PURCHASE AND SALE
AGREEMENT
AND
ESCROW INSTRUCTIONS
(Toscana Apartments)
This Purchase and Sale Agreement ("Agreement") and Escrow Instructions
("Escrow Instructions") are made and entered into by and between Western Rim
Investors 1993-2, L.P., a California Limited Partnership, dba Toscana Apartments
("Seller") and Cornerstone Realty Group, Inc., a Virginia corporation ("Buyer").
BACKGROUND
A. Seller owns certain real property, with improvements thereon and
personal property used in connection therewith, located in ▇▇▇▇▇▇ County, Texas
and commonly known as the Toscana Apartments (containing 192 apartment units)
and more particularly defined as the "Property" below.
B. Seller's affiliate, Western Rim Investors 1991-4, L.P., a California
Limited Partnership, dba Wildwood Apartments ("Wildwood Seller") owns and
operates certain real property located in Tarrant County, Texas, with
improvements thereon and personal property used in connection therewith,
commonly known as the Wildwood Apartments (containing 120 apartment units)
("Wildwood Property").
C. Seller's affiliate, Western Rim Investors 1992-5, L.P., a California
Limited Partnership, dba Arbors on Forest Ridge ("Forest Ridge Seller") owns and
operates certain real property located in Tarrant County, Texas, with
improvements thereon and personal property used in connection therewith, known
as the Arbors on Forest Ridge Apartments (containing 210 apartment units)
("Forest Ridge Property").
D. Buyer desires to purchase the Property together with all
improvements and all related rights and appurtenances, including without
limitation, Seller's interest in adjacent streets, alleys, rights-of-way,
strips, gores and access easements, and any improvements on the Property.
E. Seller desires to sell the Property to Buyer on the condition that
Buyer also purchase the Wildwood Property and the Forest Ridge Property
simultaneously therewith as a "package" purchase and sale.
1. AGREEMENT.
This agreement of Purchase and Sale and Escrow Instructions dated
January 21, 1997, Escrow No. TC96-81550, is between Seller and Buyer with Safeco
Land Title of Tarrant, a Texas corporation, as escrow agent ("Escrow Agent").
This Agreement and Escrow Instructions shall constitute the agreement on the
part of the Seller to sell and on the part of the Buyer to purchase the Property
described and defined hereinbelow. In the event of any conflict or any
inconsistency between the terms and provisions of any other Escrow Instructions
and the terms and provisions of this Agreement, the terms and provisions of this
Agreement shall control.
2. PROPERTY.
The property which is the subject of this Agreement is defined to mean
the following: (i) the real property located in ▇▇▇▇▇▇ County, Texas as more
particularly described by legal description on Exhibit A attached hereto and
made a part thereof, together with (ii) all improvements and fixtures located
thereon ("Improvements"), (iii) the personal property owned by Seller and used
in connection therewith as described on Exhibit B attached hereto ("Personal
Property"), (iv) all rights of Seller in and to any and all leases for space in
and to the Property ("Leases") by tenants ("Tenants") thereunder, (v) all
existing warranties, including manufacturer's warranties ("Warranties") relating
to the Improvements or Personal Property, but only to the extent assignable,
(vi) all right, title and interest of Seller, if any, in and to the use of the
name by which the Property is commonly known, "Toscana Apartments,"
("Tradename"), (vii) the existing phone numbers ("Phone Numbers") used in
connection with the operation of the Property, but only to the extent assignable
and (viii) all rights, privileges, easements and appurtenances thereto, if any
(collectively, the "Property").
3. OPENING OF ESCROW; CLOSING; PACKAGE SALE; INDEPENDENT CONSIDERATION.
a. For purposes of this Agreement, the Opening of Escrow (the "Opening
of Escrow") shall be deemed to be the date set forth below on which the ▇▇▇▇▇▇▇
Money Deposit (as hereinafter defined) and three (3) fully executed copies of
this Agreement and the Other Agreements (as hereinafter defined) are delivered
to and accepted by Escrow Agent. The consummation of the transaction
contemplated by this Agreement (the "Closing") shall occur at 10:00 a.m., Texas
time, on the date which is seven days after the expiration of the Feasibility
Termination Date (as hereinafter defined) (the "Closing Date"); provided,
however, if Buyer in good faith needs additional time to prepare for the Closing
of the transaction and the funding of the Purchase Price, then Buyer may extend
the Closing Date by up to seven (7) days by sending written notice of such
extension to Seller on or before the originally scheduled Closing Date; and
provided further that any such extension shall constitute an extension for the
same period of time of the Closing Date under the Other Agreements so that in
any case the closing of the sale and conveyance of the Property, the Wildwood
Property and the Forest Ridge Property shall occur simultaneously. The Closing
shall occur at the offices of Escrow Agent or at such other place as Seller and
Buyer may agree in writing. Closing shall be deemed to have occurred when (i)
all Closing documents contemplated by this Agreement have been delivered to,
received by, and executed by the appropriate parties; (ii) all conditions to
such Closing contemplated by this Agreement have been satisfied or waived in
writing (including, without limitation the simultaneous closing of the sale and
purchase from Seller to Buyer of the Wildwood Property and the Forest Ridge
Property as hereinafter discussed); (iii) the deed required pursuant to
paragraph 8 has been recorded; and (iv) the funds required to be paid under this
Agreement have been properly delivered to Escrow Agent and are available for
distribution by Escrow Agent.
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b. The parties acknowledge and agree that (i) the sale of the Property
is a part of a "package sales" of the Property, the Wildwood Property and the
Forest Ridge Property, (ii) as of even date herewith, Buyer is entering into
separate Purchase and Sale Agreements ("Other Agreements") with Wildwood Seller
and Forest Ridge Seller to purchase the Wildwood Property and Forest Ridge
Property, respectively, (iii) Buyer shall have no right to close the purchase
the Property unless Buyer simultaneously closes the purchase of both the
Wildwood Property and Forest Ridge Property in accordance with the terms of the
Other Agreements, (iv) Seller's obligations hereunder shall be conditioned on
Buyer's performing all of its obligations under the Other Agreements and,
simultaneously with the Closing hereunder, closing the purchase of the Wildwood
Property and Forest Ridge Property in accordance with the terms of the Other
Agreements, (v) any termination by Buyer of either of the Other Agreements
pursuant to an express right to terminate thereunder shall be deemed to also
constitute a termination of this Agreement by Buyer pursuant to the
corresponding provision hereof and (vi) any default by Buyer under either of the
Other Agreements shall be deemed to also constitute a default by Buyer under
this Agreement. The provisions of this subsection shall control in the event of
any conflicting provisions contained herein or in the Other Agreements.
c. Contemporaneously with the execution of this Agreement, Buyer shall
deliver to Seller a check in the amount of Fifty and No/100 Dollars ($50.00)
("Independent Consideration"), which amount the parties bargained for and agreed
to as consideration for Seller's execution, delivery and performance of this
Agreement. This Independent Consideration is in addition to and independent of
any other consideration or payment provided for in this Agreement, is
nonrefundable, and shall be retained by Seller notwithstanding any other
provision of this Agreement.
4. INFORMATION SUPPLIED BY SELLER/PRE-CLOSING MATTERS.
As soon as reasonably possible after the Opening of Escrow, Seller shall
either deliver or make available to Buyer the following:
a. Current rent roll schedules ("Rent Rolls") certified as being true
and correct by Seller (as of the last day of the month immediately preceding the
month in which such schedule is furnished to Buyer) and showing for each
apartment unit within the Property (i) its vacancy or occupancy, (ii) the
monthly rental amount therefore; (iii) if the space is occupied, the
commencement and termination date of the Lease covering that space and the
name(s) of the Tenant(s) thereunder; and (iv) the amount of any rent or other
charges, if any, in arrears or prepaid thereunder.
b. Letter in form substantially the same as that attached hereto as
Exhibit C addressed to Buyer's accountants, ▇.▇. ▇▇▇▇▇▇ & Company, P.C.,
concerning certain financial certifications as provided therein, executed by
Seller.
c. A current Termite Inspection Report or Reports for the Property
indicating that there is no evidence of termites on the Property or, if there is
evidence that termites are present, that termites have been killed or treated.
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d. Sufficient books and records for the operation of the Property for at
least 12 months of operation so that Buyer can generate a report in compliance
with accounting regulation S-X of the Securities and Exchange Commission.
