Purchase and Sale Agreement dated May 18, 2018, between THRE Global Investments LLC and TASR Property Owner, Ltd

EX-10.2 3 ck0001711799-ex102_7.htm EX-10.2 ck0001711799-ex102_7.htm

Exhibit 10.2

4841-8412-8102v.2 010556.00236

 

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is executed by and between TASR Property Owner, Ltd., a Texas limited partnership (“Seller”), and THRE Global Investments LLC, a Delaware limited liability company (“Purchaser”).

In consideration of the mutual covenants and representations herein contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:

1.
PURCHASE AND SALE

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(i)Warranties.  Any assignable warranties and guaranties relating to the Property or any portion thereof.

(j)Trademark License Agreement.  At Closing, DCI and Purchaser will enter into a trademark license agreement (the “Trademark License Agreement”) in form attached hereto as Exhibit “G” by which DCI grants to Purchaser a limited license to use the name “Tacara at Steiner Ranch”.  Notwithstanding the foregoing, Purchaser shall have the right to waive the requirement that DCI and Purchaser execute the Trademark License Agreement at Closing, in which event Purchaser shall have no rights to use the name “Tacara” in connection with the Property and must debrand and remove from the Property any marks identifying the Property as “Tacara” and from all related Property marketing materials, advertisements and signage in Seller’s possession using the name “Tacara” within ninety (90) days following the Closing Date (with such obligation to survive the Closing).

Notwithstanding the foregoing or any provision hereof to the contrary, the term “Property” shall not include any of the property described on Exhibit “A-1” attached hereto (the “Excluded Property”), and none of the Excluded Property shall be conveyed to Purchaser.  

2.
PURCHASE PRICE

3.
EARNEST MONEY

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4.
CONDITIONS TO CLOSING

4.1Seller’s Obligations.  Seller shall deliver to Purchaser, at Seller’s expense, (a) within three (3) business days after the Effective Date, true, correct, complete and legible copies of those items listed on Schedule A attached hereto and incorporated herein  to the extent Seller is in possession or control of the same (the “Due Diligence Items”); provided, however, that Seller may make available for Purchaser’s review at the management office of the Property, the following: (i) as-built plans and specifications of the Improvements, (ii) work order files, and (iii) residential tenant lease files.  In addition to the Due Diligence Items, Seller may, as an accommodation to Purchaser, make available or deliver to Purchaser copies of, various reports and other information (the Due Diligence Items provided to Purchaser by Seller and such other information and materials as may hereafter be provided by Seller to Purchaser with regard to the Property is collectively herein called the “Information”).  Purchaser agrees that Seller is providing the Information as an accommodation to Purchaser and that except for the Excepted Matters (hereinafter defined) in no way does Seller represent or warrant the accuracy or completeness of the Information or the opinions or conclusions expressed therein.  Purchaser agrees that except for the Excepted Matters, to the extent Purchaser elects to rely thereon in any manner or to any extent, Purchaser does so at Purchaser’s sole risk, and that in no event shall Seller have any liability to Purchaser in any way related to the Information, except in the case of Seller’s bad faith, gross negligence or fraud in the provision of such Information.  The provisions of this paragraph shall expressly survive Closing.

(a)Purchaser’s being satisfied in Purchaser’s sole discretion that the Property is suitable for Purchaser’s intended uses; and

(b)Purchaser’s being satisfied, in Purchaser’s sole discretion, with the Due Diligence Items.

Purchaser may (but shall not be obligated to) terminate this Agreement by written notice thereof to Seller at any time prior to the expiration of the Approval Period, if, in Purchaser's sole and absolute discretion, Purchaser decides for any reason or no reason not to consummate the purchase of the Property contemplated hereby.  In such event, this Agreement will be deemed to have terminated as of the date of such notice and, in such event, neither party shall have any further obligation hereunder except for the Surviving Obligations.  If, in Purchaser’s sole and absolute discretion, Purchaser determines that

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Purchaser does not desire to consummate the purchase of the Property contemplated hereby, then Purchaser will give written notice thereof (the “Termination Notice”) to Seller, prior to the expiration of the Approval Period.  In the event that Purchaser fails to timely give Seller the Termination Notice, Purchaser will be deemed to have waived the conditions precedent set forth in this Section 4.1.1, and the parties will proceed to Closing, subject to all other terms of this Agreement.  If Purchaser provides Seller with the Termination Notice prior to the expiration of the Approval Period, then this Agreement will terminate as of the date Seller receives the Termination Notice and, in such event, neither party shall have any further obligation hereunder except for the Surviving Obligations.  In the event of such termination of the Agreement, immediately following written request from Purchaser to the Title Company, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which may be given by Seller, then Title Company shall return the Earnest Money to Purchaser.  If this Agreement terminates for any reason, then Purchaser shall (i) return to Seller or destroy all documents that have been provided to Purchaser by Seller relating to the Property, except for electronic copies or emailed copies which shall be retained by Purchaser in accordance with Purchaser’s corporate document retention policies and maintained in a confidential manner in accordance with the confidentiality obligations under this Agreement, and (ii) upon execution of a non-reliance letter reasonably acceptable to Purchaser and Seller, deliver to Seller copies of all third-party Property inspection reports, assessments or studies (excluding Purchaser proprietary materials, attorney-client work product or other privileged materials) that have been prepared for Purchaser in connection with Purchaser’s review of the Property without representation or warranty by Purchaser.  This provision shall survive the termination of this Agreement.

 

4.1.2Title Commitment and Survey.  Seller shall convey good and indefeasible title to the Property to Purchaser at Closing, subject only to the “Permitted Encumbrances” (as defined below).  Within five (5) days following the Effective Date, Seller shall obtain, at its sole cost and expense, and deliver to Purchaser, a commitment from Corridor Title, Attention: Patrick Rose, 171 Benney Lane, Building I, Dripping Springs, Texas 78620 (“Corridor”) for the issuance of a Texas Owner’s Policy of Title Insurance from First American Title Insurance Company (the “Title Commitment”) insuring good and indefeasible fee simple title to the Property, together with legible copies (or as legible as the Title Company is able to deliver) of all exceptions listed therein. The Title Company and Corridor shall equally share the fees associated with the transaction.  Purchaser shall five (5) days following its receipt of the Title Commitment, copies of all exceptions listed therein and the “Survey”, whichever is received last (as defined below) to deliver to Seller written notice of Purchaser’s objections to title (the “Title Objection Letter”).  Seller shall have the right, but not the obligation, to cure Purchaser’s objections to title.  Seller shall notify Purchaser in writing within five (5) days following Seller’s receipt of the Title Objection Letter concerning which title objections, if any, Seller has agreed to cure.  In the event that Seller does not undertake to cure all of the objections in the Title Objection Letter to Purchaser’s sole satisfaction (or does not timely respond to the Title Objection Letter), then Purchaser shall elect by written notice to Seller given within five (5) days after receipt of Seller’s response to the Title Objection Letter (or five (5) days following the expiration of the period within which Seller was to so respond) to either (i) waive any such title objection in writing and proceed to Closing (in which event such waived title objection shall be deemed to be a “Permitted Encumbrance”, as defined below), or (ii) terminate this Agreement and receive an immediate refund of the Earnest Money, without the consent or joinder of Seller being required and notwithstanding any contrary instructions which may be given by Seller.  Failure by Purchaser to make such election timely shall constitute an election by Purchaser under clause (i) of the preceding sentence; provided, however, that Purchaser’s delivery of the Termination Notice shall nevertheless result in the termination of this Agreement as provided in Section 4.1.1.  All exceptions set forth in the Title Commitment which are not objected to by Purchaser (including matters initially objected to by Purchaser which objections are subsequently waived in writing or deemed waived as provided above) are herein collectively called the “Permitted Encumbrances”. Notwithstanding the foregoing, in no event shall Purchaser be obligated to object to (i) deeds of trust, mortgages or security interests that were created by, through or under Seller, (ii) any mechanic’s liens, judgment liens, tax liens, or any other matter listed on

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“Schedule C” of the Title Commitment created by, through or under Seller (the “Seller Removal Items”), and Seller shall remove the Seller Removal Items or otherwise cause the Title Company to remove such liens from the Title Policy (hereinafter defined) to be delivered to Purchaser at Closing.

