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First Amendment to Agreement [ original is attached] 08/15/08 JR
e:Aour documents\ordinancesV08\petrus purchase oidinance.doc
ORDINANCE NO. 200~'~J`3
AN ORDINANCE APPROVING A PURCHASE AND SALE AGREEMENT BETWEEN
PETRUS INVESTMENT, L.P. AS SELLER AND THE CITY OF DENTON, TEXAS AS
PURCHASER FOR APPROXIMATELY 196.467 ACRES OF LAND SITUATED IN THE
B.B.B. & C. RAILROAD COMPANY SURVEY, ABSTRACT NO. 160, IN THE CITY OF
DENTON, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS
AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The Purchase and Sale Agreement attached hereto and made a part hereof
by reference (the "Agreement") is hereby approved. The City Manager or his designee is hereby
authorized to execute the Agreement on behalf of the City and to carry out the City's rights and
duties therein, including the expenditure of funds provided therein.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2008.
A. BURROUIGI` S. M
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: Gt/C Q/
APPROVED AS TO FORM:
JOHN M. KNIGHT INTERIM CITY ATTORNEY
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BY:
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Contract") is entered into by THE CITY OF
DENTON, TEXAS, a Texas municipality ("Purchaser"), and PETRUS INVESTMENT, L.P., a
Texas limited partnership ("Seller").
ARTICLE 1
AGREEMENT OF PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. For the consideration and upon and subject to
the terms, provisions and conditions hereinafter set forth, Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, an approximately 200 gross acre
tract of land situated in Denton County, Texas, generally shown on the attached Exhibit "A",
which is made a part hereof for all purposes, together with, all and singular, the rights and
appurtenances pertaining to such real property (the "Propert y'").
1.2 Mineral Reservation. There shall be reserved from the conveyances hereunder for
Seller and Seller's successors and assigns, all of Seller's interest in the oil, gas, and other
minerals that are in and under the Property and that may be produced from it; provided,
however, that Seller shall not have any right to the surface of the Property, including (without
limitation) any right to enter onto or occupy any part of the surface of the Property to conduct
any operation or activities of any type or nature to develop, produce or explore for oil, gas or
other minerals. Such mineral reservation shall be reserved in the Deed (hereinafter defined)
and shall be a Permitted Exception (hereinafter defined).
ARTICLE 2
PURCHASE PRICE
2.1 Purchase Price. The purchase price to be paid for the Property (the "Purchase
Price") shall be $25,000.00 per gross acre. The Purchase Price is payable in cash or other
Immediately Available Funds at the Closing (hereinafter defined).
ARTICLE 3
CONTRACT CONSIDERATION AND EARNEST MONEY
3.1 Contract Consideration. Contemporaneously with the execution and delivery of
this Contract, Purchaser has delivered to Seller and Seller hereby acknowledges the receipt of a
check in the amount of One Hundred Dollars ($100.00) ("Option Consideration"), which amount
the parties bargained for and agreed to as consideration for Purchaser's exclusive right to
inspect and purchase the Property pursuant to this Contract and for Seller's execution, delivery
and performance of this Contract. The Option Consideration is in addition to and independent
of any other consideration or payment provided in this Contract, is nonrefundable, and it is fully
earned and shall be retained by Seller notwithstanding any other provision of this Contract.
3.2 Earnest Money: Amount and Payment. On the Effective Date (hereinafter
defined), Purchaser shall deliver, in cash or Immediately Available Funds (as hereinafter
defined), the amount of $50,000.00 (the "Earnest Money") to Republic Title, 2626 Howell Street,
10'h Floor, Dallas, Texas 75204, 214.855.8888, Attn: Paulette Hubbard (the "Title Company").
The Title Company shall deposit the Earnest Money in a daily access interest bearing account
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at a financial institution whose accounts are insured by the Federal Deposit Insurance
Corporation, with interest thereon to become part of the Earnest Money. The timely delivery of
the initial Earnest Money is a condition precedent to Seller's obligations hereunder, and the
failure of Purchaser to timely deliver such initial Earnest Money as provided for herein shall at
Seller's option cause this Contract to be terminated, and thereafter neither party shall have any
further right or obligation under this Contract, unless expressly provided otherwise in this
Contract. The Earnest Money, unless earlier returned to Purchaser or unless delivered to Seller
as herein provided, at Purchaser's option either shall be applied to the Purchase Price or
returned to Purchaser at the Closing. As used herein, the term "Immediately Available Funds"
shall mean payment by cashier's check or certified check drawn on a national banking
association acceptable to Seller or by wire transfer of Immediately Available Funds.
ARTICLE 4
DELIVERY OF SURVEY AND TITLE COMMITMENT;
SURVEY AND TITLE REVIEW
4.1 Items to be Delivered by Seller. Within 15 days after the Effective Date, Seller
shall provide Purchaser, at Seller's sole cost and expense with (a) a current commitment for the
issuance of an owner policy of title insurance to Purchaser from the Title Company, including
true, correct and, to the extent reasonably available from the public records, legible copies of all
instruments referred to in the commitment as conditions or exceptions to title to the Property,
(collectively, the "Title Commitment") and (b) a current boundary survey of the Property
prepared by a duly-licensed Texas land surveyor (the "Survey"). The legal description in the
Survey, if different from the attached Exhibit A, shall automatically be substituted as a new
Exhibit A to this Contract. In addition, within 15 days after the Effective Date, Seller shall deliver
to Purchaser (or make available to Purchaser at Seller's office) copies of any existing
environmental and/or engineering studies relating to the Property to the extent available and
within Seller's actual possession (collectively, the "Property Documents"). The Property
Documents made available without representation by Seller or recourse to Seller, and
Purchaser relies on the Property Documents at its own risk. Without limiting the generality of
the foregoing, Purchaser acknowledges that Seller has made no representations (express or
implied) regarding the accuracy of the Property Documents, the qualifications of the parties
preparing such information or the conclusions set forth therein. Notwithstanding the foregoing, if
Purchaser fails to acquire the Property for any reason (other than default by Seller), Purchaser
shall pay for the cost of the Survey (which amount shall be deducted from the Earnest Money
before it is refunded to Purchaser if Purchaser is entitled to receive the Earnest Money pursuant
to the terms hereof, or if the Earnest Money has previously been refunded to Purchaser,
Purchaser shall pay for the cost of the Survey upon being presented with an invoice therefor),
even though such payment obligation is not repeated in the provisions of this Contract providing
for the return of the Earnest Money. Notwithstanding anything to the contrary contained herein,
Purchaser's obligation under the immediately preceding sentence shall survive the termination
of this Contract.
