AGREEMENT OF SALE
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This AGREEMENT OF SALE ("Agreement") is dated as of October 16, 2007,
between WATERMARK TEXAS 1, a Maryland corporation, with an address of ▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Seller"); and
BAYSIDE FISH MARKET a Texas Corporation, with an address of ▇▇▇-▇ ▇. ▇▇▇▇▇▇▇▇
▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser"). This Agreement shall become effective
on the date of the full execution by Seller ("Effective Date").
WITNESSETH:
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That in consideration of the covenants and agreements of the respective
parties as hereinafter set forth, Seller shall sell and Purchaser shall purchase
a certain tract of land identified as the "Property" on Exhibit "A", attached
hereto and made a part hereof located in or near the City of Houston, ▇▇▇▇▇▇
County, Texas, containing 4.3836 acres, more or less, together with all
improvements thereon, easements and rights appurtenant thereto and all of
Seller's right, title, and interest in any public rights-of-way adjoining the
property (with the land collectively called the "Property").
The following terms, provisions, and conditions are further agreed to:
1. Purchase Price; ▇▇▇▇▇▇▇ Money. The purchase price for the Property shall be
THREE HUNDRED THIRTY NINE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($339,500.00)
("Purchase Price") payable as follows:
(a) FIVE THOUSAND AND NO/l00 DOLLARS ($5,000.00) ("▇▇▇▇▇▇▇ Money Deposit")
paid by Purchaser to Escrow Agent contemporaneously with the execution
of this Agreement by Purchaser, and deposited in a non-interest
bearing escrow account with PARTNERS TITLE COMPANY, HOUSTON, TEXAS,
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("Title Company") and,
(b) The balance of the Purchase Price shall be received by the Title
Company by federal wire transfer at or before 10:00 A. M. Central
Standard Time on the date of Closing
2. Survey. Seller has obtained a current survey of the Property prepared by a
registered/licensed surveyor acceptable to the Title Company, certified to
Purchaser, Seller and Title Company for the purpose of transfer of the title and
issuance of title insurance as contemplated by this Agreement. The survey
contains a metes and bounds description of the Property which is attached hereto
as Exhibit B. Purchaser shall pay up to Three Thousand Four Hundred Dollars
($3,400.00) of the cost of such survey and Seller shall pay the balance. Any
extraordinary survey work caused by Purchaser's intended use, financing or
development requirements shall be at Purchaser's expense.
3. Title Insurance. Title Company has provided a standard form ALTA Owner's
Title Commitment ("Commitment") covering the Property which has been delivered
to Purchaser and Seller. Title Company shall cause the Commitment to be updated
within five (5) days of the date
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of receipt of this Agreement by the Title Company with copies to Purchaser and
Seller. If exceptions appear in the Commitment, other than the standard
pre-printed exceptions, which are not described in the Commitment dated
__________________ and are objectionable to Purchaser, Purchaser shall, within
three (3) days after Purchaser receives the Commitment (along with supporting
documents), notify Seller and Title Company in writing of such fact ("Title
Objection Notice"). Upon the expiration of said three (3) day period, Purchaser
shall be deemed to have accepted all exceptions to title as shown on the
Commitment (except for any matters to which objection notice under the preceding
sentence has been given) and such exceptions not objected to by Purchaser as
provided above shall be known as permitted exceptions for purposes of the final
title insurance policy. Seller shall, within ten (10) days of receipt of the
Title Objection Notice, have the option in its sole discretion of either: (i)
terminating this Agreement in which event the ▇▇▇▇▇▇▇ Money Deposit shall be
returned to Purchaser, or (ii) clearing the title of the objections so
specified. If Seller elects to terminate this Agreement, Seller shall so notify
Purchaser, whereupon Purchaser shall either: (i) nullify Seller's termination
within five (5) days of its receipt of such notice by written notice to Seller
and take title "AS IS" or (ii) accept Seller's termination within five (5) days
of its receipt of such notice by written notice to Seller. Title Company shall
issue a title insurance policy for the Property at Closing. The premium of the
title insurance policy shall be paid by Seller. The expense of
additional/extended coverage or endorsements or the deletion of standard
pre-printed exceptions, if any, shall be the sole responsibility of Purchaser.