If any supplemental title report or update issued subsequent to the date of the Title Commitment or update to the Survey contains exceptions (“New Exceptions”) other than those in the original Title Commitment or Survey, Purchaser will be entitled to object to the New Exceptions by delivery of a notice of objections to Seller on or before the date that is five (5) days following Purchaser’s receipt of such supplement or update (provided, however, Seller shall, without any need for objection by Purchaser, remove the Seller Removal Items).  If Purchaser fails to deliver to Seller a notice of objections on or before such date, Purchaser will be deemed to have waived any objection to the New Exceptions, and the New Exceptions will be included as Permitted Encumbrances (except for the Seller Removal Items).  Seller will have five (5) days from the receipt of Purchaser’s notice (and the Closing Date shall be extended to provide for such five (5) day period and for five (5) days following such period for Purchaser’s response), within which time Seller may, but is under no obligation to remove the objectionable New Exceptions.  If, within the five (5) day period, Seller or the Title Company does not (or does not agree to) remove the objectionable New Exceptions, then Purchaser may terminate this Agreement upon written notice to Seller no later than five (5) days following expiration of the five (5) day cure period.  If Purchaser terminates this Agreement, the Earnest Money will be promptly returned to Purchaser, and the parties shall be released from all further obligations under this Agreement (except for the Surviving Obligations).  If Purchaser fails to terminate this Agreement in the manner set forth above, the New Exceptions (except for the Seller Removal Items and those Seller and/or Title Company has removed or agreed to remove) will be included as Permitted Encumbrances.

If the Property is subject to a declaration of covenants, conditions and restrictions or similar instrument (“CCRs”) governing or affecting the use, operation, maintenance, management or improvement of the Property, Seller shall use commercially reasonable efforts to deliver to Purchaser on or before Closing an estoppel certificate, in form and substance reasonably satisfactory to Purchaser, from the declarant, association, committee, agent or other person or entity having governing or approval rights under the CCRs (a “Declaration Estoppel Certificate”), provided however, Seller’s failure to deliver to Purchaser the Declaration Estoppel Certificate shall not be a Seller default or a condition to Purchaser’s obligation to close the transactions contemplated by this Agreement.

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Before entering the Property, Purchaser shall deliver to Seller a reasonably satisfactory certificate of insurance evidencing that Purchaser has commercial general liability insurance  in the amount of at least One Million Dollars ($1,000,000) per occurrence, bodily injury and property damage liability, with a general aggregate limit per occurrence of at least Two Million Dollars ($2,000,000).  Such policy shall be written on an occurrence basis, issued by an insurance company authorized to do business in the state of Texas and shall contain a waiver of subrogation clause in favor of Seller.  Such insurance policies must be primary with respect to any liability insurance carried by Seller.

Seller, at Seller’s expense, will terminate on or before Closing the following Service Contracts: Yelp, Zillow, Apartment Lines, A/V Calibrations, Benchmark and Capital Waste, and Purchaser shall have no obligation to assume such Service Contracts at Closing.  Purchaser will assume upon Closing the remaining Service Contracts listed on Exhibit “E” attached hereto.  Seller shall terminate, at its sole cost and expense, effective as of the Closing, and Purchaser shall not assume, any existing property management or leasing agreement related to the Property.

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(b)The Seller’s Express Representations shall survive Closing for a period of six (6) months following the Closing Date; and unless Purchaser has provided Seller, within such six (6) month period, written notice of a breach by Seller of Seller’s Express Representations (which notice, to be effective for purposes hereof, must describe in reasonable detail the representation breached and the factual basis for such claim by Purchaser), then Purchaser shall be deemed to have waived all claims for breaches of Seller’s Express Representations except such claims as are contained in said written notice.  Notwithstanding anything in this Agreement to the contrary, if Seller becomes aware between the Effective Date and the Closing that any of the Seller’s representations or warranties in this Agreement are inaccurate or misleading in any material respect, Seller shall promptly notify Purchaser in writing of same before Closing (“Updated Representation”), whereupon Purchaser shall as its sole and exclusive alternative remedies have the right to either (i) terminate this Agreement within ten (10) days of receipt of notice of such Seller notice (and Closing shall be extended in order to provide Purchaser such ten (10) day period) by giving written notice of termination to Seller within said period, whereupon the Earnest Money shall be promptly returned to Purchaser and the parties shall have no further obligations hereunder other than the Surviving Obligations, provided however, if the Updated Representation is caused by an intentional breach by Seller of Seller’s Express Representations under this Agreement, Purchaser shall have the rights set forth in Section 8.1, (ii) waive any claim or cause of action relating to such Updated Representation and proceed to Closing, in which event Seller’s Express Representations shall be deemed to have been modified to reflect the Updated Representation or (iii) extend the Closing for a period of time not to exceed five (5) business days in order that Seller may attempt to cure the Updated Representation, and if Seller is unable to cure the Updated Representation within such five (5) business day period, Purchaser shall have the rights set forth in (i) above.  Purchaser shall not have the right to make a claim under any particular representation or warranty of Seller to the extent that, prior to Closing, Purchaser receives written notice that the representation or warranty is not accurate and Purchaser elects to proceed to close.

 

(c)For purposes of this Agreement, the phrase “Seller’s knowledge,” “known to Seller” or any similar phrase means the current, actual knowledge of Darren B. Casey, without independent inquiry and without any implied duty to inquire, and does not include knowledge imputed to Seller from any other person.  Notwithstanding the foregoing, Seller hereby represents and warrants to Purchaser that as of the Effective Date Darren B. Casey are the people within Seller’s organization that are most familiar with and knowledgeable concerning the development, construction and day to day operation of the Property, as applicable.  Purchaser waives any right to sue or to seek any personal judgment or claim against Darren B. Casey, except with respect to a lawsuit, personal judgment or claim against Darren B. Casey under the Guaranty (hereinafter

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defined) if Closing occurs under this Agreement (and the provisions of this sentence shall expressly inure to the benefit of and be enforceable by Darren B. Casey and may not be amended or modified without the express prior written consent of Darren B. Casey).

 

(d)Notwithstanding anything to the contrary contained in this Agreement, if Purchaser discovers after Closing that Seller has breached any of Seller’s Express Representations and Purchaser has provided timely notice thereof pursuant to Section 4.4(b), then Purchaser shall be entitled to bring an action for damages against Seller, provided that (a) the aggregate liability of Seller for all damages of any kind related to this Agreement or this transaction shall be limited to Five Hundred Thousand and No/100 Dollars ($500,000.00) (the “Cap”), and (b) Seller shall be liable only for actual damages for any breach or default by Seller under this Section 4.4, and Purchaser waives the right to collect special, consequential, punitive, or any other damages other than actual damages in connection with this Section 4.4.  The Cap shall not be applicable to any credits and prorations under Section 6.3, Seller’s indemnity under Section 9.2 or Seller’s fraud.  The provisions of this Section 4.4(d) shall expressly survive Closing for the later to occur of six (6) months following the Closing Date (“Survival Period”) or (ii) until any claim brought by Purchaser against Seller prior to the expiration of the Survival Period in accordance with this Agreement has been finally resolved by a court of competent jurisdiction (with all applicable appeal periods having expired without an appeal having been taken) or by written agreement of Seller and Purchaser.

