EXHIBIT A

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 1 of 99


PLAINTIFF’S ORIGINAL PETITION – Page 1

CAUSE NO. _____________ 

WG MONTERREY VENTURE LLC § IN THE DISTRICT COURT OF 

§ 

 Plaintiff, § 

§ 

v. § BEXAR COUNTY, TEXAS 

§ 

DIG MONTEREY VILLAGE, LLC, 

and DORNIN INVESTMENT GROUP, 

LLC 

 Defendants. 

§ 

§ 

§ _______ JUDICIAL DISTRICT 

PLAINTIFF’S ORIGINAL PETITION 

Plaintiff WG Monterrey Venture LLC (“Plaintiff” or “Seller”) files this Original Petition 

complaining of Dornin Investment Group, LLC ( “Dornin” or “Purchaser”) and DIG Monterey 

Village, LLC (“DIG,”), and would respectfully show the Court the following: 

I. NATURE OF ACTION 

1. This lawsuit arises from Purchaser’s failure and refusal to close on the sale of the 

multi-family property known as the Echelon at Monterrey Village. Purchaser was supposed to 

close on March 26, 2020, with time being of the essence. Because Purchaser failed to close, and 

Seller was ready, willing, and able to close, Seller is entitled to the Earnest Money provided by 

contract. Seller brings this suit for the Earnest Money, together with its costs and fees. 

II. DISCOVERY CONTROL PLAN 

2. Plaintiff intends to conduct discovery under Level 2 pursuant to Rule 190 of the 

Texas Rules of Civil Procedure. 

III. PARTIES 

3. Plaintiff is a foreign limited liability company, organized under the laws of 

Delaware. Plaintiff owns the property in Texas that is the subject of this lawsuit. 

FILED

3/27/2020 9:16 AM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Annabelle Kung

2020CI06275

166TH

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 4 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 2

4. Dornin and DIG are both limited liability companies, organized under the laws of 

Delaware and doing business in the State of Texas. Dornin can be served with process by and 

through the Texas Secretary of State. DIG can be served with process by and through DIG’s 

registered agent, Lawyer's Aid Service, Inc., 505 West 15th Street, Austin, Texas 78701. 

IV. JURISDICTION AND VENUE 

5. This Court has personal jurisdiction over Dornin and DIG because they have 

purposefully availed themselves of the benefits and protections of this forum by doing business 

in Texas, including by entering into an agreement for the purchase of property located in Texas. 

They also contractually agreed to jurisdiction in Texas for any proceeding arising out of the 

transaction that forms the basis of this lawsuit. 

6. This Court has subject matter jurisdiction over this matter because the amount in 

controversy is in excess of the minimum jurisdictional threshold for this Court. 

7. Venue is proper in Bexar County, Texas because this suit involves real property 

located in Bexar County. TEX. CIV. PRAC. & REM. CODE § 15.0111. Venue is also proper in 

Bexar County, Texas because a substantial part of the events or omissions giving rise to this suit 

have occurred in Bexar County. TEX. CIV. PRAC. & REM. CODE at § 15.002(a)(1). 

V. FACTS 

A. Seller and Purchaser Enter into the PSA and Purchaser Proceeds with Due 

Diligence. 

8. Seller and Purchaser entered into the Purchase and Sale Agreement dated as of 

January 6, 2020 (the “Original PSA”), concerning the sale of the Echelon at Monterrey Village 

located in the City of San Antonio, Texas (the “Property”). The parties amended the Original 

PSA with the “First Amendment to Purchase” dated as of January 27, 2020. The agreed upon 

purchase price for the Property was $38,000,000.00. Dornin entered into an Assignment 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 5 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 3

Agreement with DIG on January 29, 2020, but remained jointly and severally liable under the 

Original PSA, as amended by the First Amendment to Purchase. 

9. Pursuant to Section 2.3 of the Original PSA, Purchaser deposited $500,000 in 

Earnest Money with the escrow agent on or about January 8, 2020, and deposited another 

$500,000 in Earnest Money with the escrow agent on or about February 12, 2020 (the “Earnest 

Money”). 

10. The First Amendment to Purchase established the Closing Date of the transaction 

as March 11, 2020. The Purchaser, though, pursuant to Section 4 to the First Amendment to 

Purchase had “the right upon written notice to Seller . . . to extend the Closing for one period of 

fifteen (15) days upon depositing with the Title Insurer the sum of Two Hundred Fifty Thousand 

and 00/100 Dollars . . .” (the “Extension Deposit”). 

11. Pursuant to this right, Purchaser gave notice to Seller by letter dated March 3, 

2020, that “Purchaser has elected to extend the Closing Date for a period of fifteen (15) days, 

and accordingly, the Closing Date is . . . extended until March 26, 2020.” Purchaser further 

informed Seller in the same letter it would deliver the Extension Deposit on March 11, 2020. 

12. Despite this promise, Purchaser failed and refused to deliver the Extension 

Deposit. Instead, Purchaser changed its position and contended that the Extension Deposit was 

not due until the time of Closing. Although Seller disagreed with Purchaser’s position, it relied 

on Purchaser and agreed to move forward to Closing, with the Extension Deposit to be paid at 

Closing. As of the date of this Pleading, Purchaser had not delivered the Extension Deposit. 

13. Section 4.3 of the Original PSA established that a Due Diligence Period would 

take place ending on January 27, 2020. The parties agreed that, at any time during the Due 

Diligence Period, and in fact “for any reason or for no reason whatsoever,” Purchaser had the 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 6 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 4

right to terminate the PSA under Section 4.6 of the Original PSA. Seller and Purchaser together 

extended this Due Diligence Period to February 10, 2020 in the First Amendment to Purchase. 

14. During the Due Diligence Period, Seller provided Purchaser with a variety of 

information about the Property, including recent rent rolls which reflected the rents due from 

each tenant. During the Due Diligence Period, Purchaser had access to Seller’s rent rolls through 

the “Yardi” software system. The system was accessible at an any point during this time, and in 

fact Purchaser accessed it many times. 

B. Purchaser Proceeds with the Transaction Following the Due Diligence Period 

Despite the Hubert Lease. 

15. The Property has over 200 tenants. At any given time, Seller is engaged in 

attempts to enter into new leases or otherwise renew leases of existing tenants. The time 

between execution of the Original PSA and the scheduled Closing was no different. 

16. Under Section 7.2 of the Original PSA, the Purchaser and Seller agreed that “in 

no event shall Seller alter, amend, modify, supplement or extend the term of any Lease or enter 

into any new Lease upon terms other than as provided on Schedule 7.2 . . . without Purchaser’s 

prior written consent.” Seller and Purchaser negotiated this language of Section 7.2 to avoid, 

according to an email exchange between the parties on December 30, 2019, “a situation where 

seller charges big upfront fees and gives units away for free leaving us stuck with year leases 

way below market.” The same section of the Original PSA also emphasized that “Seller shall 

continue to operate and lease the Property in the ordinary course of business and consistent with 

past practice.” 

17. Well before the Original PSA was executed, and in accordance with its ordinary 

course of business and consistent with past practices, Seller made offers to existing tenants to 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 7 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 5

renew their leases. The aggregate renewal offers were more favorable than the amounts 

otherwise provided in Schedule 7.2. 

18. As part of its due diligence regarding the potential transaction, Purchaser 

reviewed the leases to which Seller was a party. During the Due Diligence Period, on or about 

February 5, 2020, Purchaser raised to Seller that the Renewal Lease of Kyle Hubert (the 

“Hubert Lease”) was for $100 less a month than agreed upon in Schedule 7.2 to the Original 

PSA. Seller explained that the offer was made prior to the Original PSA execution date of 

January 6, 2020. The Hubert Lease was signed on January 21, 2020 and the renewal rate was 

published on the Yardi system beginning on January 22, 2020. However, despite having access 

to the system and clearly being aware of the renewal rate difference prior to the close of the Due 

Diligence Period, Purchaser did not terminate the PSA pursuant to Section 4.6 during the Due 

Diligence Period. 

19. In fact, in a letter dated February 10, 2020, Purchaser informed Seller that 

Purchaser was making the affirmative election to proceed with Closing under Section 4.6 of the 

Original PSA. 