5. REVIEW, APPROVAL AND FINANCING CONTINGENCIES.
Buyer and Seller acknowledge that, until the Feasibility Termination
Date (as hereinafter defined), Buyer's obligations hereunder shall be
conditioned on Buyer's satisfaction with all aspects of the Property and the
transaction hereunder and its review of the same, including but not limited to,
(i) Buyer's investigation of the economic feasibility of purchasing the
Property; (ii) Buyer's inspection of the Property, and its review of any
engineering reports, architectural reports, soils and environmental analyses,
research of relevant codes, ordinances, or regulations; (iii) Buyer's approval
of the forms of various documents to be executed at Closing; (iv) Buyer's
obtaining financing; (v) Buyer's review of the Title Commitment and Survey (as
hereinafter defined) and any other title matters which may affect the Property;
(vi) Buyer's review of the books and records kept in connection with the
operation of the Property; (vii) Buyer's review of the Leases; and (vi) Buyer's
review of any other matter which Buyer may deem to affect the desirability of
the Property. Accordingly, notwithstanding anything to the contrary contained in
this Agreement, at any time on or before 5:00 p.m. on the date which is
twenty-one (21) days after the Opening of Escrow (the "Feasibility Termination
Date"), Buyer shall have the right, at its sole discretion, to terminate this
Agreement for any reason whatsoever by delivering written notice of termination
to Escrow Agent and Seller on or before the Feasibility Termination Date. Upon
such termination, this Agreement and Escrow Instructions shall be immediately
canceled, Escrow Agent shall return to Buyer the ▇▇▇▇▇▇▇ Money Deposit and (if
theretofore deposited) the Additional ▇▇▇▇▇▇▇ Money Deposit and interest accrued
thereon, Buyer shall deliver to Seller copies of any nonproprietary studies,
reports or tests pertaining to the Property, and Buyer and Seller shall have no
further obligation or liability to the other in connection with the purchase and
sale of the Property, except such specific indemnification provision as are
provided for in this Agreement. Failure by Buyer to terminate this Agreement on
or before the Feasibility Termination Date shall be deemed to be a waiver of its
right to terminate under this paragraph, whereupon the ▇▇▇▇▇▇▇ Money Deposit (as
defined in paragraph 6), subject to Seller's performance hereunder and except as
otherwise specifically provided herein, shall be deemed to be nonrefundable.
6. PURCHASE PRICE.
a. The parties acknowledge that the sale of the Property is part of a
"package sale" of the Property, the Wildwood Property and the Forest Ridge
Property as discussed above. The aggregate purchase price ("Purchase Price")
for the Property, Wildwood Property and Forest Ridge Property shall be seventeen
million four hundred twenty-five thousand dollars ($17,425,000). Payment of the
Purchase Price and the ▇▇▇▇▇▇▇ Money Deposit and Additional ▇▇▇▇▇▇▇ Money
Deposit as provided below shall constitute payment for all three properties
without allocation among such properties.
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i. Upon Opening of escrow, Buyer shall deposit with Escrow Agent one-
hundred fifty thousand dollars ($150,000) (the "▇▇▇▇▇▇▇ Money Deposit"). The
▇▇▇▇▇▇▇ Money Deposit is to be disbursed to Seller or Buyer in accordance with
the terms hereof prior to Closing.
ii. Upon the Feasibility Termination Date (if Buyer does not terminate
this Agreement pursuant to paragraph 5 above) and as a condition to Buyer's
continued rights hereunder and under the Other Agreements, Buyer shall deposit
with Escrow Agent an additional sum of one-hundred fifty thousand dollars
($150,000) (the "Additional ▇▇▇▇▇▇▇ Money Deposit"). The Additional ▇▇▇▇▇▇▇
Money Deposit is to be disbursed to Seller or Buyer in accordance with the terms
hereof prior to Closing.
iii. Upon the Feasibility Termination Date and in the event Buyer has
not terminated this Agreement and the Other Agreements, the entire ▇▇▇▇▇▇▇ Money
Deposit including the Additional ▇▇▇▇▇▇▇ Money Deposit shall be deemed
non-refundable.
iv. On or before the Closing Date, Buyer shall deposit with Escrow Agent
for the account of Seller, Wildwood Seller and Forest Ridge Seller in cash or
funds immediately available in Ft. Worth, Texas, the balance of the Purchase
Price increased or reduced by such funds as are required to take into account
the prorations and other adjustments required by this Agreement and the Other
Agreements.
b. All funds deposited in escrow on account of the Purchase Price or
otherwise shall be deposited by Escrow Agent in an interest bearing account in a
federally insured commercial bank reasonably approved by Buyer. Any interest
earned on such funds shall be remitted to Buyer if Buyer is entitled to the
return of the funds pursuant to this Agreement; otherwise, the interest shall be
credited to the Purchase Price in the event Closing shall occur.
7. TITLE REVIEW; SURVEY.
a. Seller will deliver with this agreement a commitment for title
insurance with copies of all recorded Schedule B items set forth therein ("Title
Report") pertaining to the Property. Seller will deliver with this Agreement to
Buyer the existing surveys of the Property, if any (the "Surveys").
b. Buyer shall be entitled to object to any matters disclosed by the
Title Report or Surveys by delivering written notice of such objection to Seller
and Escrow Agent on or before the date which is ten (10) days after the Opening
of Escrow. Said notices of objection shall specify in reasonable detail any
matter to which Buyer objects. If Escrow Agent subsequently issues any amended
commitment for title insurance disclosing any additional Schedule B matters or
if Buyer subsequently receives an amended survey reflecting additional Schedule
B matters, Buyer shall be entitled to reasonably object to any matters not
previously disclosed in the initial Title Report or the initial Surveys by
delivering written notice of such objection to Seller and Escrow Agent on or
before ten (10) days after Escrow Agent has delivered to Buyer the amended title
commitment or ten (10) days after Buyer's receipt of the amended survey, said
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notice to specify in reasonable detail any matter to which Buyer objects. Buyer
shall be deemed to have approved the Title Report and Surveys and any amendments
if it fails to notify Seller and Escrow Agent in writing of its objections
within the respective periods provided herein.
c. After receipt of Buyer's objections, if any, Seller shall at its
option, either (i) terminate this Agreement by sending written notice to Buyer
and Escrow Agent (subject to Buyer's right to cancel said termination provided
for below) if it cannot or is unwilling to cure the objections or (ii) attempt
to eliminate the matters to which Buyer has objected within fifteen (15) days
after receipt of Buyer's objections. Notwithstanding the foregoing, Seller shall
not be required to satisfy any pecuniary encumbrances until Closing. If Seller
elects to terminate this Agreement as provided above by sending written notice
to Buyer, this Agreement and the Escrow shall automatically terminate on the
date ten (10) days after Buyer and Escrow Agent receive written notice of such
termination, unless Buyer elects to cancel such termination and waive its
objections to said matters by written notice to Seller and Escrow Agent
delivered within the ten (10) day period. Seller agrees to use reasonable
efforts to give notice to Buyer as to its election of the above options in favor
of Seller; provided, however, if, within fifteen (15) days after receipt by
Seller of Buyer's objections, Seller has not either (i) sent written notice
terminating as provided above or (ii) sent written notice agreeing to cure said
objections or caused the matters to which Buyer has objected to be eliminated,
then in such event Seller shall be deemed to have sent notice to Buyer
terminating this Agreement, with such deemed notice to be deemed to have been
sent and received upon the expiration of said fifteen (15) day period, and in
such event this Agreement and Escrow shall terminate unless Buyer waives its
objections by written notice delivered to Seller and Escrow Agent on or before
two (2) days after the expiration of said fifteen (15) day period. In the event
of any termination pursuant to this paragraph, the ▇▇▇▇▇▇▇ Money Deposit
delivered to Escrow Agent shall be promptly refunded or returned to Buyer, Buyer
shall deliver copies of any nonproprietary studies, reports or tests pertaining
to the Property, and Seller and Buyer shall have no further obligation or
liability to one another regarding the sale or purchase of the Property, except
as to the specific indemnification provisions otherwise provided for in this
Agreement.
8. CLOSING DOCUMENTS AND CLOSING ITEMS.
a. At the Closing, Seller shall deliver to Escrow Agent the
following:
(i) a special warranty deed ("Deed") duly executed,
acknowledged and in a form acceptable for recording,
substantially in the form of Exhibit D attached hereto and
made a part hereof, subject to the Permitted Exceptions (as
hereinafter defined) and Seller shall deliver the Property
free and clear of all liens;
(ii) Assignment and Assumption of Leases ("Assignment and
Assumption of Leases"), in form and substance substantially
the same as that attached hereto as Exhibit E, and by this
reference made a part hereof, fully executed and
acknowledged by Seller, conveying to Buyer the Leases.
