (i) showing all improvements, recorded easements (to the extent locatable),
set back lines and such other matters shown as exceptions by the Title
Commitment; (ii) showing the right of way for all adjacent public streets; (iii)
specifically disclosing whether (and, if so, what part of) any of the Property
is in an area designated as requirement flood insurance under applicable federal
laws regulating lenders; (iv) containing a perimeter legal description of the
Property; (v) certified to Purchaser, Mortgagee, Seller and Title Insurer as
being true and correct; and (vi) certifying the legal description set forth
therein as describing the Property to be purchased by Purchaser pursuant to the
terms of this Purchase Contract (the "Survey"). On or before ten (10) days
following Purchaser's receipt of the Title Commitment, the documents of record
reflected therein, and the Survey, Purchaser shall give written notice (the
"Objection Notice") to the attorneys for Seller of any conditions of title
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. Seller shall have no obligation to cure
any matter set forth in the Objection Notice, but shall extend the Closing Date
for up to an additional thirty (30) days to cure any such matter. 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) business
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) business 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.
6.2 All matters disclosed on the Title Commitment which are not objected
to in the Objection Notice as timely delivered or which are waived or deemed
waived by Purchaser pursuant to the provisions of Section 6.1 above, the
Mortgage, and any matter affecting title to the Property, even though not
reflected in the Title Commitment if the Title Insurer will insure Purchaser's
title clear of the matter or will insure against the enforcement of such matter,
shall be deemed to be Permitted Exceptions, other than 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.
6.3 Seller agrees that it shall be solely responsible for payment of all
costs 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 related
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 to the extent the Seller's Note Obligation is assumed by
Purchaser pursuant to the provisions of ARTICLE 4, 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.
6.5 Seller covenants that it will not voluntarily create or cause any lien
or encumbrance to attach to the Property between the Effective Date and the
Closing Date (other than Leases and Property Contracts in the ordinary course of
business; provided, however, after the expiration of the Feasibility Period and
prior to the Closing Date, all Leases and Property Contracts must be first
approved in writing by Purchaser unless [a] such Lease has a term not greater
than six [6] months and on other terms and conditions no less favorable to
Seller than exist with respect to other comparable units of the Property as
reflected on the most recent rent roll delivered to Purchaser, or [b] such
Property Contract is terminable on not less than thirty [30] days prior written
notice); 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 extended Closing
Date. Except as expressly provided in this ARTICLE 6, Seller shall not be
required to undertake efforts to remove any Objection or 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 Effective 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.
6.6 Purchaser shall be responsible for the costs of the Survey up to the
amount of $1,000.00 payable at Closing of this Purchase Contract, unless this
Purchase Contract is terminated for any reason other than Purchaser's default,
in which event Seller shall be solely responsible for the cost of the Survey.
Seller agrees that it shall be responsible for all costs of the survey beyond
the amount for which Purchaser is responsible pursuant to the preceding
sentence. 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.
Purchaser, at Purchaser's sole cost and expense, may also cause to be prepared
an environmental report for the Property.
ARTICLE 7
CLOSING
7.1 Date, Place Of Closing, Prorations, Delinquent Rent and Closing
Costs.
7.1.1 The Closing shall occur on the later to occur of (a) fifteen
(15) days after the expiration of the Feasibility Period, or (b) fifteen (15)
days after receipt by Purchaser of the Mortgagee's approval of Purchaser's
assumption of the Seller's Note Obligation (but in no event later than September
15, 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. Purchaser shall
provide to Seller written notice of Purchaser's receipt of such assumption
approval not more than three (3) Business Days' following the date thereof.
7.1.2 The Closing Date may be extended without penalty at the option
of Seller (a) in the event that the consents and governmental approvals
contemplated by Section 8.1.1.1 have not then been obtained by Seller (and such
consents and approvals have not been affirmatively and finally denied), to a
date not later than seven (7) Business Days following the date on which Seller
obtains such consents and approvals (but in no event later than September 15,
2000), provided that (i) Seller provides to Purchaser at least three (3)
Business Days' prior written notice of Seller's election to extend the Closing
Date pursuant to this Section 7.1.2., (ii) Seller diligently pursues the prompt
obtainment of such consents and approvals (using its reasonable best efforts
under the circumstances and to the extent within Seller's control), and (iii)
Seller provides to Purchaser written notice of its receipt of such consents and
approvals (or of the affirmative and final denial of such consents and
approvals) not later than three (3) Business Days following such receipt by
Seller, or (b) to a date not later than thirty (30) days following the Closing
Date specified in Section 7.1.1. (but in no event later than September 15, 2000)
to satisfy any other condition to the Closing to be satisfied by Seller, or (c)
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 including any bonus
or other up-front payment made under or in connection with any laundry room
lease or contract which is not canceled at or prior to Closing ("Rents"),
operating expenses, personal property taxes and amounts due and payable under
the Loan Documents (to the extent the Seller's Note Obligation is assumed by
Purchaser), 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, and amounts held in escrow or reserve by or on behalf
of the holder of the Seller's Note Obligation pursuant to the terms of the Loan
Documents (to the extent that Purchaser assumes the Seller's Note Obligation
pursuant to the provisions of ARTICLE 4) 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 reasonable 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 Escrow Agent (for
delivery to Purchaser upon the consummation of the Closing), each of the
following items, as applicable:
7.2.1.1 A 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
and Title Insurer 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 for the Property, updated to the Closing
Date and certified by Seller, listing the monthly base rent payable, lease
expiration date and unapplied Security Deposits for each Lease.