If this Agreement terminates as a result of Purchaser's Default or by
Purchaser's election as otherwise set forth herein, then Purchaser shall be
responsible for any cancellation fees charged by the Title Company. This Section
shall survive Closing.
4. Deed. Prior to Closing, Seller shall deliver to Escrow Agent a warranty
deed ("Deed") conveying insurable title to the Property, which shall warrant
title to the Property, and defend the same against the lawful claims of all
persons claiming by, through and under Seller, but none other, subject to all
matters of record. Said Deed shall be in substantially the same form as attached
as Exhibit "D". Upon receipt of the entire Purchase Price, Escrow Agent shall
record the Deed and other recordable documents as may be delivered in connection
with the Closing.
5. Condition of Property. Notwithstanding anything to the contrary contained
in this Agreement, it is expressly understood and agreed that Purchaser is
buying the Property "AS IS" AND "WHERE IS" AS OF THE TIME OF CLOSING, AND WITH
ALL FAULTS AND DEFECTS, LATENT OR OTHERWISE, AND THAT SELLER IS MAKING NO
REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW
OR OTHERWISE, WITH RESPECT TO THE QUALITY, PHYSICAL CONDITIONS OR VALUE OF THE
PROPERTY, THE PROPERTY'S HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, THE PRESENCE OR ABSENCE OF CONDITIONS ON THE PROPERTY
THAT COULD GIVE RISE TO A CLAIM FOR PERSONAL INJURY, PROPERTY OR NATURAL
RESOURCE DAMAGES; THE PRESENCE OF HAZARDOUS OR TOXIC SUBSTANCES, MATERIALS OR
WASTE, SUBSTANCES, CONTAMINANTS, OR POLLUTANTS ON, UNDER OR ABOUT THE PROPERTY;
OR THE INCOME OR EXPENSES FROM OR OF THE PROPERTY. This Section shall survive
the Closing or earlier termination of the Agreement.
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6. Taxes and Assessments. Real property taxes for the then current tax year
shall be prorated as of the date of Closing. Purchaser is responsible for real
property taxes due on and after the date of Closing. If the Closing shall occur
before the tax rate is fixed on the then-current tax year, the proration of real
property taxes shall be upon the basis of the tax rate for the preceding year
applied to the latest assessed valuation. If real property taxes for the
Property are not separately assessed and are a part of Seller's larger tract,
the proration of taxes shall be a credit to Seller at Closing. All prorations
shall be adjusted between the parties based on actual taxes for the year in
which the Closing occurs at the time that such actual taxes are determined.
Seller shall pay assessments and charges for improvements, either general or
special (including roll-back taxes), which have been assessed and billed prior
to the date of Closing. Purchaser shall pay all other assessments and charges.
This Section shall survive the Closing.
7. Transfer Taxes, Revenue Stamps and Fees. The expense and cost of all state,
county and local documentary or revenue stamps, transfer, sales and other
"transfer taxes" (including sales taxes on brokerage commissions, if any), and
closing fees, if applicable, relating to the sale of the Property shall be the
sole cost and responsibility of Purchaser and paid on the date of Closing. Any
impact, user, standby, connection, or other tax, obligation or fee related to
the Property or its development shall be at the sole cost and responsibility of
Purchaser.
8. Default. With respect to Default, Seller and Purchaser hereby agree to the
following:
(a) If Purchaser fails or refuses to comply fully with the terms of this
Agreement for any reason, Seller may, at its option, either (i)
rescind this Agreement and retain the ▇▇▇▇▇▇▇ Money Deposit as
liquidated damages, or (ii) pursue any other legal or equitable
remedy, including, without limitation, a suit for specific
performance.
(b) If Seller fails or refuses to comply fully with the terms of this
Agreement for any reason, Purchaser may, at its option, either (i)
rescind this Agreement whereupon the Deposit will be refunded to
Purchaser, or (ii) pursue any other legal or equitable remedy,
including, without limitation, a suit for specific performance.
