EXHIBIT 10.34
CONTRACT FOR SALE
-----------------
VG OFFICE PARTNERSHIP '95, LTD., a Texas limited partnership ("Seller"),
and THE PRIME GROUP, INC., an Illinois corporation ("Purchaser"), agree as
follows:
1. Agreement for Sale of the Land. Subject to the terms and conditions
of this Contract For Sale (this "Contract"), Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, the following real and
personal property (collectively, the "Property"):
a. That certain real property located in ▇▇▇▇▇▇ County, Texas,
bounded to the east and to the north by ▇▇▇▇▇▇ Ranch Loop and to the south by
MoPac Expressway (Loop 1), and containing not more than four (4) acres of land,
together with any and all improvements located on such land, and all of the
rights, privileges, easements and appurtenances belonging or appertaining to
such land and improvements, including any right, title and interest in and to
streets, alleys and rights-of-way adjacent to such land (all of the foregoing
being collectively referred to herein as the "Real Property"), all of which
shall be subject to the encumbrances, restrictions and other matters which
become Permitted Exceptions pursuant to paragraph 5.b below. The land is
situated generally within the area depicted on the site plan set forth on
Exhibit A attached hereto and incorporated herein by reference (the "Site
Plan"), and shall be more particularly reflected in the survey to be provided in
accordance with paragraph 4 below.
b. All tangible or intangible personal property or interest therein
now or hereafter owned or held by Seller in connection with the Real Property
(or any portion thereof) or the ownership, operation, management or use thereof,
including, but not limited to, (1) the allocation of impervious cover and
buildable area to the extent reasonably necessary to permit the development of
the Facilities (as defined in paragraph 11 below) in accordance with the
provisions of this Contract; (2) the non-exclusive right to use and incorporate
trade style or trade names used by Seller in connection with the Real Property,
including but not limited to the name "▇▇▇▇▇▇ Ranch"; (3) any and all contract
rights and other agreements or leases affecting the Real Property (provided
that, if such contract rights, agreements or leases affect real property other
than the Real Property, Seller shall retain an interest in and the benefit of
all such rights, agreements and leases to the extent applicable to or otherwise
necessary in the operation or development of such other real property); (4) all
plans and specifications or other construction drawings of any type in Seller's
possession or control prepared in connection with the construction of any
improvements or proposed improvements on the Real Property; (5) all current
assignable contracts, guarantees and warranties (including guarantees and
warranties pertaining to the acquisition of the Real Property, or any portion
thereof, by Seller), licenses and other permits, approvals, authorizations,
certificates, permissions, no action letters and similar assurances issued by
any private person or persons or by any governmental or quasi-governmental
authority or authorities to the extent relating to the Real Property, or any
portion thereof, or to the ownership, operation, management or use thereof; (6)
all site plans, surveys, soil and substrata studies, water studies,
environmental studies, architectural renderings, engineering plans, and other
plans, diagrams, or studies of any kind relating to the Real Property, or any
portion thereof; and (7) all other tangible or intangible property on or related
to the Real Property, or used in connection with the ownership and operation of
the Real Property (all of the foregoing being collectively referred to herein as
the "Personal Property").
2. Total Purchase price. The total purchase price for the Property shall
equal the sum of $13.50 per square foot of building Square Feet (as defined in
paragraph 10.b below). The total purchase price shall be paid by Purchaser to
Seller in the following manner:
a. Escrow Deposit; Title Company. Within five (5) calendar days after
the execution of this Contract by each of the parties hereto, Purchaser shall
deposit the sum of $10,000.00 in cash (the "Escrow Deposit") in escrow with
Heritage Title Company of Austin, Inc. at its offices at ▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ (the "Title Company"), the release of which
shall require the joint signature of both Seller and Purchaser or the order of a
court having jurisdiction over the subject matter of this Contract. Provided
that this Contract is not terminated by Purchaser in accordance with the
provisions of paragraph 3.b below, Purchaser shall deposit with the Title
Company, on or before the first business day following the expiration of the
Inspection Period (as hereinafter defined), an additional sum of $40,000.00 in
cash, which sum shall become part of the "Escrow Deposit" for the purposes of
this Contract. The Escrow Deposit shall be invested by the Title Company in a
manner reasonably acceptable to Purchaser, and all interest earned on such
deposit shall be considered part of the Escrow Deposit. The Escrow Deposit shall
be paid to Seller at the Closing (defined below) as a part of the total purchase
price; or, if the Closing does not occur, shall be otherwise disbursed in
accordance with this Contract.
b. Cash Payment at Closing. Subject to the adjustments under
paragraph 8 of this Contract, the balance of the total purchase price shall be
paid to Seller at the Closing by cashier's check or in wire transferred funds,
which,in either case, will allow the Title Company to disburse those funds to
Seller at the Closing.
3. Inspection by Purchaser.
-----------------------
a. Inspection Period. Purchaser and Purchaser's representatives
shall have from the Effective Date of this Contract (defined below) until
February 28, 1997 (the "Inspection Period") during which to visit and inspect
(including having engineering tests, soil tests, and other tests and studies
made) the Real Property and to conduct any feasibility, environmental,
engineering and such other studies and assessments as Purchaser may require
within its sole discretion.
b. Termination During Inspection Period. If Purchaser is
dissatisfied with the condition of the Property, or with the results of the
tests, studies or assessments, or for any other reason, then Purchaser shall
have the option to terminate this Contract in Purchaser's sole and absolute
discretion, which option must be exercised by giving written notice to Seller
prior to the expiration of the Inspection Period. Upon Purchaser's exercise of
this option, Seller shall be entitled to $100.00 of the Escrow Deposit as
consideration for such option. In the event of such a termination, but only
after the delivery to Seller of all information referred to in paragraph 3.c
below and repair of the Real Property as required under paragraph 3.d below, the
Escrow Deposit made by Purchaser under paragraph 2.a above (less the $100.00 to
be delivered to Seller pursuant to the terms hereof) shall be returned to
Purchaser and the parties shall have no other or further obligation or liability
to each other, except for Purchaser's confidentiality, restoration and indemnity
obligations set forth elsewhere in this paragraph 3. In the event that no notice
of termination is given within the Inspection Period, then this Contract shall
continue
2
to be binding and in full force and effect against Seller and Purchaser, and the
Escrow Deposit (including additions thereto required under paragraph 2.a) shall
be non-refundable except as expressly provided otherwise under the provisions of
this Contract (including, without limitation, the provisions of paragraph 9.a
below).
c. Confidentiality. Purchaser agrees, that until the Closing,
Purchaser and Purchaser's agents and representatives shall hold all information
obtained with respect to the Property in confidence and further agrees that
until the Closing they will not disclose its content to others except (i) as
reasonably necessary in connection with Purchaser's obtaining of any licenses,
permits and approvals required for the operation or construction of the
Facilities, (ii) as may be reasonably required, based on the advice of
Purchaser's counsel, in order to comply with any applicable law or regulation or
with any requirement imposed by judicial or administrative process, or (iii) to
the extent such information becomes public through no fault of Purchaser or its
agents or representatives. If this Contract is terminated for any reason other
than Purchaser's default under the terms of this Contract, any records and other
information and copies of work sheets and other documents, reports and materials
provided to Purchaser by or on behalf of Seller shall be returned to Seller.