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, Property Contracts, Permits (other than
Excluded Permits), lease files, warranties, guaranties, operating manuals, keys
to the Property and Seller's books and records (other than proprietary
information) 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 minus the then outstanding amount of the Seller's Note Obligation, plus
any fees or penalties necessary to assume the Seller's Note Obligation, and 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.
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, provided, however, that if this representation is or becomes
untrue because Seller is unable to obtain any necessary consents of its partners
under its or their partnership agreements or the approval of any governmental
authority whose approval is required incident to the obtainment of such consents
under applicable law, prior to the Closing Date (as the same may be extended
pursuant to the provisions hereof), Purchaser's remedies shall be limited to the
right to terminate this Purchase Contract and receive a return of the Deposit
together with reimbursement from Seller of Purchaser's out-of-pocket costs and
expenses incurred in connection with this Purchase Contract and its inspection
and investigations of the Property, not to exceed the sum of $30,000.00 in the
aggregate. Seller agrees to diligently pursue, using its reasonable best efforts
under the circumstances and to the extent in Seller's control, the prompt
obtainment of all such consents and approvals, and will provide to Purchaser
written notice of the obtainment of such consents and approvals (or the
affirmative and final denial of such consents or approvals) within three (3)
Business Days of Seller's receipt thereof. 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 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 [other than through a voluntary act of
Seller], 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 other than
through a voluntary act of Seller, 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 (provided, however, that if this representation is or
becomes untrue because Seller is unable to obtain any necessary consents and
approvals contemplated in Section 8.1.1.1 prior to the Closing Date, Purchaser's
remedies shall be limited to the right to terminate this Purchase Contract, and
receive a return of the Deposit together with reimbursement from Seller of the
amount of out-of-pocket costs and expenses incurred in connection with this
Purchase Contract and its inspection and investigations of the Property, not to
exceed the sum of $30,000.00 in the aggregate);
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 or any other contracts affecting the
Property;
8.1.1.11 Until the Closing Date, Seller agrees to maintain its
existing insurance policies covering the Property in full force and effect
through the Closing Date, to continue to maintain the Property in substantially
the same manner as Seller has been operating the Property immediately prior to
the Effective Date, and 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 are 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.
8.1.2 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, "Broker" (as hereinafter
defined) or "Other Broker" (as hereinafter defined), or statements,
representations or warranties, express or implied, made by or enforceable
directly against Seller, Broker or Other 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 Deed and the
representations set forth in this ARTICLE 8). 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 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 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
one (1) year (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 provided written notice to 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) Becky White, of Manager.
8.2 Representations And Warranties 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 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 its
certificate 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 Except for Other Broker, 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 Seller will cooperate with Purchaser in obtaining the consent
of the Mortgagee to the assumption of the Mortgage.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Without limiting any of the rights of Purchaser elsewhere provided for
in this Purchase Contract, 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 Seller's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects as
of the Effective Date, and shall be true and correct in all material respects on
the Closing Date as though such representations and warranties were made at and
as of such date and time (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 fully complied with, fulfilled and performed
in all material respects, each of the covenants, terms, conditions, and other
obligations in this Purchase Contract to be performed or complied with or
fulfilled by Seller at or prior to Closing;
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 ten percent (10%) 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 required for Purchaser's assumption of the
Seller's Note Obligation which may be required shall have been obtained in
accordance with the requirements of ARTICLE 4;
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; and
9.1.10 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 Seller.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation with respect to the conveyance of
the Property and to close under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent:
9.2.1 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 complied with, fulfilled and
performed in all material respects, each of the covenants, terms, conditions,
and other obligations in this Purchase Contract to be performed or complied with
or fulfilled by Purchaser 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 The conditions of Section 9.1.8 shall have been satisfied;
and
9.2.5 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 Section 9.2.4 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, and Southwest Residential Partners, Inc., 1800 West Loop South, Suite
1710, Houston, Texas 77027 (collectively, "Broker") in connection with this
Purchase Contract. Buyer represents and warrants to Seller that it has dealt
only with Janarea Incorporated (through William R. Janis, Esq.), 4582 E.
Kingwood Drive, Suite 207, Kingwood, Texas 77073 ("Other Broker") in connection
with this Purchase Contract. Seller and Purchaser each represents and warrants
to the other that other than the Broker and Other 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. Additionally, Seller agrees to pay Other Broker a commission
equal to three-quarters of a percent (3/4%) of the Purchase Price at Closing.
Broker and/or Other Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker and/or Other Broker assume 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 from 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
Broker and/or Other Broker.
10.5 Seller has been specifically advised by Purchaser that John M. Area
III, who is the sole officer, director and shareholder of Purchaser, is also a
principal of the Other Broker and that Other Broker exclusively represents
Purchaser in connection with this Purchase Contract.