9. Right of Entry. (a) At any time prior to the Closing, and at Purchaser's
sole cost and responsibility, Purchaser or its authorized agents shall have the
right to enter upon the Property for any lawful purpose, including, without
limitation, conducting the Survey as contemplated by this Agreement and any
other site analyses, test borings, and engineering studies. Purchaser agrees to
defend, indemnify and hold harmless Seller from any damages or liability to
persons or property that might arise therefrom, and Purchaser agrees to repair
at its sole cost and responsibility, or pay to Seller the cost of, any damages
caused to the Property by such entry.
10. Assignment. Purchaser shall not assign this Agreement or any right granted
herein without the written consent of Seller, however Purchaser shall be
expressly permitted to assign to an entity of which Purchaser holds a majority
or controlling interest, provided Purchaser shall provide Seller with an exact
copy of the document(s) concerning such assignment no later than fifteen (15)
days prior to Closing. No assignment shall relieve or release Purchaser of any
obligation under this Agreement. Moreover, Seller shall have the express right
to assign or transfer its interest to a parent company, affiliate, subsidiary,
or related company.
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11. Notices. All notices and other communications required or permitted to be
given hereunder shall be in writing and shall be mailed by certified or
registered mail, postage prepaid, or nationally recognized overnight courier,
and shall be considered given upon receipt, addressed as follows (other
information in italics and for Title Company below is for informational purposes
only, and shall not be considered for notice purposes):
If to Seller:
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Watermark Texas 1
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If to Purchaser:
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Bayside Fish Market
▇▇▇-▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Hai ▇. ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If to Title Company:
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Partners Title Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Either party may at any time change its address for notification purposes
by written notice to the other party setting forth the new address, and such new
address shall be effective three (3) days after such notice is given.
12. (DELETED)
13. Closing. The Closing shall take place at the office of the Title Company by
mail and/or facsimile no later than November 30, 2007, the Effective Date
("Closing").
14. Possession. Seller will turn over exclusive possession of the Property to
Purchaser at the Closing.
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15. Brokerage Commission. Purchaser agrees to pay a brokerage commission equal
to six percent (6%) of the Purchase Price to Means ▇▇▇▇▇ Partners, LP, at
Closing. Purchaser agrees to defend, indemnify and hold Seller harmless from and
against any claim for any commissions, fees or other form of compensation by any
third party claiming such compensation in connection with this sale, such
indemnity to include, without limitation, any and all claims, causes of action,
damages, cost and expenses (including reasonable attorney's fees and court
costs), associated therewith.
16. (DELETED)
17. Condemnation. If, prior to the Closing, all or any part of the Property
shall be condemned by governmental or other lawful authority, Purchaser shall
have the option of either (i) completing the purchase, in which event all
condemnation proceeds or claims thereof shall be assigned to Purchaser, or (ii)
canceling this Agreement, in which event the Deposit shall be returned to
Purchaser and this Agreement shall be terminated with neither party having any
rights against the other, and Seller shall be entitled to any and all
condemnation proceeds.
18. Time of the Essence. Time is expressly declared to be the essence of this
Agreement.
19. Final Dates; Days. If the final date of any deadline falls upon a Saturday,
Sunday, or holiday recognized by the U.S. Postal Service, then in such event the
time of such deadline shall be extended to the next day which is not a Saturday,
Sunday, or holiday recognized by the U.S. Postal Service. Wherever in this
Agreement the word "days" is used, it shall be considered "calendar days" and
not "business days".
20. Entire Agreement. This Agreement contains the entire agreement between
Purchaser and Seller, and there are no other terms, conditions, promises,
undertakings, statements or representations, express or implied, concerning the
sale contemplated by this Agreement.
21. Headings. The headings to the Sections hereof have been inserted for
convenience of reference only and shall in no way modify or restrict any
provisions hereof or be used to construe any such provisions.
22. Counterparts. This Agreement, and any modifications, may be executed in one
or more counterparts, including by facsimile, all parties need not be
signatories to the same documents, and all counterpart signed documents shall be
deemed to be an original and one (1) instrument.
23. Modifications. The terms of this Agreement may not be amended, waived, or
terminated orally, but only by an instrument in writing signed by both Purchaser
and Seller.