If, however, the Contract is terminated due to Purchaser's default under the
terms of this Contract, copies of any records, documents, reports, plans or
materials obtained by Purchaser (other than items containing confidential
financial analyses prepared by or on behalf of Purchaser in connection with the
transactions contemplated hereunder or that Purchaser otherwise reasonably
believes would provide to its competitors confidential information regarding
Purchasers specific operations) shall be delivered to Seller promptly after
termination. Purchaser may retain copies or reproductions of any such written
information which is required to be returned or delivered to Seller pursuant to
the terms hereof, provided that all of such information shall continue to be
held in confidence by Purchaser. The provisions of this paragraph 3.c shall
survive any termination of this Contract.
d. Purchaser's Duties Regarding Inspection. All visits and
inspections of the Real Property shall be at the sole risk of Purchaser and
Purchaser shall indemnify and hold Seller harmless from and against any and all
claims, demands, injuries, damages, costs, expenses (including reasonable
attorney's fees) or liability incurred by or asserted against Seller as a result
of, or arising out of, any of those visits or inspections. If this Contract is
terminated for any reason other than Seller's default under the terms of this
Contract, Purchaser shall repair any damage caused by any of those visits or
inspections so as to restore the Real Property to substantially the same
condition existing immediately before the damage. The provisions of this
paragraph 3.d shall survive any termination of this Contract.
4. Survey.
-------
a. Seller shall, at its own expense, furnish to Purchaser, within
ten (10) business days of the Effective Date of this contract, four (4) copies
of a current on-the-ground survey (the "Survey") and field notes description of
the Real Property prepared and certified by a licensed surveyor acceptable to
Purchaser and the Title Company. The Survey shall (i) meet the requirements of
an ALTA-ACSM Class A "as-built" survey (and include field notes), (ii) be
certified as of a date subsequent to the date of this Contract, (iii) show the
location of any improvements, and show the size and location of all Permitted
Exceptions and any other
3
easements, encroachments and encumbrances reflected in the title commitment to
be provided under paragraph 5.b (identifying each by volume and page
reference), (iv) recite the exact area of the Real Property in acres and square
feet, (v) recite the exact area of each easement, encroachment and encumbrance,
(vi) show whether any portion of the Real Property is situated in an area
designated by the U.S. Secretary of Housing and Urban Development (or by any
other governmental or quasi-governmental agency or authority having jurisdiction
over the Real Property) as a flood plain, special flood hazard area or general
hazard area, (vii) show all visible utility lines upon the Real Property, and
(viii) indicate such other information reasonably requested by Purchaser in
writing prior to the expiration of the Inspection Period. The survey shall meet
the accuracy requirements of an ALTA-ACSM Class A survey, and shall contain a
surveyor's certificate substantially in the form of Exhibit B attached hereto
specifically addressed to Seller, Purchaser, the Title Company and any other
party or parties reasonably designated by Purchaser. The Survey must be
otherwise satisfactory to the Title Company so as to permit it to issue an Owner
Policy of Title Insurance meeting the requirements of paragraph 5.a below.
b. Seller and Purchaser agree to execute an amendment to this
Agreement, if requested by either Purchaser or Seller, pursuant to which the
metes and bounds description of the Real Property set forth in the survey shall
be substituted for the description of the Real Property to be acquired by
Purchaser hereunder.
5. Title.
a. Owner Policy of Title Insurance. Seller, at Seller's expense,
shall furnish to Purchaser at the Closing, or within a reasonable time
thereafter, an Owner Policy of Title Insurance (on a form prescribed by the
State Board of Insurance of the State of Texas) issued through the Title
Company, insuring title to the Real Property in Purchaser in the full amount of
the total purchase price, and containing only the following exceptions (the
"Permitted Exceptions"): (a) the standard printed exception for real estate
taxes for the year of the Closing (if not paid before the Closing) and
subsequent years; (b) the standard printed boundary and encroachments exception
and exception for shortages in area (provided, however, that Seller will, at
Purchaser's option and expense, cause the Title Company to delete the "survey
exception" from the Owner Policy of title Insurance without qualification or
condition except as to "any shortages in area"); and (c) any other matters that
become Permitted Exceptions under the provisions of paragraph 5.b.
b. Title Commitment and Review of Title. Seller shall furnish to
Purchaser,within (10) days after the Effective Date of this Contract, a written
title commitment to issue the Owner Policy of title Insurance (the "Title
Commitment discloses any exceptions to Seller's title other than the Permitted
Exceptions ("Additional Exceptions"), or if the Survey discloses any other
matters to which Purchaser object ("Survey Objections"), then Purchaser shall
have ten (10) business days after receipt of both the Title Commitment and the
Survey to obtain and review any documents or other matters pertaining to the
Additional Exceptions and/or the Survey Objection and to deliver written
objection to the Title Company and to Seller which lists the Additional
Exceptions and/or the Survey Objections that are objectionable to Purchaser
(collectively, "Title Objections"). To the extent a written objection
4
is not delivered to Seller within the applicable time period, objection to the
Additional Exceptions and/or the Survey Objections shall be deemed to have been
waived by Purchaser, and such Additional Exceptions and Survey Objections (other
than those constituting third party liens, security interests or other monetary
encumbrances that would be reflected on Schedule C of the Title Commitment)
shall be deemed to be Permitted Exceptions. Seller shall use good faith,
commercially reasonable efforts to cure the Title Objections, and may use all or
any part of the total purchase price for the purpose of discharging and
releasing at the Closing such Title Objections, in order that the Owner Policy
of Title Insurance will be issued to Purchaser at the Closing without making
exception to the Title Objections. If, however, Seller determines in good faith
that the cost to cure any or all such Title Objections, Seller will be deemed to
have elected to cure such Title Objections. Within ten (10) business days after
such notice is given, Purchaser shall notify Seller in writing of Purchaser's
election either to waive such Title Objections and accept the Real Property
subject thereto or to terminate this Contract, in which latter event the Escrow
Deposit shall be returned to Purchaser and neither party shall have any further
liability hereunder. In the event Purchaser fails to timely notify Seller of its
election, then Purchaser shall be deemed to have waived such Title Objections.
6. Representations, Warranties and Covenants; Indemnities.
------------------------------------------------------
a. Seller's Representations and Warranties. Seller hereby represents
and warrants to Purchaser that, as of the Effective Date and as of the date of
Closing:
(1) Seller has all necessary and requisite authority to enter
into this Contract and to consummate all of the transactions contemplated
hereby, and the persons executing this Contract and all other documents
required to consummate the transactions contemplated hereby on behalf of
Seller, are duly authorized to execute this Contract and such other
documents on behalf of Seller, and are authorized to bind Seller.
(2) Seller and Seller's general partner, Stone C-7, LTD. ("Stone
C-7") are duly formed and validly existing under the laws of the State of
Texas. ORI, Inc. ("ORI"), the general partner of Stone C-7, is a
corporation duly formed and validity existing under the laws of the State
of Texas.