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(iii) ▇▇▇▇ of Sale and Assignment ("▇▇▇▇ of Sale and
Assignment"), in form and substance substantially the same
as that attached hereto as Exhibit F, and by this reference
made a part hereof, fully executed and acknowledged by
Seller, conveying to Buyer the Personal Property,
Warranties, and Trade Name affecting the Property.
(iv) Affidavit ("Affidavit") that as of the Closing Date there
are no judgements against the Seller or Property or other
unrecorded matters affecting the Property in such form as
Escrow Agent may require to issue the Title Policy
discussed below.
(v) A Termination Agreement ("Termination Agreement") executed
by the existing property manager for the Property and
terminating, effective as of the Closing, the existing
management agreement for the Property.
(vi) The Non-Foreign Status Certification (as hereinafter
defined) executed by Seller.
b. Ad valorem and similar taxes and assessments relating to the Property
for the year in which the Closing occurs ("Taxes") shall be prorated between
Seller and Buyer as of the Closing Date, based on the latest rate applied to the
latest assessed valuation for the Property, with Seller to bear the economic
burden of all such Taxes for the period prior to and including the Closing Date
and with Buyer to bear the economic burden of all such Taxes for all periods
after the Closing Date. As soon as the actual amount of Taxes on the Property
for such year is final and known (and after any appeal with respect thereto is
final and the amount of such Taxes is final), Seller and Buyer shall, to the
extent the amount of actual Taxes differs from the amount estimated at Closing
and upon the request of either party, recalculate the proration of such Taxes
between Seller and Buyer in the same manner specified above but based on such
actual final amount of Taxes for such year. Upon such recalculation, Buyer shall
pay to Seller, or Seller shall pay to Buyer, as the case may be, a sufficient
amount of money so that when added to or subtracted from the preliminary
prorated amounts for each party determined at Closing, Seller shall have paid
for those Taxes applicable to the Property prior to and including the Closing
Date and Buyer shall have paid for those Taxes applicable to the Property after
the Closing Date. Subject to the pro-ration obligations under this Section,
Buyer shall assume and pay for all Taxes relating to the Property for the year
1997 and subsequent years, and shall indemnify and hold Seller harmless from and
against the same. The provisions of this subparagraph shall survive the Closing.
c. All prepaid rentals, if any, actually received by Seller for the
month in which the Closing occurs shall be prorated as of the Closing Date, with
Seller to obtain the economic benefit of all such rentals for all periods prior
to and including the Closing Date and with Buyer to obtain the economic benefit
of all such rentals for all periods after the Closing Date. To the extent
actually received by Seller prior to the Closing, Seller shall deliver to Buyer
at the Closing all advance payments or rentals, other than for the month in
which the Closing occurs. Claims for any delinquent rent and other sums which
are owing to Seller by Tenants of the
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Property for periods prior to the Closing Date ("Delinquent Rents") shall be
owned and retained by Seller and Seller shall be entitled to collect all of
same. Furthermore, Buyer agrees to pay Delinquent Rents (or Seller's pro rata
share thereof to the extent such Delinquent Rents are applicable to the month
during which the Closing occurred) to Seller if, and when, amounts are collected
from the delinquent Tenant that are required to be applied to Delinquent Rents
as provided in the immediately succeeding sentence. To the extent rentals are
collected by Buyer after Closing from Tenants owing Delinquent Rents, such
collections shall be applied in the following order of priority (i) such
collections shall first be applied to Delinquent Rents which were delinquent 30
days or less as of the Closing Date, (ii) any balance shall then be applied to
rents currently due at the time of the collection of such amounts and (iii) the
balance shall then be applied to Delinquent Rents which were delinquent for more
than 30 days as of the Closing Date. Buyer agrees to use reasonable efforts to
collect Delinquent Rents, but nothing contained herein shall operate to require
Buyer to institute a lawsuit to recover any such Delinquent Rents or to
terminate any Lease.
d. Seller shall deliver into escrow at Closing individual tenant
security deposits under the Leases held by Seller in trust, or provide Buyer
with a credit therefor. At Closing, Escrow Officer shall disburse the security
deposits to Buyer or provide a credit in favor of Buyer on the settlement
statement. At the Closing, Seller and Buyer shall execute and deliver Tenant
Notice Letters ("Tenant Notice Letters") to be sent to each Tenant under the
Leases (i) notifying such Tenants of the change in ownership with respect to the
Property, (ii) instructing such Tenants to perform all future obligations under
the Leases to Buyer and (iii) advising the Tenants of the transfer to Buyer of
applicable prepaid rent, security or cleaning deposits, and acknowledging
Buyer's future responsibility for the same, and otherwise in form complying with
Section 92.105 of the Texas Property Code. Promptly after Closing, Buyer shall
mail, by first class mail, the Tenant Notice Letters (or at Seller's option,
Seller may so deliver the same) to each Tenant under the Leases. Buyer shall
provide Seller with copies of all such Tenant Notice Letters and a certificate
of mailing within ten (10) calendar days following Closing
e. Charges for utilities, if any, serving the Property shall be
determined as of the Closing Date, and Buyer shall be responsible for all
utility charges for the period after the Closing Date. The parties shall
mutually cooperate and execute and deliver such additional documents as may be
reasonably necessary or desirable to insure that all such utilities are switched
over into the name of Buyer as of the Closing Date, or as soon as possible
thereafter.
f. Prepaid cable television contract payments shall be prorated as of
the Closing Date and Buyer shall receive a credit against the Purchase Price for
its pro-rata share.
g. In general, any and all other items of current revenue and expenses
relating to the Property on the Closing Date shall be prorated as of the Closing
Date.
h. At Closing, Seller shall deliver vacated apartment units in the
Property in the following condition: (i) for units which have been vacated for
10 or more days as of the Closing Date, such units shall be delivered in "rent
ready" condition and (ii) for units which have been
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vacated for less than 10 days as of the Closing Date, such units shall be
delivered in the condition they were in upon move-out by the tenant therein.
i. At the Closing, Seller and Buyer shall execute and deliver multiple
counterparts of a Closing Memorandum and Indemnification Agreement ("Closing
Memorandum") in form substantially the same as that attached hereto as Exhibit G
with respect to the prorations and other adjustments made at Closing.
j. Seller shall pay the premium for the Title Policy as provided and
subject to the limitations contained in paragraph 9 below. All other costs
incurred in the transfer of the Property from Seller to Buyer shall be paid in
accordance with the customs of real estate transactions presently in effect in
Tarrant County, Texas, as solely determined by Escrow Agent.
9. TITLE INSURANCE POLICY.
At the Closing, Seller shall furnish to Buyer a Texas Standard Owner
Policy of Title Insurance (on the form promulgated by the Texas State Board of
Insurance) issued by Chicago Title Insurance Company ("Title Policy"), in the
amount of the Purchase Price, insuring that title to the Property is held by
Buyer subject only to the printed exceptions normally contained in such policy,
the exceptions contained in the Title Report and any amendments to the Title
Report which are deemed to be approved pursuant to paragraph 7 above, and such
other matters as are provided for in this Agreement ("Permitted Exceptions"). If
Seller so requests, the Title Policy shall be issued as a single Title Policy
that covers all of the Property, the Wildwood Property and the Forest Ridge
Property, and Buyer shall not have the right to a separate Title Policy for each
such properties. Buyer may elect to obtain from Escrow Agent a modification to
the Title Policy so that the standard printed exception for boundaries and other
survey type matters shall be limited to "shortages in area"; however, Buyer
shall be responsible for (i) obtaining at its sole cost and expense any
additional surveys needed to obtain such modification and (ii) paying any excess
premium required in order to obtain such modification or other additional
coverage.
10. RIGHT OF ENTRY.
Buyer and its engineers and agents shall have access to the Property at
reasonable times after Opening of Escrow for the purpose of conducting
geological, soil, drainage, engineering, building inspection and environmental
tests and other studies and surveys which Buyer, in its reasonable discretion,
deems necessary. Buyer shall immediately thereafter restore the Property to the
condition which existed prior to performing such tests and studies, and Buyer
shall indemnify, protect, hold harmless and defend Seller for, from and against
any loss, expense, including reasonable attorney's fees, claims, actions, suits
and liability resulting from activities by Buyer or its engineers or agents upon
the Property, and shall keep the Property free from Liens arising out of such
activities. Notwithstanding anything contained in this Agreement to the
contrary, this indemnity and obligation to restore and keep the Property free
from liens shall survive any termination of this Agreement.