24. Attorney's Fees. Seller and Purchaser agree that if either party brings an
action against the other party to enforce the terms hereof or to declare rights
hereunder each party shall pay their own attorney's fees and costs incurred
therein.
25. Successors. This Agreement shall inure to the benefit of and bind the
parties hereto and their respective successors/heirs and assigns.
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26. Governing Law. This Agreement shall be governed by and interpreted under
the laws of the state of Texas.
27. Representation of Confidentiality. Purchaser agrees that it, and all of its
employees and agents, shall keep confidential the terms of this Agreement.
Purchaser specifically recognizes that it is important to Seller that any future
negotiations it may have with other Purchasers not be impacted by the terms of
this arms length agreement, and therefore Purchaser shall not disclose any of
the economies nor any other terms of this Agreement
28. Compliance. Purchaser hereby warrants and represents to Seller that in
exercising its rights under this Agreement, Purchaser shall comply fully with
any federal, state or local laws, regulations, ordinances, permits or other
authorizations.
[Remainder of page left intentionally blank - Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
month, day and year first above written.
WATERMARK TEXAS 1, a
Maryland corporation
["Seller"]
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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ITS: President
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DATE: October 16, 2007
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BAYSIDE FISH MARKET, a
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["Purchaser"]
BY: /s/ ▇▇▇▇ ▇▇▇▇▇
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ITS: Controller
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DATE: 10/12/07
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ASSIGNMENT OF THE AGREEMENT OF SALE
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ▇▇▇▇▇▇ ▇▇.
This Assignment of the Agreement of Sale is entered on this 12th day of
November, 2007, by and between BAYSIDE FISH MARKET, INC., a Texas corporation
with an address of ▇▇▇-▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as "Assignor") and LAV PROPERTIES, LLC., a Texas limited liability
company, with an address of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, (hereinafter
referred to as "Assignee").
WITNESSETH
THAT WHEREAS, on October 16, 2007, Bayside Fish Market, Inc. ("Purchaser")
entered into an Agreement of Sale to buy from Watermark Texas 1, a Maryland
corporation, ("Seller"), with an address of ▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a certain tract of 4.3836 acres of land lying
and being situated in ▇▇▇▇▇▇ County, Texas, being more particularly described on
Exhibit "A" attached hereto and made a part hereof for all purposes, together
with the buildings, structures and all other improvements located thereon,
easements and rights appurtenant thereto and all of Seller's right, title and
interest in any public rights-of-way adjoining the property (hereinafter
referred collectively to as the "Property") at the purchase price of Three
Hundred Thirty Nine Thousand Five Hundred Dollars ($339,500.00) with the closing
date on November 30, 2007.
WHEREAS, it is the desire of Assignor to assign, transfer and convey to
Assignee all of the Assignor's interest in and to the above mentioned Agreement
of Sale (hereinafter referred to as the "Agreement").
NOW, THEREFORE, in consideration of the sum of TEN AND NO/100 ($10.00)
DOLLARS and other good and valuable consideration in hand paid by Assignee to
Assignor, the receipt and sufficiency of which are hereby acknowledged and
confessed by Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and
DELIVER to Assignee, its successors and assigns, all of the Assignor's interest
in and to said Agreement of Sale between Assignor and Watermark Texas 1.
The undersigned Assignee, as of the execution date of this Assignment and
evidenced by the consent of Seller, hereby assume the performance of all of the
terms, covenants, conditions, duties and obligations of Assignor as Purchaser
under said Agreement of Sale hereby assigned, and agrees to be bound by the
terms and conditions of said Agreement, and will perform all of the terms,
covenants and conditions of the said Agreement, in all respects and with the
same effect as though Assignee had executed the Agreement of Sale as the
Purchaser.
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IN WITNESS WHEREOF, Assignor and Assignee have executed this instrument in
multiple counterparts, each of which shall have the force and effect of an
original, on this 12th day of November, 2007
ASSIGNOR:
BAYSIDE FISH MARKET, INC.,
a Texas corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Controller
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ASSIGNEE:
LAV PROPERTIES, LLC.,
a Texas limited liability company
By: /s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
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Title: President
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SELLER'S CONSENT:
WATERMARK TEXAS 1
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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Date: 11/14/07
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