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 (a) Purchaser terminates this Purchase Contract for any
reason other than pursuant to (i) ARTICLE 5, (ii) ARTICLE 6, (iii) Seller's
inability to convey title pursuant hereto, or (iv) the inability of Purchaser to
satisfy Section 9.1.8, or (b) Purchaser 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 (and not by reason of Seller's default
hereunder), 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 5.3, the reasonable estimate of the total net detriment
that Seller would suffer in the event that Purchaser so 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 5.3 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 5.3
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 (which shall not include Seller's inability to
convey title, the inaccuracy of either of Seller's representations and
warranties set forth in Sections 8.1.1.2 or 8.1.1.3., the inaccuracy of either
or both of Seller's representations and warranties set forth in Sections 8.1.1.1
or 8.1.1.4 due to Seller's inability to obtain any necessary consent or approval
prior to the Closing Date (as the same may be extended pursuant to the
provisions hereof), or Purchaser's inability to satisfy Section 9.1.8.),
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; provided, however, that 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 $87,000.00 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 after the Effective Date but prior to Closing, and the cost of
repair is more than $100,000.00, then Seller will have no obligation to repair
such damage or destruction and, at Purchaser's option, this Agreement shall
terminate and the Deposit shall be returned to Purchaser. 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, at Closing all insurance proceeds
pertaining thereto (plus a credit against the Purchase Price in the amount of
any deductible payable by Seller in connection therewith), but only to the
extent the damage or destruction has not been repaired by Seller out of the
insurance proceeds.
13.2 In the event that the Property is damaged or destroyed by fire or
other casualty after the Effective Date but prior to the Closing, and the cost
of repair is less than $100,000.00, 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 at Closing all insurance proceeds
pertaining thereto (plus a credit against the Purchase Price in the amount of
any deductible payable by Seller in connection therewith), but only to the
extent the damage or destruction has not been repaired by Seller out of the
insurance proceeds.
ARTICLE 14
LEAD-BASED PAINT DISCLOSURE
14.1 [Intentionally Omitted.]
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 Purchaser is not released from its
liability hereunder and Purchaser or its affiliate remains a part of the
purchasing entity or such assignment is necessary to accomplish Purchaser's
and/or its assign's "Exchange" (as hereinafter defined).
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.
<PAGE>
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 day following the date of deposit of such
Notice with such carrier, or (ii) if personally delivered, on the actual date of
delivery, or (iii) if mailed in the United States Mail, postage prepaid,
registered or certified mail, return receipt requested on the third (3rd)
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:
RIVERWALK ASSOCIATES, LP JMA PROPERTIES, INC.
2000 South Colorado Boulevard 3023 Woodcreek Lane
Tower Two, Suite 2-1000 Suite 405
Denver, Colorado 80222 Houston, Texas 77073
Attn: Mr. Harry Alcock Attn: Mr. John M. Area III
Telephone No: (303) 691-4344 Telephone No: (281) 821-1575
Facsimile No: (303) 691-5662 Facsimile No: (281) 821-1935
and: with a copy to:
RIVERWALK ASSOCIATES, LP Wilson, Cribbs, Goren & Flaum, P.C.
2000 South Colorado Boulevard 2200 Lyric Centre
Tower Two, Suite 2-1000 440 Louisiana
Denver, Colorado 80222 Houston, Texas 77002
Attn: Mr. Pat Stucker Attn: Abe S. Goren. Esq.
Telephone No: (303) 691-4321 Telephone No: (713) 222-9000
Facsimile No: (303) 692-0786 Facsimile No: (713) 229-8824
<PAGE>
with a copy to:
Jackson Walker, L.L.P.
112 E. Pecan
Suite 2100
San Antonio, Texas 78205
Attn: Eileen E. Scherlen, Esq.
Telephone No: (210) 978-7784
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.
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 counterpart.
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 and/or Seller shall not disclose the terms and conditions
contained in this Purchase Contract, shall keep the same confidential, provided
that Purchaser and/or Seller 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
and/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 the exchanging party's sole cost and expense, Seller and/or Purchaser
may structure and consummate the sale and/or purchase of the Property 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 and/or Purchaser
shall effect an Exchange through an assignment of this Agreement, and its rights
under this Agreement, to a qualified intermediary; and (c) Seller and/or
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 the other party's Exchange. Seller and/or
Purchaser shall cooperate fully and promptly with the other party's conduct of
the Exchange, provided that all costs and expenses generated in connection with
the Exchange shall be borne solely by the exchanging party. If Seller and/or
Purchaser use a qualified intermediary to effectuate the Exchange, any
assignment of the rights or obligations of Seller and/or Purchaser hereunder
shall not relieve, release or absolve its obligations to the other party. Seller
and/or Purchaser shall indemnify and hold harmless the other party from and
against any and all liability arising from and out of their respective
Exchange(s).
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 Missouri 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.