4.2 Title Review Period. After receipt of the last of the Title Commitment and Survey,
Purchaser shall have a period of 10 days from such receipt to review the state of Seller's title to
the Property (the "Title Review Period"). If the Survey or Title Commitment reflects or discloses
any defect, exception or other matter affecting the Property ("Title Defects") that is unacceptable
to Purchaser for any reason whatsoever, then, prior to the expiration of the Title Review Period,
Purchaser may provide Seller with written notice of its objections. Seller may use its reasonable
efforts to remove or cure the Title Defects, but shall not be required to incur any costs or to
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institute litigation in doing so. If Seller does not cure any or all of Purchaser's written objections
on or prior to the expiration of the Inspection Period (hereinafter defined), as evidenced by
Seller's delivery of an updated Title Commitment and/or Survey (or other written evidence from
the Title Company and/or surveyor) reflecting the cure of Purchaser's objections, then, prior to
the expiration of the Inspection Period, Purchaser, as its sole remedy may terminate this
Contract by giving written termination notice to Seller. Notwithstanding anything to the contrary
in this Contract, if Purchaser fails to terminate this Contract by giving written termination notice
to Seller prior to the expiration of the Inspection Period, then any Title Defects that Seller has
not cured and which are shown on the Survey or the Title Commitment as such may have been
updated as of the expiration of the Inspection Period shall be deemed to be waived and
accepted by Purchaser and shall be "Permitted Exceptions". If Purchaser terminates this
Contract as provided for herein, the Title Company shall promptly return the Earnest Money to
Purchaser, and neither Seller nor Purchaser thereafter shall have any further right or obligation
under this Contract unless expressly provided otherwise in this Contract. In no event may the
failure of Seller to deliver a Title Commitment or a Survey satisfying the requirements of Section
4.1 extend the period for review of such Title Commitment or Survey beyond the Inspection
Period, and Purchaser's sole remedy for any such failure shall be to terminate this Agreement
prior to the expiration of the Due Diligence Period in accordance with the provisions of Section
5.1. Purchaser shall notify Seller in writing of any failure of the Title Commitment or Survey to
satisfy the requirements of Section 4.1 during the Title Review Period, and if Purchaser fails to
do so, the Title Commitment and Survey will be deemed to satisfy such requirements. With
respect to (A) any title exceptions which existed prior to the effective date of the Title
Commitment and which are discovered by the Title Company for the first time after Purchaser
has received the Title Commitment, and (B) any title exceptions which arise after the effective
date of the Title Commitment which are not caused by Seller or which are not otherwise
Permitted Exceptions, Seller shall reasonably cooperate with the Title Company in the
elimination of such title exceptions (but shall not be required to incur costs or to institute
litigation to eliminate said title exceptions), the Closing shall occur as scheduled, and said title
exceptions (to the extent not eliminated) shall be additional "Permitted Exceptions", unless
Purchaser, as its sole and exclusive remedy, terminates this Contract by giving written notice to
Seller on or prior to the later of: (i) five days after the Title Company gives Purchaser written
notice of such title exceptions, or (ii) five days after Seller delivers written notice to Purchaser of
the additional exceptions described in (A) or (B) above that Seller will not cure, in which event
Purchaser shall receive a refund of the Earnest Money, and the parties hereto shall have no
further right or obligation to each other under this Contract except as otherwise expressly
provided in this Contract.
ARTICLE 5
INSPECTION
5.1 Inspection Period. Purchaser shall have 30 days following the Effective Date (the
"Inspection Period") in which to review the Property and to determine whether the Property is
suitable for Purchaser's needs. In the event that Purchaser, in its sole and absolute discretion
and for any reason whatsoever, determines that the Property is not suitable for its needs, then
Purchaser may terminate this Contract by giving written termination notice to Seller on or prior
to expiration of the Inspection Period, whereupon the Title Company shall promptly return the
Earnest Money to Purchaser, and neither Seller nor Purchaser thereafter shall have any further
right or obligation under this Contract unless expressly provided otherwise in this Contract. If
Purchaser does not terminate this Contract as provided above, Purchaser shall be deemed to
have waived its right to terminate this Contract under this section and to have accepted the
Property, the Title Commitment (as such may have been modified pursuant to Section 0 above)
and the Survey and the Earnest Money shall become non-refundable to Purchaser.
ARTICLE 6
REPRESENTATIONS AND COVENANTS
6.1 Representations of Seller. Seller makes the following representations as of the
date of this Contract:
(a) No condemnation proceedings, eminent domain proceedings or similar
actions or proceedings are now pending or, to Seller's current actual knowledge,
threatened against the Property and there are no proceedings pending or, to Seller's
current actual knowledge, threatened for rezoning or otherwise changing the land use of
the Property.
(b) Seller has received no notice of any legal actions, suits, or other legal or
administrative proceedings, pending or threatened, against or affecting the Property.
(c) Seller is duly and legally authorized to enter into this Contract and to carry
out and perform all covenants to be performed by it hereunder, and, subject to the
Acknowledgment of Aperion Communities, LLLP, attached hereto and made a part
hereof, its right to execute this Contract is not limited by the existence of any other
contracts or agreements whatsoever. The joinder of no person or entity other than
Seller will be necessary to convey the Property fully and completely to Purchaser at
Closing. Seller is duly authorized and qualified to conduct business in the State of
Texas.
(d) To Seller's current actual knowledge, (a) there does not exist in or on the
Property any land fills, toxic or hazardous waste or waste disposal sites, radon gas,
asbestos, fault lines, sinkholes or other adverse soil or geological conditions and (b)
there are no hazardous materials or wastes (as said term is defined in 40 C.F.R. 261.3)
that have been released onto or in the Property.
The term "Seller's current actual knowledge" and terms of similar import shall mean the actual
current (and not constructive) knowledge of Steven Howard without any independent inquiry or
investigation by such person, and any reference to Seller's receipt of "notice" shall mean the
receipt of notice by Steven Howard; provided, however, that Steven Howard shall have no
personal liability in connection with any representations or warranties of Seller. The
representations, covenants, and warranties of Seller contained in this Contract shall survive the
Closing for a period of six months ("Survival Period"). Purchaser must notify Seller in writing of
any claim or cause of action for a breach of any representation, covenant or warranty not later
than 91 days after expiration of the Survival Period, and any claim or cause of action (including,
without limitation, a cause of action for specific performance) brought with respect to a breach
any representation, covenant or warranty (each, a "Recovery Action") must be asserted not later
than two years and one day after the expiration of the Survival Period. Time is of the essence
with respect to the foregoing time periods, and any claim or cause of action not timely raised in
a notice and asserted shall be barred. Purchaser agrees that, with respect to any alleged
breach of representations, covenants or warranties in this Contract discovered after the Survival
Period, the maximum liability of Seller for all of such alleged breaches is limited to One Hundred
Dollars ($100). The provisions of this Section 6.1 shall survive the Closing. The remedies for
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any breach of a representation, covenant or warranty that occurs prior to Closing shall be
governed by Article 9.