 

(e)PURCHASER ACKNOWLEDGES AND AGREES THAT PURCHASER IS EXPERIENCED IN THE OWNERSHIP AND OPERATION OF PROPERTIES SIMILAR TO THE PROPERTY AND THAT PURCHASER PRIOR TO THE CLOSING DATE WILL HAVE INSPECTED THE PROPERTY TO ITS SATISFACTION. PURCHASER ACKNOWLEDGES THAT IT IS FULLY RELYING ON PURCHASER’S (OR PURCHASER’S REPRESENTATIVES’) INSPECTIONS OF THE PROPERTY AND, EXCEPT FOR THE EXCEPTED MATTERS, NOT UPON ANY STATEMENTS (ORAL OR WRITTEN)WHICH MAY HAVE BEEN MADE OR MAY BE MADE (OR PURPORTEDLY MADE) BY SELLER OR ANY OF ITS REPRESENTATIVES.  EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER ACKNOWLEDGES THAT PURCHASER HAS (OR PURCHASER’S REPRESENTATIVES HAVE), OR PRIOR TO THE CLOSING DATE WILL HAVE, INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT DEEMED NECESSARY BY PURCHASER IN ORDER TO ENABLE PURCHASER TO EVALUATE THE CONDITION OF THE PROPERTY AND ALL OTHER ASPECTS OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE ENVIRONMENTAL CONDITION OF THE PROPERTY), AND EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER ACKNOWLEDGES THAT PURCHASER IS RELYING UPON ITS OWN (OR ITS REPRESENTATIVES’) INSPECTION, EXAMINATION AND EVALUATION OF THE PROPERTY.  AS A MATERIAL PART OF THE CONSIDERATION FOR THIS CONTRACT AND THE PURCHASE, EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER HEREBY AGREES TO ACCEPT THE PROPERTY ON THE CLOSING DATE IN ITS “AS IS”, “WHERE IS” CONDITION, WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW.  WITHOUT IN ANY WAY

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LIMITING THE GENERALITY OF THE FOREGOING, IN CONNECTION WITH THE SALE OF THE PROPERTY TO PURCHASER, EXCEPT FOR THE EXCEPTED MATTERS, THE SALE OF THE PROPERTY IS WITHOUT ANY WARRANTY, REPRESENTATION OR GUARANTY, PURCHASER STIPULATES AND AGREES THAT NEITHER SELLER NOR ANY OF SELLER’S PARTNERS, OFFICERS, AGENTS, DIRECTORS, EMPLOYEES, ATTORNEYS, CONTRACTORS OR AFFILIATES (COLLECTIVELY, “SELLER’S RELATED PARTIES”) HAS MADE ANY, AND THAT THE SELLER AND SELLER RELATED PARTIES EXPRESSLY AND SPECIFICALLY DISCLAIM, AND PURCHASER ACCEPTS THAT SELLER AND SELLER’S RELATED PARTIES HAVE DISCLAIMED, ANY AND ALL GUARANTIES, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW (EXCEPT FOR THE EXCEPTED MATTERS), OF OR RELATING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION, OF OR RELATING TO ANY OF THE FOLLOWING, AND THAT EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER HEREBY IRREVOCABLY WAIVES ALL CLAIMS AGAINST SELLER AND EACH OF THE SELLER’S RELATED PARTIES ARISING FROM OR ATTRIBUTABLE IN ANY WAY TO ANY OF THE FOLLOWING: (I) THE USE, INCOME POTENTIAL, EXPENSES, OPERATION, CHARACTERISTICS OR CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, HABITABILITY, MERCHANTABILITY, DESIGN OR FITNESS FOR ANY SPECIFIC PURPOSE OR A PARTICULAR PURPOSE, OR GOOD AND WORKMANLIKE CONSTRUCTION; (II) THE NATURE, MANNER, CONSTRUCTION, CONDITION, STATE OF REPAIR OR LACK OF REPAIR OF ANY IMPROVEMENTS LOCATED ON THE PROPERTY, ON THE SURFACE OR SUBSURFACE THEREOF, WHETHER OR NOT OBVIOUS, VISIBLE OR APPARENT; (III) THE NATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE PROPERTY; (IV) THE ENVIRONMENTAL CONDITION OF THE PROPERTY AND THE PRESENCE OR ABSENCE OF OR CONTAMINATION BY HAZARDOUS MATERIALS, MOLD, FUNGUS, MILDEW (OR OTHER SIMILAR ORGANISMS OR MATERIAL), LEAD PAINT, OR THE COMPLIANCE OF THE PROPERTY WITH ALL REGULATIONS OR LAWS PERTAINING TO HEALTH OR THE ENVIRONMENT, INCLUDING BUT NOT LIMITED TO, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY OTHER FEDERAL, STATE OR LOCAL LAW RELATING TO THE ENVIRONMENT, EACH AS MAY BE AMENDED FROM TIME TO TIME, AND INCLUDING ANY AND ALL REGULATIONS, RULES OR POLICIES PROMULGATED THEREUNDER (“ENVIRONMENTAL LAWS”); (V) THE QUALITY OF THE LABOR AND MATERIALS INCLUDED IN THE PROPERTY; (VI) THE COMPLIANCE OF THE PROPERTY WITH, OR THE APPLICABILITY TO THE PROPERTY OF, LAWS, RULES, REGULATIONS, CODES OR ORDINANCES; AND (VII) THE SOIL

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CONDITIONS, DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS EXISTING IN, ON, OR UNDER THE PROPERTY.  EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER HEREBY EXPRESSLY AGREES TO ACCEPT THE PROPERTY SUBJECT TO ALL RISKS, LIABILITIES, CLAIMS, DAMAGES AND COSTS ARISING AFTER THE CLOSING DATE, INCLUDING ANY LIABILITY WITH RESPECT TO ENVIRONMENTAL LAWS (AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY ACTUAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES) RESULTING OR ARISING FROM OR RELATED TO THE CONDITION OF THE PROPERTY.  EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER EXPRESSLY WAIVES (TO THE EXTENT ALLOWED BY APPLICABLE LAW) ANY CLAIMS UNDER FEDERAL, STATE OR OTHER LAW (INCLUDING, BUT NOT LIMITED TO COMMON LAW, WHETHER SOUNDING IN CONTRACT OR TORT, AND ANY AND ALL ENVIRONMENTAL LAWS) THAT PURCHASER MIGHT OTHERWISE HAVE AGAINST SELLER OR BROKER RELATING TO THE USE, CHARACTERISTICS OR CONDITION OF THE PROPERTY OR ANY OF THE OTHER MATTERS DESCRIBED IN THIS PARAGRAPH.  PURCHASER SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, ACKNOWLEDGES THAT EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER SHALL MAKE ITS OWN INDEPENDENT ANALYSIS OF, AND IS IN NO WAY RELYING UPON ANY OF THE SELLER PARTIES WITH RESPECT TO, ANY COMPLIANCE OF THE PROPERTY WITH ANY APPLICABLE FEDERAL, STATE OR LOCAL LAWS, RULES, REGULATIONS OR ORDINANCES, INCLUDING WITHOUT LIMITATION the Americans with Disabilities Act of 1990, the Fair Housing Accessibility Guidelines issued in connection with the Fair Housing Amendments Act of 1988 or similar FEDERAL, state or local laws, as any of those laws may be amended from time to time and any regulations, orders, rules of procedure or guidelines promulgated in connection with such laws, regardless of whether they were in existence on the date of this Agreement.  EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER SPECIFICALLY ACKNOWLEDGES THAT THE PROPERTY MAY BE LOCATED IN AN AREA, OR MAY BE IN A CONDITION, WHERE DAMPNESS, WATER PENETRATION OR WEATHER CONDITIONS PROMOTE OR HAVE RESULTED IN GROWTH OF MOLD, MILDEW, FUNGUS OR OTHER ORGANISMS AFFECTING THE IMPROVEMENTS AND WHICH MAY BE HARMFUL TO HUMAN HEALTH OR AFFECT THE VALUE OF THE PROPERTY.  THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING.

 

Notwithstanding any provision of this Section 4.4(e) or this Agreement to the contrary, the provisions of this Section 4.4(e) shall not release Seller from liability for (i) a breach of Seller’s Express Representations, (ii) any breach of this Agreement or any of the closing documents executed by Seller pursuant to this Agreement, (iii) any third party tort claim for personal injury or property damage arising prior to the Closing Date (not caused by Purchaser or its representatives),

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or (iv) Seller’s fraud (the “Excepted Matters”).  The provisions of this paragraph shall survive the Closing.

 

5.