(3) The execution of this Contract by Seller does not, and the
performance by Seller of the transactions contemplated by this Contract
will not, violate or constitute a breach of the partnership, agreements of
seller or Stone C-7 or the articles or incorporation or bylaws of ORI or
other organizational documents of Seller, Stone C-7 or ORI or any
shareholders' or directors' resolution of ORI or any contract, permit,
license, order or decree to which Seller, Stone C-7 or ORI is a party or by
which Seller, Stone C-7 or ORI or any of their assets are bound.
5
(4) Seller is not a "foreign person" as defined in the federal
Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act,
as amended.
(5) Seller holds fee simple title in and to the Real Property subject
only to those encumbrances, restrictions and other matters referred to in the
Title Commitment, and no person or entity has any legal right or option to
acquire all or any portion of the Property, other than Purchaser pursuant to
this Contract.
(6) Seller holds good and valid title to the Personal Property, free
and clear of any liens, encumbrances or adverse claims other than those
described in the Title Commitment, and, Seller has the right and authority to
convey or assign to Purchaser all of the Personal Property.
(7) To the best of Sellers's current, actual knowledge, the Property
is not in violation of any applicable federal or state law, or any ordinance,
order or regulation of any governmental or quasi-government agency having
jurisdiction over the Property, and, to the best of Seller's current, actual
knowledge, no proceedings of any type (including condemnation or similar
proceedings) have been instituted or are pending or contemplated against the
Real Property or any part thereof or the Property or any portion thereof.
(8) Other than Seller, no party, person or entity is in possession of
the Property or any portion thereof, and no party, person or entity has any
legal or equitable interest in the Property, or any portion thereof, except as
disclosed in the Title Commitment.
(9) To the best of Seller's current, actual knowledge, there are no
unrecorded liens or encumbrances (including, but not limited to, liens relating
to environmental matters) against the Property or any portion thereof, and, to
the best of Seller's current, actual knowledge, there are no user fees or other
charges relating to the ▇▇▇▇▇▇ Springs/▇▇▇▇▇▇▇ Aquifer Conservation District
currently payable or contemplated.
(10) To the best of Seller's current, actual knowledge, there are not
presently pending any special assessments of any nature with respect to the
Real Property or any portion thereof, nor has Seller received any written notice
of, nor has Seller any current, actual knowledge of, any such special assessment
being contemplated.
(11) Each agreement, contract, lease, commitment, permit, license,
approval or other document furnished to Purchaser by or on behalf of Seller in
connection with this Contract, or that will be delivered to Purchaser by Seller
pursuant to the terms of this Contract, are true, correct and complete in all
material respects.
(12) There are no outstanding contracts or commitments made by Seller
or its affiliates (or, to the best of Seller's current, actual knowledge, by any
agents of Seller or such affiliates) for any work or materials in connection
with the Real Property or for any improvements to the Real Property which have
not been, or will not be on or
6
before the date of the Closing, fully paid for on a timely basis and there are
no leases, contracts, commitments or agreements which will bind Purchaser or the
Property from and after Closing.
(13) To the best of Seller's current, actual knowledge, there
currently exist no events of default by Seller, or events which with the
passage of time or notice or both would constitute events of default by Seller,
under the terms and provisions of any contracts or agreements with respect to
the Property to which Seller is a party, or by any other party thereto.
(14) To the best of Seller's current, actual knowledge, there are no
violations by Seller or any other person or entity of any validly existing
restrictive convenants or other matters affecting the Real Property.
(15) Seller has not received notice of any litigation or governmental
proceeding (including, without limitation, any eminent domain proceeding)
affecting the Property or any portion thereof, and, to the best of Seller's
current, actual knowledge, no such litigation or proceeding is pending,
threatened or contemplated.
(16) To the best of Seller's current, actual knowledge, Seller does
not now owe and will not owe any taxes or any penalties or interest thereon
pursuant to any governmental law, statute or regulation regarding so called
"bulk sales" for which Purchaser is or will be obligated to or liable for a
withholding of funds from the Purchase Price.
(17) (a) Seller has not generated, treated, stored or disposed of
Hazardous Materials (as defined below) in, under or upon the Real Property, or
any portion thereof, or used any Hazardous Materials in or on the Real Property,
or any portion thereof, in violation of any Environmental Laws (as defined
below); (b) to the best of Seller's current, actual knowledge, no prior owner
and no prior or current occupant has generated, treated, stored or disposed of
such Hazardous Materials in, under or upon the Real Property, or used any
Hazardous Materials in or on the Real Property, or any portion thereof, in
violation of any Environmental Laws; and (c) to the best of Seller's current,
actual knowledge, the Real Property is not currently in violation of any
Environmental Laws, no portion of the Real Property has ever been used as a
sanitary landfill or dump, no underground storage tank or tanks are located on
or under the Real Property, and no Hazardous Materials or underground storage
tanks are present in, under or upon any parcel of Property adjacent to the Real
Property.
(18) To the best of Seller's current, actual knowledge, no
environmental or other disclosure document is required in connection with the
transactions contemplated by this Contract.
(19) To the best of Seller's current, actual knowledge, no portion of
the Real Property constitutes "wetlands" as designated by the United States Army
Corp of
7
Engineers or other federal, state or local body or agency having jurisdiction
over the Real Property or any portion thereof.
(20) To the best of Seller's current, actual knowledge, no portion of
the Real Property is subject to any restrictions because of the presence of
endangered species on or in the vicinity of the Real Property, and Seller has no
current, actual knowledge that any such restrictions are being contemplated by
any federal, state or local body or agency having jurisdiction over the Real
Property or any portion thereof.
(21) To the best of Seller's current, actual knowledge, the
development of the Facilities on the Real Property in substantial accordance
with the Site Plan will not conflict with, and is not prohibited or adversely
affected by, the fact that the Real Property is situated in the ▇▇▇▇▇▇
Springs/▇▇▇▇▇▇▇ Aquifer Conservation District.
(22) Seller has no current, actual knowledge of any reason or fact
why Seller would be unable to obtain the Resubdivision and the Site Development
Permit (each as defined below) by the original Due Date specified in paragraph
10.c of this Contract.
(23) Seller has no current, actual knowledge of any reason or fact
why Purchaser would be unable to obtain necessary building permits for the
construction the Facilities, provided that Purchaser complies fully with the
rules, regulations, codes and ordinances of the City of Austin applicable to
such construction.
(24) Seller has constructed all offsite stormwater detention
facilities required by the City of Austin with respect to the Real Property and
such detention facilities have sufficient capacity to provide the Real Property
the capacity reasonably required for the operation of the Facilities.
(25) Water and wastewater services are available to the Real Property
from rights-of-way or public utility easements situated adjacent to the Real
Property and, to the best of Seller's current, actual knowledge, such services
have sufficient capacity to provide the Real Property the capacity reasonably
required for the operation of the Facilities. Seller hereby agrees that it
shall, promptly after receiving from Purchaser the requisite information
required, provide Purchaser with written confirmation (unqualified by Seller's
knowledge) that the water and wastewater services available to the Real Property
have the capacity required for the operation of the Facilities.
Without limiting the foregoing, the representations and warranties of
Seller contained in this paragraph 6.a (other than those set forth in paragraphs
6.a(17) and 6.a(18)) shall survive Closing and the delivery of the deed and
other closing documents required under paragraph 7 below for a period of
eighteen (18) months following the Closing; the representations and warranties
of Seller contained in paragraphs 6.a(17) and 6.a(18) shall survive the Closing
and the delivery of the deed and other closing documents required under
paragraph 7 below for a period of thirty-six (36) months following the Closing.