C. Purchaser Fails to Close. 

20. On March 18, 2020, Purchaser sent a letter to Seller stating that it did not intend 

to close the transaction. Purchaser wrote it was “exercising its rights under Section 10.2 of the 

PSA” to terminate the agreement because Seller’s renewal of “certain leases, including the 

Hubert Lease” was “an event of default which is not subject to cure.” Under Section 10.2 of the 

Original PSA, only if “default or failure is not cured [by Seller] within ten (10) business days 

after delivery of written notice” was Purchaser entitled to remedy for the alleged default. This 

10 day period had not expired when, on March 18, 2020, Purchaser alleged the supposed default 

was uncurable. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 8 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 6

21. On March 20, 2020, Seller responded to this letter reminding Purchaser that it had 

been made aware of the renewal of the Hubert Lease prior to extending the Closing Date, but 

failed to raise the concern at that time. Seller also made an offer to cure the default Purchaser 

alleged, despite there being no default or obligation to cure. Seller demanded that “Purchaser 

close in accordance with the PSA.” 

22. Seller has fully performed all of its duties and obligations under the Original PSA 

and First Amendment to Purchase, and no Event of Default by Seller has occurred. Seller was 

ready, willing, and able to close on the Closing Date. All requirements and conditions precedent 

to Purchaser’s obligation to close under the Original PSA and First Amendment to Purchase have 

been performed or have occurred. 

VI. DECLARATORY RELIEF UNDER THE UNIFORM DECLARATORY 

JUDGMENTS ACT 

23. Seller re-alleges the preceding paragraphs as if fully set forth herein, and seeks a 

declaratory judgment. 

24. Purchaser did not close the sale in accordance with the terms of the Original PSA 

and First Amendment to Purchase. 

25. Pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code, Seller 

seeks a declaratory judgment that: 

a) No Event of Default by Seller has occurred; 

b) All requirements and conditions precedent to Seller’s right to exercise the Closing 

of the Sale under the Original PSA and First Amendment to Purchase have been 

performed or have occurred; 

c) Purchaser has failed to close on the sale; 

d) Seller is entitled to the $1 million in Earnest Money; 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 9 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 7

e) Seller is entitled to another $250,000 as the Extension Deposit due from 

Purchaser; and 

f) For reasonable and necessary costs and attorney’s fees as are equitable and just. 

VII. COUNT I – PROMISSORY ESTOPPEL 

26. Seller re-alleges the preceding paragraphs as if fully set forth herein, and sues 

Purchaser for promissory estoppel. 

27. Purchaser promised Seller it would provide Seller with the Extension Deposit on 

March 11, 2020. Specifically, Purchaser promised it would provide Seller with the deposit 

amount in exchange for exercising its right to extend the Closing Date for 15 days past the 

original Closing Date of March 11, 2020. The promise was made directly to Seller by Purchaser, 

in the letter dated March 3, 2020. 

28. Seller reasonably and substantially relied on the promise of Purchaser to its 

detriment by allowing Purchaser to extend the Closing Date an extra 15 days. In addition, after 

Purchaser failed and refused to deliver the Extension Deposit, contending that the Extension 

Deposit was not due until Closing, Seller continued to rely on Purchaser’s promise and agreed to 

move forward to Closing, with the Extension Deposit to be paid at Closing. 

29. Seller’s reliance on Purchaser’s promise was foreseeable. 

30. As Purchaser has now failed to Close, injustice can only be avoided by enforcing 

Purchaser’s promise to pay the Extension Deposit. 

VIII. COUNT II -- BREACH OF CONTRACT 

31. Seller re-alleges the preceding paragraphs as if fully set forth herein, and in the 

alternative sues Purchaser for breach of contract. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 10 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 8

32. The Original PSA and First Amendment to Purchase constitute a valid contractual 

relationship between the Purchaser and Seller, under which Purchaser agreed to pay the purchase 

price, or if Purchaser breached to pay the Earnest Money. 

33. Purchaser breached its contractual obligation to Seller by failing to Close with 

Seller on March 26, 2020. 

34. Seller has fully performed all of its duties and obligations under the Original PSA 

and First Amendment to Purchase. All requirements and conditions precedent to Seller’s right of 

recovery of the Earnest Money owed under the Original PSA have been performed or have 

occurred. 

35. Seller has made demands on Purchaser to Close. As of the date of the filing of 

this Original Petition, Purchaser has failed to Close. In addition, Purchaser has failed to remit 

payment of the unpaid amounts owed to Seller. 

36. As a direct and proximate result of Purchaser’s breach of the PSA, Seller has 

sustained actual damages and is owed the Earnest Money. In addition to the Earnest Money, 

Seller is also entitled to recover certain other amounts, including, but not limited to, the 

Extension Deposit. The Extension Deposit was required to be paid under the Original PSA and 

First Amendment to Purchase if Purchaser exercised its right to extend the Closing Date, which it 

did. Under Sections 9.1 and 10.1 of the Original PSA, Seller is entitled to recover the Earnest 

Money and Extension Deposit. 

37. Seller is also entitled to recover pre-judgment and post-judgment interest as 

provided by state law. The damages sought by Seller are within the jurisdictional limits of this 

Court. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 11 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 9

38. As a result of Purchaser’s breach of the Original PSA and the First Amendment to 

Purchase, Seller has had to retain the undersigned attorneys to collect the outstanding amounts 

due and to represent it in this lawsuit. Pursuant to Chapter 38.001(8) of the Texas Civil Practice 

and Remedies Code, Seller is entitled to recover from Purchaser its costs and reasonable 

attorneys’ fees and expenses incurred in this lawsuit, including appeals, if any. Seller has 

performed all requirements and conditions precedent to recovering attorneys’ fees. 

IX. PRAYER FOR RELIEF 

WHEREFORE, Seller prays that Purchaser be cited to appear and answer herein and that 

Seller has judgment against Purchaser for the following: 

(a) Declaratory judgement as set out; 

(b) Specific performance of Purchaser’s promise; 

(c) In the alternative, actual damages in the form of Earnest Money, as a 

result of Purchaser’s breach of the Original PSA and the First Amendment 

to the Purchase, along with the Extension Deposit; 

(d) post-judgment interest as provided by law from the date of judgment until 

paid; 

(e) pre-judgment interest as allowed by law; 

(f) reasonable attorneys’ fees and expenses; 

(g) all costs of court; and 

(h) such further relief to which Seller may be justly entitled. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 12 of 99
PLAINTIFF’S ORIGINAL PETITION – Page 10

Dated: March 27, 2020. 

Respectfully submitted, 

VINSON & ELKINS LLP

/s/ Matthew Stammel 

Matthew R. Stammel 

 State Bar No. 24010419 

Emalee H. LaFuze 

 State Bar No. 24110897 

2001 Ross Avenue, Suite 3700 

Dallas, TX 75201-2975 

Telephone: 214.220.7700 

Facsimile: 214.220.7716 

E-mail: mstammel@velaw.com 

elafuze@velaw.com 

Attorneys for Plaintiff WG Monterrey Venture 

LLC

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 13 of 99
Canterbury Gooch Surratt Shapiro Stein Gaswirth & Jones, P.C.

4851 LBJ Freeway, Suite 301  Dallas, Texas 75244

(972) 239-7493 Telephone  (972) 490-7739 Facsimile  www.canterburylaw.com

 

Direct Phone: (972) 388-5165

Email: rshapiro@canterburylaw.com

April 27, 2020

Via E-File

Honorable Mary Angie Garcia

Bexar County District Clerk

101 W. Nueva, Suite 217

San Antonio, Texas 78205-3411

Re: Cause No. 2020CI06275; WG Monterrey Venture, LLC v. DIG Monterey Village, LLC and 

Dornin Investment Group, LLC; pending in the 166th Judicial District Court, Bexar County, 

Texas

Dear Ms. Garcia:

Please allow this letter to serve as a formal request for entry of an Agreed Order Granting 

Substitution of Counsel in the above entitled and numbered cause of action. Please present the Agreed 

Order to the Judge for consideration.

Thank you for your assistance in this matter.

Respectfully yours,

Robert J. Shapiro

/bc

Attachment (e-filing)

cc: All Counsel of Record (via E-Filing)

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 14 of 99
1

CAUSE NO. 2020CI06275

WG MONTERREY VENTURE, LLC

Plaintiff

vs.

DIG MONTEREY VILLAGE, LLC and

DORNIN INVESTMENT GROUP, LLC

Defendants

§ IN THE DISTRICT COURT

§

§

§

§

§

§

§

§

§

166th JUDIDCIAL DISTRICT

BEXAR COUNTY, TEXAS

AGREED ORDER GRANTING SUBSTITUTION OF COUNSEL

On this day came on to be heard the Motion of Matthew R. Stammel, Emalee H. LaFuze, and the 

law firm of Vinson & Elkins, LLP for the substitution of Robert J. Shapiro and the law firm of Canterbury, 

Gooch, Surratt, Shapiro, Stein & Jones, P.C. as counsel for Plaintiff WG Monterrey Venture, LLC. Counsel 

for Defendants has agreed to the Substitution of Counsel.