6.2 Representations of Purchaser.
(a) Purchaser represents to Seller that (a) it has authority to enter into this
transaction and the person signing on behalf of Purchaser is authorized to do so, and
(b) Purchaser has been represented by counsel selected solely by Purchaser and is not
in a disparate bargaining position relative to Seller.
(b) Notwithstanding anything herein to the contrary, any breach by Purchaser
of any of the foregoing representations or warranties shall constitute a default by
Purchaser hereunder, and Seller may thereupon, at its option, terminate this Contract by
giving written notice thereof, in which event the Earnest Money shall be paid to Seller as
liquidated damages, and neither Purchaser nor Seller shall have any further rights or
liabilities hereunder, except as otherwise provided herein
6.3 Covenants and Agreements. Seller and Purchaser covenant and agree as follows:
(a) Provided this Contract has not terminated, Seller shall give Purchaser
and Purchaser's agents and representatives access to the Property in order to make
such inspections, surveys, test borings, soil analyses and other tests and surveys
thereon as Purchaser, in its reasonable discretion, shall deem advisable. The cost and
expenses of Purchaser's investigation shall be borne solely by Purchaser. Purchaser
shall deliver to Seller, promptly after receipt thereof, copies of all engineering reports,
environmental reports, soil tests and other studies, tests and reports obtained by
Purchaser with respect to the physical condition of the Property, and this obligation shall
survive the termination of this Contract. In connection with any entry upon the property
by Purchaser or Purchaser's representatives, to the fullest extent permitted by applicable
law, Purchaser and Purchaser's representatives shall, to the extent permitted by law,
indemnify, protect, defend, and hold harmless Seller and Seller's Partners, successors,
assigns, heirs, legal representatives, employees, agents, and contractors (collectively,
"Indemnities") for, from and against all liabilities, claims, damages, losses, liens, causes
of action, suits, fines, penalties, costs, charges, judgments, orders, enforcement actions
of any kind, and any other costs and expenses in connection therewith (including, but
not limited to, court costs, attorneys fees, and expenses and costs of investigation, of
any nature, kind or description of any person or entity (collectively, the "Liabilities")
directly or indirectly arising out of, caused by or resulting from (in whole or in part) (1) the
viewing, inspecting and studies of the property conducted by Purchaser or Purchaser's
representatives (the "Work"), or any part thereof, or (2) violation of any applicable
environmental, health, or safety law, rule, or regulation applicable to the property or the
work, including property damage, personal injury to Purchaser and/or Purchaser's
representatives and any mechanic's or material men's liens arising out of or related to
the Work. This indemnity covenant shall survive the Closing or any termination of this
Contract and shall not be subject to the limitation of remedies in Section 9.2 of this
Contract. Purchaser is self-insured. Purchaser shall use its best efforts to minimize
damage to the Property and shall cause the Property to be restored to substantially the
condition existing immediately prior to entry thereon by Purchaser, its agents,
representatives and contractors if the Closing does not occur (which obligation shall
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survive the termination of this Contract and shall not be subject to the limitation of
remedies in Section 9.2 of this Contract).
(b) At the Closing, Seller shall deliver to Purchaser an affidavit in compliance
with Section 1445 of the Internal Revenue Code and applicable regulations stating,
under penalty of perjury, Seller's United States taxpayer identification number and that
Seller is not a "foreign person" as that term is defined in Section 1445 ("Non-Foreign
Affidavit').
ARTICLE 7
CONDEMNATION
7.1 Condemnation. If prior to the Closing, condemnation proceedings are commenced
with respect to a material portion of the Property, Seller shall promptly notify Purchaser, and
Purchaser may terminate this Contract by giving a written termination notice to Seller within ten
days after receiving such notice from Seller. The term "material portion" for the purposes of the
immediately preceding sentence shall mean five percent or more of the gross acres contained in
the Property. If Purchaser does not terminate this Contract as provided above, any award in
condemnation shall become the property of Seller, and if the award is received by Seller prior to
the Closing, the Purchase Price shall be reduced by the amount Seller receives from such
condemnation award, and the condemned land shall not be included in the Deed or be part of
the Property. In the event of a termination by Purchaser, the Earnest Money shall be
immediately refunded to Purchaser, and Seller and Purchaser thereafter shall have no further
rights or obligations under this Contract unless expressly provided otherwise in this Contract. If
Purchaser closes under this Contract prior to any condemnation award being paid to Seller, the
Purchase Price shall not be reduced as the result of such condemnation, but Purchaser shall be
entitled to the condemnation award.
ARTICLE 8
CLOSING
8.1 Time and Place. The sale and purchase of the Property shall be consummated at a
closing (the "Closing") to be held at the offices of the Title Company. The Closing shall occur at
10:00 a.m. Central Time on August 15, 2008, unless an earlier date is agreed to in writing by the
Seller and Purchaser (the "Closing Date"); provided, however, in the event that the parties
agree that the Closing shall be held on a date that is prior to the expiration of the Inspection
Period, the Inspection Period shall automatically expire on such earlier Closing Date.
8.2 Items to be Delivered by Seller at the Closing. At the Closing (except as
otherwise provided below), Seller shall deliver or cause to be delivered to Purchaser, at Seller's
sole cost and expense except as otherwise provided in this Section 8.2, each of the following
items:
(a) A special warranty deed duly executed and acknowledged by Seller, in
form of attached Exhibit "B" (the "Deed") and incorporated herein by reference,
conveying unto Purchaser good and indefeasible fee simple title to the Property, free
and clear of any liens, encumbrances, easements or other matters affecting title to the
Property except the Permitted Exceptions.
(b) An Owner's Policy of Title Insurance (the "Title Policy'"), delivered in due
course by the Title Company after the Closing, issued by the Title Company on the
standard form in use in the State of Texas, insuring good and indefeasible fee simple
title to the Property in the Purchaser in a face amount equal to the Purchase Price and
containing no exceptions except the Permitted Exceptions and the standard printed
exceptions therein, except:
(i) if requested by Purchaser, the exception relating to
discrepancies, conflicts or shortages in area or boundary lines or any
encroachment or overlapping of improvements which a survey might
show shall be deleted except for "shortages in area" with the premium for
such deletion to be paid for by Purchaser; and
(ii) the exception as to standby fees and taxes shall be limited
to standby fees and taxes for the year of Closing and subsequent years,
and subsequent assessments for prior years due to changes in land
usage or ownership; and
(c) A Non-Foreign Affidavit as set forth in Section 6.3(b).