In the event, at any time prior to Closing, Seller learns or has reason to
believe that any of the aforesaid representations and
8
warranties are no longer true or valid, Seller shall immediately notify
Purchaser in writing and therein specify the factors rendering or likely to
render such representations or warranties untrue or invalid. Notwithstanding
anything to the contrary herein and without limiting the representations set
forth above, Purchaser hereby acknowledges and agrees that neither of the
representations set forth in paragraphs 6.a(22) and 6.a(23) constitute a
warranty or guaranty that the City of Austin will either approve of, consent to
or issue any approvals, permits or licenses contemplated under this Contract
(including, without limitation, the Resubdivision, the Site Development Permit
or any building permits).
b. Purchaser's Representations and Warranties. Purchaser hereby
represents and warrants to Seller that, as of the Effective Date and as of the
date of Closing:
(1) Purchaser has all necessary and requisite authority to enter
into this Contract and to consummate all of the transactions contemplated
hereby, and the persons executing this Contract and all other documents
required to consummate the transactions contemplated hereby on behalf of
Purchaser are duly authorized to execute this Contract and such other
documents on behalf of Purchaser, and are authorized to bind Purchaser.
(2) Purchaser is a corporation duly formed and validly existing
under the laws of the State of Illinois, and is authorized to transact
business in the State of Texas as a foreign corporation.
(3) The execution of this Contract by Purchaser does not, and the
performance by Purchaser of the transactions contemplated by this Contract
will not; violate or constitute a breach of the articles of incorporation
or bylaws of Purchaser or other organizational documents of Purchaser, or
any shareholders' or directors' resolution of Purchaser or any contract,
permit, license, order or decree to which Purchaser is a party or by which
Purchaser or any of its assets are bound.
Without limiting the foregoing, the representations and warranties of
Purchaser contained in this paragraph 6.b shall survive Closing and the delivery
of the deed and other closing documents required under paragraph 7 below for a
period of one (1) year following the Closing. In the event, at any time prior
to Closing, Purchaser learns or has reason to believe that any of the aforesaid
representations and warranties are no longer true or valid, Purchaser shall
immediately notify Seller in writing and therein specify the factors rendering
or likely to render such representations or warranties untrue or invalid.
c. Seller's Covenants. During the period commencing on the Effective Date
and ending on the date of Closing, Seller hereby agrees that it shall:
(1) Keep and perform all of the obligations to be performed by
Seller under each and every agreement, contract, permit, license and
approval relating to or affecting the Property, or any portion thereof;
(2) Not enter into, execute, extend or renew any easement,
license or any other agreement or contract relating to or affecting the
Property, or any portion thereof,
9
or modify, amend or terminate any contract or agreement to be assigned to
Purchaser pursuant to the terms of this Contract, without, in each case,
Purchaser's prior written consent and approval;
(3) Not mortgage, hypothecate or further encumber the Property
or any portion thereof or permit any liens on the Property or any portion
thereof to arise by operation of law and remain unpaid or unsatisfied as of
the date of Closing;
(4) Maintain the Property in as good of condition as it existed
immediately before the Effective Date;
(5) Not violate any laws, ordinances, orders or other
requirements relating to the ownership of the Property that have been or
may be imposed prior to the date of the Closing by any governmental
authority having jurisdiction over, or affecting, all or any part of the
Property, and shall remedy, at Seller's sole expense, any such violations
that are in contravention of this covenant; and
(6) Proceed diligently to obtain the permits, licenses and
approvals for which Seller is responsible to obtain under the terms of this
Contract and cooperate with Purchaser in Purchaser's obtaining of all other
permits, licenses and approvals relating to the construction and operation
of the Facilities on the Real Property.
d. Environmental Indemnities. For a period of three (3) years after
the date of Closing, Seller shall indemnify, defend and hold the Purchaser
harmless from and against any and all losses, liabilities, damages, injuries,
costs, expenses and claims of any and every kind whatsoever paid, incurred or
suffered by or asserted against Purchaser (including, without limitation, any
such losses, liabilities, damages, injuries, costs, expenses or claims asserted
or arising under any Environmental Laws) for, with respect to, or as a direct or
indirect result of Seller's breach, during its ownership of the Real Property,
of any Environmental Law with respect to the Real Property or Seller's breach of
any of the warranties and representations stated in paragraphs 6.a(17) and
6.a(18) hereof; provided, however, in no event shall Seller be liable to or
required to indemnify Purchaser hereunder for any consequential or exemplary
damages (except those claimed or asserted against Purchaser by third parties).
For purposes of this Contract, "Hazardous Materials" means and includes any
waste materials or other substances defined as hazardous in 42 U.S.C. Sec.
9601(14) or any related or applicable federal, state or local statute, law,
regulation or ordinance, pollutants or contaminants (as defined in 42 U.S.C.
Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form
of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A)),
radioactive substances, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27))
and any other hazardous wastes, hazardous substances, contaminants or pollutants
as defined or described in any of the Environmental Laws. As used in this
Contract, "Environmental Laws" means all federal, state and local environmental
laws, and any rule or regulation promulgated thereunder and any order, standard,
interim regulation, moratorium, policy or guideline of or pertaining to any
federal, state or local government, department or agency, including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, the Superfund Amendments and Reauthorization Act of
1986, the Clean Water Act, Clean Air Act, the
10
Toxic Substances Control Act, the Occupational Safety and Health Act, the
Federal Insecticide, Fungicide and Rodenticide Act, the Marine Protection,
Research, and Sanctuaries Act, the National Environmental Policy Act, the Noise
Control Act, the Safe Drinking Water Act, the Resource Conservation and Recovery
Act, as amended, the Hazardous Material Transportation Act, the Refuse Act, the
Uranium Mill Tailings Radiation Control Act and the Atomic Energy Act and
regulations of the Nuclear Regulatory Agency, and all state and local
counterparts or related statues, laws, regulations, and order and treaties of
the United States, all as amended. The indemnifications hereunder shall include
and benefit, as appropriate, Purchaser, Purchaser's lender, all subsidiaries,
affiliates or corporations connected with such lender or Purchaser and their
respective agents, representatives, employees, officers, insurers, directors,
stockholders, successors and assigns.
7. Possession to Purchaser; Closing; Closing Documents.
a. Possession and Closing. Possession of the Property shall be
delivered by Seller to Purchaser at the Closing. The Closing shall take place at
the offices of the Title Company (the "Closing") on the first business day after
the expiration of thirty (30) days after the Resubdivision and Seller's
acquisition of the Site Development Permit (each as hereinafter defined);
provided, however, that Purchaser shall have the right to extend the Closing for
up to thirty (30) days upon delivery to Seller, not less than three (3) business
days prior to the scheduled date of the Closing, of written notice stating
Purchaser's election to extend the Closing, together with the payment of
$50,000.00 in immediately available funds, which amount shall constitute and
become part of the "Escrow" Deposit" for the purposes of this Contract. Time is
of the essence with respect to the Closing date and the delivery at the Closing
of the total purchase price.
b. Seller's Closing Documents. At the Closing, Seller, at Seller's
expense, shall deliver or cause to be delivered to Purchaser each of the
following:
(1) Deed of Conveyance. A duly executed and acknowledged
special warranty deed, in the proper form for recording, containing a
description of the Real Property and conveying title to the Real Property
to Purchaser, free and clear of any and all liens, reservations,
restrictions, easements, security agreements, pledges and other
encumbrances, except the Permitted Exceptions, to which this sale and the
conveyance of the Real Property shall be made and accepted subject.