The Court finds that Robert J. Shapiro has certified that he has been retained by Plaintiff WG 

Monterrey Venture, LLC in this case and that the Motion should be granted. It is therefore,

ORDERED by the Court that Robert J. Shapiro and the law firm of Canterbury, Gooch, Surratt, 

Shapiro, Stein & Jones, P.C. shall be substituted as counsel of record for Plaintiff WG Monterrey Venture, 

LLC.

SIGNED _______________________, 2020.

_____________________________________________

JUDGE PRESIDING

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 15 of 99
2

AGREED:

/s/ Matthew Stammel

Matthew R. Stammel, State Bar No. 24010419

mstammel@velaw.com

Emalee H. LaFuze, State Bar No. 24110897

elafuze@velaw.com

VINSON & ELKINS, LLP

2001 Ross Avenue, Suite 3700

Dallas, Texas 75201

Telephone: 214.220.7700

Facsimile: 214.220.7716

/s/ Robert J. Shapiro 

Robert J. Shapiro, State Bar No. 18111075

rshapiro@canterburylaw.com

CANTERBURY, GOOCH, SURRATT, SHAPIRO,

STEIN, GASWIRTH & JONES, PC

4851 LBJ Freeway, Suite 301

Dallas, Texas 75244

Telephone: 972.239.7493

Facsimile: 972.490.7739

/s/ Matthew J. Swantner 

Matthew J. Swantner, State Bar No. 24066169

mswantner@jw.com

Jackson Walker, LLP

112 East Pecan Street, Suite 2400

San Antonio, Texas 78205

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 16 of 99
CAUSE NO. 2020-CI-06275

WG MONTERREY VENTURE LLC

Plaintiff,

vs. 

DIG MONTERREY VILLAGE, LLC and 

DORNIN INVESTMENT GROUP, LLC 

Defendants.

§

§

§

§

§

§

IN THE DISTRICT COURT OF

BEXAR COUNTY, TEXAS

166TH JUDICIAL DISTRICT

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM 

TO THE HONORABLE JUDGE OF SAID COURT:

Now come DIG Monterrey Village, LLC and Dornin Investment Group, LLC, Defendants

in the above numbered and styled cause (collectively, “Defendant” or “Purchaser”), and file this 

their Original Answer and Counterclaim for breach of contract, fraudulent inducement, promissory 

fraud, and failure of conditions precedent against Seller, WG Monterrey Venture, LLC (“WG,” or 

“Seller”), and in support thereof respectfully show the following to the Court:

I. SUMMARY OF DISPUTE

1. This is a fraud and breach of contract lawsuit involving a Purchase and Sale 

Agreement dated January 6, 2020 (the “Purchase Agreement”) for the sale of the Echelon at 

Monterrey Village Apartments in San Antonio, Texas (the “Apartments”). Defendant, Dornin 

Investment Group, LLC, was the Purchaser, and Plaintiff, WG Monterrey Venture LLC, was the 

Seller. 

2. Before executing the Purchase Agreement, Seller provided Purchaser with 

information regarding the Apartments including a rent roll describing then current occupancy rates, 

rental rates, and Seller’s determination of market rental rates for new leases and lease renewals. 

Notably, a copy of the December 31, 2019 rent roll for the Apartments containing Seller’s 

representation of market rental rates was attached to the Purchase Agreement as Exhibit C.

FILED

4/27/2020 12:00 AM

Mary Angie Garcia

Bexar County District Clerk

Accepted By: Michael Yanas

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 17 of 99
2

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

3. Because the purchase price for the Apartments was based on the market rental rates 

for new leases and lease renewals represented by Seller, Purchaser negotiated a schedule of 

minimum rental rates (the “Minimum Rental Rates”), which was attached as Schedule 7.2 to the 

Purchase Agreement, with Seller, which Minimum Rental Rates were the absolute floor rental 

rates for new leases or lease renewals to be effected by Seller prior to the close of escrow. 

4. Based on Seller’s representations (which Purchaser later learned to be untrue) and 

Seller’s agreement not to enter into any new lease or renew any existing Lease for a rental rate 

below the Minimum Rental Rates, Purchaser entered into the Purchase Agreement, opened escrow 

with a $500,000 earnest money deposit, and began a costly and time-consuming due diligence 

process. 

5. On January 27, 2020, based on the representations made by Seller to Purchaser to 

that point (which Purchaser later learned to be untrue), the parties entered into the First 

Amendment to the Purchase Agreement, which, among other things, served to waive all of 

Purchaser’s conditions to close other than a pending tax issue with the county. The First 

Amendment extended the Due Diligence Period to February 10, 2020 as it related only to the tax 

issue. Because the Seller had successfully resolved the pending tax issue on or about February 10, 

2020, Purchaser made the second earnest money deposit of $500,000.

6. On or about February 4, 2020, after the parties executed the First Amendment on 

January 27, 2020 (pursuant to which Purchaser waived all conditions to close other than the 

aforementioned tax issue), Purchaser learned that Seller had sent out renewal notices to several 

tenants for the renewal of such tenants’ leases at rental rates below the Minimum Rental Rates

prior to entering into the Purchase Agreement (despite Seller’s representation that the schedule of 

Minimum Rental Rates was based on Seller’s currently offered rates) and that Seller had in fact 

entered into a lease renewals with a tenant named Hubert on January 22, 2020 (i.e. five days prior 

to January 27, 2020) for a rental rate below the Minimum Rental Rates in clear violation of Section

7.2 of the Purchase Agreement (the “Hubert Lease” and together with each of the other leases 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 18 of 99
3

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

entered into by Seller in violation of the terms of the Purchase Agreement, the “Offending 

Leases”). It should be noted that Seller had also received two additional Offending Leases signed 

by the applicable tenants, which were not disclosed to Purchaser until on or about February 18, 

2020. In light of Seller’s decision to withhold such material information from Purchaser while 

inducing Purchaser to execute the Purchase Agreement and then the First Amendment affirm that 

Seller had no intention of honoring the terms of the Purchase Agreement at the time it was 

executed. 

7. At no time prior to the execution of the Purchase Agreement did Seller disclose to 

Purchaser the existence of the renewal notices for the Offending Leases. And, at no time prior to 

Purchaser waiving its conditions to close “for any reason or no reason whatsoever” did Seller 

disclose to Purchaser that Seller had received/executed the Offending Leases. Rather, Seller hid 

this critical information to induce Purchaser to execute the Purchase Agreement and then waive 

its conditions to close pursuant to the First Amendment. 

8. Had Purchaser known of the existence of the renewal offers for the Offending

Leases, it would have never entered into the Purchase Agreement (or the First Amendment) in the 

first instance. And, had Purchaser known that the market rental rates were actually decreasing 

despite Seller’s representations otherwise, Purchaser would never have agreed to purchase the 

Apartments. Seller’s intentional misrepresentation of the market rental rates, its unilateral

decision to enter into the Offending Leases (notwithstanding the clear prohibition against doing so 

in Section 7.2 of the Purchase Agreement), and its decision to conceal this material information to 

Purchaser, were fraudulent in nature and constituted events of default under the Purchase 

Agreement. Again, Seller fraudulently induced Purchaser to enter in to the Purchase Agreement

based on fraud, deceit and false representations and thereafter fraudulently induced Purchaser to 

enter into the First Amendment by failing to disclose that it had entered into the Offending Leases 

at rental rates below the Minimum Rental Rates in violation of Section 7.2 of the Purchase 

Agreement.

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 19 of 99
4

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

9. Based on Seller’s fraud, its numerous breaches, and the multiple failures of 

conditions precedent to Purchaser’s obligations under the Purchase Agreement, Purchaser sent

Seller a Notice of Default and demand for the return of its $1,000,000 in Earnest Money on March 

18, 2020. Despite Seller’s multiple breaches of the Purchase Agreement, its fraudulent conduct, 

and the multiple failures of the conditions precedent to Purchaser’s obligations, Seller has refused 

to return the Earnest Money, which necessitated this Lawsuit.

II. GENERAL DENIAL

10. Purchaser generally denies the allegations in Plaintiff’s Original Petition.

III. VERIFIED PLEA

11. Purchaser denies Seller’s allegation that all conditions precedent have been 

performed or have occurred. The specifics of this Verified Plea are described in the Causes of 

Action section below and are incorporated herein by reference. 