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11. SALE PROPERTY CONDITION.
To best of Seller's knowledge, Seller represents and warrants to Buyer,
as of the date hereof and, except as otherwise set forth herein, as of the
Closing Date, as follows:
a. Seller is (i) a natural person or, if not a natural person, is duly
organized, validly existing and in good standing under the laws of the state in
which Seller was organized, whether as a corporation, partnership, limited
partnership, trust or other legal entity, (ii) has full power, authority and
legal right to carry on its business as now being conducted and to own the
property and assets it now owns, and (iii) is duly qualified or licensed to do
business and is in good standing in the jurisdiction where the property is
located unless Seller has been advised by legal counsel that such qualification
is not required by applicable state law;
b. Seller has full power, authority and legal right to execute, deliver
and perform this Agreement and all other documents and certificates contemplated
hereby, and the execution, delivery and performance thereof have been duly
authorized by Seller;
c. No other action is or was required to be taken by Seller to permit
the execution delivery and performance of its Agreement and all other documents
and certificates contemplated hereby, and the transactions contemplated hereby
and no consent or approval of any third party or governmental authority is or
was required or appropriate in connection with the execution of this Agreement
or to consummate the transactions contemplated hereby;
d. This Agreement constitutes the legal, valid add binding obligation of
Seller, enforceable against Seller in accordance with its terms;
e. Neither the execution or delivery of this Agreement nor the
consummation by Seller of the transactions contemplated hereby is or was in
violation of or in conflict with (i) any provision of any agreement (including,
without limitation, the organization documents under which Seller is organized),
instrument or other restriction of any kind to which Seller is a party, or by
which Seller or the Property is bound or (ii) in any material or adverse way,
statute, law, decree, regulation or order of any governmental authority, or
resulted or will result in a default under any agreement, or caused or will
cause the acceleration of any obligation or loan to which Seller is a party or
by which Seller or the Property is bound;
f. There are no actions, suits, proceedings, orders or investigations
pending or, to the best of Seller's actual knowledge, threatened against or
affecting Seller or the Property at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which might materially
adversely affect Sellers performance under this Agreement or the consummation of
the transactions contemplated hereby or the use or operation of the Property;
provided, however, Seller discloses that Seller and/or Wildwood Seller and/or
Forest Ridge Seller has filed and is prosecuting a lawsuit against certain
former cable television service providers serving the Property and/or the
Wildwood Property and/or the Forest Ridge Property, and Buyer agrees that
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Seller may continue to prosecute such lawsuit after the Closing and that Buyer
shall have no claim to any portion of any recovery in connection therewith; and
g. Seller is not in default under any agreement, deed of trust,
mortgage, security agreement published ordinance, resolution, or decree, bond,
note, indenture, order or judgment to which it is a party or by which the
Property or assets owned by it or used in the conduct of its business thereon is
affected.
h. To the best of Seller's actual knowledge, all leases, rent rolls or
income statements furnished by Seller are materially accurate.
i. There are no outstanding rent concessions of any kind with respect to
the Leases, and if any such concessions are found to exist Seller shall
reimburse Buyer therefor.
j. The mechanical components of the Property shall be in working order
at the time of Closing, normal wear and tear excepted (and taking into
consideration the age of such items).
k. Seller has no knowledge of any default under any of the Leases except
as specified in the Rent Roll or otherwise disclosed to Buyer in writing prior
to the Feasibility Termination Date.
l. Seller has not received any notice of any violation of any ordinance,
regulation, law or statute of any governmental agency pertaining to the Property
or any portion thereof.
m. At all times from the date hereof until Closing, Seller shall
materially maintain, operate and lease the Property in a manner and standard
consistent with Seller's historical operation of the Property.
These representations and warranties shall survive close of escrow for a
period of twelve (12) months. SELLER MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES WHATSOEVER.
Except as otherwise expressly set forth in this Agreement, Buyer
acknowledges, represents, warrants and agrees that: (i) Buyer is purchasing the
Property, any improvements now or hereafter made thereto at Closing in "as is"
and "where is" condition, with all faults without any warranty expressed or
implied whatsoever; (ii) Buyer has made or shall make prior to Closing its own
examination, inspection and investigation of the Property, all improvements, if
any, located thereon, the subsurface of the Property and all soil, engineering,
environmental other conditions and requirements for the Property and any
personal property; (iii) Buyer has or shall investigate all zoning, building and
governmental regulatory matters pertaining to the Property prior to Closing;
(iv) Buyer is entering into this Agreement and is purchasing the Property and,
based upon such inspections and investigations and not in reliance on any
statements, representations, inducements or agreements of Seller and/or Broker
in connection with the Property, its zoning, its fitness or merchantability for
any particular use or purpose, availability of water
11
or utilities, soil or environmental conditions, encroachments which would be
disclosed by either an inspection of the Property or a survey, flooding and such
other matters as might be disclosed or determined by an examination of the
Property and independent inquiry with respect thereto; (v) any engineering data,
environmental audit, soils reports, surveys or other information that Seller or
any other party may have delivered to Buyer pertaining to the Property is
furnished without any representation or warranty whatsoever; and (vi) Seller
and/or Broker shall have no responsibility, liability or obligation respecting
the Property subsequent to Closing. Buyer shall make its own investigation
regarding the presence of any toxic waste or hazardous materials on the
Property.
12. BROKERAGE.
a. Seller shall pay to Western Rim Property Services, Inc. ("Broker"),
an affiliate of Seller, a real estate broker's commission for the sale of the
Property by Seller to Buyer equal to five percent (5%) of the Purchase Price,
in cash at Closing, provided that such commission shall be payable only if, as
and when Closing shall occur hereunder. If Closing does not occur for any reason
whatsoever, Broker shall not be entitled to any commission whatsoever or any
portion of the ▇▇▇▇▇▇▇ Money Deposit forfeited to Seller. Buyer and Seller each
represent to the other that it has not dealt with any real estate broker or any
other party entitled to a commission, broker's fee or other compensation in
connection with the sale of the Property by Seller to Buyer except Broker. Buyer
and Seller each agree to indemnity, protect, defend and hold the other harmless
for, from and against any expense, including without limitation, attorneys' and
accountants' fees, claims, actions, suits or demands for payment of any
commission, finder's fee or other sum initiated by any broker, commission agent
or other person which such party or its representatives has engaged or retained
or with which it has had discussions concerning the transaction contemplated by
this Agreement except Broker. Notwithstanding anything in this Agreement to the
contrary, the representation and indemnity set forth in this paragraph shall
survive any termination of this Agreement. Furthermore, notwithstanding anything
to the contrary in this Agreement, Western Rim Property Services, Inc.,
represents Seller only and does not represent Buyer in any manner whatsoever.
b. Buyer acknowledges that it has retained or may retain Pinnacle Realty
or an affiliate thereof ("Pinnacle") in connection with Buyer's due diligence
review of the transaction. Buyer represents and warrants that Pinnacle is not
acting in a broker capacity in this regard and in any case any and all amounts
owed to Pinnacle or claimed to be owed by Pinnacle shall be the sole
responsibility of Buyer, and Seller shall have no responsibility therefor.
13. CHANGES IN THE PROPERTY.
Prior to Closing, risk of loss with regard to the Property shall be
borne by Seller. If, prior to Closing, the Property or any portion thereof is
destroyed or damaged, or becomes subject to a taking by virtue of eminent
domain, to any extent whatsoever, Buyer may, in Buyer's sole discretion, either
(i) terminate this Agreement and receive back Buyer's ▇▇▇▇▇▇▇ Money Deposit and
Additional ▇▇▇▇▇▇▇ Money Deposit, and neither party hereto shall have any
further rights or obligations hereunder, or (ii) proceed with the Closing of the
transaction, in
12
which event Seller shall assign to Buyer all insurance or condemnation proceeds
available as a result of such destruction or taking (including proceeds from
loss of rents coverage), and in which event Buyer shall also receive a credit
against the Purchase Price for any deductible amounts from such insurance
proceeds.