(2) ▇▇▇▇ of Sale. A duly executed assignment, ▇▇▇▇ of sale and
blanket conveyance assigning and conveying to Purchaser the Personal
Property, subject only to the Permitted Exceptions.
(3) Tax Certificates. Tax certificates shall be available at
the Title Company from appropriate authorities showing that all taxes then
due on the Real Property have been paid, or amounts sufficient to pay those
taxes shall be withheld by the Title Company from the total purchase price
for that purpose.
11
(4) Evidence of Authority. Evidence of authority reasonably
acceptable to Purchaser and the Title Company, reflecting that the person
who has signed this Contract on behalf of Seller has been duly authorized
to execute this Contract and identifying the person or persons who are
authorized to execute all of Seller's closing documents on Seller's behalf
and showing approval of the sale of the Property to Purchaser under the
terms and provisions of this Contract.
(5) Non-Foreign Certificate. A certificate stating that Seller
is not a "foreign person" as defined in the federal Foreign Investment in
Real Property Tax Act of 1980 and the 1984 Tax Reform Act, as amended.
(6) Other Documents. Any other documents required by this
Contract to be delivered by Seller at the Closing or reasonably necessary
or requested by Purchaser or the Title Company to carry out the terms and
conditions hereof.
c. Purchaser's Closing Documents. At the Closing Purchaser, at
Purchaser's expense, shall deliver to Seller the following;
(1) Cash Payment. Subject to the credits and adjustments
specified in paragraph 2 above, the cash payment of the total purchase
price as provided for in paragraph 2 above, and any additional sums
provided for in this Contract.
(2) Other Documents. Any other documents or instruments
required by this Contract to be delivered by Purchaser at the Closing or
reasonably necessary or requested by Seller or the Title Company to carry
out the terms and conditions hereof.
8. Adjustments at Closing. The following prorations and adjustments shall
be made at the Closing and, as the case may be, deducted from or added to the
amount Purchaser is required to pay at the Closing under paragraph 2.b of this
Contract:
a. Taxes. Ad valorem real estate taxes for the year of Closing shall
be prorated at the date of Closing and shall be assumed by Purchaser. If the tax
rate has not been fixed for that year, the apportionment of taxes shall be upon
the basis of the tax rate for the next preceding year applied to the latest
assessed valuation. Taxes attributable to the tax year of the Closing shall be
assumed by Purchaser. Notwithstanding the foregoing, if the Real Property has
not been subdivided from the real property of Seller constituting the tax parcel
of which the Real Property is a part (the "Tax Parcel") as of January 1 of the
year in which the Closing occurs, and Seller is unable to obtain separate tax
statements for that year as to the Real Property alone, then Purchaser and
Seller shall each pay their respective proportionate shares (on the basis of
land square footage) of the ad valorem taxes for the year in which the Closing
occurs with respect to the Tax Parcel (including Purchaser's payment of the
amount of the credit applied at the Closing on account of the proration of such
taxes) directly to the appropriate taxing authorities prior to delinquency;
provided, however, if any portion of the Tax Parcel contains any improvements
thereon, the party owning the real property on which any such improvements are
situated shall be responsible for the payment of the ad valorem taxes
attributable to such improvements. Seller and Purchaser agree to indemnify and
hold the other harmless from and
12
against any liability or liens in connection with any ad valorem taxes
applicable to the Tax Parcel and not timely paid by the indemnifying party
pursuant to the foregoing. In the event either party fails to pay its
proportionate share of any ad valorem taxes levied against the Tax Parcel and a
tax lien is asserted against the Tax Parcel on account of such failure to pay
those taxes, the other party shall have the right (but not the obligation) to
pay and discharge such taxes and tax liens (including any penalties and
interest), and the non-paying party shall reimburse the other party for all
amounts so paid by the non-paying party upon the non-paying party's written
confirmation of such payment.
b. Title Insurance and Other Closing Expenses. Except as is
otherwise provided herein, each party shall pay its own customary closing
expenses and its own attorney's fees. Seller shall pay the premium for the
Owner Policy of Title Insurance Seller agrees to provide under paragraph 5
above, one-half of the escrow fee charged by the Title Company and all recording
fees (other than for liens created by Purchaser at Closing). Purchaser shall
pay one-half of the escrow fee charged by the Title Company and the recording
fees for any liens created by Purchaser at Closing.
9. Remedies Upon Default.
---------------------
a. Seller's Default. If, for any reason except Purchaser's default
under the terms of this Contract or an express condition to Seller's obligations
hereunder, Seller either (i) fails to complete this sale in accordance with the
terms and provisions of this Contract or (ii) fails to perform timely any of its
obligations under this Contract and such failure continues for period of ten
(10) days after being provided written notice from Purchaser of such failure,
then, in either case, Purchaser shall have, as Purchaser's sole and exclusive
remedy against Seller under this Contract, at law and in equity, the option of
either (i) terminating this Contract by giving written notice to Seller at or
prior to the Closing, whereupon the Escrow Deposit shall be returned to
Purchaser by the Title Company and Seller shall pay Purchaser, as full and
final liquidated damages (it being agreed that Purchaser's actual damages would
be substantial but would be difficult or impossible to accurately ascertain),
(a) $100,000.00 plus (b) an additional amount, not to exceed $100,000.00, equal
to those out-of-pocket expenses and costs incurred by Purchaser in connection
with the subject matter of this Contract which exceed $100,000.00 (provided that
Purchaser can verify, with written documentation, such expenses and costs),
after which Purchaser and Seller shall have no other or further liability or
obligation to each other except those obligations that expressly survive the
termination of this Contract, or (ii) enforcing specific performance of this
Contract.
b. Purchaser's Default. If Purchaser fails to complete this sale in
accordance with the terms and provisions of this Contract for any reason except
Seller's default under the terms of this Contract or an express condition to
Purchaser's obligations hereunder, Seller shall have the right, as its sole and
exclusive remedy against Purchaser under this Contract, at law and in equity, to
terminate this Contract by giving notice to Purchaser and to the Title Company,
whereupon the Escrow Deposit shall immediately be delivered by the Title Company
to Seller and Purchaser shall pay immediately to Seller, as full and final
liquidated damages (it being agreed that it would be extremely difficult, if not
impossible, to calculate the actual damages to Seller), (a) the amount equal to
$100,000.00 minus the Escrow Deposit that is to be delivered to Seller
hereunder, plus (b) an additional amount, not to exceed $100,000.00, equal to
those
13
out-of-pocket expenses and costs incurred by Seller in connection with the
subject matter of this Contract which exceed $100,000.00 (provided that Seller
can verify, with written documentation, such expenses and costs), after which
Purchaser and Seller shall have no other or further liability or obligation to
each other hereunder, except those obligations that expressly survive the
termination of this Contract.
c. Waiver; Attorneys' Fees. The requirements imposed upon Seller in
this Contract are for the Purchaser's benefit, and those requirements or other
provisions for the Purchaser's benefit may be waived in writing by Purchaser.