8.3 Items to be Delivered by Purchaser at the Closing. At the Closing, Purchaser
shall deliver or cause to be delivered to Seller the Purchase Price (subject to the credit of the
Earnest Money if Purchaser elects to apply the Earnest Money to the Purchase Price) in all
cash or other Immediately Available Funds.
8.4 Adjustments and Prorations. At the Closing, the following items shall be adjusted
or prorated between Seller and Purchaser:
(a) Ad valorem taxes and assessments for the Property for the current
calendar year shall be prorated as of the Closing Date, and Seller shall pay to Purchaser
in cash at the Closing Seller's pro rata portion of such taxes and assessments. Seller's
pro rata portion of such taxes and assessments shall be based upon taxes and
assessments actually assessed for the current calendar year or, if for any reason such
taxes and assessments for the Property have not been actually assessed, such
proration shall be based upon the amount of such taxes and assessments for the
immediately preceding calendar year and later adjusted by cash settlement when actual
ad valorem taxes and assessments for the year of the Closing are assessed. Purchaser
is a tax exempt governmental entity and therefore no subsequent tax assessments of
the Property for periods prior to the Closing Date due to changes in land usage or
ownership will be due. Except as otherwise provided herein, each party shall pay its
share of all other closing costs as is normally paid by a seller or purchaser, respectively,
in a transaction of this character in Denton County, Texas.
(b) The agreements as to payments, prorations, adjustments and indemnities
in this section shall survive the Closing. In the event that any adjustments are to be
made pursuant to this section after the Closing, then the party who is entitled to
additional monies shall invoice the other party for such additional amounts as may be
owing, and such amounts shall be paid within ten days from receipt of the invoice.
ARTICLE 9
REMEDIES UPON DEFAULT
9.1 Default by Seller. In the event of a breach or default by Seller in the performance of
its covenants under this Contract (except as a result of a default by Purchaser), and the
continuation of such breach or default for ten days after written notice thereof has been given by
Purchaser and received by Seller (the "Notice and Cure Period"), Purchaser shall have the right,
as its sole and exclusive remedy with respect to such breach or default, to terminate this
Contract by giving written notice thereof to Seller, whereupon neither party shall have any
further rights or obligations under this Contract except as specifically provided otherwise in this
Contract, and the Title Company promptly shall deliver the Earnest Money to Purchaser, unless
Purchaser elects (by giving written notice (the "Election Notice") to Seller within 45 days after
the expiration of the Notice and Cure Period and by filing a lawsuit for specific performance
within 90 days after the expiration of the Notice and Cure Period), to enforce specific
performance of Seller's obligations under this Contract and accept such title as Seller is able to
convey in accordance with Section 4.2 hereof, in which event Purchaser's pursuit of such
specific performance remedy shall be Purchaser's sole and exclusive remedy. Notwithstanding
the foregoing (i) Seller shall not be entitled to receive written notice and a ten-day opportunity to
cure in connection with Seller's default in closing the transaction contemplated hereby on the
Closing Date pursuant to Section 8.1, and (ii) in case of such default by Seller in failing to timely
close, the Election Notice must be given within 45 days following the Closing Date provided for
in Section 8.1, and any lawsuit for specific performance must be filed (if Purchaser elects to
pursue such remedy) within 90 days following the Closing Date provided for in Section 8.1.
Notwithstanding anything to the contrary contained herein, Purchaser's failure to give the
Election Notice and file a lawsuit for specific performance within the applicable time periods set
forth above shall constitute an irrevocable election by Purchaser not to pursue its remedy of
specific performance, in which event this Contract shall automatically terminate,=the Title
Company promptly shall deliver the Earnest Money to Purchaser, and neither party shall have
any further rights or obligations under this Contract except as otherwise expressly provided in
this Contract. Except as otherwise provided in Section 9.3, in no event shall Seller be liable to
Purchaser for damages (whether actual, speculative, consequential, punitive or otherwise) for a
breach or default in the performance of Seller's covenants under this Contract.
9.2 Default by Purchaser. In the event that performance of this Contract is tendered by
Seller and the sale is not consummated through default by Purchaser, then Seller, as Seller's
sole and exclusive remedy, shall have the right to terminate this Contract by giving written
notice thereof to Purchaser, whereupon the Title Company shall deliver the Earnest Money to
Seller, free of any claims by Purchaser, as liquidated damages, and neither party hereto shall
have any further rights or obligations under this Contract except as specifically provided
otherwise in this Contract. The Earnest Money is a good faith estimate of actual damages that
Seller would suffer and shall be liquidated damages for default of Purchaser because of the
difficulty, inconvenience and uncertainty of ascertaining Seller's actual damages for Purchaser's
failure to close this Contract.
9.3 Damages. If the Closing occurs, each party shall have the right to pursue its actual
damages against the other party (i) for a breach of any covenant contained herein that is
performable after or that survives the Closing (including the indemnification obligations of the
parties contained this Contract), and (ii) for a breach of any representation or warranty made by
the other party in this Contract (subject to the six month limitation on survival set forth in Section
6.1 above). If the Closing does not occur, (A) each party shall have its respective rights and
remedies under Section 9.1 and Section 9.2, as applicable, and (B) each party shall have all
available remedies against the other party for a breach of the other party's obligations contained
in this Contract that are expressly provided herein as surviving the termination of this Contract,
but neither party shall have any right to pursue any remedy against the other party on account
of a breach of the other party's representations and warranties set forth herein. In no event
shall either party be liable for any speculative, consequential or punitive damages.
ARTICLE 10
MISCELLANEOUS
10.1 Notices. Any notice, demand or other communication required to be given or to
be served upon any party hereunder shall be void and of no effect unless given in accordance
with the provisions of this section. All notices, demands or other communications must be in
writing and delivered to the person to whom it is directed, either (i) in person or (ii) delivered by
a reputable delivery service that provides a delivery receipt, or by fax. Any notice, demand or
other communication shall be deemed to have been given and received when delivered to the
below stated address of the party to whom it is addressed. All notices, demands and other
communications shall be given to the parties hereto at the following addresses:
Seller: Petrus Investment, L.P.
c/o Hillwood Development Company, LLC
5430 LBJ Freeway, Suite 800
Dallas, Texas 75240
Attn: Steven Howard
Fax No.(972) 201-2889
E-mail: steven.howard(a)hillwood.com
with copy to: Hillwood Development Company, LLC
5430 LBJ Freeway, Suite 800
Dallas, Texas 75240
Attn: Steve Wilkinson
Fax No. (972) 201-2889
E-mail: steve.wilkinson(a~hillwood.com
with copy to: Aperion Communities, LLLP
7835 East Redfield Road, Suite 100
Scottsdale, Arizona 85260
Attn: Gary Lane
Fax No. 480-951-8414
E-mail: garylaicp@aol.com
Purchaser: City of Denton [Pam add this info including fax nos.]