IV. AFFIRMATIVE DEFENSES

12. Fraud and Fraudulent Inducement, Deceit and Misrepresentation by Seller. 

Purchaser is not obligated to perform under the Purchase Agreement and is therefore not liable to 

Seller because Seller fraudulently induced Purchaser to enter into the Purchase Agreement and 

First Amendment based on Seller’s fraud, deceit, and misrepresentation. The specifics of this 

Affirmative Defense are described in the Causes of Action section below and are incorporated 

herein by reference.

13. Equitable Estoppel. Purchaser is not obligated to perform under the Purchase 

Agreement and is therefore not liable to Seller because Seller is equitably estopped from pursuing 

its claims. Seller’s claims arise from a real estate transaction in which Seller falsely represented 

to Purchaser that the occupancy rates, current rental rates, and anticipated market rental rates of 

the subject Apartments were better than they what they actually were. Further, Seller’s claims 

arise from a transaction in which Seller concealed that it had offered lease renewals with rental

rents less than the Minimum Rental Rates agreed upon with Purchaser. These concealed facts

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 20 of 99
5

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

were material to the transaction because Purchaser would not have executed the Purchase 

Agreement had it known that market rents on the Apartments were declining or that Seller had 

offered to renew leases at rental rates below the agreed upon Minimum Rental Rates. Seller 

intended for Purchaser to act upon Seller’s intentional misrepresentations and without knowledge 

of these concealed facts. Seller knew or had the means of knowing the real facts. Yet Purchaser 

neither knew nor had the means of knowing the real facts. Purchaser substantially, reasonably, 

and detrimentally relied on Seller’s misrepresentations and concealment.

14. Failure of Consideration. Purchaser is not obligated to perform under the Purchase 

Agreement and is therefore not liable to Seller because Seller failed to perform its material 

obligations under the Purchase Agreement. The specifics of this Affirmative Defense are 

described in the Causes of Action section below and are incorporated herein by reference.

15. Unclean Hands. Purchaser is not obligated to perform under the Purchase 

Agreement and is therefore not liable to Seller because of Seller’s wrongdoing for which Seller is 

attempting to benefit. The specifics of this Affirmative Defense are described in the Causes of 

Action section below and are incorporated herein by reference.

16. Purchaser is not obligated to perform under the Purchase Agreement and is 

therefore not liable to Seller based on any other avoidance or affirmative defense that discovery 

may yield.

V. COUNTERCLAIMS

A. FACTS

17. As explained above, Purchaser - Dornin Investment Group, LLC, and Seller - WG 

Monterrey Venture LLC, entered into the Purchase Agreement for the purpose of Purchaser 

purchasing the Apartments from Seller. A true and correct copy of the Purchase Agreement is 

attached hereto as Exhibit “A.” 

18. Seller’s parent company, The Garrett Companies LLC, describes itself as “full 

service Multifamily Development, Construction, and Management team based in Greenwood, 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 21 of 99
6

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

Indiana . . . [whose] team of professionals work in unison to entitle, develop, build, and manage 

multifamily apartment projects across the country.” 

19. Purchaser is a California-based “real estate investment firm that invests in 

commercial and residential real estate in partnership with a broad base of institutional and private 

investors.” After execution of the Purchase Agreement, Dornin Investment Group, LLC assigned 

the contract to its wholly owned subsidiary - DIG Monterrey Village, LLC, with the consent of 

Seller. 

20. On June 13, 2016, Seller obtained a $24,548,989 loan from BOK Financial for the 

construction of the Apartments. Leasing began in the fall of 2017, and the Apartments were 

completed in 2018. Importantly, Seller’s loan from BOK Financial matured on June 10, 2019 –

seven (7) months prior to Seller and Purchaser entering into the Purchase Agreement. 

21. Purchaser is informed and believes, and, on that basis alleges, that BOK Financial 

was forbearing on its enforcing of Seller’s defaulted loan, but had expressly required Seller (its 

borrower) to find a buyer for the Apartments, and have that buyer remove contingencies, no later 

than January 31, 2020, in order for it to continue to forbear. To that end, Seller retained Berkadia 

Proprietary Holding LLC (“Berkadia”) as its broker to sell the Apartments so that Seller could 

repay the BOK Financial loan. Furthermore, Purchaser is informed and believes, and, on that basis 

alleges, that at some time during the summer of 2019, Seller entered into an agreement to sell the 

Apartments with a buyer introduced to it by Berkadia, which such agreement was terminated some 

time prior to Berkadia introducing the Apartments to Purchaser.

22. In the fall of 2019, Berkadia contacted Purchaser and introduced the Apartments to 

Purchaser as an “off-market deal.” By this time, Seller being significantly past due on the

$24,548,989 BOK Financial construction loan and with the prior purchase agreement having been 

terminated, Seller desperately needed to sell the Apartments to pay off the loan. 

23. As discussions between the parties continued and before executing the Purchase 

Agreement, Seller provided two rent rolls (detailed spreadsheets with lease term, rent information, 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 22 of 99
7

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

and Seller’s representation of what the “market rent” is for all of the units within the Apartments)

to Purchaser — one for November 2019 and one for December 2019. Seller also provided 

Purchaser with a 12-month income statement for the period from December 2018 through

November 2019. Based on this information, it appeared that rental income at the Apartments was 

stable and expected to increase over time.

24. Also before executing the Purchase Agreement, Purchaser’s counsel notified Seller 

of its concerns that Seller would lease units during the Due Diligence Period, for less than the 

market rates represented by Seller in the rent rolls. Purchaser’s concern was due to the fact that 

the $38 million purchase price for the Property was based on Seller’s representations of market 

rental rates for new leases and lease renewal. In an email dated December 30, 2019, Seller’s 

General Counsel — Kyle McClammer — responded to Purchaser’s concern by proposing a 

schedule of rents (which schedule was added to the Purchase Agreement as Schedule 7.2) to define 

the absolute floor rental rates that Seller could agree to in new leases and lease renewals. 

According to Mr. McClammer, Seller was comfortable “utilizing [Schedule 7.2] to define the floor 

for market rents” because the rental rates in Schedule 7.2 were “based on [Seller’s] currently 

offered [rental] rates and concessions” [emphasis added] - despite the fact that Seller had already 

offered lease renewals for significantly less. . In other emails relating to this same issue, Mr. 

McClammer proposed that Purchaser provide “an updated rent roll [to Purchaser] just before 

expiration of the Due Diligence Period — that way, the [Purchaser’s] team can review what new 

leases/lease amendments have been signed and the associated rental rates, and the [Purchaser] can 

decide whether to continue [with the purchase] based on that information.” These proposals were 

accepted by Purchaser and incorporated into the Purchase Agreement as Section 7.2 and Schedule 

7.2. 

25. In relevant part, Section 7.2 states “in no event shall Seller alter, amend, modify, 

supplement or extend the term of any Lease or enter into any new Lease upon terms other than as 

provided on Schedule 7.2 (attached hereto) without Purchaser’s prior written consent.” 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 23 of 99
8

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

Importantly, the negotiated Minimum Rental Rates in Schedule 7.2 were purposely lower than the 

market rents represented by Seller in the rent roll attached to the Purchase Agreement so that there 

would be no issue with Seller being able to comply with its obligation in Section 7.2 of the 

Purchase Agreement. 

26. After concluding negotiations of the Purchase Agreement, on or about January 6, 

2020, the parties signed the Purchase Agreement and Seller provided Purchaser with a rent roll 

updated through that date. Seller’s production of the rent roll was in apparent compliance with 

Section 4.1(b) of the Purchase Agreement, which required Seller to provide Purchaser with a recent 

rent roll within three (3) business days after the Effective Date of the Purchase Agreement. 

Thereafter, Purchaser complied with all of its obligations under the Purchase Agreement and 

deposited $500,000 in Earnest Money with Fidelity National Title Company on January 8, 2020

(and an additional $500,000 in Earnest Money was deposited with Fidelity National Title 

Company on February 12, 2020 to bring the total Earnest Money deposit to $1,000,000). 

27. On January 27, 2020, the parties signed a First Amendment to Purchase Agreement

(the “First Amendment”), a true and correct copy of which is attached as Exhibit “B.” In the First 

Amendment, Purchaser waived its right to terminate the Purchase Agreement for any reason other 

than the aforementioned limited tax issue. 