COVENANTS OF SELLER

 

5.1Insurance.  From the Effective Date through and including the Closing Date, Seller agrees to keep the Property insured in a manner reasonably consistent with its current policies against fire and other hazards covered by extended coverage endorsement and commercial general liability insurance against claims for bodily injury, death and property damage occurring in, on or about the Property, and to pay all premiums for such insurance prior to the applicable due dates.

 

5.2Operation of Property.  From the Effective Date through and including the Closing Date, Seller agrees to operate and maintain the Property in the normal course of business substantially in accordance with practices employed with respect to the Property as of the Effective Date, normal wear and tear excepted.

 

5.3Third-Party Contracts. From the Effective Date through and including the Closing Date, Seller will not enter into new service contracts or amend or terminate existing Service Contracts, or enter into new construction contracts without the prior written consent of Purchaser.

 

5.4Leasing of Property.  From the Effective Date through and including the Closing Date, Seller will not enter into any new lease other than new leases for residential apartment units entered into in the ordinary course of business on the current form of lease agreement being used by Seller for leasing for the Property on the Effective Date, for terms of nine (9) to fourteen (14) months at market rents, without rights of first refusal or options to purchase the Property.  Seller shall provide Purchaser with copies of any new Leases.  From the Effective Date through and including the Closing Date, Seller will not terminate any existing lease for residential apartment units, except for terminations of residential leases in the ordinary course of business.

 

5.5Obligation to Provide Notices.  Seller agrees to promptly provide Purchaser with copies of any and all written notices which Seller receives from and after the Effective Date concerning (i) any proposed or threatened condemnation of the Property, (ii) any alleged violations of the Property with respect to applicable governmental laws or requirements, (iii) any litigation filed or threatened against Seller or the Property, or (iv) any facts or circumstances arise which are reasonably likely to preclude

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Seller from delivering the Reaffirmation Certificate required by Section 4.4 stating that Seller’s Express Representations are true and correct in all material respects as of the Closing Date.

 

5.6Exclusivity.  From the Effective Date through and including the Closing Date, Seller will not discuss or negotiate with any third party the sale or other disposition of any of the Property, or enter into any contract (whether binding or not) regarding any sale or other disposition of the Property.

 

5.6Tax Protest.  Purchaser hereby acknowledges that as of the date hereof Seller’s affiliate Baxter Southwest (“Baxter”) has engaged SWBC Ad Valorem Tax Advisors, LLC (DBA Polunsky Ad Valorem Tax Advisors) (“Tax Advisor) to contest the ad valorem tax valuation for the year 2018 (the “Tax Contest”) under that certain Agreement For Property Tax Services between Baxter and Tax Advisor (the “Existing Tax Consulting Agreement”).  The Existing Tax Consulting Agreement covers properties other than the Property, and prior to Closing, Seller shall cause the Property to be excluded from the Existing Tax Consulting Agreement and shall enter into a new tax consulting agreement with Tax Advisor relating only to the Property on the same terms and conditions as the Existing Tax Consulting Agreement (the “New Tax Consulting Agreement”) and provide a copy thereof to Purchaser.  The New The Tax Consulting Agreement shall be assigned to and assumed by Purchaser at Closing; and Purchaser shall continue to prosecute the Tax Contest after Closing; provided however, Purchaser shall not settle the Tax Contest with respect to any period prior to the Closing Date without Seller’s prior written consent, which consent shall not be unreasonably withheld.  Following the resolution of the Tax Contest, any refunds or savings in the payment of taxes resulting from such Tax Contest applicable to taxes payable during the period prior to the Closing Date shall belong to and be the property of Seller, and any refunds or savings in the payment of taxes applicable to taxes payable from and after the Closing Date shall belong to and be the property of Purchaser.  All fees and other expenses incurred in obtaining such refunds or savings under the New Tax Consulting Agreement shall be apportioned between Seller and Purchaser in proportion to the gross amount of such refunds or savings payable to Seller and Purchaser, respectively.  The provisions of this Section 5.6 shall survive the Closing.

 

6.
CLOSING

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Purchaser acknowledges that as of the date hereof Seller has deposited the sum of Fifty Thousand and No/100 Dollars ($50,000.00) (the “Development Deposit”) as a required construction deposit with the Steiner Ranch Architectural Review Committee in connection with Seller’s development of the Property.  Purchaser hereby agrees that such deposit shall be the sole property of Seller and shall not be subject to proration at Closing.  If such deposit is not reimbursed to Seller prior to Closing, then Seller shall be remain entitled to receive such deposit reimbursement, and if such deposit reimbursement is delivered to Purchaser following Closing, then Purchaser shall promptly return the same to Seller.  Seller represents and warrants to Purchaser that Purchaser is not obligated to replace the Deposit if refunded to Seller.  This provision shall survive the Closing of this transaction.

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All other prorations shall be subject to adjustment and reconciliation within sixty (60) days after Closing, and Seller and Purchaser agree to act in good faith in such adjustment and reconciliation.  

The agreements of Seller and Purchaser set forth in this Section 6.3 shall survive the Closing.

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(j) Rent Roll.  Deliver to Purchaser a rent roll updated to the Closing Date, with an executed certification by Seller in the form attached hereto as Exhibit “O”.

(k)Guaranty.  Deliver to Purchaser that certain Guaranty (“Guaranty”) in the form attached hereto as Exhibit “L” executed by Darren B. Casey for the benefit of Purchaser.

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(d) A closing statement (“Closing Statement”) executed by Seller and to be mutually executed by Purchaser and consistent with this Agreement in the form required by Title Company, and each party shall be entitled to receive a copy of the Closing Statement executed by the other party.

7.
RISK OF LOSS

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8.
DEFAULT

8.1Breach by Seller.  In the event that Seller shall fail to consummate this Agreement for any reason, except for a Purchaser default, or the exercise of any right to terminate this Agreement that Seller has under the express terms of this Agreement, Purchaser shall be entitled as its sole and exclusive remedies, at law or in equity, to either (i) terminate this Agreement and receive a refund of the Earnest Money, and thereafter neither party shall have any further obligations hereunder other than the Surviving Obligations; or (ii) pursue the remedy of specific performance of Seller’s obligations under this Agreement; provided, however, that if Seller’s failure to consummate this Agreement is due to Seller’s Wrongful Acts (defined below) and Purchaser elects to terminate this Agreement, or the remedy of specific performance of Seller’s obligations under this Agreement is not available, then Purchaser shall receive a refund of the Earnest Money and Seller shall reimburse Purchaser the amount of Purchaser’s actual costs and expenses incurred in connection with (a) negotiating this Agreement, (b) conducting its due-diligence inspection and analysis of the Property, and (c) obtaining (or attempting to obtain) debt and/or equity financing for Purchaser’s acquisition of the Property which in the aggregate shall not exceed One Hundred Thousand and No/100 Dollars ($100,000.00) (“Purchaser’s Costs”), within ten (10) days after submission by Purchaser to Seller of invoices reasonably supporting such costs.  It shall be a condition to Purchaser’s right to seek or obtain specific performance that that Purchaser must file suit for specific performance within ninety (90) days following the date provided in this Agreement for Closing (failing which Purchaser shall have waived the right to do so).

As used in this Agreement, “Seller’s Wrongful Act” means an intentional affirmative act or failure to act by Seller constituting fraud, gross negligence or willful misconduct.

8.2Breach by Purchaser. In the event that Purchaser shall fail to consummate this Agreement for any reason, except for a Seller default or the exercise of any right to terminate this Agreement that Purchaser has under the express terms of this Agreement, Seller, as its sole and exclusive remedy, may terminate this Agreement and thereupon shall be entitled to receive the Earnest Money as liquidated damages (and not as a penalty).  Seller and Purchaser have made this provision for liquidated damages because it would be difficult to calculate, on the date hereof, the amount of actual damages for such breach, and Seller and Purchaser agree that the Earnest Money represents a reasonable forecast of such damages. The limitations imposed on Seller by this Section 8.2 shall not apply to Purchaser’s indemnities or Seller’s remedies under Section 4.2, but shall be subject to the provisions of Section 8.3.