<PAGE>
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 after the delivery to Purchaser of written
notice that Seller has obtained all required consents and approvals pursuant to
Section 8.1.1.1., 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 DTPA WAIVER
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]
<PAGE>
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Seller:
RIVERWALK ASSOCIATES, L.P. (A MISSOURI
LIMITED PARTNERSHIP),
a Missouri limited partnership
By: United Investors Growth Properties II,
a Missouri limited partnership,
its general partner
By: United Investors Real Estate, Inc.,
a Delaware corporation,
its general partner
By: _____________________________
Name: Harry Alcock
Title:Executive Vice President
Purchaser:
JMA PROPERTIES, INC.,
a Texas corporation
By: _____________________________________
Name: _____________________________________
Title:
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Being a 7.423 acre tract of land (323,292 square feet) lying in the S.C. Hiroms
Survey, Abstract No. 33 and the Edward Shipman Survey, Abstract No. 68 in Harris
County, Texas, being out of and a portion of the Woodforest Arbor Apartments,
Section Two of record in Volume 326 on Page 94 of the Map Records of Harris
County, Texas and being that same tract of land as described in a Special
Warranty Deed to RIVERWALK ASSOCIATES, L.P., a Missouri Limited Partnership
dated March 31, 1992 of record in County Clerk's File No. ###-##-#### of the
Real Property Records of Harris County, Texas, said 7.423 acres being more
particularly described by Metes and bounds, as follows:
BEGINNING at a 5/8" rod found marking the west right-of-way line of
Normandy Street (a public roadway, 100' in width), the north line of that
certain 60.00' wide United Transmission Company Fee Strip of record in
Volume 2485 on Page 47 of the Deed Records of Harris County, Texas, the
southeast corner of the said Woodforest Arbor Apartments, Section Two
tract and being the southeast corner of the herein described tract;
THENCE N 88(Degree)52'45" W with the north line of the said United
Transmission Company Fee Strip, the south line of the said Woodforest
Arbor Apartments, Section Two tract and the south line of the herein
described tract for a distance of 520.04' to a 5/8" rod found marking the
southwest corner of the herein described tract;
THENCE N 01(Degree)07'03" E over and across the said Woodforest Arbor
Apartment, Section Two tract and with the west line of the herein
described tract for a distance of 229.88' to a 1/2" rod set marking an
angle point in the west line of the herein described tract;
THENCE N 34(Degree)31'00" E over and across the said Woodforest Arbor
Apartments, Section Two tract and with the west line of the herein
described tract for a distance of 422.21' to a point lying within the
concrete base of a fence post marking the concrete base of a fence post
marking an angle point in the south line of Lot 6, Block No. 100 of
Woodforest, Section 25 of record in Volume 295 on Page 12 of the said map
records, an angle point in the north line of the said Woodforest
Apartments, Section Two tract and being the northwest corner of the herein
described tract;
<PAGE>
THENCE N. 59o35'36" E with the south line of the Lots 6, 5, 4 and 3 of the
said Block 100, Woodforest Section 25, the north line of Woodforest Arbor
Apartments Section Two tract and the north line of the herein described
tract for a distance of 457.80' to a 5/8" rod found marking the south line
of Lot 1, Block No. 100 of the said Wooodforest, Section 25, the north
line of the said Woodforest Arbor Apartments, Section Two tract and being
the northwest corner of the herein described tract;
THENCE S 69o09'01" E with the south line of the said Lot 1, the north line
of the said Woodforest Arbor Apartments, Section Two tract and the north
line of the herein described tract for a distance of 48.28' to a 5/8" rod
found marking the northeast corner of the said Woodforest Arbor
Apartments, Section Two tract, the southeast corner of the said Lot 1,
Block 100 of the Woodforest, Section 25, the west line of the said
Normandy Street and being the northeast corner of the herein described
tract;
THENCE S 22o34'40" W with the east line of the said Woodforest Arbor
Apartments, Section Two tract, thee west line of the said Normandy Street
and the east line of the herein described tract for a distance of 15.57'
to a 5/8" rod found marking the beginning of a curve to the left and being
an angle point in the east line of the herein described tract;
THENCE Southerly along the said curve with the east line of the said
Woodforest Arbor Apartments, Section Two tract, the west line of the said
Normandy Street and the east line of the herein described tract for an arc
length of 768.84', radius being 2049.86', delta angle being 21o29'24",
chord bears S 11o51'07" W and the chord distance of said curve being
764.34' to a 5/8" rod found marking the end of the said curve and being an
angle point in the east line of the herein described tract;
THENCE S 01o06'26" W with the east line of the said Woodforest Arbor
Apartments, Section Two tact, the west line of the said Normandy Street
and the east line of the herein described tract for a distance of 40.00'
to the point and place of beginning, containing in area, 7.423 acres of
land (323,292 square feet), more or less.
<PAGE>
EXHIBIT B
LIST OF EXCLUDED PERMITS
[ to be inserted, if any ]
<PAGE>
EXHIBIT C
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
1. Any "Buyer's Access" computer(s) and related software.
<PAGE>
EXHIBIT D
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of May, 2000
by and among RIVERWALK ASSOCIATES, L.P. (A MISSOURI LIMITED PARTNERSHIP), a
Missouri limited partnership ("Seller"), JMA PROPERTIES, INC., 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 ________ day of May,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide an initial
deposit in the amount of Forty-Three Thousand Five Hundred and No/100 Dollars
($43,500.00) in cash (the "Initial Deposit") and, in the event of the
continuation of the Purchase Contract beyond the Feasibility Period (as defined
therein), an additional deposit of Forty-Three Thousand Five Hundred and No/100
Dollars ($43,500.00) (the "Additional Deposit") (the Initial Deposit and
Additional Deposit being collectively referred to as 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
Forty-Three Thousand Five Hundred and No/100 Dollars ($43,500.00) in cash
(constituting the Initial 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 this Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to
herein, 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 receipt 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 the 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:
RIVERWALK ASSOCIATES, LP JMA PROPERTIES, INC.