28. Despite Seller’s prior production of the January 6 rent roll, Seller failed to comply 

with Section 7.2, which required Seller to provide Purchaser with an updated rent roll reflecting 

current lease activity at least twenty-four (24) hours before the expiration of the Due Diligence 

Period. It should also be noted that Seller also failed to disclose the fact that it had entered into 

the Hubert Lease on January 22, 2020 (in violation of Section 7.2) until February 4, 2020 or that 

it was in possession of the other signed Offending Leases until on or about February 18, 2020 – in 

each case, after Seller had induced Purchaser to waive its right to terminate the Purchase 

Agreement “for any reason or for no reason whatsoever” pursuant to the First Amendment. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 24 of 99
9

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

29. Notably, had Seller delivered the rent roll as required under Section 7.2 revealing a 

significant change in the financial performance of the Apartments from December 2019 to January 

2020, or had Seller’s disclosed that it had entered into the Hubert Lease or of the existence of the 

other signed Offending Leases, Purchaser would not have entered into the First Amendment, but 

would have instead promptly terminated the Purchase Agreement. 

30. Although the First Amendment extended the “Due Diligence Period” to February 

10, 2020, Purchaser could no longer terminate the Purchase Agreement “for any reason or for no 

reason whatsoever.” Instead, Purchaser’s right to terminate the Purchase Agreement was limited 

to Seller’s failure to satisfy certain tax obligations. Because Seller’s actions and omissions 

discussed in this lawsuit do not relate to the tax matters, only the initial Due Diligence Period (i.e. 

the period ending on January 27, 2020) is relevant to this lawsuit. 

31. By email dated February 4, 2020 (eight days following Purchaser’s wavier of its 

right to terminate the Purchase Agreement “for any reason or for no reason whatsoever”), Seller 

disclosed the Hubert Leases to Purchaser for the first time. The next day, Purchaser responded to 

Seller’s disclosure of the Offending Leases by notifying Seller that it had violated Section 7.2 of 

the Purchase Agreement by entering into lease renewals with monthly rents below the Minimum 

Rental Rates in Schedule 7.2 without Purchaser’s consent (and without disclosure to Purchaser).

On February 18, 2020, the parties had a call to discuss operations at the Apartments and lease 

renewals. On that call and over email correspondence occurring over the next three days, 

Purchaser learned to its dismay that Seller had not only unilaterally agreed to the Hubert Lease 

disclosed in the February 4 correspondence, but also that it had sent renewal offers to multiple 

tenants with rental rents below the Minimum Rental Rates in Schedule 7.2 in the months preceding 

the execution of the Purchase Agreement (i.e. Seller had no intention of performing its obligations 

under Section 7.2 of the Purchase Agreement) and that Seller had entered into the other Offending 

Leases. Seller’s fraud, dishonestly, misrepresentations and breach of the Purchase Agreement as 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 25 of 99
10

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

it related to the Minimum Rental Rates and the Offending Leases had reached an intolerable point 

for Seller at this juncture. 

32. Seller’s intentional failure to disclose that it had offered renewals to the 

Apartments’ tenants for less than the Minimum Rental Rates while at the same time negotiating 

those same Minimum Rental Rates was an act of fraud and deceit by Seller intended by Seller to 

induce Purchaser to enter into the Purchase Agreement and Seller’s intentional failure to disclose 

the Hubert Lease and the other signed Offending Leases in violation of Section 7.6 of the Purchase 

Agreement, which required that Seller “keep Purchaser [Defendant] informed as to the ongoing 

operations at the Property and to all material developments . . . including, providing Purchaser 

[Defendant] with (i) prompt notice of all new Leases . . . or modifications to existing Leases . . .and 

(ii) copies of all material correspondence . . . delivered with respect to the Property . . . .” was an 

act of fraud and deceit by Seller intended by Seller to induce Purchaser to enter into the First 

Amendment.

33. Seller’s failure to disclose also breached its representation in Section 4.2 of the 

Purchase Agreement where Seller “represent[ed] that [it] has no actual knowledge that any ...

information is incomplete or misleading in any material respect.” (emphasis added).

34. In response to mounting evidence of Seller’s fraud, deceit, misrepresentation, 

breach of the Purchase Agreement, and failure to disclose material information regarding the 

decline in net rental income and the existence of the Offending Leases, Purchaser sent Seller a 

Notice of Default on March 18, 2020 as required by Section 10.2 of the Purchase Agreement, and 

demanded the return of its Earnest Money, in addition to other relief afforded by the terms of the 

Purchase Agreement. 

35. Seller responded by letter on March 20, 2020 and rejected Purchaser’s Notice of 

Default and refused return of Purchaser’s $1,000,000 Earnest Money.

B. CAUSES OF ACTION

Count One—Breach of Contract: Seller Breached Section 7.2 of the Purchase Agreement

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 26 of 99
11

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

36. All preceding paragraphs are incorporated herein as if fully set forth.

37. Seller breached Section 7.2 of the Purchase Agreement by entering into the 

Offending Leases with rental rates below the Minimum Rental Rates as required by Section 7.2 

and Schedule 7.2. Section 7.2 of the Purchase Agreement was the subject to significant negotiation 

and was material consideration for Purchaser to enter into the Purchase Agreement. Seller knew 

(or should have known) that Purchaser would not have entered to the Purchase Agreement had 

Seller not agreed to the Minimum Rental Rates provided in Schedule 7.2.

38. Seller also breached Section 7.2 of the Purchase Agreement by failing to provide 

Purchaser with an updated rent roll at least twenty-four (24) hours before the expiration of the Due 

Diligence Period. Seller knew (or should have known) that Purchaser would not have entered to 

the First Amendment had Seller provided the updated rent roll as required by Section 7.2 to 

Purchaser.

39. Seller cannot cure these breaches/events of default because Purchaser learned about 

them after signing the Purchase Agreement, and after waiving its right to terminate the Purchase 

Agreement “for any reason or for no reason whatsoever”, when Purchaser had already lost its 

ability to consider this information and exercise its right to terminate the Purchase Agreement “for 

any reason or for no reason whatsoever” and recover its Earnest Money as provided by Section 4.6 

of the Purchase Agreement. 

40. As a direct result of Seller’s breach, Purchaser is entitled to return of the Earnest 

Money Purchaser deposited with Fidelity National Title Company along with its actual, direct, 

indirect, nominal, incidental, reliance, consequential, economic, and non-economic damages 

incurred because of Seller’s breach of the Purchase Agreement. Purchaser further seeks 

reimbursement of its reasonable and necessary attorneys’ fees, interest, and cost of court as further 

alleged below and as allowed under the Purchase Agreement and by statute.

Count Two—Breach of Contract: Seller Breached Section 4.2 of the Purchase Agreement

41. All preceding paragraphs are incorporated herein as if fully set forth.

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 27 of 99
12

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

42. Seller breached Section 4.2 of the Purchase Agreement by failing to inform 

Purchaser that both the rent roll attached to the Purchase Agreement and the January 6, 2020 rent 

roll delivered pursuant to Section 4.1(b) were intentionally misleading.

43. More specifically, the January 6, 2020 rent roll represented that the market rent for 

a lease with a tenant named Hubert was $1,260 per month despite the fact that Seller had already 

offered to renew the Hubert lease for $999 per month (i.e. $261 below the market rental rate 

represented by Seller and $100 below the applicable Minimum Rental Rate). Seller did not 

disclose the renewal rate offered to Hubert nor the fact that Seller executed the Hubert lease

renewal (on January 22, 2020) until February 4, 2020 – 13 days after Seller accepted the renewal 

Hubert lease, and 8 days after Seller fraudulently induced Purchaser to waive its right to terminate 

the Purchase Agreement “for any reason or no reason whatsoever” on January 27, 2020. 

44. Seller cannot cure this breach/event of default because Purchaser learned about 

Seller’s actions after signing the Purchase Agreement, and after the expiration of the initial Due 

Diligence Period, when Purchaser had lost its ability to consider this information and exercise its 

right to terminate the Purchase Agreement “for any reason or for no reason whatsoever” and 

recover its Earnest Money as provided by Section 4.6 of the Purchase Agreement.

45. As a direct result of Seller’s breach, Purchaser is entitled to return of the Earnest 

Money Purchaser deposited with Fidelity National Title Company along with its actual, direct, 

indirect, nominal, incidental, reliance, consequential, economic, and non-economic damages 

incurred because of Seller’s breach of the Purchase Agreement. 

46. Purchaser further seeks reimbursement of its reasonable and necessary attorneys’

fees, interest, and cost of court as further alleged below and as allowed under the Purchase 

Agreement and by statute.