8.3Actual Damages Only.  In any case where Seller or Purchaser expressly is entitled to pursue damages under this Agreement due to the breach or default of the other (excluding Seller’s right to liquidated damages under Section 8.2), Seller and Purchaser shall each be liable to the other only for actual damages for any breach or default under this Agreement, and Seller and Purchaser each waives the

19

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right to collect special, consequential, punitive or any other damages other than actual damages in connection with this transaction and this Agreement, except only for any special, consequential, punitive or other damages incurred by an indemnified party to an unrelated third party which are indemnified against by an indemnifying party under an indemnity set forth in this Agreement.

9.
MISCELLANEOUS

Attention: Darren B. Casey

Tel: (210) 829-1717

Email: ***@***

    With a copy to:   ***@***

Tel: (210) 745-3700

 

 

20

---

 

 

21

---

(b)Exhibit A, the legal description of the Land.

(c)Exhibit A-1, Excluded Property.

(d)Exhibit B, the form of the Deed.

(e)Exhibit C, the form of the Assignment.

22

---

(f)Exhibit D, List of Personal Property.

(g)Exhibit E, List of Contracts.

(h)Exhibit F, Rent Roll.

(i)Exhibit G, Limited License Agreement.

(j)Exhibit H, Leasing Costs.

(k)Exhibit I, Affidavit of Debts and Liens.

(l)Exhibit J, “As Is” Certificate.

(m)Exhibit K,  Seller’s Disclosures.

(n)Exhibit L,  Guaranty.

(o)Exhibit M, FIRPTA

(p)Exhibit N, Tenant Notice Letter

(q)Exhibit O, Certification of Rent Roll

(r)Schedule 3.1, Escrow Instructions

(s)Schedule 4.1.3, Survey Certification

9.16Confidentiality.  Except as set forth in this Section 9.16, Seller and Purchaser hereby covenant and agree that, at all times after the Effective Date and continuing after the Closing, unless consented to in writing by the other party (which consent may be granted or withheld in the sole discretion of the party whose consent is being requested), no press release or other public disclosure concerning this transaction shall be made by or on behalf of Seller or Purchaser.  Notwithstanding the foregoing, (i) each party shall be entitled to make disclosures concerning this Agreement and materials provided hereunder to its

23

---

lenders (and its lenders’ respective attorneys), accountants, employees, agents and other service professionals as may be reasonably necessary in furtherance of the transactions contemplated hereby, (ii) Purchaser shall be entitled to make disclosures concerning this transaction and materials provided hereunder to its potential debt and equity sources, including disclosure to its due diligence coordinator and broker/dealers, as well as disclosure in any private placement memorandum or similar disclosure document prepared by or on behalf of Purchaser, and (iii) each party shall be entitled to make such disclosures concerning this Agreement and materials provided hereunder as may be necessary to comply with any court order or directive of any applicable governmental authority.  Notwithstanding the foregoing, the restrictions of this Section 9.16 shall not apply to information which: (i) is already known to Purchaser, is already in Purchaser’s possession or was already available or becomes available to Purchaser from non- Seller sources not known by Purchaser to be subject to any confidentiality obligations to Seller; (ii) is or becomes generally available to the public other than as a result of a disclosure by Purchaser or any of Purchaser’s representatives; (iii) is independently developed by Purchaser without the use of information disclosed by or on behalf of Seller or (iv) is necessary or required to be disclosed by law or by regulatory or judicial process or court order, or in connection with any dispute between Seller and Purchaser.  Further, and notwithstanding anything contained in this Section 9.16  or this Agreement to the contrary, to the extent Purchaser is advised by its legal counsel that Purchaser is required by applicable laws or regulations, or the rules and regulations of any applicable securities exchange or securities regulator, to make public disclosure of the existence of this Agreement, the terms of this Agreement or the transactions contemplated herein, Purchaser may make such public disclosure, without the consent of Seller, to the extent deemed necessary by Purchaser or Purchaser’s legal counsel.  The provisions of this Section 9.16 shall survive Closing or any termination of this Agreement for a period of one (1) year.

24

---

[Signature page to follow]

 

25

---

Executed to be effective as of the Effective Date.

 

SELLER:

 

TASR Property Owner, Ltd.,
a Texas limited partnership

 

 

By:  /s/ Darren B. Casey

Name:  Darren B. Casey

Title:  Manager

 

 

 

PURCHASER:

 

 

 

 

 

 

 

Signature Page to Purchase and Sale Agreement

 

---

 

The undersigned Title Company hereby acknowledges receipt of a fully executed copy of this Agreement on the  18^th day of May, 2018 (the “Effective Date”).  Upon receipt of the Earnest Money, the Title Company agrees to hold and dispose of the Earnest Money in accordance with the provisions of this Agreement.  Seller and Purchaser hereby designate the Title Company as the “Real Estate Reporting Person” with respect to the transaction contemplated by this Agreement, for purposes of compliance with Section 6045(e) of the Tax Reform Act of 1986, as amended, and the Title Company, by its execution below, hereby accepts such designation.

 

TITLE COMPANY:

 

First American Title Insurance Company

 

 

By:     /s/ Karen A. Young

Name: Karen A. Young

Title:   Vice President / Underwriting Counsel

 

 

 

Title Company Signature Page

to Purchase and Sale Agreement

 

 

 

---

 

SCHEDULE A

TO PURCHASE AND SALE AGREEMENT

 

LIST OF DUE DILIGENCE ITEMS

 

 

 

 

 

SCHEDULE A

LIST OF DUE DILIGENCE ITEMS – Page 1

 

---

 

EXHIBIT A

TO PURCHASE AND SALE AGREEMENT

 

 

LEGAL DESCRIPTION

 

Lot 1, Block A, of Steiner Ranch MU-1B Final Plat (replat), a subdivision in Travis County, Texas, according to the map or plat recorded under Document Number 201300091, in the Official Public Records of Travis County, Texas.

 

 

 

 

EXHIBIT A

LEGAL DESCRIPTION – Page 1

 

---

 

 

EXHIBIT “A-1”

 

Excluded Property

 

None.

 

 

 

EXHIBIT A-1

Excluded Property – Page 1

 

---

 

EXHIBIT B

TO PURCHASE AND SALE AGREEMENT

 

 

 

NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.

 

 

SPECIAL WARRANTY DEED

 

___________________________, a ______________________ ( “Grantor”), whose address is _______________________________, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) paid to Grantor, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, has GRANTED, SOLD AND CONVEYED, and by these presents does hereby GRANT, SELL AND CONVEY unto __________________________, a __________________________  ("Grantee"), whose address is _______________________________, all that certain land located in __________________ County, Texas, and being more particularly described on Exhibit "A" attached hereto and incorporated herein by reference, together with all improvements located on such land, and all and singular the rights and appurtenances pertaining thereto, including all of Grantor’s right, title and interest (if any) in and to adjacent streets, alleys, easements and rights-of-way, as well as all minerals, oil, gas and other hydrocarbon substances owned by Grantor on and under the land (collectively, the “Property”).

 

This conveyance is made and accepted subject to all matters set forth on Exhibit “B”, attached hereto and incorporated herein by reference to the extent that the same are valid and subsisting and affect the Property (collectively, the "Permitted Exceptions").

 

TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in any wise belonging, unto Grantee, its successors and assigns, forever, subject to the Permitted Exceptions.  

 

Grantor does hereby bind itself and its successors, to WARRANT AND FOREVER DEFEND all and singular the Property, subject to the Permitted Exceptions, unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through or under Grantor, but not otherwise.

 

EXECUTED on the date set forth in the acknowledgment attached hereto.

 

,
a Texas limited partnership

 

EXHIBIT B

TO PURCHASE AND SALE AGREEMENT – Page 1

 

 

 

---

 

 

 

By:

Name:

Title:

 

 

 

 

STATE OF TEXAS§

§

COUNTY OF BEXAR§

 

This instrument was acknowledged before me on the _____ day of _________________, 2018, by _______________, __________ of ______________________, a Texas limited liability company, general partner of ______________, a Texas limited partnership, on behalf of said company and limited partnership.