2000 South Colorado Boulevard 3023 Woodcreek Lane
Tower Two, Suite 2-1000 Suite 405
Denver, Colorado 80222 Houston, Texas 77073
Attn: Mr. Harry Alcock Attn: Mr. John M. Area III
Telephone No: (303) 691-4344 Telephone No: (281) 821-1575
Facsimile No: (303) 691-5662 Facsimile No: (281) 821-1935
and: with a copy to:
RIVERWALK ASSOCIATES, LP Wilson, Cribbs, Goren & Flaum, P.C.
2000 South Colorado Boulevard 2200 Lyric Centre
Tower Two, Suite 2-1000 440 Louisiana
Denver, Colorado 80222 Houston, Texas 77002
Attn: Mr. Pat Stucker Attn: Abe S. Goren. Esq.
Telephone No: (303) 691-4321 Telephone No: (713) 222-9000
Facsimile No: (303) 692-0786 Facsimile No: (713) 229-8824
with a copy to: if to Escrow Agent:
Jackson Walker, L.L.P. Stewart Title Guaranty Company
112 E. Pecan 1980 Post Oak Boulevard
Suite 2100 Suite 610
San Antonio, Texas 78205 Houston, Texas 77056
Attn: Eileen E. Scherlen, Esq. Attn: Wendy Howell
Telephone No: (210) 978-7784 Telephone No.: (713) 552-1703
Facsimile No: (210) 978-7790 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, demands, requests and other communications 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 the date of deposit of such Notice with such
carrier, or (ii) if personally delivered, on the actual date of delivery, or
(iii) if mailed in the United States Mail, postage prepaid, registered or
certified mail, return receipt requested on the third (3rd) 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.
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 or Seller 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:
RIVERWALK ASSOCIATES, L.P. (A MISSOURI
LIMITED PARTNERSHIP),
a Missouri limited partnership
By: United Investors Growth Properties II,
a Missouri limited partnership,
its general partner
By: United Investors Real Estate, Inc.,
a Delaware corporation,
its general partner
By: _____________________________
Name: Harry Alcock
Title:Executive Vice President
<PAGE>
Purchaser:
JMA PROPERTIES, INC.,
a Texas corporation
By: _____________________________________
Name: _____________________________________
Title:
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By: _____________________________________
Name: _____________________________________
Title:
<PAGE>
EXHIBIT E
FORM OF SPECIAL WARRANTY DEED
(TEXAS)
THE STATE OF TEXAS ss.
ss.
COUNTY OF HARRIS ss.
RIVERWALK ASSOCIATES, L.P. (A MISSOURI LIMITED PARTNERSHIP), a Missouri
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, and for the further consideration
that the Grantee hereby assumes and promises to pay, according to the terms
thereof, all principal and interest now remaining unpaid on that one certain
Promissory Note in the original principal sum of $___________, dated
__________________, executed by _________________, and payable to the order of
___________________, and secured by Vendor's Lien retained in Deed of even date
therewith recorded under ______ County Clerk's File No. __________ in the
__________ Records of ______ County, Texas, and additionally secured by a Deed
of Trust of even date therewith to __________________, Trustee, recorded under
______ County Clerk's File No. ____________ in the _______ Records of ________
County, Texas, and Grantee hereby assumes and promises to keep and perform all
of the covenants and obligations of the Grantors named in said Deed of Trust,
has GRANTED and CONVEYED, and by these presents does GRANT and CONVEY unto
____________________________, a _____________________ ("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: 3023 Woodcreek Lane
Suite 405
Houston, Texas 77073
<PAGE>
Executed as of the ____ day of ________________, 2000.
RIVERWALK ASSOCIATES, L.P. (A MISSOURI
LIMITED PARTNERSHIP),
a Missouri limited partnership
By: United Investors Growth Properties II,
a Missouri limited partnership,
its general partner
By: United Investors Real Estate, Inc.,
a Delaware corporation,
its general partner
By: _____________________________
Name: Harry Alcock
Title:Executive Vice President
THE STATE OF __________ ss.
ss.
COUNTY OF ____________ ss.
This instrument was acknowledged before me on the ____ day of
________________, 2000, by Harry Alcock, Executive Vice President of United
Investors Real Estate, Inc., a Delaware corporation, general partner of United
Investors Growth Properties II, a Missouri limited partnership, general partner
of Riverwalk Associates, L.P. (a Missouri Limited Partnership), a Missouri
limited partnership, on behalf of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of _____________,
2000.