Likewise, the requirements imposed upon Purchaser in this Contract are for the
Seller's benefit, and those requirements or other provisions for the Seller's
benefit may be waived in writing by Seller. If it shall be necessary for either
Purchaser or Seller to employ an attorney to enforce its rights pursuant to this
Contract (or defend any such enforcement action), the prevailing party shall
reimburse the non-prevailing party for court costs and reasonable attorneys'
fees (which amounts shall be in addition to the liquidated damages provided
under paragraphs 9.a and 9.b).
10. Subdivision and Site Development Permit.
a. Seller shall, at Seller's sole cost and expense, use good faith
and diligent efforts to obtain: (i) from the City of Austin, the Texas Natural
Resources Conservation Commission and any other applicable governmental
authorities (collectively, the "Authorities"), as may be applicable, (a) final
approval for the resubdivision and platting of the Real Property as a single
legal lot (the "Resubdivision") and (b) the issuance of a site development
permit and all other necessary approvals and permits (other than building
permits) (collectively, the "Site Development Permit") for the construction of
the Facilities and related improvements more particularly described in paragraph
11 below; and (ii) from any "Declarant" under that certain Declaration of
Covenants, Conditions, and Restrictions for Gains Ranch PUD dated May 8, 1995,
recorded at Volume 12433, Page 31 of the Real Property Records of ▇▇▇▇▇▇ County,
Texas (the "Declaration"), and from any architectural control committee or
property owners association created, existing or appointed pursuant to the terms
of the Declaration, any and all approvals or consents that may be required under
the terms and provisions of the Declaration with respect to the construction and
operation of the Facilities and its related improvements. On or before the
expiration of the Inspection Period, Purchaser shall provide to Seller (a) a
site plan for the land reflecting the footprint for the Facilities and
containing the estimated gross building area and number of residential units
intended to be constructed on the Real Property by Purchaser and (b) such other
information reasonably requested by Seller. Utilizing such site plan and other
information, Seller shall cause the preparation of all engineering plans and
specifications and other relevant documentation required for the submittal to
the applicable Governmental Authorities of an application for the Site
Development Permit (such engineering plans and specifications, together with the
site plan provided by Purchaser and other relevant documentation prepared by
Seller hereunder, the "Plans") and shall, within forty-five (45) days after
Seller's receipt from Purchaser of the site plan and other information, provide
a copy of the Plans to Purchaser for its approval, which approval shall not be
unreasonably withheld (it being understood that Purchaser is the party who will
be ultimately constructing, owning and operating the Facilities and,
accordingly, that Purchaser's good faith determination of the contents of the
Plans shall be dispositive if not in violation of rules, regulations, codes or
ordinances applicable to the development of the Real Property). Purchaser shall,
within twenty
14
(20) days of its receipt of the Plans from Seller, approve the Plans or make
reasonable modifications thereto and return them to Seller. If Purchaser fails
to respond within such 20-day period, Seller shall provide written notice to
Purchaser requesting a written response to the Plans within five (5) business
days after Purchaser's receipt of such written notice. If Purchaser fails to
respond timely to such written notice, Purchaser's approval shall be deemed
given. If Purchaser's response requests reasonable modifications to the Plans
that do not violate applicable governmental codes or ordinances, Seller shall,
within ten (10) days of its receipt of such request, modify the Plans to
incorporate such requested modifications and provide Purchaser a copy of the
Plans so modified. Purchaser shall promptly review such modified Plans and
either approve them or provide Seller with additional modifications and the
specific reasons therefor. If Purchaser requests additional modifications to the
Plans, Seller and Purchaser shall thereafter diligently and in good faith work
with one another until the Plans are approved by Purchaser; provided, however,
if the parties are unable to arrive at mutually acceptable Plans within thirty
(30) days after Seller's receipt of Purchaser's initial requested modifications,
Seller or Purchaser may terminate this Contract on written notice to the other,
whereupon the Escrow Deposit shall be returned to Purchaser and the parties
shall have no further obligation or liability to one another hereunder (except
for those obligations or liabilities which expressly survive the termination of
this Contract). Once the Plans are finally approved by the parties, Seller
shall, within ten (10) days after such final approval, submit to the applicable
Governmental Authorities an application for the issuance of the Site Development
Permit based on the Plans. Seller's obligations hereunder to acquire the
Resubdivision and the Site Development Permit shall be satisfied only upon
Seller's receipt of the Resubdivision and a Site Development Permit subject only
to those conditions or restrictions reasonably acceptable to Purchaser.
b. For purposes of paragraph 2 above, the aggregate gross building
area permitted to be constructed on the Real Property pursuant to the Site
Development Permit issued by the City of Austin (excluding any building area
constituting basement) shall be the "Building Square Feet."
c. If Seller is unable to obtain the Resubdivision (including final
execution and recording of the plat therefor) or Site Development Permit within
sixty (60) days after the last date that Seller has submitted an application
therefor (such resulting date, the "Due Date"), then Seller shall, within three
(3) business days after the expiration of such Due Date, notify Purchaser in
writing of such failure, which notice shall contain (i) Seller's determination
as to why such Resubdivision and/or Site Development Permit have not been
obtained and (ii) the estimated additional time necessary (if any) for Seller to
obtain such Resubdivision and/or Site Development Permit. Purchaser shall have
five (5) business days after its receipt of such notice to elect, at its option
and by written notice to Seller, to (x) grant Seller an additional ninety (90)
days, measured from the date of the expiration of the original Due Date, to
obtain such Resubdivision and/or Site Development Permit (such additional time
period, a "Seller Extension"), (y) exercise self-help and attempt to obtain such
Resubdivision and/or Site Development Permit itself, in which case Seller shall
immediately deliver all relevant documentation relating to such Resubdivision
and Site Development Permit to Purchaser and Purchaser shall have ninety (90)
days from the expiration of such original Due Date to obtain such Resubdivision
and/or Site Development Permit (such additional time period, a "Purchaser
Extension"), or (z) terminate this Contract upon fifteen (15) days' written
notice to Seller, after which time this Contract shall terminate and the Escrow
Deposit shall be returned to Purchaser.
15
If Purchaser fails to timely exercise any of the foregoing elections, Purchaser
shall be deemed to have elected the option set forth in clause (x) above.