Real Estate and Capital Support
901-A Texas Street
Second Floor
Denton, Texas 76201
Attn: Pamela England
Fax No. (940) 349-8951
E-mail: Pamela.england@cityofdenton.com
with copy to: City of Denton
City Attorney
215 E. McKinney
Denton. Texas 76201
Attn: Edwin Snyder
Fax No. (940) 382-7923
E-mail: Edwin.snyder@cityofdenton.com
Any party entitled to receive notices hereunder may change the address for notice specified
above by giving the other party ten days' advance written notice of such change of address.
10.2 Survival. All covenants in this Contract providing for performance after the
Closing shall survive the Closing.
10.3 Binding Contract, Law This Contract shall be binding upon and shall inure to
the benefit of the parties hereto, their successors and assigns. Other than to a related party or
entity, Purchaser may not assign this Contract without the prior written consent of Seller. This
Contract may be assigned by Seller to one or more successor owners of the Property or a
portion thereof and, upon the assignment of this Contract by Seller, Seller shall have no further
liability hereunder provided that the assignee assumes the obligations of Seller under this
Contract. In addition, this Contract may be assigned by Seller to Aperion Communities, LLLP or
its designated related entity.
10.4 Interpretation and Applicable Law and Venue. THIS CONTRACT SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS. This contract is fully performable in Denton County, Texas. Exclusive venue for any
action to enforce or interpret this contract shall be in a Denton County court of competent
jurisdiction. Where required for proper interpretation, words in the singular shall include the
plural, and the masculine gender shall include the neuter and the feminine, and vice versa. The
descriptive headings of the articles, sections and paragraphs contained in this Contract are
inserted for convenience only and shall not control or affect the meaning or construction of any
of the provisions hereof. The term "including," and compounds of the word "include," when
preceding a list shall be deemed to mean "including but not limited to."
10.5 Amend ment/Waiver. Except as provided above with respect to the
automatically substituted Exhibit "A" Property description, this Contract may not be modified or
amended, except by an agreement in writing signed by the Seller and the Purchaser. The
parties may waive any of the conditions contained herein or any of the obligations of the other
party hereunder, but any such waiver shall be effective only if in writing and signed by the party
waiving such conditions or obligations.
10
10.6 Attorneys' Fees. In the event either party files a lawsuit in connection with this
Contract or any provisions contained herein, then the party that prevails in such action shall be
entitled to recover from the non-prevailing party, in addition to all other remedies or damages as
limited herein, reasonable attorneys' fees and costs of court incurred in such lawsuit. This
covenant shall survive the Closing or termination of this Contract.
10.7 Entire Agreement. This Contract (as amended pursuant to Section 4.1)
constitutes the entire agreement between the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings of the parties in
connection therewith. Unless set forth in this Contract, no representations, warranties,
covenants, agreements or conditions shall be binding upon the parties hereto or shall affect or
be effective to interpret, change or restrict the provisions of this Contract.
10.8 Multiple Counterparts. This Contract may be executed in two or more separate
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument. Signatures on counterparts of this Contract that are
transmitted by fax shall be deemed effective for all purposes.
10.9 Dates. If, pursuant to this Contract, any date indicated herein falls on a holiday
or a Saturday or Sunday, the date so indicated shall mean the next business day following such
date. The term "holiday" shall mean any day on which state or national banks are not open for
business in the State of Texas. The "Effective Date" of this Contract shall be the date on which
it is fully executed by the last of Seller or Purchaser to do so.
10.10 Brokers. [Intentionally deleted.]
10.11 Invalidity. In case anyone or more of the provisions contained in this Contract
shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and this Contract shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
10.12 Time of Essence. Purchaser and Seller acknowledge that time is of the
essence in this Contract.
10.13 1031 Treatment as Like-Kind Exchange. Purchaser and Seller acknowledge
and agree that Seller may desire to have its transfer of the Property to Purchaser qualify as a
deferred like-kind exchange within the meaning of Section 1031 of the Internal Revenue Code
of 1986, as amended. Seller and Purchaser acknowledge and agree that Seller intends to
effectuate a deferred like-kind exchange through the use of an intermediary in the manner
described in Treas. Reg. § 1.031(k)-1(g)(8), example 4, or other applicable provision. Purchaser
agrees to reasonably cooperate with Seller in effectuating such a deferred like-kind exchange
through the use of such an intermediary including consenting to an assignment of Seller's rights
under this Contract to an intermediary. Purchaser, however, shall have no obligation to locate,
contract for or take title to any property that Seller may wish to acquire or to incur any
indebtedness or other obligation as a part of Purchaser's agreement to cooperate.
10.14 Location of Flood Plain. Seller makes no representation or warranty, express
or implied, regarding the location of any 100 year flood plain or the impact of a 100 year flood
plain on the Property. Any costs or expenses associated with the revision of the 100 year flood
plain or revision of the 100 year flood plain map, including (a) administrative and filing expenses
for obtaining a conditional letter of map revision or letter of map revision, and (b) costs of
11
construction to revise the 100 year flood plain, shall be borne solely and exclusively by
Purchaser, and Seller shall have no liability therefor.