--------------------------------------
Notary Public in and for
the State of _____________________________
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
Being a 7.423 acre tract of land (323,292 square feet) lying in the S.C. Hiroms
Survey, Abstract No. 33 and the Edward Shipman Survey, Abstract No. 68 in Harris
County, Texas, being out of and a portion of the Woodforest Arbor Apartments,
Section Two of record in Volume 326 on Page 94 of the Map Records of Harris
County, Texas and being that same tract of land as described in a Special
Warranty Deed to RIVERWALK ASSOCIATES, L.P., a Missouri Limited Partnership
dated March 31, 1992 of record in County Clerk's File No. ###-##-#### of the
Real Property Records of Harris County, Texas, said 7.423 acres being more
particularly described by Metes and bounds, as follows:
BEGINNING at a 5/8" rod found marking the west right-of-way line of
Normandy Street (a public roadway, 100' in width), the north line of that
certain 60.00' wide United Transmission Company Fee Strip of record in
Volume 2485 on Page 47 of the Deed Records of Harris County, Texas, the
southeast corner of the said Woodforest Arbor Apartments, Section Two
tract and being the southeast corner of the herein described tract;
THENCE N 88(Degree)52'45" W with the north line of the said United
Transmission Company Fee Strip, the south line of the said Woodforest
Arbor Apartments, Section Two tract and the south line of the herein
described tract for a distance of 520.04' to a 5/8" rod found marking the
southwest corner of the herein described tract;
THENCE N 01(Degree)07'03" E over and across the said Woodforest Arbor
Apartment, Section Two tract and with the west line of the herein
described tract for a distance of 229.88' to a 1/2" rod set marking an
angle point in the west line of the herein described tract;
THENCE N 34(Degree)31'00" E over and across the said Woodforest Arbor
Apartments, Section Two tract and with the west line of the herein
described tract for a distance of 422.21' to a point lying within the
concrete base of a fence post marking the concrete base of a fence post
marking an angle point in the south line of Lot 6, Block No. 100 of
Woodforest, Section 25 of record in Volume 295 on Page 12 of the said map
records, an angle point in the north line of the said Woodforest
Apartments, Section Two tract and being the northwest corner of the herein
described tract;
<PAGE>
THENCE N. 59o35'36" E with the south line of the Lots 6, 5, 4 and 3 of the
said Block 100, Woodforest Section 25, the north line of Woodforest Arbor
Apartments Section Two tract and the north line of the herein described
tract for a distance of 457.80' to a 5/8" rod found marking the south line
of Lot 1, Block No. 100 of the said Wooodforest, Section 25, the north
line of the said Woodforest Arbor Apartments, Section Two tract and being
the northwest corner of the herein described tract;
THENCE S 69o09'01" E with the south line of the said Lot 1, the north line
of the said Woodforest Arbor Apartments, Section Two tract and the north
line of the herein described tract for a distance of 48.28' to a 5/8" rod
found marking the northeast corner of the said Woodforest Arbor
Apartments, Section Two tract, the southeast corner of the said Lot 1,
Block 100 of the Woodforest, Section 25, the west line of the said
Normandy Street and being the northeast corner of the herein described
tract;
THENCE S 22o34'40" W with the east line of the said Woodforest Arbor
Apartments, Section Two tract, thee west line of the said Normandy Street
and the east line of the herein described tract for a distance of 15.57'
to a 5/8" rod found marking the beginning of a curve to the left and being
an angle point in the east line of the herein described tract;
THENCE Southerly along the said curve with the east line of the said
Woodforest Arbor Apartments, Section Two tract, the west line of the said
Normandy Street and the east line of the herein described tract for an arc
length of 768.84', radius being 2049.86', delta angle being 21o29'24",
chord bears S 11o51'07" W and the chord distance of said curve being
764.34' to a 5/8" rod found marking the end of the said curve and being an
angle point in the east line of the herein described tract;
THENCE S 01o06'26" W with the east line of the said Woodforest Arbor
Apartments, Section Two tact, the west line of the said Normandy Street
and the east line of the herein described tract for a distance of 40.00'
to the point and place of beginning, containing in area, 7.423 acres of
land (323,292 square feet), more or less.
<PAGE>
EXHIBIT "B"
PERMITTED ENCUMBRANCES
<PAGE>
EXHIBIT F
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by RIVERWALK ASSOCIATES, L.P.
(A MISSOURI LIMITED PARTNERSHIP), a Missouri limited partnership ("Seller"), in
favor of JMA PROPERTIES, INC., a Texas corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of ______________, 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
and similar contracts which relate to the ownership, maintenance,
construction or repair and/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, (iii) pet deposits, if any, and (iv) any other deposits 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 and/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 or usable 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 after reasonable pursuit
thereof 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 or 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, pertaining to acts 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 or 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:
RIVERWALK ASSOCIATES, L.P. (A MISSOURI
LIMITED PARTNERSHIP),
a Missouri limited partnership
By: United Investors Growth Properties II,
a Missouri limited partnership,
its general partner
By: United Investors Real Estate, Inc.,
a Delaware corporation,
its general partner
By: _____________________________
Name: Harry Alcock
Title:Executive Vice President
Purchaser:
JMA PROPERTIES, INC.,
a Texas corporation
By: _____________________________________
Name: _____________________________________
Title:
<PAGE>
EXHIBIT G
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by RIVERWALK
ASSOCIATES, L.P. (A MISSOURI LIMITED PARTNERSHIP), a Missouri limited
partnership ("Seller"), in favor of JMA PROPRETIES, INC., a Texas corporation
("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of May, 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 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 and environmental 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 "RIVERWALK APARTMENTS" and any
telephone numbers associated with the Property.
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
after reasonable pursuit thereof 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 or 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.
<PAGE>
WITNESS the signatures and seals of the undersigned.
Dated: ________________________, 2000.