 

[SEAL]

Notary Public, State of _________________

Printed Name: ________________________

My Commission Expires: _______________

 

 

 

 

 

EXHIBIT B

TO PURCHASE AND SALE AGREEMENT – Page 2

 

 

 

---

 

EXHIBIT A

TO SPECIAL WARRANTY DEED

 

 

[To be attached]

EXHIBIT A

TO SPECIAL WARRANTY DEED

---

 

EXHIBIT B TO

SPECIAL WARRANTY DEED

 

 

[To be attached]

EXHIBIT B TO

SPECIAL WARRANTY DEED

 

 

v9

 

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EXHIBIT C

TO PURCHASE AND SALE AGREEMENT

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT

 

This Bill of Sale and Assignment and Assumption Agreement is executed and delivered as of _________, 2018, by and between _________________________________, a _____________________ (“Grantor”), and _______________, a _____________ (“Grantee”), covering the Land described in Exhibit A attached hereto (“Land”) and all improvements thereon, including without limitation, the multifamily development known as “Tacara at Steiner Ranch”, consisting of a total of two hundred forty-six (246) apartment units and related amenities (the “Improvements”) (the Land and the Improvements are herein collectively called the “Property”).

1)  Sale of Personalty.  For good and valuable consideration, Grantor hereby sells, assigns, transfers, sets over and conveys to Grantee the following:

2) Assignment of Leases, Service Contracts and Warranties.  For good and valuable consideration, Grantor hereby assigns, transfers, sets over and conveys to Grantee, and Grantee hereby accepts the following:

 

EXHIBIT C

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT – Page 1

 

---

 

It is understood and agreed that, by its execution hereof, Grantee hereby assumes and agrees to perform all of the terms, covenants and conditions of the Leases required to be performed, attributable to the period on and after the date hereof (excluding, however, those arising from the default by the Grantor under the Leases prior to the date hereof), and in connection therewith, to discharge promptly any and all obligations under the Leases attributable to the period on and after the date hereof, but as to the Grantor’s obligations with regard to security deposits and other deposits, only to the extent the security deposits have been transferred or credited to Grantee.  Grantor covenants and agrees to perform and discharge any and all obligations under the Leases attributable to the period prior to the date hereof.

 

It is understood and agreed that, by its execution hereof, Grantee hereby assumes and agrees to perform all of the terms, covenants and conditions of the Service Contracts required to be performed, attributable to the period arising on and after the date hereof (excluding, however, those arising from the default by the Grantor under the Service Contracts prior to the date hereof), and in connection therewith, to discharge promptly any and all obligations under the Service Contracts attributable to the period on and after the date hereof.  Grantor covenants and agrees to perform and discharge any and all obligations under the Service Contracts attributable to the period prior to the date hereof.  

 

This instrument may be executed in one or more counterparts, each such counterpart being an original hereof and all such counterparts taken together constituting but one and the same instrument and agreement.

[See Following Page for Signatures]

 

EXHIBIT C

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT – Page 2

 

---

 

 

IN WITNESS WHEREOF, Grantor and Grantee have executed this Bill of Sale and Assignment and Assumption Agreement to be effective as of the _____ day of __________________, 2018.

GRANTOR:

 

,

a Texas limited partnership

 

By:,

a Texas limited liability company,

its General Partner

 

By:

Name:

Title:

 

 

 

GRANTEE:

 

,

a

 

By:

Name:

Title:

 

 

 

 

SIGNATURE PAGE TO

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT

 

 

---

 

EXHIBIT “A”

To Bill of Sale and Assignment and Assumption Agreement

 

 

[Legal description to be attached at Closing]

 

EXHIBIT A TO

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT

 

 

---

 

EXHIBIT “B”
To Bill of Sale and Assignment and Assumption Agreement

 

 

 

 

 

EXHIBIT B TO

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT

 

---

 

EXHIBIT “C”
To Bill of Sale and Assignment and Assumption Agreement

 

 

[Certified Rent Roll to be attached at Closing]

 

 

 

EXHIBIT C TO

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT

 

---

 

EXHIBIT “D”
To Bill of Sale and Assignment and Assumption Agreement

 

 

[List of Service Contracts to be attached at Closing]

 

EXHIBIT D TO

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT

---

 

EXHIBIT “E”
To Bill of Sale and Assignment and Assumption Agreement

 

 

[List of Warranties to be attached at Closing]

 

 

 

 

EXHIBIT E TO

BILL OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT

---

 

EXHIBIT D

TO PURCHASE AND SALE AGREEMENT

 

List of Personal Property

 

 

All of Seller’s right, title and interest in and to all personal property located upon the Property as of the Effective Date.  Seller to provide Purchaser with a list of personal property prior to Closing.

 

EXHIBIT D

LIST OF PERSONAL PROPERTY

 

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EXHIBIT E

TO PURCHASE AND SALE AGREEMENT

List of Service Contracts

 

See attached.

 

 

EXHIBIT E

LIST OF SERVICE CONTRACTS

 

 

---

 

EXHIBIT F

TO PURCHASE AND SALE AGREEMENT

Certified Rent Roll

See attached.

 

 

 

EXHIBIT F

CERTIFIED RENT ROLL

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EXHIBIT G

TO PURCHASE AND SALE AGREEMENT

Trademark License Agreement

See attached.

 

 

 

 

 

 

27049609.1 EXHIBIT G

TRADEMARK LICENSE AGREEMENT

065800.00155  290858 v9

1794933v.8 0026107/00006

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EXHIBIT H

TO PURCHASE AND SALE AGREEMENT

OUTSTANDING LEASING COSTS

None as of the Effective Date.  To be updated at Closing.

 

 

EXHIBIT H

OUTSTANDING LEASING COSTS

 

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EXHIBIT “I”

 

AFFIDAVIT AS TO DEBTS AND LIENS

 

 

OWNER:

 

SUBJECT PROPERTY:

See Exhibit “A”

 

THE STATE OF TEXAS

COUNTY  OF  BEXAR

 

Before me, the undersigned authority, on this day personally appeared the Affiant known to me to be the person whose name is subscribed hereto and upon his oath deposes and says, in his capacity as indicated below, that to the best of his actual knowledge there are:

 

 

 

 

 

Affiant recognizes that but for making of the hereinabove statements relative to the Property, ___________________Title Company (“Title Company”) would not issue its owner policy of title insurance on said property in favor of [________________________] and that such statements have been made as an inducement for such issuance.

 

EXHIBIT I

Affidavit as to Debts and Liens – Page 1

 

 

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AFFIANT:

 

 

,
a Texas limited partnership

 

By:,
a Texas limited liability company,
its General Partner

 

 

By:

Name:  

Title:  

 

 

STATE OF TEXAS§

§

COUNTY OF BEXAR§

 

This instrument was acknowledged before me on the _____ day of _________________, 2018, by _______________, __________ of ______________________, a Texas limited liability company, general partner of ______________, a Texas limited partnership, on behalf of said limited partnership.