14. POSSESSION.
Possession of the Property shall be delivered to Buyer upon Closing,
subject to the matters set forth in the Deed.
15. NOTICES.
Unless otherwise required by law, all notices required to be given
hereunder shall be in writing and shall be conveyed by (i) personal delivery
(including by any messenger service, courier service, overnight delivery or
facsimile with confirmation of receipt) to the address listed below for such
party or (ii) the United States Postal Service by certified or registered mail,
postage prepaid, with return receipt requested, to the address listed below for
such party or (iii) telecopied by facsimile transmission to such party at the
telecopy number listed below, provided that such transmission is confirmed by
telephone on the date of such transmission. The addresses and telecopy numbers
for the parties are as follows:
if to Seller: Western Rim Investment Advisors, Inc.
(Overnight) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(U.S. Mail) ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy of any ▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇▇▇
notice to Seller to: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
if to Escrow Agent: Safeco Land Title of Tarrant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, #▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
13
if to Buyer: Cornerstone Realty Income Trust, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
with copies of any ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
notice to Buyer to: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Oaks ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Notice given by personal delivery shall be deemed to have been given
upon delivery to the appropriate address against receipt therefor (or upon
refusal of acceptance), and notice given by U.S. mail shall be deemed to have
been given two days after deposit in the U.S. mail, and notice by facsimile
transmission shall be deemed to have been given on the date of such transmission
provided that such transmission is confirmed by telephone on the date of such
transmission. Each party may designate from time to time, another address in
place of the address hereinabove set forth by notifying the other parties in the
same manner as provided in this paragraph.
16. DEFAULT BY BUYER.
Except as provided below in this paragraph, if on or prior to Closing,
Buyer shall default in performing or fulfilling any of the covenants or
obligations to be performed by it under this Agreement or the Other Agreements,
including without limitation, Buyer's failure to complete the purchase of the
Property, Wildwood Property and Forest Ridge Property, Seller shall, as its sole
remedy, obtain the ▇▇▇▇▇▇▇ Money Deposit (including all additions thereto) and
any other sums theretofore deposited in Escrow or paid to Seller to such time,
as liquidated damages to Seller for such breach by Buyer, Buyer and Seller
agreeing that the amount of damages for such breach by Buyer is difficult to
determine at this time and that the aforesaid sum is a reasonable estimation of
the amount of liquidated damages of such breach under the circumstances existing
at the time this Agreement is entered into. Upon giving notice by Seller to
Buyer and Escrow
14
Agent of such default, if such default is not cured within five (5) business
days after such notice, Escrow Agent shall deliver to Seller the ▇▇▇▇▇▇▇ Money
Deposit (including all interest earned thereon); whereupon, this Agreement and
the Other Agreements shall be deemed terminated, and Buyer and Seller shall have
no further obligation or liability to the other regarding the purchase and sale
of the Property, except such specific indemnification provisions as are provided
for in this Agreement. Notwithstanding the foregoing, Seller may pursue all
rights and remedies available at law or in equity against Buyer in the event of
a Breach or default by Buyer under the specific indemnification provisions
provided for in this Agreement as an additional remedy and not in lieu of the
foregoing liquidated damages remedy.
17. DEFAULT BY SELLER.
In the event that Seller defaults under this Agreement, Buyer shall have
as its sole remedies the right (i) to require specific performance by Seller
hereunder or (ii) to terminate this Agreement and to be repaid the ▇▇▇▇▇▇▇ Money
Deposit and Additional ▇▇▇▇▇▇▇ Money Deposit, together with any interest which
may have been earned thereon, plus a reimbursement of all reasonable actual
out-of-pocket expenses incurred by Buyer in connection with its inspection of
the Property, including engineering fees, legal fees and accounting fees. Buyer
hereby specifically waives any and all other rights and remedies in equity or at
law, subject, however, to its rights to recoup its attorneys fees as provided in
paragraph 19 below. Buyer acknowledges that Seller's inability or unwillingness
to deliver title to the Property in a condition required by Buyer shall not be
deemed to be a default by Seller hereunder and Buyer's sole remedy in such event
shall be to terminate the Agreement and to be repaid the ▇▇▇▇▇▇▇ Money Deposit
together with any interest earned thereon.
18. REPRESENTATIONS AND WARRANTIES AT CLOSING.
All of Buyer's representations and warranties contained in this
Agreement shall be true and correct at Closing as though made at and as of
Closing. All of Seller's representations and warranties contained in this
Agreement shall be true and correct at Closing as though made at and as of
Closing.
19. ATTORNEYS' FEES.
If either party to this Agreement shall breach its representations or
warranties hereunder or shall fail to fulfill or perform any of its covenants or
obligations in this Agreement,, that party shall pay all costs, including,
without limitation, reasonable attorneys' fees and expert witness fees that may
be incurred to enforce the terms, covenants, conditions and provisions of this
Agreement or that may be incurred as a result of the default under or breach of
this Agreement in the event legal action is commenced.
20. ENTIRE AGREEMENT; AMENDMENT.
All exhibits attached to this Agreement are incorporated into this
Agreement by reference and made a part hereof. This Agreement, including all
exhibits hereto, is the entire Agreement
15
between parties pertaining to all matters agreed upon or understood in
connection with the sale and purchase of the Property. There are no oral
promises, conditions, representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution hereof or in effect
between the parties. No change or addition may be made to this Agreement except
by a written agreement executed by the parties.
21. TIME OF ESSENCE.
Time is of the essence with respect to the performance of all terms,
covenants, conditions and provisions of this Agreement. No provision of the
Escrow Instructions shall extend the Closing Date by more than five (5) business
days or provide either party hereto with any grace period not provided in this
Agreement.
22. FURTHER ASSURANCES.
The parties hereto shall execute, acknowledge and deliver such other
instruments and documents as may be necessary or appropriate to carry out the
full intent and purpose of this Agreement.
23. APPLICABLE LAW.
This Agreement and the rights of the parties hereto shall be
interpreted, governed and construed in accordance with the laws of the State of
Texas.
24. SECTION HEADINGS.
The section headings in this Agreement are inserted only for convenience
and reference and the parties intend that they shall be disregarded in
interpreting the terms, covenants, conditions and provisions of this Agreement.
25. SEVERABILITY.
Wherever possible, each provision of this Agreement shall be interpreted
in such manner as to be valid under applicable law, but if any provision shall
be invalid or prohibited hereunder, such provision shall be ineffective to the
extent of such prohibition or invalidation but shall not invalidate the
remainder of such provision or the remaining provisions.
26. WAIVER.
Either of the parties shall have the right to excuse or waive
performance by the other party of any obligation under this Agreement by a
writing signed by the party so excusing or waiving. No delay in exercising any
right or remedy shall constitute a waiver thereof, and no waiver by Seller or
Buyer of the breach of any covenant of this Agreement shall be construed as a
waiver of any preceding or succeeding breach of the same or any other covenant
or condition of this Agreement.
16
27. ASSIGNMENT; BINDING EFFECT.
Buyer may only assign this Agreement and all of its rights, privileges
and benefits hereunder, or designate a nominee to take title for Buyer, without
Seller's prior written consent so long as its to a wholly owned subsidiary or
affiliate of Buyer. Seller hereby acknowledges and consents that Buyer may
assign its rights hereunder to Apple Residential Income Trust, Inc., a Virginia
corporation ("Apple"); provided, however, Buyer hereby represents and warrants
to Seller that Apple shall be a wholly owned subsidiary or affiliate of Buyer.
Any assignee consented to hereunder shall be required to assume and agree in
writing to perform all Buyer's obligations hereunder, and Buyer shall provide
Seller with a copy of the assignment and assumption agreement between Buyer and
such assignee. Upon any assignment hereunder, Buyer hereunder shall not be
released from any of its obligations or liabilities under this Agreement, nor
shall the ▇▇▇▇▇▇▇ Money Deposit be released to Buyer upon any assumption. Seller
may not assign and transfer any right, title and interest hereunder. Except as
otherwise provided herein, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. Seller shall not unreasonably withhold
its consent to any assignment of this Agreement by Buyer to an entity which
Buyer owns at least a 50% interest.