Seller:
RIVERWALK ASSOCIATES, L.P. (A MISSOURI
LIMITED PARTNERSHIP),
a Missouri limited partnership
By: United Investors Growth Properties II,
a Missouri limited partnership,
its general partner
By: United Investors Real Estate, Inc.,
a Delaware corporation,
its general partner
By: _____________________________
Name: Harry Alcock
Title:Executive Vice President
Purchaser:
JMA PROPERTIES, INC.,
a Texas corporation
By: _____________________________________
Name: _____________________________________
Title:
<PAGE>
EXHIBIT H
Tenants at the Riverwalk Apartments
450 Normandy
Houston, Texas 77015
Re: Your lease at __________________________________
Dear Tenant:
Effective as of [date], ______________________, a ____________________
(the "Seller"), has sold the Riverwalk Apartments located at 450 Normandy,
Houston, Texas 77015 (and has assigned your lease) to ______________________, a
_______________________ (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,
[Purchaser]
<PAGE>
EXHIBIT I
NON-FOREIGN AFFIDAVIT
1. Section 1445 of the Internal Revenue Code of 1986, as amended (the
"IRC"), provides that a transferee of a United States real property interest
must withhold tax if the transferor is a foreign person.
2. In order to inform _______________________, a Texas _____________ (the
"Transferee"), that withholding of tax is not required upon the disposition by
RIVERWALK ASSOCIATES, L.P. (A MISSOURI LIMITED PARTNERSHIP), a Missouri limited
partnership (the "Transferor"), of the United States real property more
particularly described on Exhibit "A" attached hereto and incorporated herein by
reference (the "Property"), the undersigned Transferor certifies and declares by
means of this certification, the following:
(a) The Transferor is not a foreign person, foreign corporation,
foreign partnership, foreign trust or foreign estate (as such terms are
defined in the IRC and the Treasury Regulations).
(b) The Transferor is a ______________, _____________.
(c) Record title to the Property is in the name of the
Transferor.
(d) The Federal Taxpayer Identification Number for the
Transferor is ___________________.
(e) The address for the Transferor is:
======================================
--------------------------------------
3. The Transferor understands that this certification may be disclosed to
the Internal Revenue Service by the Transferee and that any false statement
contained in this certification may be punished by fine, imprisonment or both.
Under penalties of perjury, the Transferor declares that it has carefully
examined this certification and it is true, correct and complete.
<PAGE>
Executed effective as of the _____ day of ____________, 2000.
Transferor:
RIVERWALK ASSOCIATES, L.P. (A MISSOURI
LIMITED PARTNERSHIP),
a Missouri limited partnership
By: United Investors Growth Properties II,
a Missouri limited partnership,
its general partner
By: United Investors Real Estate, Inc.,
a Delaware corporation,
its general partner
By: _____________________________
Name: Harry Alcock
Title:Executive Vice President
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
Being a 7.423 acre tract of land (323,292 square feet) lying in the S.C. Hiroms
Survey, Abstract No. 33 and the Edward Shipman Survey, Abstract No. 68 in Harris
County, Texas, being out of and a portion of the Woodforest Arbor Apartments,
Section Two of record in Volume 326 on Page 94 of the Map Records of Harris
County, Texas and being that same tract of land as described in a Special
Warranty Deed to RIVERWALK ASSOCIATES, L.P., a Missouri Limited Partnership
dated March 31, 1992 of record in County Clerk's File No. ###-##-#### of the
Real Property Records of Harris County, Texas, said 7.423 acres being more
particularly described by Metes and bounds, as follows:
BEGINNING at a 5/8" rod found marking the west right-of-way line of
Normandy Street (a public roadway, 100' in width), the north line of that
certain 60.00' wide United Transmission Company Fee Strip of record in
Volume 2485 on Page 47 of the Deed Records of Harris County, Texas, the
southeast corner of the said Woodforest Arbor Apartments, Section Two
tract and being the southeast corner of the herein described tract;
THENCE N 88(Degree)52'45" W with the north line of the said United
Transmission Company Fee Strip, the south line of the said Woodforest
Arbor Apartments, Section Two tract and the south line of the herein
described tract for a distance of 520.04' to a 5/8" rod found marking the
southwest corner of the herein described tract;
THENCE N 01(Degree)07'03" E over and across the said Woodforest Arbor
Apartment, Section Two tract and with the west line of the herein
described tract for a distance of 229.88' to a 1/2" rod set marking an
angle point in the west line of the herein described tract;
THENCE N 34(Degree)31'00" E over and across the said Woodforest Arbor
Apartments, Section Two tract and with the west line of the herein
described tract for a distance of 422.21' to a point lying within the
concrete base of a fence post marking the concrete base of a fence post
marking an angle point in the south line of Lot 6, Block No. 100 of
Woodforest, Section 25 of record in Volume 295 on Page 12 of the said map
records, an angle point in the north line of the said Woodforest
Apartments, Section Two tract and being the northwest corner of the herein
described tract;
<PAGE>
THENCE N. 59o35'36" E with the south line of the Lots 6, 5, 4 and 3 of the
said Block 100, Woodforest Section 25, the north line of Woodforest Arbor
Apartments Section Two tract and the north line of the herein described
tract for a distance of 457.80' to a 5/8" rod found marking the south line
of Lot 1, Block No. 100 of the said Wooodforest, Section 25, the north
line of the said Woodforest Arbor Apartments, Section Two tract and being
the northwest corner of the herein described tract;
THENCE S 69o09'01" E with the south line of the said Lot 1, the north line
of the said Woodforest Arbor Apartments, Section Two tract and the north
line of the herein described tract for a distance of 48.28' to a 5/8" rod
found marking the northeast corner of the said Woodforest Arbor
Apartments, Section Two tract, the southeast corner of the said Lot 1,
Block 100 of the Woodforest, Section 25, the west line of the said
Normandy Street and being the northeast corner of the herein described
tract;
THENCE S 22o34'40" W with the east line of the said Woodforest Arbor
Apartments, Section Two tract, thee west line of the said Normandy Street
and the east line of the herein described tract for a distance of 15.57'
to a 5/8" rod found marking the beginning of a curve to the left and being
an angle point in the east line of the herein described tract;
THENCE Southerly along the said curve with the east line of the said
Woodforest Arbor Apartments, Section Two tract, the west line of the said
Normandy Street and the east line of the herein described tract for an arc
length of 768.84', radius being 2049.86', delta angle being 21o29'24",
chord bears S 11o51'07" W and the chord distance of said curve being
764.34' to a 5/8" rod found marking the end of the said curve and being an
angle point in the east line of the herein described tract;
THENCE S 01o06'26" W with the east line of the said Woodforest Arbor
Apartments, Section Two tact, the west line of the said Normandy Street
and the east line of the herein described tract for a distance of 40.00'
to the point and place of beginning, containing in area, 7.423 acres of
land (323,292 square feet), more or less.