10.15 As Is. PURCHASER ACKNOWLEDGES THAT EXCEPT FOR ANY EXPRESS
WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS CONTRACT AND
SELLER'S SPECIAL WARRANTY OF TITLE CONTAINED IN THE DEED, PURCHASER IS
NOT RELYING ON ANY WRITTEN, ORAL, IMPLIED OR OTHER REPRESENTATIONS,
STATEMENTS OR WARRANTIES BY SELLER OR ANY AGENT OF SELLER OR ANY REAL
ESTATE BROKER OR SALESMAN. ALL PREVIOUS WRITTEN, ORAL, IMPLIED OR
OTHER STATEMENTS, REPRESENTATIONS, WARRANTIES OR AGREEMENTS, IF ANY,
ARE MERGED IN THIS CONTRACT. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SELLER SHALL HAVE NO LIABILITY TO PURCHASER, AND PURCHASER HEREBY
RELEASES SELLER FROM ANY LIABILITY (INCLUDING CONTRACTUAL AND/OR
STATUTORY ACTIONS FOR CONTRIBUTION OR INDEMNITY), FOR, CONCERNING OR
REGARDING (1) THE NATURE AND CONDITION OF THE PROPERTY, INCLUDING THE
SUITABILITY THEREOF FOR ANY ACTIVITY OR USE; (2) ANY IMPROVEMENTS OR
SUBSTANCES LOCATED THEREON; OR (3) THE COMPLIANCE OF THE PROPERTY
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR
OTHER BODY. THE FOREGOING INCLUDES A RELEASE OF SELLER FROM CLAIMS
BASED ON SELLER'S NEGLIGENCE IN WHOLE OR IN PART AND CLAIMS BASED ON
STRICT LIABILITY. SELLER HAS NOT MADE, DOES NOT MAKE AND EXPRESSLY
DISCLAIMS, ANY WARRANTIES, REPRESENTATIONS, COVENANTS OR GUARANTEES,
EXPRESSED OR IMPLIED, OR ARISING BY OPERATION OF LAW, AS TO THE
MERCHANTABILITY, HABITABILITY, QUANTITY, QUALITY OR ENVIRONMENTAL
CONDITION OF THE PROPERTY OR ITS SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR USE. PURCHASER AFFIRMS THAT PRIOR TO CLOSING
PURCHASER SHALL HAVE (i) INVESTIGATED AND INSPECTED THE PROPERTY TO ITS
SATISFACTION AND BECOME FAMILIAR AND SATISFIED WITH THE CONDITION OF THE
PROPERTY, AND (ii) MADE ITS OWN DETERMINATION AS TO (a) THE
MERCHANTABILITY, QUANTITY, QUALITY AND CONDITION OF THE PROPERTY,
INCLUDING THE POSSIBLE PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES,
MATERIALS OR WASTES OR OTHER ACTUAL OR POTENTIAL ENVIRONMENTAL
CONTAMINATES, AND (b) THE PROPERTY'S SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR USE. PURCHASER HEREBY ACCEPTS THE PROPERTY IN
ITS PRESENT CONDITION ON AN "AS IS", "WHERE IS" AND "WITH ALL FAULTS",
INCLUDING ENVIRONMENTAL, BASIS AND ACKNOWLEDGES THAT (i) WITHOUT THIS
ACCEPTANCE, THIS SALE WOULD NOT BE MADE, AND (ii) THAT SELLER SHALL BE
UNDER NO OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIR, ALTERATION,
REMEDIATION OR OTHER WORK OF ANY KIND WITH RESPECT TO ANY PORTION OF
THE PROPERTY. IF THE CLOSING OCCURS, PURCHASER AND ITS SUCCESSORS AND
ASSIGNS HAVE, AND SHALL BE DEEMED TO HAVE, ASSUMED ALL RISK AND
LIABILITY WITH RESPECT TO THE PRESENCE OF TOXIC OR HAZARDOUS
SUBSTANCES, MATERIALS OR WASTES OR OTHER ACTUAL OR POTENTIAL
ENVIRONMENTAL CONTAMINATES ON, WITHIN OR UNDER THE SURFACE OF THE
PROPERTY, WHETHER KNOWN OR UNKNOWN, APPARENT, NON-APPARENT OR
LATENT, AND WHETHER EXISTING PRIOR TO, AT OR SUBSEQUENT TO TRANSFER OF
THE PROPERTY TO PURCHASER. SELLER IS HEREBY RELEASED BY PURCHASER
AND ITS SUCCESSORS AND ASSIGNS OF AND FROM ANY AND ALL RESPONSIBILITY,
LIABILITY, OBLIGATIONS AND CLAIMS, KNOWN OR UNKNOWN, INCLUDING (1) ANY
OBLIGATION TO TAKE THE PROPERTY BACK OR REDUCE THE PRICE, OR (2) ACTIONS
FOR CONTRIBUTION OR INDEMNITY, THAT PURCHASER OR ITS SUCCESSORS AND
12
ASSIGNS MAY HAVE AGAINST SELLER OR THAT MAY ARISE IN THE FUTURE, BASED
IN WHOLE OR IN PART UPON THE PRESENCE OF TOXIC OR HAZARDOUS
SUBSTANCES, MATERIALS OR WASTES OR OTHER ACTUAL OR POTENTIAL
ENVIRONMENTAL CONTAMINATES ON, WITHIN OR UNDER THE SURFACE OF THE
PROPERTY, INCLUDING ALL RESPONSIBILITY, LIABILITY, OBLIGATIONS AND CLAIMS
THAT MAY ARISE UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT, AS AMENDED 42 U.S.C. § 9601 ET SEQ.
PURCHASER FURTHER ACKNOWLEDGES THAT THE PROVISIONS OF THIS
PARAGRAPH HAVE BEEN FULLY EXPLAINED TO PURCHASER AND THAT PURCHASER
FULLY UNDERSTANDS AND ACCEPTS THE SAME. THE PROVISIONS OF THIS
PARAGRAPH SHALL SURVIVE CLOSING AND SHALL BE INCLUDED IN THE DEED.
10.16 Confidentiality. Purchaser and Purchaser's Representatives shall use their best
efforts to keep, and cause their respective employees, agents, contractors and subcontractors
to keep confidential all information, materials, records, data, drawings, specifications,
engineering and other documents related to the Work (the "Documents") and not disclose the
existence of the Documents or their contents to any person or entity, including but not limited to
any federal, state, or local governmental agency, without the express written consent of Seller.
Notwithstanding the forgoing Purchaser as a municipality must comply with the Texas Public
Information Act, Chapter 552 of the Texas Government Code (the "Act'). Any disclosure
required by the Act shall not be deemed a violation of this provision.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS.]
13
SELLER:
PETRUS INVESTMENT, L.P.,
a Texas limited partnership
By: PMC Management, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its g ne I partne . L B
Y
PURCHASER:
CITY OF DENTON
ByC i~
George C. Campbell,
City Manager
Date: Q 1I 109
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY:
14
06/30/2008 14:23 FAX 4609518414 RECORP 11002/002
ACKNOWLEDGEMENT OF APERION COMMUNITIES LLLP:
Petrus Investment, L.P. ('Seller), as seller, and Aperion Communities, LLLP, as
purchaser ("A rion") have entered into that certain Purchase and Sale Agreement dated
effective September 21, 2005, as amended (the "Aperion Contract"), for the purchase and sale
of approximately 3,343 acres located in Denton County, Texas, as more specifically described
therein (the "Aperion Contract Property"). The Property (as defined in the Purchase and Sale
Agreement between Seller and the City of Denton, to which this Acknowledgment is attached
(the "City of Denton Contract")) is a part of the Aperion Contract Property to be purchased by
Aperion. Aperion hereby consents to and acknowledges the City of Denton Contract and the
rights of the City of Denton to purchase the Property pursuant to the City of Denton Contract.