28. CONSTRUCTION.
As used in this Agreement, the masculine, feminine or neuter gender and
the singular or plural numbers shall each be deemed to include the other
whenever the context so requires. This Agreement shall be construed as a whole
and in accordance with its fair meaning and without regard to any presumption or
other rule requiring construction against the party causing this Agreement or
any part of this Agreement to be drafted. The parties acknowledge that each
party has reviewed this Agreement and has had the opportunity to have it
reviewed by legal counsel. If any words or phrases in this Agreement are
stricken or otherwise eliminated whether or not other words or phrases have
been added, this Agreement shall be construed as if the words or phrases
stricken or otherwise eliminated were never included in this Agreement, and no
implication or inference will be drawn from the fact that the words or phrases
were stricken or otherwise eliminated.
29. DEFAULT INTEREST.
If any monies become payable by one party to the other person pursuant
to this Agreement and are not paid when due, then all sums unpaid shall bear
interest at the rate of twelve percent (12%) per annum, from the date when due
until paid; provided, however, the provisions of this paragraph shall not apply
with respect to the Additional ▇▇▇▇▇▇▇ Money Deposit.
30. NO PARTNERSHIP, THIRD PERSON.
It is not intended by this Agreement to, and nothing contained in this
Agreement shall, create any partnership, joint venture or other arrangement
between Seller and Buyer except as
17
specifically provided herein. No term or provision of this Agreement is intended
to benefit of any person, partnership, corporation or other entity not a party
hereto (including without limitation, any broker), and no such other person,
partnership, corporation or entity shall have any right or cause of action
hereunder.
31. TIME OF PERFORMANCE.
If the date for performance of any obligation hereunder or the last day
of any time period provided for herein shall fall on a Saturday, Sunday or legal
holiday, then said date for performance or time period shall expire on the first
day thereafter which is not a Saturday, Sunday or legal holiday. Except as may
otherwise be set forth herein, any performance provided for herein shall be
timely made and completed if made and completed no later than 5:00 P.M. (Texas
time) on the day for performance.
32. SURVIVAL.
Except as otherwise provided herein, all covenants, agreements,
representations and warranties set forth in this Agreement or in any certificate
or instrument executed or delivered pursuant to this Agreement shall survive
the Closing and shall not merge into any deed, assignment or other instrument
executed or delivered pursuant hereto.
33. RECORDING.
This Agreement shall not be filed or recorded in any public office in
the State of Texas.
34. CLOSING FUNDS.
The funds which will be required from Buyer and all other acts required
of Buyer in order to consummate the transaction contemplated by this Agreement
shall be deposited with Escrow Agent and performed no later than 10:00 A.M.
(Texas time) on the Closing Date. The Closing funds shall be available for
immediate distribution to Seller at Closing after payment of all liens including
mortgages, mechanic liens, etc. The net proceeds of sale that are to be
distributed to Seller at Closing shall be remitted by Escrow Agent in accordance
with Seller's instructions given at or prior to Closing.
35. IRS REAL ESTATE SALES REPORTING.
Buyer and Seller hereby appoint Escrow Agent as, and Escrow Agent agrees
to act as, "the person responsible for Closing" the transaction which is the
subject of this Agreement pursuant to Internal Revenue Code of 1986 Section
6045(e). Escrow Agent shall prepare and file the information return (IRS Form
1099-B) required by and otherwise comply with the terms of IRC SS6045(e). Escrow
Agent further agrees to indemnify and hold Buyer, Seller and there respective
attorneys harmless from and against all claims, costs, liabilities, penalties or
expenses resulting from Escrow Agent's failure to file the appropriate reports
and otherwise comply with the terms of the Internal Revenue Code pursuant to
this paragraph.
18
36. NON-FOREIGN ENTITY.
Seller shall execute and deliver to Buyer at Closing an affidavit as
required by Internal Revenue Code Section 1445(b)(2) setting forth Seller's
taxpayer identification number, Seller's address and stating that it is not a
foreign person for purposes of that Section ("Non-Foreign Status
Certification").
37. COUNTERPART EXECUTION.
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed one and the
same Agreement.
38. ACCEPTANCE.
This offer to purchase the Property by the party first executing and the
terms set forth herein shall automatically terminate at 5:00 P.M. (Texas time),
on February 15, 1997, unless accepted by the other party by delivering to the
first executing party at its address referenced above a fully executed
counterpart of this Agreement no later than said date.
39. OTHER OFFERS.
Seller may accept and negotiate back-up offers and contracts should
Buyer default under this Agreement. No other offer or Contract would be in force
or effect if or until Buyer defaults.
40. CONFIDENTIALITY.
Buyer agrees to hold this Agreement and its contemplated acquisition
strictly confidential and only disclose the contemplated acquisition to its
attorneys, accountants, professional consultants and advisors, lenders and title
company. In no event, under any circumstances whatsoever, shall this sale prior
to closing be disclosed to any on-site employee of Western Rim Property
Services, Inc. or its vendors, suppliers, contractors, or any resident at any of
the Sellers properties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first set forth above.
BUYER:
Cornerstone Realty Group, Inc.,
a Virginia corporation
/s/ ▇. ▇. ▇▇▇▇▇▇▇
By:_______________________________
/s/ ▇. ▇. ▇▇▇▇▇▇▇
Name:_____________________________
S.V.P.
Title:____________________________
SELLER:
Western Rim Investors 1993-2, L.P.,
a California Limited Partnership,
dba Toscana Apartments
By: Western Rim Investment Advisors,
Inc., its General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:__________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ESCROW AGENT:
Escrow Agent hereby agrees to be bound by the provisions hereof
applicable to Escrow Agent and to perform its obligations as set forth herein
and hereby declares that Opening of Escrow has occurred this 7th day of
February 1997.
Safeco Land Title of Tarrant
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:_______________________________
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:_____________________________
Commercial Operations Mgr.
Title:____________________________
20
EXHIBIT A
Legal Descriptions
LOT 20C, in BLOCK M/8752, OF THE DALLAS APARTMENTS/HOMES, an Addition to the
City of Dallas, ▇▇▇▇▇▇ County, Texas, according to the Plat thereof recorded in
Cabinet I, Page ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
EXHIBIT B
Personal Property
[see attached list]
EXHIBIT "B"
7-16-94 [ TOSCANA LOGO]
APARTMENT HOMES
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
214/307-0545
#278 Corporate Unit Inventory
-----------------------------
Kitchen:
-------
1-Dishtowel
1-Mitten(hand)
1-hand can opener
1-Wood paper towel holder
1-set of 4 pots/pans
1-4/cup Mr. Coffee maker
1-toaster
1-kitchen rug(Beige)
1 sety 4 Silverware
1 set 4 Dishware 4-bowls 4-large plate 4-salad plate 4-mugs
1 set salt pepper shakers
2-placematts/2-knapkins with holders rings
1- 11 gallon kitchen trash can(beige)
1-wooden cutting board
1-set of 4 Tall glasses 1 set of 4 small glasses
1-silverware tray
2-tupperware storing containers and 1 tupperware drink jug.
l-clear knapkin holder for paper knapkins
1-large knife/fork
1-small hand wine opener and(assorted kitchen gadgets) spat/spoons/measure cups
etc.
1-outside door matt
Bathroom:
--------
1-Toilet Lid
1-Large area rug(peach)
1-Aqua trash can
1-Aqua kleenex holder and one Aqua soap dish holer
1-Sea shell designed shower curtain with rods and liner
4-large body towels (Assort colors)
2-wash clothes
1-hand towel
Bedroom:
-------
Full size comfortor (Multi colors) with matching sheets and two pillows
1-cream color dust ruffle
1-silk flower arrangement in a brass pot
1-pot pourr in a clear bowl
1-candle on a brass candle holder
1-biege radio clock
1-iron and board
Misc Items:
----------
1 20inch Sanyo Color T.V. 1 large ficus tree (pot is Mine!)
2-Southwest design pictures 1-above fireplace and one abovecouch
EXHIBIT "B"
[ Northview LOGO]
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
214/307-0545
11-18-1993
Office/Clubroom Inventory
-------------------------
6 Pictures
1 Typewriter GX-8500
1 Computer with Printer
1 Desk for Computer
2 Office Desks
1 Glasstop Entry Desk
3 Office chairs(2-Black 1 Grey tweed,)
4 Wooden chairs with purple tweed seats.
3 Phones
1 Toshiba Copier BD-4121
1 Calculator-Texas Instru.
1 Microwave GE
4 Tables spray flecked in black
4 Highback modern black chairs
1 Large 46inch sony T.V. with 2 floor standing speakers.
1 Sony VCR
1 ▇▇▇▇▇▇▇/Silex Coffee Pot
1 GE Refrigerator
2 Large Silk ficus
2 Smaller silk plants
2 Tall Black File Cabinets
1 3-hole puncher
1 2-hole puncher
2 Staplers
2 Tape Dispensers
1 Round wall clock
5 Framed Floorplans
2 Desk file holders
1 Desk Calendar
2-Hibiscas Plants in black Ceramic Pots.