Count Three—Breach of Contract: Seller Breached Section 7.6 of the Purchase Agreement

47. All preceding paragraphs are incorporated herein as if fully set forth.

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 28 of 99
13

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

48. Seller breached Section 7.6 by failing to disclose that it had already offered 

renewals to several of the Apartments’ tenants for less than the Minimum Rental Rates despite 

Seller’s express obligation to do so. Seller also breached Section 7.6 by failing to disclose that it 

had entered into the Offending Leases without the consent of Purchaser.

49. Seller cannot cure this breach/event of default because Purchaser learned about 

Seller’s actions after signing the Purchase Agreement, and after the initial Due Diligence Period 

expired, when Purchaser had already lost its ability to consider this information and exercise its 

right to terminate the Purchase Agreement “for any reason or for no reason whatsoever” and 

recover its Earnest Money as provided by Section 4.6 of the Purchase Agreement. 

50. As a direct result of Seller’s breach, Purchaser is entitled to return of the Earnest 

Money Purchaser deposited with Fidelity National Title Company along with its actual, direct, 

indirect, nominal, incidental, reliance, consequential, economic, and non-economic damages 

incurred because of Seller’s breach of the Purchase Agreement.

Count Four—Failure of Conditions Precedent: Seller’s Compliance with Articles 4.2, 7.2, 

and 7.6 were Conditions Precedent. 

51. All preceding paragraphs are incorporated herein as if fully set forth.

52. The truth of Seller’s representation in Section 4.2, which provides, in relevant part, 

“Seller represents that Seller has no actual knowledge that any ... information [disclosed to 

Purchaser] is incomplete or misleading in any material respect” was a condition precedent to the 

enforcement of Purchaser’s obligations under the Purchase Agreement.

53. Because Seller’s representation at Section 4.2 was knowingly false; it was a failure 

of a condition precedent to Purchaser’s obligations under the Purchase Agreement. 

54. Additionally, Seller’s obligation to obtain Purchaser’s prior written consent prior 

to entering into any new leases/lease renewals at rental rates below the Minimum Rental Rate as 

required by Section 7.2 was a condition precedent to the enforcement of Purchaser’s obligations 

under the Purchase Agreement, and Seller’s obligation to provide Purchaser with an updated rent 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 29 of 99
14

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

roll depicting lease activity during the Due Diligence Period at least twenty-four (24) hours before 

the expiration of the Due Diligence Period as required by Section 7.2, was a condition precedent 

to the enforcement of Purchaser’s obligations under the Purchase Agreement.

55. Because Seller did not obtain Purchaser’s prior written consent prior to entering 

into the Offending Leases and Seller did not provide Purchaser with an updated rent roll depicting 

lease activity during the Due Diligence Period at least twenty-four (24) hours before the expiration 

of the Due Diligence Period; it was a failure of a condition precedent to Purchaser’s obligations 

under the Purchase Agreement. 

56. Further, Seller’s obligation under Section 7.6 to “keep Purchaser [Defendant] 

informed as to the ongoing operations at the Property and to all material developments 

. . . including, providing Purchaser [Defendant] with (i) prompt notice of all new Leases . . . or 

modifications to existing Leases . . . and (ii) copies of all material correspondence . . . delivered 

with respect to the Property . . . .” was a condition precedent to the enforcement of Purchaser’s 

obligations under the Purchase Agreement.

57. Seller failed to disclose that it had entered into the Offending Leases at rental rates 

below the Minimum Rental Rates as required by Schedule 7.2; therefore, it did not comply with 

its obligations under Section 7.6 and so another condition precedent to Purchaser’s obligations 

under the Purchase Agreement failed to occur. 

58. Because of the failure of these conditions precedent, the provisions of the Purchase 

Agreement, which would otherwise obligate Purchaser to purchase the Apartments and/or cause 

the Earnest Money to be non-refundable, are not enforceable.

59. Accordingly, Purchaser requests that the Court order the refund of the $1,000,000 

in Earnest Money to Purchaser. 

Count Five—Fraudulent Inducement: Seller Fraudulently Induced Purchaser into 

Executing the Purchase Agreement and the First Amendment

60. All preceding paragraphs are incorporated herein as if fully set forth.

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 30 of 99
15

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

61. Seller knowingly or recklessly concealed material information concerning (i) the 

financial performance of the Apartments and (ii) its actions of providing renewal offers for the 

Offending Leases and then unilaterally executing the Offending Leases for below the Minimum 

Rental Rates in breach of the Purchase Agreement.

62. Seller knew or should have known that Purchaser would value this information as 

material because Purchaser requested and negotiated the addition of a specific provision at Section

7.2 of the Purchase Agreement, which required that monthly rents exceed the Minimum Monthly 

Rents and that Seller not enter into any new leases or lease renewals with rental rates below such

amounts.

63. Seller intentionally or recklessly withheld this information until after Purchaser 

signed the Purchase Agreement and after Purchaser waived its right to terminate the Purchase 

Agreement “for any reason or for no reason whatsoever.”

64. As a result of Seller’s deceitful omissions of material fact, Purchaser relied upon 

the information it had received from Seller (which was intentionally incomplete and misleading)

and elected to enter into the Purchase Agreement and to not terminate the Purchase Agreement

during the initial Due Diligence Period. 

65. Had Purchaser known about Seller’s actions concerning the Offending Leases

(including the existence of renewal offers at below Minimum Rental Rates at the time Seller was 

negotiating the Purchase Agreement), Purchaser would not have entered into to the Purchase 

Agreement and would have terminated the Purchase Agreement prior to the expiration of the initial

Due Diligence Period and prior to the execution of the First Amendment. It is noteworthy to 

mention that Seller had executed (and/or was in possession of) the Offending Leases on or about 

January 22, 2020 – while Seller was negotiating the First Amendment. Seller’s acts to secret such 

Offending Leases while negotiating (and executing) this important First Amendment is still further 

evidence of Seller’s intentional fraudulent behavior.

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 31 of 99
16

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

66. As a direct result of Seller’s fraudulent inducement of Purchaser to enter into both 

the Purchase Agreement and the First Amendment, Purchaser is entitled to return of the Earnest 

Money Purchaser deposited with Fidelity National Title Company along with its actual, direct, 

indirect, nominal, incidental, reliance, consequential, economic, and non-economic damages 

incurred because of Seller’s breach of the Purchase Agreement.

67. Purchaser’s injury resulted from Seller’s actual fraud, deceit, misrepresentation, 

gross negligence, and malice, which entitles Purchaser to exemplary damages under Section 

41.003(a) of the Texas Civil Practice & Remedies Code.

Count Six—Statutory Fraud: Seller Violated Tex. Bus. & Com. Code § 27.01

68. All preceding paragraphs are incorporated herein as if fully set forth.

69. Purchaser and Seller were parties to a transaction involving real estate.

70. During the transaction, Seller made one or more false promises to Purchaser with 

the intent not to fulfill such promises, which promises were material to the transaction and to 

Purchaser’s decision to enter into the Purchase Agreement. In reliance on Sellers (false) promises, 

Purchaser entered into the Purchase Agreement to Purchaser’s detriment. 

71. Specifically, Seller proposed the schedule of Minimum Rental Rates, which was 

attached to the Purchase Agreement as Schedule 7.2, which Seller represented was based on 

Seller’s “currently offered rates” – despite the fact that Seller knew it had already offered to renew 

leases at the Apartment for rental rates below those same Minimum Rental Rates proposed by 

Seller, and in reliance on Seller’s (false) promise, Purchaser agreed to enter into the Purchase 

Agreement to Purchaser’s detriment.

72. Additionally, in Section 4.6 of the Purchase Agreement, Seller represented that 

Seller had “no actual knowledge that any ... information [disclosed to Purchaser] [was] incomplete 

or misleading in any material respect” – despite the fact that Seller knew that the market rents 

disclosed in the rent rolls provided to Purchaser (including, the rent roll attached to the Purchase 

Agreement) were materially overstated because Seller had already offered to renew certain leases 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 32 of 99
17

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

at rental rates below such market rents), and in reliance on Seller’s (false) representation, Purchaser 

agreed to enter into the Purchase Agreement to Purchaser’s detriment.