(1) Seller Extension. In the event Purchaser elects to grant to
Seller a Seller Extension pursuant to clause (x) of paragraph 10.c above,
and Seller does not obtain such Resubdivision and/or Site Development
Permit by such Due Date, as extended, then Seller shall provide Purchaser,
within three (3) business days after the expiration of such extended Due
Date, written notice thereof containing the same information referred to
above. Purchaser shall have five (5) business days after its receipt of
such second notice to elect, at its option and by written notice to Seller,
to (a) grant Seller an additional thirty (30) day extension, measured from
the expiration of the prior Seller Extension, to obtain such Resubdivision
and/or Site Development Permit, (b) exercise self-help and attempt to
obtain such Resubdivision and/or Site Development Permit itself, in which
case Seller shall immediately deliver all relevant documentation relating
to such Resubdivision and Site Development Permit to Purchaser and
Purchaser shall have thirty (30) days from the expiration of such Due Date,
extended, to obtain such Resubdivision and/or Site Development Permit, or
(c) terminate this Contract by written notice to Seller, whereupon this
Contract shall terminate and the Escrow Deposit shall be returned to
Purchaser. If Purchaser fails to timely exercise any of the foregoing
elections, Purchaser shall be deemed to have elected the option set forth
in clause (a) hereof.
(2) Purchaser Extension. In the event Purchaser elects to grant
to a Purchaser Extension pursuant to clause (y) of paragraph 10.c above,
and Purchaser does not obtain such Resubdivision and/or Site Development
Permit by such Due Date, as extended, then Purchaser shall provide Seller,
within three (3) business days after the expiration of such extended Due
Date, written notice thereof which shall contain (i) the same information
required of Seller above and (ii) notice of Purchaser's election to either
(a) continue exercising self-help for an additional thirty (30) day period,
measured from the expiration of the prior Purchaser Extension, to obtain
such Resubdivision and/or Site Development Permit, or (b) terminate this
Contract, whereupon this Contract shall terminate and the Escrow Deposit
shall be returned to Purchaser. If Purchaser fails to timely exercise any
of the foregoing elections, Purchaser shall be deemed to have elected the
option set forth in clause (a) hereof.
(3) Termination. In the event Purchaser elects to terminate this
Contract pursuant to clause (z) of paragraph 10.c above, this Contract
shall terminate upon the expiration of such fifteen (15) days notice and
the parties shall have no further liability or obligation to one another
hereunder (except for those obligations or liabilities that expressly
survive the termination of this Contract); provided, however, if Seller
obtains both the Resubdivision and the Site Development Permit within such
15-day period, Purchaser's termination notice shall be rendered void, and
the Contract shall continue in full force and effect.
In the event Resubdivision and/or the Site Development Permit has been
pursued by either party pursuant to the granting of a 30-day extension under
either subparagraphs (1) or (2) of this paragraph 10.c, as may be appropriate,
if either Resubdivision or the ▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is not obtained by such party prior to the expiration of such
30-day extension, then either party may thereafter (but prior to the date the
Resubdivision and the Site Development Permit are obtained) elect to terminate
this Contract upon written notice to the other, whereupon the Escrow Deposit
shall be returned to Purchaser and the parties shall have no further liability
or obligation to one another hereunder (except for those obligations or
liabilities that expressly survive the termination of this Contract).
d. Notwithstanding anything to the contrary in this paragraph 10,
Purchaser shall have the right, at any time by written notice to Seller, to
waive Seller's obligation to obtain Resubdivision and/or the Site Development
Permit as a condition to Closing, in which case, subject to the other terms and
conditions of this Contract, the parties shall proceed to close on the
transactions contemplated under this Contract within fifteen (15) business days
after the date of Purchaser's notice to Seller waiving such conditions.
e. Purchaser and Seller agree that, subject to the terms and
conditions of this Contract, they shall cooperate in good faith with one another
in connection with the application and acquisition of any approvals, licenses or
permits contemplated hereunder and shall provide to one another, upon request
therefor, such information as may be reasonably requested with respect to the
status of the Resubdivision, the Site Development Permit and any other
approvals, licenses or permits contemplated under this Contract.
11. Nature of Facilities. The "Facilities" (herein so called) shall
consist of a congregate care facility, not to exceed sixty (60) feet in height,
containing approximately 194,000 to 210,000 gross square feet of building area
and approximately 11,000 gross square feet or less of basement area, and other
related site improvements, all conforming substantially to the Site Plan.
12. Reciprocal Easements and Restrictive Covenants. At the Closing, Seller
and Purchaser shall enter into one or more agreements, each in form and
substance mutually agreed upon by Purchaser and Seller in their reasonable
discretion, granting (i) any reciprocal drainage and detention easements and
utility easements as may be reasonably necessary in the development of the Real
Property or of the Tax Parcel (including, without limitation, such easements
across and under the balance of the Tax Parcel or other properties owned by
Seller as may be reasonably required to permit Purchaser to tie into the
stormwater detention facilities described in paragraph 6.a(24) above), and (ii)
to the extent mutually desired by Purchaser and Seller or otherwise required by
applicable Governmental Authorities, any reciprocal access easements over and
across portions of the Tax Parcel for the purpose of ingress and egress to (and
from) the Tax Parcel from (and to) MoPac Expressway South (Loop 1) and ▇▇▇▇▇▇
Ranch Loop. Seller and Purchaser further agree that they shall enter into (and
Seller agrees to cause all other necessary persons or entities to execute), at
or immediately after the Closing, one or more agreements, amendments or other
instruments mutually acceptable to Purchaser and Seller providing for the
amendment of the Declaration to the extent necessary to identify the Real
Property and the balance of the Tax Parcel as separate "Lots" under the
Declaration and to permit the Real Property and the balance of the Tax Parcel to
have separate, individual voting rights thereunder.
17
13. Condemnation. If, prior to the Closing, all or any part of the Real
Property is condemned or is the subject of a threat of condemnation, Purchaser
shall have the option of either (i) proceeding to close this transaction and
accepting an assignment of any condemnation award or (ii) terminating this
Contract. Purchaser shall exercise either election by the delivery of written
notice to Seller within ten (10) days of the date Seller notifies Purchaser in
writing of such condemnation, and, if Purchaser shall fail to timely make such
election, Purchaser shall be deemed to have elected the option specified at
clause (ii) hereof. In the event of the termination of this Contract under the
provisions of this paragraph 13, the Escrow Deposit shall be returned to
Purchaser and the parties shall have no further obligation or liability to one
another hereunder (except for those obligations expressly surviving the
termination of this Contract).
14. Real Estate Commissions. Seller and Purchaser represent and warrant
to each other that they have dealt with no broker, finder or similar agent in
connection with the transaction provided for in this Contract, except ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Co. and ▇▇▇▇ ▇▇▇▇ Agency, Inc. (collectively called the "Brokers") to
which Seller agrees to pay a commission of six percent (6%) of the total
purchase price (to be divided equally between the Brokers) in the event and only
in the event this sale is closed in accordance with the terms and provisions of
this Contract and Seller receives the total purchase price provided for in
paragraph 2 herein. This commission will be full payment to the Brokers and to
any persons claiming through or under the Brokers, for all services rendered,
commissions earned, or expenses incurred in connection with the negotiations,
transfer, sale and/or conveyance of the Property; and, if requested by Seller,
the Brokers agree to execute and deliver to Seller at the Closing a full and
complete release of any claims and demands which may arise from any such
negotiations, transfer, sale and/or conveyance. Furthermore, the Brokers agree
to indemnify and hold Seller and Purchaser harmless from and against any claims
for commission or other fees made by any person if that person is claiming to
have dealt with the Brokers in connection with this transaction, including
reasonable attorney's fees incurred in connection with the defense of such a
claim. Seller agrees to hold Purchaser harmless from and against any claim made
by any person claiming to have dealt with Seller in connection with this
transaction, including reasonable attorney's fees incurred in the defense of
such a claim. Purchaser agrees to hold Seller harmless from and against any
claim made by any person claiming to have dealt with Purchaser in connection
with this transaction, including reasonable attorney's fees incurred in the
defense of such a claim. Purchaser acknowledges that it has been advised by the
Brokers that it should have an abstract covering the Real Property examined by
an attorney of its selection, or should be furnished with or obtain a policy of
title insurance.