Aperion is executing this Acknowledgement for the sole purpose of acknowledging the City of
Denton's right to purchase the Property from Seller pursuant to the terms of the City of Denton
Contract. Aperion hereby agrees to execute any and all other documents and Instruments
required by Seller, the City of Denton or the Title Company (as defined in the City of Denton
Contract) to evidence the City of Denton's rights to purchase and own the Property free and
clear of any claims or rights by Aperion, including, without limitation, executing an amendment
to the Aperioin Contract removing the Property from the Aperion Contract Property to be
purchased by Aperion thereunder.
APERION COMMUNITIES, LLLP,
an Arizona limited liability limited partnership
By: Ae~i/
Name: lad.n P. tNe.,,
Title: 'Peasrn"T.
1s
The undersigned Title Company acknowledges receipt of the Earnest Money and
agrees to hold and disburse the Earnest Money as provided in this Contract.
REPUBLIC TITLE
By:
Name:
Title:
Date:
Attachments:
Exhibit A - Property Description
Exhibit B - Deed
16
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EXHIBIT A
to
Purchase and Sale Agreement
PROPERTY DESCRIPTION
(Attached)
EXHIBIT B
to
Purchase and Sale Agreement
SPECIAL WARRANTY DEED
THE STATE OF TEXAS §
COUNTY OF DENTON §
THAT, , a ("Grantor"), for and in consideration
of the sum of $10.00 cash in hand paid by THE CITY OF DENTON, TEXAS ("Grantee"), whose
address is , Denton, Texas , and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by Grantor, has
GRANTED, BARGAINED, SOLD and CONVEYED and by these presents does GRANT,
BARGAIN, SELL and CONVEY unto Grantee for park and recreational purposes only, that
certain tract of real property situated in Denton County, Texas, and described in Exhibit "A"
attached hereto and made a part hereof for all purposes, together with all and singular the
rights, privileges, hereditaments, and appurtenances pertaining to such real property, including
any and all improvements and fixtures currently attached to and located thereon (the
"Propert v").
There is hereby reserved for Grantor and Grantor's successors and assigns, all of
Grantor's interest in the oil, gas and other minerals that are in and under the Property and that may
be produced from it (all of which interests are excluded from the definition of "Property"); provided,
however, Grantor shall not have the right of ingress and egress over the surface of the Property for
mining, drilling, exploring, operating, and developing such oil, gas and other minerals.
This conveyance is being made by Grantor and accepted by Grantee subject to all
easements, restrictions, rights, reservations, encumbrances and other matters described in
Exhibit "B", attached hereto and incorporated herein by reference (collectively, the "Permitted
Exceptions").
TO HAVE AND TO HOLD the Property, together with, all and singular, the rights and
appurtenances thereto in anywise belonging, to Grantee and Grantee's successors and assigns
forever; and subject to the Permitted Exceptions, Grantor does hereby bind Grantor and
Grantor's successors and assigns to warrant and forever defend, all and singular, the Property
unto the Grantee and Grantee's 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, subject to the Permitted Exceptions.
Grantee acknowledges that, except for the special warranty of title contained in this Deed,
neither Grantor nor its representatives have made any representations or warranties as to the
Property or its environmental or physical condition, upon which Grantee has relied. Grantee
further acknowledges and agrees that (1) GRANTEE RELEASES GRANTOR FROM CLAIMS
BASED ON SELLER'S NEGLIGENCE AND CLAIMS BASED ON STRICT LIABILITY, AND
(2) GRANTOR HAS NOT MADE, DOES NOT MAKE AND EXPRESSLY DISCLAIMS, ANY
WARRANTIES, REPRESENTATIONS, COVENANTS OR GUARANTEES, EXPRESSED OR
IMPLIED, OR ARISING BY OPERATION OF LAW, AS TO THE MERCHANTABILITY,
HABITABILITY, QUANTITY, QUALITY OR ENVIRONMENTAL CONDITION OF THE
PROPERTY OR ITS SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
USE. GRANTEE AFFIRMS THAT IT (a) HAS INVESTIGATED AND INSPECTED THE
PROPERTY TO ITS SATISFACTION AND IS FAMILIAR AND SATISFIED WITH THE
CONDITION OF THE PROPERTY, AND (b) HAS MADE ITS OWN DETERMINATION AS TO
(i) THE MERCHANTABILITY, QUANTITY, QUALITY AND CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE POSSIBLE PRESENCE OF TOXIC OR
HAZARDOUS SUBSTANCES, MATERIALS OR WASTES OR OTHER ACTUAL OR
POTENTIAL ENVIRONMENTAL CONTAMINATES, AND (ii) THE PROPERTY'S
SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. GRANTEE
HEREBY ACCEPTS THE PROPERTY IN ITS PRESENT CONDITION ON AN "AS IS",
"WHERE IS" AND "WITH ALL FAULTS", INCLUDING ENVIRONMENTAL, BASIS AND
ACKNOWLEDGES THAT (a) WITHOUT THIS ACCEPTANCE, THIS CONVEYANCE WOULD
NOT BE MADE, AND (b) THAT GRANTOR SHALL BE UNDER NO OBLIGATION
WHATSOEVER TO UNDERTAKE ANY REPAIR, ALTERATION, REMEDIATION OR OTHER
WORK OF ANY KIND WITH RESPECT TO ANY PORTION OF THE PROPERTY. GRANTEE
AND ITS SUCCESSORS AND ASSIGNS HAVE, AND SHALL BE DEEMED TO HAVE,
ASSUMED ALL RISK AND LIABILITY WITH RESPECT TO THE PRESENCE OF TOXIC OR
HAZARDOUS SUBSTANCES, MATERIALS OR WASTES OR OTHER ACTUAL OR
POTENTIAL ENVIRONMENTAL CONTAMINATES ON, WITHIN OR UNDER THE SURFACE
OF THE PROPERTY, WHETHER KNOWN OR UNKNOWN, APPARENT, NON-APPARENT
OR LATENT, AND WHETHER EXISTING PRIOR TO, AT OR SUBSEQUENT TO, TRANSFER
OF THE PROPERTY TO GRANTEE. GRANTOR IS HEREBY RELEASED BY GRANTEE
AND ITS SUCCESSORS AND ASSIGNS OF AND FROM ANY AND ALL RESPONSIBILITY,
LIABILITY, OBLIGATIONS AND CLAIMS, KNOWN OR UNKNOWN, INCLUDING, WITHOUT
LIMITATION (1) ANY OBLIGATION TO TAKE THE PROPERTY BACK OR REDUCE THE
PRICE, OR (2) ACTIONS FOR CONTRIBUTION OR INDEMNITY, THAT GRANTEE OR ITS
SUCCESSORS AND ASSIGNS MAY HAVE AGAINST GRANTOR OR THAT MAY ARISE IN
THE FUTURE BASED IN WHOLE OR IN PART UPON THE PRESENCE OF TOXIC OR
HAZARDOUS SUBSTANCES, MATERIALS OR WASTES OR OTHER ACTUAL OR
POTENTIAL ENVIRONMENTAL CONTAMINATES ON, WITHIN OR UNDER THE SURFACE
OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ALL RESPONSIBILITY,
LIABILITY, OBLIGATIONS AND CLAIMS THAT MAY ARISE UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT,
AS AMENDED, 42 U.S.C. § 9601 ET SEQ., THE RESOURCE CONSERVATION AND
RECOVERY ACT, AS AMENDED, 42 U.S.C. § 6901 ET. SEQ., THE OIL POLLUTION ACT, 33
U.S.C. § 2701 ET SEQ., AND THE TEXAS SOLID WASTE DISPOSAL ACT TEX. HEALTH &
SAFETY CODE ANN. § 361 ET SEQ. GRANTEE FURTHER ACKNOWLEDGES THAT THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY EXPLAINED TO GRANTEE AND
THAT GRANTEE FULLY UNDERSTANDS AND ACCEPTS THE SAME.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE(S) FOLLOWS.