73. Further, in Section 7.6, of the Purchase Agreement, Seller promised to “keep 

Purchaser [Defendant] informed as to the ongoing operations at the Property and to all material 

developments . . . including, providing Purchaser [Defendant] with (i) prompt notice of all new 

Leases . . . or modifications to existing Leases . . . and (ii) copies of all material correspondence 

. . . delivered with respect to the Property . . . .” – despite the fact that Seller had no intent on 

fulfilling such promise (as evidenced by Seller’s failure to disclose the existing offers to renew 

leases at below the Minimum Rental Rates, and by Seller’s failure to disclose that it had executed 

the Hubert Lease prior to Purchaser having waived its right to terminate the Purchase Agreement 

“for any reason or no reason whatsoever”). In reliance on Seller’s (false) representations, 

Purchaser agreed to enter into the First Amendment to Purchaser’s detriment. 

74. Purchaser justifiably relied on Seller’s false representations and false promises by 

entering into the Purchase Agreement. Specifically, based on these representations and 

agreements by Seller, Purchaser executed the Purchase Agreement, opened escrow with a 

$500,000 earnest money deposit, and began a costly and time-consuming due diligence process.

75. Unbeknownst to Purchaser at the time of the execution of the Purchase Agreement

was the fact that, notwithstanding the clear promises made by Seller in the Purchase Agreement

regarding below market leases and timely disclosure of any new leases or modifications to leases,

Seller had already provided tenants and prospective tenants with offers to renew their leases for 

rental rates below the negotiated Minimum Rental Rates.

76. Seller’s behavior reflects that during the negotiation and at the time of the execution 

of the Purchase Agreement, Seller had no intention to perform the promises contained therein in 

reference to the Minimum Rental Rates (or Seller’s disclosure obligations) and made such false 

promises to fraudulently induce Purchaser to sign the Purchase Agreement in what Purchaser 

believes was an attempt to save itself from the impending foreclosure of its loan on the Apartments.

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 33 of 99
18

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

77. Seller’s false representations and false promises proximately caused injury to 

Purchaser. Consequently, Purchaser is entitled to return of the Earnest Money Purchaser deposited 

with Fidelity National Title Company along with its actual, direct, indirect, nominal, incidental, 

reliance, consequential, economic, and non-economic damages incurred because of Seller’s fraud.

78. Exemplary damages. Seller violated Section 27.01 of the Texas Business 

& Commerce Code, which is the basis of this suit, with actual awareness of the falsity of Seller’s 

representations or promises, which entitles Purchaser to exemplary damages under Section 

27.01(c).

Count Seven—Negligent Misrepresentation

79. All preceding paragraphs are incorporated herein as if fully set forth.

80. Seller represented to Purchaser that the Minimum Rental Rates - the absolute floor 

rental rate for leases or lease renewals to be effected by Seller prior to the close of escrow - were 

the rates that Seller was “currently offer[ing]”.

81. Seller made the representation in the course of Seller’s business and in a transaction 

in which Seller had a pecuniary interest. Seller made the representation to induce Purchaser into 

entering into the Purchase Agreement to buy the Apartments. 

82. Seller’s representation was a material (and intentional) misstatement of fact 

because Seller knew that it had already offered to enter into leases and lease renews with rental 

rates that were below the Minimum Rental Rates. Further, Seller also failed to disclose 

information when Seller had a duty to so disclose. Under Section 7.6 of the Purchase Agreement, 

Seller was required to disclose to Purchaser all material developments related to the Apartments, 

including any new leases and lease renewals. 

83. Seller did not use reasonable care in communicating the information to Purchaser. 

84. Purchaser actually and justifiably relied on Seller’s representations when Purchaser 

represented that leases would exceed the Minimum Rental Rates and that Seller would keep 

Purchaser apprised of all material developments related to the Apartments. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 34 of 99
19

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

85. Seller’s misrepresentations proximately caused injury to Purchaser. Purchaser is 

entitled to return of the Earnest Money Purchaser deposited with Fidelity National Title Company 

along with its actual, direct, indirect, nominal, incidental, reliance, consequential, economic, and 

non-economic damages incurred because of Seller’s breach of the Purchase Agreement.

86. Exemplary damages. Purchaser’s injury resulted from Seller’s gross negligence, 

which entitles Purchaser to exemplary damages under Section 41.003(a)(3) of the Texas Civil 

Practice & Remedies Code.

C. ATTORNEYS’ FEES

87. All preceding paragraphs are incorporated herein as if fully set forth.

88. Pursuant to Chapter 38 of the Texas Civil Practices & Remedies Code, Chapter 27 

of the Texas Business and Commerce Code, and Section 10.2 of the Purchase Agreement, 

Purchaser seeks recovery of its reasonable and necessary attorneys’ fees incurred in connection 

with the negotiation of the Purchase Agreement, as a result of its due diligence on the Property, 

obtaining financing, and representation in this lawsuit.

89. Purchaser perfected its right to fees under the Texas law and the Purchase 

Agreement by providing Seller with a Notice of Default on March 18, 2020. Seller rejected 

Purchaser’s Notice of Default and demand for payment; therefore, Purchaser was required to retain

the services of the undersigned counsel to prosecute this action.

VI. PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants-Purchasers pray that the Court 

dismiss all of Plaintiff’s claims against them and that Purchasers be awarded judgment for the 

following relief against Seller:

a. Monetary damages;

b. Punitive/Exemplary Damages

c. Prejudgment interest;

d. All costs of court;

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 35 of 99
20

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

e. All attorneys’ fees incurred by Purchasers;

f. Post-judgment interest; and

g. Such other and further relief, special or general, legal or equitable, as 

Purchasers may show themselves to be justly entitled to receive.

Respectfully submitted,

JACKSON WALKER LLP

112 East Pecan Street, Suite 2400

San Antonio, Texas 78205

(210) 978-7700

(210) 978-7790 – Fax

mswantner@jw.com

zzurek@jw.com 

By: /s/ Matthew J. Swantner

Matthew J. Swantner

State Bar No. 24066169

Zach Zurek

State Bar No. 24079668

ATTORNEYS FOR DEFENDANTSPURCHASERS

CERTIFICATE OF SERVICE

I hereby certify that on April 24, 2020, I electronically filed the foregoing document with 

the Clerk of the Court using CM/ECF system which will send notification of such filing to the 

following counsel of record:

Matthew R. Stamel mstammel@velaw.com

Emalee H. LaFuze elafuze@velaw.com

Vinson & Elkins LLP

2001 Ross Avenue, Suite 3700 

Dallas, Texas 75201-2975

 /s/ Matthew J. Swantner

Matthew J. Swantner

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 36 of 99
20

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

25512837v.11

JURAT

My name is Christopher R. Dornin, my date of birth is May 7, 1977, and my work address 

is 6725 Via Austi Parkway, Suite 380, Las Vegas, Nevada 89119. I declare under penalty of 

perjury that the foregoing Defendants-Purchasers’ Original Answer and Counterclaim and that 

every statement contained in paragraphs 11 and 51 through 59 of the Original Answer and 

Counterclaim is within my personal knowledge and is true and correct.

Executed in Blaine County, State of Idaho, on the _____ day of April 2020.

_____________________

Declarant

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 37 of 99
22

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

EXHIBIT A

PURCHASE AND SALE AGREEMENT

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 38 of 99
1190996/LA 

PURCHASE AND SALE AGREEMENT 

BETWEEN 

WG MONTERREY VENTURE LLC 

AS “SELLER” 

AND 

DORNIN INVESTMENT GROUP, LLC 

AS “PURCHASER” 

DATED AS OF JANUARY 6, 2020 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 39 of 99
1190996/LA 

PURCHASE AND SALE AGREEMENT 

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of 

January 6, 2020 (the “Effective Date”), by and between WG MONTERREY VENTURE LLC,

a Delaware limited liability company (“Seller”), and DORNIN INVESTMENT GROUP, LLC, 

a Delaware limited liability company (“Purchaser”). 