<PAGE>
SCHEDULE 1.2.23
$3,000,000 note dated December 17, 1999, executed by Seller and payable to the
order of GMAC Commercial Mortgage Corporation, assigned to Federal Home Loan
Mortgage Corporation.
<PAGE>
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 updated monthly and provided to Purchaser on or before the
tenth (10th) day of each calendar month preceding Closing. At Closing, Seller
shall provide Purchaser with an updated Rent Roll dated not earlier than five
(5) days prior to Closing;
2. Copies of the tax statements for the Property for the current
year (if issued), 1998 and 1999;
3. Copies of operating statements, and income and expense reports
for calendar years ended 1998 and 1999, and 2000 year to date;
4. A schedule listing physical occupancy for calendar years ended
1998 and 1999, and 2000 year to date;
5. Statements from each of the utility providers of water/sewer, gas and
electricity, summarizing the billing activity for the Property for each month
during 1998, 1999 and 2000 year to date (to the extent available);
6. All notices or correspondence from any taxing authority or tax
appraisal district for 1998, 1999 and 2000;
7. A loss history report issued by the Property's insurance
carrier(s) for the most recent five (5) years, if and to the extent available;
8. Copies of all certificates of occupancy, life safety inspections,
licenses, permits, authorizations and approvals required by law and issued by
all governmental authorities having jurisdiction thereover (to the extent
available);
9. A schedule of all employees performing any work with respect to
the Property which shall include each employee's respective wage, benefits,
duties and job description;
10. The results of a search (including copies of the instruments
referenced in such search and affecting the Property) of the U.C.C. Records
of the Secretary of the State of Texas and the U.C.C. Records of the County
in which the Property is situated; and
11. A list of all capital improvements and/or repairs to the Property
within the past two (2) years.
<PAGE>
TABLE OF CONTENTS
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 FEASIBILITY PERIOD.......................................6
ARTICLE 6 TITLE....................................................8
ARTICLE 7 CLOSING.................................................10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER.................................15
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING.........................19
ARTICLE 10 BROKERAGE...............................................21
ARTICLE 11 POSSESSION..............................................22
ARTICLE 12 DEFAULTS AND REMEDIES...................................22
ARTICLE 13 RISK OF LOSS OR CASUALTY................................23
ARTICLE 14 LEAD-BASED PAINT DISCLOSURE.............................24
ARTICLE 15 EMINENT DOMAIN..........................................24
ARTICLE 16 MISCELLANEOUS...........................................24
<PAGE>
Exhibit 10.20
FIRST AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment")
is entered into as of the 8th day of June, 2000, by and between RIVERWALK
ASSOCIATES, L. P. (A MISSOURI LIMITED PARTNERSHIP), a Missouri limited
partnership ("Seller"), and JMA PROPERTIES, INC., a Texas corporation
("Purchaser").
RECITALS
A.....Purchaser and Seller have entered into that certain Purchase and
Sale Contract (the "Purchase Contract") dated as of May 17, 2000, covering
certain parcels of real property located in Harris County, Texas, as more
particularly described in the Purchase Contract.
B.....Purchaser and Seller desire to amend the Purchase Contract in
certain respects, as set forth below.
C.....All capitalized terms used but not defined in this Addendum 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 5.1 shall be amended and modified such that expiration of
the Feasiblity Period shall be extended from the date which is twenty-two (22)
calendar days following the Effective Date to June 13, 2000".
2.....Except as modified by this Amendment, the Purchase Contract is in
full force and effect as originally written.
3..... 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.
4..... 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:
RIVERWALK ASSOCIATES, L.P. (A
MISSOURI LIMITED PARTNERSHIP),
a Missouri limited partnership
By: United Investors Growth Properties II,
a Missouri limited partnership,
its general partner
By: United Investors Real Estate, Inc.,
a Delaware corporation,
its general partner
By: ________________________
Harry Alcock
Executive Vice President
SELLER:
JMA PROPERTIES, INC.,
a Texas corporation
By: ____________________________________
John M. Area III
President