1 Framed Property Map.
Weightroom
----------
1 Stair Stepper 1 Climber
1 Tredmill 2 Lifecycles
1 Incline 1 Multi-Station Gym
3 Tanning Beds 1 Cardio glider
I included the weightroom information just in case you needed it!
▇▇▇▇ ▇▇▇▇▇▇
Aerobic Room
------------
10 Step Boxes 9 stretch tone bands
6 Exercise matts
5 5 lBS weights
1 8 lB weights
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214/307-0545
SHOP INVENTORY
(1) General Sewer machine
(1) Closet Auger
(1) 027 Manual key machine
(1) Homelite blower
(1) Square nose shovel
(1) Garden hoe
(1) Weblock keying kit
(1) App. Dolly
(1) 8' Aluminum step ladder
(1) 18' Aluminum extension ladder
(▇) ▇▇▇ ▇ ▇▇▇▇▇▇▇ power washer
(1) ▇▇▇▇▇▇ Airless paint sprayer - (Home Depot)
(1) BBQ Grill
(1) A/C Recovery Unit
EXHIBIT C
______________, 1997
▇. ▇. ▇▇▇▇▇▇ & Company, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
In connection with our audit of the statement of income and direct
operating expenses of Apartments for the twelve month
period ended , for the purpose of expressing an opinion as to
whether the financial statement presents fairly, in all material respects, the
results of operations of Apartments, in conformity with
generally accepted accounting principles, we confirm, to the best of our actual
knowledge and belief, the following representations made to you during your
audit.
1. We are responsible for the fair presentation of the statement of operations
in conformity with generally accepted accounting principles.
2. We have made available to you all financial records and related data and to
our knowledge these records are the only accounting records in existence for
the above noted apartments.
3. There have been no:
a. Irregularities involving management or employees who have significant
roles in the internal control structure.
b. Irregularities involving other employees that could have a material
effect on the financial statements.
c. Communications from regulatory agencies concerning noncompliance with, or
deficiencies in financial reporting practices that could have a material
effect on the financial statements.
4. The following, if applicable, have been properly recorded in the accounting
records and/or disclosed to you.
a. Related party transactions and related accounts receivable or payable,
including sales, purchases, loans, transfers, leasing arrangements, and
guarantees.
b. Arrangements with financial institutions involving compensating balances
or other arrangements involving restrictions on cash balances and
line-of-credit or similar arrangements.
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5. There are no:
a. Violations or potential violations of laws or regulations whose effect
should be considered for disclosure in the financial statements or as a
basis for recording a loss contingency.
b. Other material liabilities or gain or loss contingencies that are
required to be accrued or disclosed by Statement of Financial Accounting
Standards No. 5
6. We are not aware of any pending or threatened litigation, claims, or
assessments or unasserted claims or assessments other than tenant evictions
or collections for nonpayment of rent that are required to be accrued or
disclosed in the financial statements in accordance with Statement of
Financial Accounting Standards No. 5, and we have not consulted a lawyer
concerning litigation, claims or assessments against the Property.
7. There are no material transactions that have not been properly recorded in
the accounting records underlying the financial statements.
8. We have complied with all aspects of contractual agreements that would have
a material effect on the financial statements in the event of noncompliance.
9. We have identified all accounting estimates that could be material to the
financial statements, including the key factors and significant assumptions
underlying those estimates, and we believe the estimates are reasonable in
the circumstances.
10. No events have occurred subsequent to that would require adjustment
to, or disclosure in, the financial statements.
------------------------------------- ---------------------------------
Signature Signature
------------------------------------- ---------------------------------
Title Title
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EXHIBIT D
When recorded, return to:
---------------------------
---------------------------
---------------------------
SPECIAL WARRANTY DEED
For the consideration of Ten and 00/100 Dollars and other valuable
consideration, ("Grantor"), a
Partnership, does hereby convey to , a
Corporation ("Grantee"), the following described property situated in Texas:
See Exhibit A attached hereto and made a part hereof.
SUBJECT TO: Current taxes, assessments not yet due and payable,
reservations in patents and all easements, rights-of-way, covenants, conditions
and restrictions as may appear of record, and such matters which an inspection
or current accurate survey would reveal.
Grantor hereby binds itself and its successors to warrant and defend the
title, as against all acts of Grantor herein, and all persons claiming by,
through or under Grantor, and no other, subject to the matters above set forth.
GRANTEE EXPRESSLY ACKNOWLEDGES THAT THE GRANTEE IS PURCHASING AND THE GRANTOR IS
CONVEYING THE PROPERTY SOLELY IN RELIANCE ON GRANTEE'S OWN INVESTIGATIONS AND
"AS IS, WHERE IS" AND "WITH ALL FAULTS AND DEFECTS," LATENT OR OTHERWISE.
GRANTEE EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENT OF
GRANTOR HEREIN AND EXCEPT AS OTHERWISE SPECIFIED HEREIN, GRANTOR MAKES AND HAS
MADE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR ARISING BY OPERATION
OF LAW, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY AS TO CONDITION,
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE WITH
RESPECT TO THE PROPERTY OR ANY MATTER RELATED THERETO.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Special
Warranty Deed this day of 1997.
GRANTOR:
By: _____________________________
Its:_____________________________
GRANTEE:
_________________________________
By: _____________________________
Its:_____________________________
STATE OF TEXAS )
) SS.
County of Tarrant )
Acknowledged before me this day of 1997, by
.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
----------------------- ------------------------------
Notary Public
STATE OF TEXAS )
) SS.
County of Tarrant )
Acknowledged before me this day of 1997, by
of ,
a corporation, on behalf of the corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
----------------------- ------------------------------
Notary Public
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EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF
LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES IS MADE and entered into this
_____ day of ____________, 199___, by and between ______________________, a(n)
________________ ("Seller"), and ________________________, a(n) ______________
_________________ ("Buyer").
WHEREAS, Seller is conveying to Buyer certain real property ("Real
Property") in _________________, Texas, more particularly described on Exhibit
"A" attached hereto and incorporated herein by reference; and
WHEREAS, Seller desires to assign to Buyer its rights, as landlord, in
and to certain leases relating to the Real Property.
NOW, THEREFORE, Seller, for and in consideration of Ten Dollars ($10.00)
and other good and valuable consideration in hand paid to Seller by Buyer, does
hereby grant, sell, assign, transfer, convey and deliver to Buyer all of
Seller's right, title and interest, as landlord, under those certain tenant
leases and/or other agreements demising space in and to the Real Property
("Leases") described on Exhibit "B" attached hereto and incorporated herein by
reference.
Buyer hereby agrees to assume all of Seller's duties and obligations
under the Leases accruing on and after the date hereof, and to indemnify,
protect, defend and hold Seller harmless from all such duties and obligations.
Seller shall indemnify, protect, defend and hold Buyer harmless from all duties
and obligations under the Leases accruing prior to the date hereof.
This Assignment of Leases is executed by Seller and accepted by Buyer
subject to any and all terms and conditions contained in the Leases and all of
the same exceptions and conditions contained in that certain Special Warranty
Deed of even date herewith from Seller to Buyer relating to the conveyance of
the Real Property.
This is a final and exclusive expression of the agreement of Seller and
Buyer, and no course of dealing or usage of trade or course of performance shall
be relevant to explain or supplement any term expressed in this Assignment and
Assumption of Leases.
To have and to hold all of Seller's right, title and interest as
landlord under the Leases unto Buyer, its legal representatives and assigns
forever.
EXECUTED as of the date first hereinabove written.
SELLER:
________________________________
________________________________
By: ____________________________
____________________________
____________________________
PURCHASER
By: ____________________________
Name:___________________________
Title:__________________________
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EXHIBIT F
▇▇▇▇ OF SALE AND ASSIGNMENT
THIS ▇▇▇▇ OF SALE AND ASSIGNMENT IS MADE and entered into this _____ day
of ______________, 19___, by and between ______________________, a(n) __________
_____________ ("Seller"), and ____________________, a(n) ____________ ("Buyer").
WHEREAS, Seller is conveying to Buyer certain real property ("Real
Property") in _________________ County, Texas, more particularly described on
Exhibit "A" attached hereto and incorporated herein by reference, together with
all improvements ("Improvements") thereon; and
WHEREAS, Seller desires to assign to Buyer certain rights and interests
relating to the Real Property.