 

[SEAL]

Notary Public, State of _________________

Printed Name: ________________________

My Commission Expires: _______________

 

 

 

 

EXHIBIT I

Affidavit as to Debts and Liens – Page 2

 

 

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EXHIBIT “J”

“AS IS” CERTIFICATE

 

CERTIFICATE OF PURCHASER

 

 

THE UNDERSIGNED, __________________________________________ (“PURCHASER”), HAS THIS DAY PURCHASED FROM __________________ (“SELLER”), THAT CERTAIN TRACT OR PARCEL OF REAL PROPERTY (AND ALL OF SELLER’S RIGHT, TITLE AND INTEREST IN AND TO ANY IMPROVEMENTS THEREON) DESCRIBED ON EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES (SUCH REAL PROPERTY, ANY IMPROVEMENTS AND ANY RELATED TANGIBLE AND INTANGIBLE PERSONAL PROPERTY BEING HEREINAFTER COLLECTIVELY CALLED THE “PROPERTY”).  PURCHASER EXECUTES AND DELIVERS THIS CERTIFICATE TO SELLER TO CONFIRM AND ACKNOWLEDGE THAT PURCHASER HAS PURCHASED THE PROPERTY IN ITS “AS IS”, “WHERE IS” CONDITION, WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, EXCEPT FOR THE EXCEPTED MATTERS (DEFINED BELOW).  WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, IN CONNECTION WITH THE SALE OF THE PROPERTY TO PURCHASER, EXCEPT FOR THE EXCEPTED MATTERS, THE SALE OF THE PROPERTY IS WITHOUT ANY WARRANTY, REPRESENTATION OR GUARANTY, PURCHASER STIPULATES AND AGREES THAT EXCEPT FOR THE EXCEPTED MATTERS, NEITHER SELLER NOR ANY OF SELLER’S OFFICERS, AGENTS, DIRECTORS, EMPLOYEES, ATTORNEYS, CONTRACTORS OR AFFILIATES (COLLECTIVELY, “SELLER’S RELATED PARTIES”) HAS ANY, AND THAT THE SELLER AND SELLER RELATED PARTIES EXPRESSLY AND SPECIFICALLY DISCLAIM, AND PURCHASER ACCEPTS THAT SELLER AND SELLER’S RELATED PARTIES HAVE DISCLAIMED, ANY AND ALL REPRESENTATIONS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, OF OR RELATING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION, OF OR RELATING TO ANY OF THE FOLLOWING, AND THAT EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER HEREBY IRREVOCABLY WAIVES ALL CLAIMS AGAINST SELLER AND EACH OF THE SELLER’S RELATED PARTIES ARISING FROM OR ATTRIBUTABLE IN ANY WAY TO ANY OF THE FOLLOWING:  (I) THE USE, INCOME POTENTIAL, EXPENSES, OPERATION, CHARACTERISTICS OR CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, HABITABILITY, MERCHANTABILITY, DESIGN OR FITNESS FOR ANY SPECIFIC PURPOSE OR A PARTICULAR PURPOSE, OR GOOD AND WORKMANLIKE CONSTRUCTION; (II) THE NATURE, MANNER, CONSTRUCTION, CONDITION, STATE OF REPAIR OR LACK OF REPAIR OF ANY IMPROVEMENTS LOCATED ON THE PROPERTY, ON THE SURFACE OR

 

EXHIBIT J

AS IS CERTIFICATE – Page 1

 

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SUBSURFACE THEREOF, WHETHER OR NOT OBVIOUS, VISIBLE OR APPARENT; (III) THE NATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE PROPERTY; (IV) THE ENVIRONMENTAL CONDITION OF THE PROPERTY AND THE PRESENCE OR ABSENCE OF OR CONTAMINATION BY HAZARDOUS MATERIALS, MOLD, FUNGUS, MILDEW (OR OTHER SIMILAR ORGANISMS), LEAD PAINT, OR THE COMPLIANCE OF THE PROPERTY WITH ALL REGULATIONS OR LAWS RELATING TO HEALTH OR THE ENVIRONMENT, INCLUDING BUT NOT LIMITED TO, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY OTHER FEDERAL, STATE OR LOCAL LAW RELATING TO THE ENVIRONMENT, EACH AS MAY BE AMENDED FROM TIME TO TIME, AND INCLUDING ANY AND ALL REGULATIONS, RULES OR POLICIES PROMULGATED THEREUNDER (“ENVIRONMENTAL LAWS”); (V) THE QUALITY OF THE LABOR AND MATERIALS INCLUDED IN THE PROPERTY; (VI) THE COMPLIANCE OF THE PROPERTY WITH, OR THE APPLICABILITY TO THE PROPERTY OF, LAWS, RULES, REGULATIONS, CODES OR ORDINANCES; AND (VII) THE SOIL CONDITIONS, DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS EXISTING IN, ON, OR UNDER THE PROPERTY.  EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER HEREBY EXPRESSLY AGREES TO ACCEPT THE PROPERTY SUBJECT TO ALL RISKS, LIABILITIES, CLAIMS, DAMAGES AND COSTS ARISING AFTER THE CLOSING DATE, INCLUDING ANY LIABILITY WITH RESPECT TO ENVIRONMENTAL LAWS (AND AGREES SELLER SHALL NOT BE LIABLE TO PURCHASER FOR ANY ACTUAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES) RESULTING OR ARISING FROM OR RELATED TO THE CONDITION OF THE PROPERTY.  EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER IS NOT RELYING ON ANY REPRESENTATIONS OR STATEMENTS (ORAL OR WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY BE MADE BY SELLER OR SELLER’S RELATED PARTIES, AND IS RELYING SOLELY UPON PURCHASER’S OR ITS REPRESENTATIVES’ OWN PHYSICAL INSPECTION OF THE PROPERTY. EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER ACKNOWLEDGES THAT ANY CONDITION OF THE PROPERTY WHICH PURCHASER DISCOVERS OR DESIRES TO CORRECT OR IMPROVE PRIOR TO OR AFTER THIS SALE SHALL BE AT PURCHASER’S SOLE EXPENSE. PURCHASER EXPRESSLY WAIVES (TO THE EXTENT ALLOWED BY APPLICABLE LAW) ANY CLAIMS UNDER FEDERAL, STATE OR OTHER LAW (INCLUDING, BUT NOT LIMITED TO, COMMON LAW, WHETHER SOUNDING IN CONTRACT OR TORT, AND ANY AND ALL ENVIRONMENTAL LAWS) THAT PURCHASER MIGHT OTHERWISE HAVE AGAINST SELLER RELATING TO THE USE, CHARACTERISTIC OR CONDITION OF THE PROPERTY.  EXCEPT FOR THE EXCEPTED MATTERS, PURCHASER SPECIFICALLY ACKNOWLEDGES THAT THE PROPERTY MAY BE LOCATED IN AN AREA, OR MAY BE IN A CONDITION, WHERE DAMPNESS, WATER PENETRATION OR WEATHER CONDITIONS PROMOTE OR HAVE RESULTED IN GROWTH OF MOLD, MILDEW, FUNGUS OR OTHER ORGANISMS AFFECTING THE IMPROVEMENTS AND WHICH MAY BE HARMFUL TO HUMAN HEALTH OR AFFECT THE VALUE OF THE PROPERTY. PURCHASER FURTHER

 

EXHIBIT J

AS IS CERTIFICATE – Page 2

 

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ACKNOWLEDGES THAT THIS CERTIFICATE IS A MATERIAL INDUCEMENT TO SELLER TO CONSUMMATE THE PURCHASE AND SALE OF THE PROPERTY.  

 

Notwithstanding any provision of this Certificate to the contrary, the provisions of this Certificate shall not release Seller from liability for (i) a breach of Seller’s Express Representations (as defined in the Purchase and Sale Agreement), (ii) any breach of the Purchase and Sale Agreement or any of the closing documents executed by Seller pursuant to this Purchase and Sale Agreement , (iii) any third party tort claim for personal injury or property damage arising prior to the date hereof not caused by Purchaser or its representatives, or (iv) Seller’s fraud (the “Excepted Matters”).  “Purchase and Sale Agreement” as used herein shall mean that certain Purchase and Sale Agreement dated _________, 2018, between Seller and Purchaser.

 

Executed this ___ day of _____________, 2018.

 

_____________________________,
a____________________________

By:______________________
Name:___________________
Title:____________________

 

 

 

Exhibit “A” - Property Description

 

 

 

EXHIBIT J

AS IS CERTIFICATE – Page 3

 

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EXHIBIT “K”

SELLER’S DISCLOSURES

 

None

 

 

 

EXHIBIT K

SELLER’S DISCLOSURES

065800.00155  290858 v9

 

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EXHIBIT L

TO PURCHASE AND SALE AGREEMENT

GUARANTY

 

See attached.