EXECUTED to be effective the day of 2008.
GRANTOR:
PETRUS INVESTMENT, L.P.,
a Texas limited partnership
By: PMC Management, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its general partner
By:
Name:
Title:
THE STATE OF TEXAS
COUNTY OF
This instrument was acknowledged before me on the day of , 2008, by
of Hillwood Development Company,
LLC, a Texas limited liability company, as general partner of PMC Management, L.P., a Texas
limited partnership, in its capacity as general partner of Petrus Investment, Inc., a Texas limited
partnership, on behalf of said limited partnership.
My Commission Expires:
Notary Public, State of Texas
Printed/Typed Name
EXHIBIT A
to
Special Warranty Deed
Legal Description
EXHIBIT B
to
Special Warranty Deed
Permitted Exceptions
The lien for ad valorem taxes not yet due and payable.
Permitted Exceptions as established under this Contract.
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This First Amendment to the Purchase and Sale Agreement (this "First Amendment") is signed to be
effective as of the 4`day of August, 2008 by and between PETRUS INVESTMENT, L.P., a Texas
Limited Partnership, (hereinafter referred to as "SELLER"), and the CITY OF DENTON, TEXAS, a home
rule municipality (hereinafter referred to as "PURCHASER"), to wit:
WITNESSETH
WHEREAS, SELLER and PURCHASER entered into that certain Purchase and Sale Agreement with
an effective date of July 15, 2008 (the `'Agreement"). The Agreement and this First Amendment are
hereinafter collectively referred to as the "Agreement"; and
WHEREAS, SELLER and PURCHASER desire to amend the Agreement as set forth herein;
NOW, THEREFORE, in consideration of one dollar and other good and valuable consideration,
including the mutual promises contained herein, the receipt and sufficiency of which is acknowledged by both
parties hereto, SELLER and PURCHASER do hereby agree as follows:
The first sentence of Article 4.2, page 2 of the Agreement is modified by extending the period to
object to the title commitment and the survey to September 12, 2008. The term "title
commitment" refers only to the final pre-closing (amended) commitment and not to any interim or
preliminary title commitment.
2. The first sentence of Article 5.1 of the Agreement is hereby deleted in its entirety and replaced
with the following:
"Purchaser shall have until September 12, 2008 (the "Inspection Period") in which to review
the Property and determine whether the Property is suitable for Purchaser's needs."
3. The first sentence of Article 8.1 of the Agreement is hereby deleted in its entirety and replaced
with the following:
"The sale and purchase of the Property shall be consummated at a closing (the "Closing") to
be held at the offices of the Title Company. The Closing shall occur at 10:00 a.m. Central
Time on September 15, 2008, unless an earlier date is agreed to in writing by the Seller and
Purchaser (the "Closing"); provided, however, in the event that the parties agree that the
Closing shall be held on a date that is prior to the expiration of the Inspection Period, the
Inspection Period shall automatically expire on such earlier Closing Date."
4. In every other respect, SELLER and PURCHASER do hereby ratify, adopt, and confirm the
Agreement and stipulate that same is in full force and effect, and agree to be bound thereby.
This First Amendment may be executed in multiple faxed counterparts. The capitalized
terms not otherwise defined herein shall have the same meanings as in the Agreement. In
the event of any conflict between the meaning of any provision of this First Amendment
and any other provision of the Contract, then the provisions of this First Amendment
shall control.
Dated to be effective as set forth above.
SELLER:
PETRUS INVESTMENT, L.P.,
A Texas limited partnership
By: PMC Management, L.P.,
A Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
A Texas limited liability company,
Its general partner
By:
Name: AC 7U&m4ks M0S;w
Title: a!760v710ls v. P.
PURCHASER:
THE CITY OF DENTON
oooo
By:
eorge - . Campbell,
City Manager
ATTEST:
Jennifer Walters, City Secretary
By:
APPROVED AS TO FORM:
Interim City Attorney,
City of Denton, Texas
By:
AUK-NOWLEDGEMENT OF AMENDMENT TO PURCHASE AND SALE
AGREEMENT BYAPERION COMMUNITIES, LLLP
Petrus Investment, L.P., ("Seller"), and Aperion Communities, LLP, ("Aperion"), entered
into that certain Purchase and Sale Agreement dated September 21, 2005, and as amended (the
"Aperion Contract"), for the purchase and sale of approximately 3,343 acres located in Denton
County, Texas, as more specifically described therein (the "Aperion Contract Property").
Aperion has acknowledged and accepted the Purchase and Sale Agreement between the City
of Denton as purchaser and Petrus Investment, L.P. as Seller ("the City of Denton Contract
Property"), with an effective date of July 15, 2008, for an approximate 200 acre portion of the
Aperion Contract Property as evidenced by an Acknowledgement of Aperion Communities, LLLP.
Aperion hereby acknowledges and accepts the First Amendment to Purchase and Sale
Agreement for the City of Denton Contract Property dated August 2008.
APERION COMMUNITIES, LLLP,
An Arizona limited liability limited partnership
By:
Name: David P Maniatis
Title: President