15. Notices. Any notices required or permitted to be given under this
Contract shall be in writing and shall be deemed to be given (i) when actually
received by that person; (ii) on the third (3rd) business day after being
deposited in the United States mail, postage prepaid, registered or certified
mail, return receipt requested, addressed to Seller or Purchaser, as the case
may be, at the address indicated herein, or to a different address as previously
given in a notice to the other party; (iii) one (1) business day after timely
delivery to a nationally or regionally recognized overnight courier service
guaranteeing next business day delivery; or (iv) on the day transmitted by
facsimile, provided that the sender retains the written confirmation of the
delivery thereof and sends, mails or otherwise delivers a "hard copy" of such
notice to the recipient one (1) business day thereafter by means of delivery in
accordance with either clause
18
(ii) or (iii) hereof. A copy of any notice given to Seller shall be given at the
same time and in the same manner as the notice to Seller to:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Drenner & Stuart, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notice given to Purchaser shall be given at the same time and in
the same manner as the notice to Purchaser to:
The Prime Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Prime Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
16. Miscellaneous
a. Assignment; Binding Effect; Authority. Purchaser cannot assign
this Contract to any other person or entity without the prior written consent of
Seller, except to (i) an entity controlling, controlled by or in common control
with Purchaser or (ii) the successor-in-interest to Purchaser's senior housing
division, if such division is spun off into a separate entity. Without Seller's
prior written consent, no assignment hereunder shall operate to release
Purchaser of its liabilities or obligations under this Contract. Subject to this
restriction on assignment, this Contract and all of its terms and provisions
shall be binding upon and inure to the benefit of Seller, and the successors and
assigns of Seller, and Purchaser, and the successors and assigns of Purchaser.
Seller and Purchaser represent that they are duly organized, validly existing
and in good standing under the laws of the state of their organization, that
they have the legal power to enter into this Contract and to perform all the
terms of this Contract, and that the persons signing this Contract on their
behalf are fully authorized to sign for and to bind them.
b. Complete Agreement; Headings; Waiver. This Contract contains the
complete agreement of the parties and, except as expressly set forth in this
Contract, Seller has made no representations or warranties of any kind with
respect to the Property. This Contract cannot be amended or modified except by
written agreement signed by Seller and Purchaser. The paragraph headings herein
are for reference purposes only and are not intended in any way to describe,
interpret, define or limit the scope, content or extent of this Contract or any
part
19
of it. If any portion of this Contract is held by a court of proper jurisdiction
to be invalid or inoperative, then so far as is reasonable and possible the
remainder of the Contract shall be deemed valid and operative, and effect shall
be given to the intent manifested by the portion held invalid or inoperative.
The failure by either party to enforce against the other any term or provisions
of this Contract shall not be deemed to be a waiver of that party's right to
enforce against the other party the same or any other term or provision. The
terms and provisions of this Contract shall not merge with, or be extinguished
or otherwise affected by, any subsequent conveyance or instrument between the
parties, unless the instrument specifically so states and is signed by both
parties.
c. Governing Law. This Contract and the obligations under this
Contract shall be construed in accordance with, governed by, and shall be
subject to, the laws of the State of Texas.
d. Execution in Counterparts. The Contract can be executed in
counterparts, each of which shall be an original and, upon the delivery to the
Title Company of one or more of the Contracts signed by all parties, together
will constitute a fully executed and binding Contract. As soon as possible, the
parties agree to exchange Contracts so that each party will have a fully
executed Contract.
e. Date of Contract. For purposes of this Contract it is agreed that
the Effective Date of this Contract shall be the date on which a fully executed
copy of this Contract, signed by both Seller and Purchaser, is deposited with
the Title Company along with the Escrow Deposit provided for herein. The Escrow
Deposit receipt issued by the Title Company shall be conclusive evidence of the
Effective Date of this Contract.
f. Offer. The execution of this Contract by one party (the
"Offeror") shall constitute an offer to the other party (the "Offeree") for the
purchase and sale of the Property pursuant to the terms, provisions and
conditions set forth in this Contract. In the event this offer, unless sooner
withdrawn, is not accepted by the Offeree by delivering (either by means of
overnight delivery or telecopy) an executed counterpart signature page hereof to
the Offeror on or before 5:00 p.m., C.S.T., Monday, February 17, 1997, this
offer shall become null and void, notwithstanding the Offeree's subsequent
execution thereof. For purposes hereof, the execution of this Contract by the
Brokers (or the failure thereof) shall not be determinative of compliance with
this provision.
IN WITNESS WHEREOF, the parties have caused this Contract to be duly
executed on the dates set forth below to be effective as of the Effective Date.
20
SELLER:
------
VG OFFICE PARTNERSHIP '95, LTD., a Texas limited
partnership
By: Stone C-7, Ltd., a Texas limited partnership,
its general partner
By: ORI, Inc., a Texas corporation, its
general partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
Address: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Dated signed by Seller: ________________, 1997
PURCHASER:
---------
THE PRIME GROUP, INC., an Illinois corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Title: Executive Vice President
---------------------------------------------
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Dated signed by Purchaser: February 14, 1997
21
BROKERS:
-------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Title: Principal
------------------------------------------
▇▇▇▇ ▇▇▇▇ AGENCY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Title: President
------------------------------------------
The undersigned, Heritage Title Company of Austin, Inc., hereby
acknowledges receipt of a fully executed copy of this Contract and the Escrow
Deposit required thereunder in the amount of $10,000.00, and agrees to perform
the duties of Title Company, including disbursement of the Escrow Deposit,
strictly in accordance with the terms of the Contract.
TITLE COMPANY:
-------------
HERITAGE TITLE COMPANY OF AUSTIN, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
-----------------------------------
Date: 2-21
------------------, 1997
22
EXHIBIT A
Description of Real Property
----------------------------
A-1
[ART DESCRIPTION OF REAL PROPERTY]
EXHIBIT B
Surveyor's Certificate
----------------------
"The undersigned does hereby certify that (i) this survey was this day made
upon the ground of the property reflected hereon, for the benefit of and
reliance by Seller, Purchaser, the Title Company and all other parties listed
above; (ii) the description contained hereon is correct; (iii) the property has
access to and from a dedicated roadway as shown hereon; (iv) except as shown
hereon, there are no discrepancies, conflicts, shortages in area, encroachments,
improvements, overlapping of improvements, setback lines, easements, or
roadways; (v) the total acreage and the gross square footage and the square
footage net of any portion of the property lying within public roadways shown
hereon are correct; (vi) none of the property lies within the 100-year flood
plain or any special flood hazard area or general hazard area as designated by
any governmental agency; and (vii) this survey satisfies the accuracy
requirements of an ALTA/ACSM Class A "as built" survey."
B-1