NOW, THEREFORE, Seller, for and in consideration of Ten Dollars ($10.00)
and other good and valuable consideration in hand paid to Seller by Buyer, does
hereby grant, sell, assign, transfer, convey and deliver to Buyer all of
Sellers' right, title and interest in and to the following:
1. The personal property owned by Seller in connection with the Real
Property as described on Exhibit "B" attached hereto and incorporated herein by
reference ("Personal Property");
2. All existing warranties, including manufacturer's warranties
("Warranties") relating to the Improvements or Personal Property, if any, but
only to the extent assignable;
3. All right, title and interest of Seller, if any, in and to the use of
the name by which the Real Property is commonly known, "Toscana Apartments,"
("Tradename");
4. The existing phone numbers ("Phone Numbers") used in connection with
the operation of the Real Property, but only to the extent assignable;
The herein-described Personal Property, Warranties, Tradename and Phone
Numbers are collectively referred to as the "Property."
This ▇▇▇▇ of Sale and Assignment is executed by Seller and accepted by
Buyer subject to any and all terms and conditions contained in the Warranties
and all of the same exceptions and conditions contained in that certain Special
Warranty Deed of even date herewith from Seller to Buyer relating to the
conveyance of the Real Property.
This is a final and exclusive expression of the agreement of Seller and
Buyer, and no course of dealing or usage of trade or course of performance shall
be relevant to explain or supplement any term expressed in this ▇▇▇▇ of Sale and
Assignment.
To have and to hold the Property unto Buyer, its legal representatives
and assigns forever, but without warranty of any kind.
EXECUTED as of the date first hereinabove written.
SELLER:
_________________________________
a(n)_____________________________
By: _____________________________
Name:________________________
Title:_______________________
PURCHASER:
_________________________________
a(n)_____________________________
By: _____________________________
Name:________________________
Title:_______________________
THE STATE OF__________ SS.
SS.
COUNTY OF_____________ SS.
This instrument was acknowledged before me on the _____ day
of _____________, 1997, by ________________________, __________________ of
________________, a(n) ________________________, on behalf of said ___________.
____________________________________
Notary Public, State of ____________
____________________________________
Notary's Typed or Printed Name
My Commission Expires: _____________
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THE STATE OF____________ SS.
SS.
COUNTY OF_______________ SS.
This instrument was acknowledged before me on the _____ day
of ________________, 1993, by _________________________, of __________________
______, a(n) ________________________, on behalf of said ___________________.
____________________________________
Notary Public, State of_____________
____________________________________
Notary's Typed or Printed Name
My Commission Expires: _____________
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EXHIBIT G
CLOSING MEMORANDUM AND
INDEMNIFICATION AGREEMENT
THE STATE OF TEXAS SS.
SS. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS SS.
THIS CLOSING MEMORANDUM AND INDEMNIFICATION AGREEMENT (the "Agreement")
is entered into effective as of ______________, 1997 (the "Closing Date") by
and between _____________________, a _________________________ ("Seller"), and
______________________, a __________________________ ("Buyer").
In connection with and in consideration of the closing ("Closing") of
the transaction contemplated under that certain Purchase and Sale Agreement (the
"Agreement") dated ________________, 1997, by and between Seller and Buyer,
covering that certain property more particularly described in the Agreement (the
"Property"), Seller and Buyer hereby agree as follows:
1. Proration Date. All prorations have been made as of the Closing Date.
2. Operating Expenses. Except as otherwise provided in the Agreement or
herein, any and all costs and expenses relating to the operation, management,
leasing or ownership of the Property for the period prior to the Closing Date,
including, but not limited to, accounts and payments under service contracts,
utility charges and other costs required to be paid by the landlord under,
and/or with respect to, any leases for all or any portion of the Property and
commission agreements relating thereto are the responsibility of Seller and will
be paid by Seller promptly upon receipt of billing therefor, and Seller hereby
agrees to reimburse Buyer for any loss, cost or expense relating to same. Any
and all costs and expenses relating to the operation, management, leasing or
ownership of the Property for the period from and after the Closing Date,
including, but not limited to, accounts and payments under service contracts,
utility charges and other costs required to be paid by the landlord under,
and/or with respect to, any leases for all or any portion of the Property are
the responsibility of Buyer and will be paid by Buyer promptly upon receipt of
billing therefor, and Buyer agrees to reimburse Seller for, any loss, cost or
expense relating to same. To the extent not reflected in the closing statements
(the "Closing Statements") evidencing the transaction contemplated under the
Agreement, Buyer and Seller agree to adjust between themselves outside of
Closing any amounts which are the responsibility of the other pursuant to this
paragraph.
3. ▇▇▇▇▇▇▇ Money. Seller and Buyer acknowledge the application of the
▇▇▇▇▇▇▇ Money Deposit (as defined in the Agreement) previously deposited with
the Title Company (as defined in the Agreement) against the purchase price of
the Property as reflected in the Closing Statements.
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4. Real Estate Taxes. All ad valorem and similar taxes and assessments
(the "Taxes") relating to the Property for the current year were prorated
between Seller and Buyer as reflected in the Closing Statements as provided in
the Agreement. At such time as the actual amount of Taxes against the Property
for the current year is known (after any appeal by Buyer is final and the amount
is final), Seller and Buyer shall, if required, readjust the amount of Taxes to
be paid by each party pursuant to this paragraph so that Seller shall pay for
those Taxes attributable to the period of time occurring prior to the Closing
Date, and Buyer shall pay for those Taxes attributable to the period of time
occurring from and after the Closing Date.
5. Rents. All rents have been prorated as of the Closing Date to the
extent same have actually been collected by Seller as provided in the Agreement.
Claims for any delinquent rent and other sums which are owing to Seller by
Tenants of the Property for periods prior to the Closing Date ("Delinquent
Rents") shall be owned and retained by Seller and Seller shall be entitled to
collect all of same. Furthermore, Buyer agrees to pay Delinquent Rents (or
Seller's pro rata share thereof to the extent such Delinquent Rents are
applicable to the month during which the Closing occurred) to Seller if, and
when, amounts are collected from the delinquent Tenant that are required to be
applied to Delinquent Rents as provided in the immediately succeeding sentence.
To the extent rentals are collected by Buyer after Closing from Tenants owing
Delinquent Rents, such collections shall be applied in the following order of
priority (i) such collections shall first be applied to Delinquent Rents which
were delinquent 30 days or less as of the Closing Date, (ii) any balance shall
then be applied to rents currently due at the time of the collection of such
amounts and (iii) the balance shall then be applied to Delinquent Rents which
were delinquent for more than 30 days as of the Closing Date. Buyer agrees to
use reasonable efforts to collect Delinquent Rents, but nothing contained herein
shall operate to require Buyer to institute a lawsuit to recover any such
Delinquent Rents or to terminate any Lease.
6. Brokerage Commissions. Except as set forth in Section ____ of the
Agreement, Seller and Buyer each hereby agree to reimburse the other for any and
all loss, cost or expense (including, without limitation, reasonable attorneys'
fees and costs) resulting from any claim for any fee, commission or similar
payment by any broker, agent, finder or realtor as a result of any action of
Seller or Buyer, respectively, related to the origination, negotiation, or
consummation of the transaction contemplated by the Agreement, Any fee owed to
Pinnacle Realty or its affiliates will be paid by Buyer.
7. Errors or Omissions. Seller and Buyer agree to adjust between
themselves after Closing any errors or omissions in the prorations or
adjustments set forth in the Closing Statements.
8. Survival. This Agreement and the agreements and the provisions
contained herein shall survive Closing and the execution and delivery of any
documents in connection therewith subject, however, to the limitations set forth
in paragraph of the Agreement, all of which are hereby incorporated into this
Agreement by this reference as if restated in their entirety. This instrument
may be executed in multiple counterparts, each of which shall be deemed an
original, but together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed by Seller and Buyer
as of (but not necessarily on) the day and year first above written.
SELLER:
__________________________________
By: ______________________________
Name:_____________________________
Title:____________________________
PURCHASER:
__________________________________
By: ______________________________
Name:_____________________________
Title:____________________________
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