 

 

1

EXHIBIT L

GUARANTY

 

---

 

EXHIBIT M

TO PURCHASE AND SALE AGREEMENT

FIRPTA AFFIDAVIT

Section 1445 of the Internal Revenue Code of 1986, as amended, provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person.  For U.S. tax purposes (including Section 1445), the owner of a disregarded entity (which has legal to title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity.  To inform the Transferee (hereinafter defined) that withholding of tax is not required upon the disposition of a United States real property interest by __________________________________________, a________________________ (the “Transferor”), to ________________________________________________________, a ____________________ (the “Transferee”), the undersigned hereby certifies the following on behalf of the Transferor:

1.The Transferor is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as all such terms are defined in the Internal Revenue Code of 1986, as amended, and United States Treasury Department Income Tax Regulations in effect as of the date hereof);

2.The Transferor is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii);

3.The Transferor’s United States employer identification number is __________;

4.The Transferor’s office address is _____________________________________; and

The Transferor understands that this certification may be disclosed to the United States Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

Under penalties of perjury, the undersigned declares that he has examined this certification, and it is true, correct and complete, and the undersigned further declares that he has authority to sign this affidavit and certificate on behalf of the Transferor.

This certificate is executed and delivered as of the ___ day of _______________, 2018.

________________________________,
a_______________________________

By;______________________________
Name:___________________________
Title:____________________________

 

 

1

EXHIBIT M

FIRPTA AFFIDAVIT

 

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EXHIBIT N

TO PURCHASE AND SALE AGREEMENT

TENANT NOTICE LETTER

 

 

TO:All Tenants at _______________________________ (the “Property”)

RE:Notification Regarding Change of Ownership

 

This letter is to notify you as a tenant at the referenced Property, that the Property has been sold by ____________________, a ________________ (“Seller”), to ______________________, a ______________ (“Purchaser”).  As of the date hereof, your Lease has been assigned by Seller to Purchaser.  From the date of this letter, any and all unpaid rent as well as all future rent, or any other amounts due under the terms of your Lease, shall be payable to Purchaser and sent to the following address:

_____________________
Attn: ________________
_____________________
_____________________

Correspondence to the property manager (the “Property Manager”) relating to your tenancy should be mailed to:

_____________________
_____________________
Attn: ________________

Legal notices relating to your tenancy should be mailed to the Property Manager and also to Purchaser at the following addresses:

TH Real Estate
Attn: Global Real Estate Asset Management
730 Third Avenue
New York, New York 10017

As part of the sale, all refundable tenant deposits, if any, actually held by Seller and credited to Purchaser with respect to the Property have been transferred to, and Seller’s obligations with respect to such deposits have been assumed by, Purchaser as of the date of this letter.

This letter may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

1

EXHIBIT N

TENANT NOTICE LETTER

 

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SELLER:

________________________________,
a_______________________________

By:______________________________
Name:___________________________
Title:____________________________

PURCHASER:

________________________________,
a_______________________________

By:______________________________
Name:___________________________
Title:____________________________

 

 

 

2

EXHIBIT N

TENANT NOTICE LETTER

 

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EXHIBIT O

TO PURCHASE AND SALE AGREEMENT

CERTIFICATION OF RENT ROLL

This Certification of Rent Roll (“Certificate”) is executed as of ___________ 2018, by TASR Property Owner, Ltd., a Texas limited partnership (“Seller”), in favor of _______________, a _________________ (“Purchaser”).

Seller hereby certifies to Purchaser that the rent roll attached hereto as Exhibit A is true and correct in all material respects as of the date hereof.

TASR Property Owner, Ltd.,
a Texas limited partnership

 

 

By:  

Name:  Darren B. Casey

Title:  Manager

 

 

 

1

EXHIBIT O

CERTIFICATION OF RENT ROLL

 

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EXHIBIT A

RENT ROLL

 

 

 

2

EXHIBIT O

CERTIFICATION OF RENT ROLL

 

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SCHEDULE 3.1

 

ESCROW INSTRUCTIONS

1.Investment and Use of Funds.  The Title Company shall invest the Earnest Money in government insured interest-bearing account with Citibank, N.A., shall not commingle the Earnest Money with any funds of the Title Company or others, and shall promptly provide Purchaser and Seller with confirmation of the investments made.  If the Closing under this Agreement occurs, the Title Company shall deliver the Earnest Money into the closing escrow upon the instructions of Purchaser, to be applied against the Purchase Price.

2.Termination before Expiration of Approval Period.  If Purchaser elects to terminate the Agreement pursuant to Section 4.1.1 of the Agreement, the Title Company shall pay the entire Earnest Money to Purchaser one (1) business day following receipt of a copy of the Termination Notice from Purchaser (as long as the current investment can be liquidated in one (1) day).  No notice to the Title Company from Seller shall be required for the release of the Earnest Money to Purchaser by the Title Company.  The Earnest Money shall be released and delivered to Purchaser from the Title Company upon the Title Company’s receipt of a copy of the Termination Notice despite any objection or potential objection by Seller.  Seller agrees it shall have no right to bring any action against the Title Company which would have the effect of delaying, preventing, or in any way interrupting the Title Company’s delivery of the Earnest Money to Purchaser pursuant to this Section 2 of these Escrow Instructions, any remedy of Seller being against Purchaser, not Title Company.

3.Termination after Expiration of Approval Period.  Except as otherwise expressly provided herein, at any time after the expiration of the Approval Period, upon not less than five (5) business days’ prior written notice to the Title Company and the other party, the Title Company shall deliver the Earnest Money to the party requesting the same; provided, however, that if the other party shall, within said five (5) business day period, deliver to the requesting party and the Title Company a written notice that it disputes the claim to the Earnest Money, the Title Company shall retain the Earnest Money until it receives written instructions executed by both Seller and Purchaser as to the disposition and disbursement of the Earnest Money, or until ordered by final court order, decree or judgment, which is not subject to appeal, to deliver the Earnest Money to a particular party, in which event the Earnest Money shall be delivered in accordance with such notice, instruction, order, decree or judgment.

4.Interpleader.  Subject to Section 2 of these Escrow Instructions, in the event of any controversy regarding the Earnest Money, unless mutual written instructions are received by the Title Company by Seller and Purchaser directing the Earnest Money’s disposition, the Title Company shall not take any action, but instead shall await the disposition of any proceeding relating to the Earnest Money or, at the Title Company’s option, the Title Company may interplead all parties and deposit the Earnest Money with a court of competent jurisdiction in which event the Title Company may recover all of its court costs and reasonable attorneys’ fees.  Seller or Purchaser, whichever loses in any such interpleader action, shall be solely obligated to pay such costs and fees of the Title Company, as well as the reasonable attorneys’ fees of the prevailing party in accordance with the other provisions of this Agreement.

5.Liability of Title Company.  The parties acknowledge that the Title Company is acting solely as a stakeholder at their request and for their convenience, that the Title Company shall not be deemed to be the agent of either of the parties, and that the Title Company shall not be liable to either of the parties for any action or omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be liable for actions or omissions taken or made by the Title Company in bad faith, in disregard of this Agreement or involving gross negligence or willful misconduct on the part of the Title Company.

1

SCHEDULE 3.1

ESCROW INSTRUCTIONS

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6.Reporting Person.  Title Company agrees to act as the "reporting person" pursuant to the provisions of Section 6045(e) of the Code.

 

 

2

SCHEDULE 3.1

ESCROW INSTRUCTIONS

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Schedule 4.1.3

 

SURVEY CERTIFICATION

 

To [Purchaser’s Name], its successors and assigns; Teachers Insurance and Annuity Association of America, a New York corporation, its successors and/or assigns, as their interest may appear; First American Title Insurance Company; and (name of seller):  This is to certify that this map or plat and the survey on which it is based were made in accordance with the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, jointly established and adopted by ALTA and NSPS, and includes Items 1, 2, 3, 4, 6(a), 6(b), 7(a), 7(b) (1), 7(c), 8, 9, 10, 13, 14, 16 and 17 of Table A thereof. The fieldwork was completed on ___________. Date of Plat or Map:_____ (Surveyor’s signature, printed name and seal with Registration/License Number)

 

1

SCHEDULE 4.1.3

SURVEY CERTIFICATE