IN CONSIDERATION of the Earnest Money (as defined in this Agreement), the mutual 

covenants of the parties, and for other good and valuable consideration, the receipt and sufficiency 

of which are hereby acknowledged, the Purchaser and Seller agree follows: 

ARTICLE 1 

PURCHASE AND SALE 

1.1 Agreement of Purchase and Sale. Subject to the terms and conditions hereinafter 

set forth, Seller agrees to sell and convey, and Purchaser agrees to purchase, the following: 

(a) that certain tract or parcel of land situated in San Antonio, Texas, more 

particularly described on Exhibit A, together with all and singular the rights and appurtenances 

pertaining to such property, including any right, title and interest of Seller in and to adjacent streets, 

alleys, or rights-of-way (the “Land”); 

(b) the buildings, structures, fixtures and other improvements located on the 

Land (the “Improvements”); 

(c) all of Seller’s right, title and interest in and to all tangible personal property 

upon the Land or within the Improvements, including specifically, without limitation, appliances, 

furniture, carpeting, draperies and curtains, tools and supplies, and other items of personal property 

owned by Seller and used exclusively in connection with the operation of the Land and the 

Improvements (the “Personal Property”); 

(d) all of Seller’s right, title and interest in and to all agreements pursuant to 

which any portion of the Land or Improvements is used or occupied by anyone other than Seller 

(the “Leases”); and 

(e) pursuant to Section 1.4 hereof, all of Seller’s right, title and interest in and 

to (i) all assignable service contracts, equipment and furniture leases and agreements listed and 

described on Exhibit B (the “Service Contracts Schedule”), relating to the upkeep, repair, 

maintenance or operation of the Land, Improvements or Personal Property (collectively, the 

“Service Contracts”); (ii) all assignable trade names, logos, licenses, permits, air rights, 

certificates of occupancy, signs, trademarks, telephone listings and numbers, but expressly 

excluding the “Echelon” trademark, trade name and logo, web domain, and internet address, and 

any other trademark, trade name, logo, website, web domain or internet address that includes the 

term “Echelon”; (iii) all freely assignable warranties/guarantees relating to the Improvements or 

the Personal Property other than any warranty or guarantee from The Garrett Construction 

Company, LLC (“Garrett Construction”); and (iv) all rights to any plans, specifications, 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 40 of 99
1190996/LA 

-2- 

engineering studies, reports, drawings, and prints relating to the construction of the Improvements 

(collectively, the “Intangibles”). 

1.2 Property Defined. The Land, the Improvements, the Personal Property, the Leases, 

the Service Contracts and the Intangibles are sometimes referred to collectively as the “Property.” 

1.3 Permitted Exceptions. The Property will be conveyed subject to the matters which 

are, or are deemed to be, Permitted Exceptions pursuant to Article 3 hereof (the “Permitted 

Exceptions”). 

1.4 Service/Lease Contracts. Seller or its property manager shall have the right to enter 

into new Service Contracts after the Effective Date in its normal course of business or in the normal 

course of business of a prudent multifamily property manager. Purchaser will notify Seller at least 

thirty (30) days prior to Closing which, if any, Service Contracts Purchaser will not assume at 

Closing (the “Rejected Service Contracts”); provided, however, Purchaser shall be obligated to 

assume the contract for provision of cable, internet, phone and/or telecommunications services to 

the Property a copy of which is attached as Exhibit K. Seller shall cause the Rejected Service 

Contracts to be terminated as of Closing and Seller shall be responsible for the payment of any 

termination fees associated therewith. 

1.5 No Warranty. Subject to the representations and warranties of Seller set forth in 

this Agreement, Seller is selling, and Purchaser is purchasing, the Property “AS IS, WHERE IS”, 

and with all faults; provided, that, in no event shall this Section 1.5 be interpreted as waiving or 

otherwise limiting any of Purchaser’s rights under applicable warranties/guarantees relating to the 

construction of the Improvements and/or applicable Texas construction defect laws. The survival 

of the provisions of this Section 1.5 are a material inducement to Seller entering into this 

Agreement and accordingly shall survive the Closing or earlier termination of this Agreement and 

shall be deemed incorporated into the Closing Documents to be delivered at Closing. 

ARTICLE 2

PURCHASE PRICE & EARNEST MONEY 

2.1 Purchase Price. The purchase price for the Property is Thirty Eight Million Five 

Hundred and 00/100 Dollars ($38,500,000.00) (the “Purchase Price”). 

2.2 Payment of Purchase Price. The Purchase Price is payable in full at Closing, 

without reduction, adjustment or setoff (other than as expressly authorized with respect to the 

closing adjustments and prorations set forth in Article 9), in cash by federal wire transfer of 

immediately available funds to a bank account designated by Seller in writing to Title Insurer at 

or prior to Closing. 

2.3 Earnest Money. Earnest money payments shall be made as follows: 

(a) On or before January 8, 2020 (i.e. two (2) days following the Effective Date 

of this Agreement), Purchaser shall deposit with Fidelity National Title (the “Title Insurer”) an 

initial deposit of Five Hundred Thousand and 00/100 Dollars ($500,000.00) (together with interest 

earned thereon, the “Initial Deposit”). Purchaser shall deposit an additional Five Hundred 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 41 of 99
1190996/LA 

-3- 

Thousand and 00/100 Dollars ($500,000.00) (together with interest earned thereon, the 

“Additional Deposit”) within two (2) business days following the Due Diligence Period if 

Purchaser has not terminated this Agreement pursuant to the terms hereof prior to the expiration 

of the Due Diligence Period (the “Additional Deposit”). Failure of Purchaser to deposit the 

Additional Deposit as provided herein shall be deemed confirmation of Purchaser’s election to 

terminate this Agreement pursuant to Section 4.6. The Initial Deposit, the Additional Deposit and 

all other deposits required herein, together with all interest earned on such sums are referred to 

herein as the “Earnest Money”. All Earnest Money will apply toward the Purchase Price. 

2.4 Independent Consideration. Notwithstanding anything in this Agreement to the 

contrary, One Hundred Dollars ($100.00) of the Initial Deposit (the “Independent 

Consideration”) shall be paid by Title Insurer to Seller and considered completely nonrefundable 

to Purchaser in all events, it being the intent of the parties to recognize that such amount has been 

bargained for and agreed to as independent consideration for Purchaser’s exclusive right to 

purchase the Property pursuant to and in accordance with this Agreement, and for Seller’s 

execution and delivery of this Agreement. The Independent Consideration shall be applied 

towards the Purchase Price at Closing only if Closing occurs but shall otherwise be nonrefundable 

as aforesaid. 

ARTICLE 3

TITLE AND SURVEY 

3.1 Seller’s Title and Survey Deliveries. Seller shall deliver to Purchaser within five 

(5) business days hereof: 

(a) a copy of Seller’s existing policy of title insurance; and 

(b) a copy of Seller’s most recent survey of the Property. 

3.2 Title Examination and Survey. Purchaser shall obtain a title commitment for the 

Property from the Title Insurer and a survey from a surveyor of its choice. Purchaser shall 

complete its examination of title to the Property, including, without limitation, matters of survey, 

prior to the expiration of the Due Diligence Period (as hereinafter defined). Without limiting the 

foregoing, if there is any matter of title or survey adversely affecting title to the Property (each, a 

“Title Defect”), then Purchaser may give written notice of such Title Defect to Seller at any time 

prior to the end of the Due Diligence Period (such notice, the “Objection Notice”). Upon receipt 

of the Objection Notice, Seller may, at Seller’s option, give written notice to Purchaser (the 

“Response Notice”) no later than five (5) business days after receipt of the Objection Notice (the 

“Response Period”) indicating Seller’s willingness to cure any Title Defects prior to Closing. If 

Seller fails to deliver the Response Notice prior to the expiration of the Response Period, Seller 

shall be deemed to have elected not to cure any of the matters contained in Purchaser’s Objection 

Notice. If Seller elects (or is deemed to have elected) not to cure one or more Title Defects, 

Purchaser shall have the right on or before the later of (i) five (5) business days after the expiration 

of the Response Period, or (ii) the expiration of the Due Diligence Period to terminate this 

Agreement; provided that, in the event Purchaser shall fail to respond to Seller’s Response Letter 

prior to the expiration of the applicable response period, Purchaser shall be deemed to have elected 

to terminate this Agreement. If Purchaser elects, or is deemed to have elected, to terminate this 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 42 of 99
1190996/LA 

-4- 

Agreement, all Earnest Money shall be refunded to Purchaser, this Agreement shall terminate and 

be of no further force or effect, and neither party shall have any further rights or obligations under 

this Agreement, other than those which expressly survive a termination hereof. If Purchaser does 

not so terminate this Agreement then all title matters then existing shall be deemed “Permitted 

Exceptions,” except for Title Defects that Seller has agreed to cure prior to Closing. Purchaser 

acknowledges and agrees that Seller shall have no obligation or duty whatsoever to cure any title 

exceptions or defects affecting the Property. Notwithstanding anything contained herein to the 

contrary, the Property shall be conveyed subject to the following matters, which shall be deemed 

included in the Permitted Exceptions: (i) the rights of tenants, as tenants only, under the Leases 

and any new Leases entered into between the date hereof and Closing in accordance with the terms 

of this Contract; (ii) the lien of all ad valorem real estate and personal property taxes and 

assessments not yet due and payable as of the date of Closing, subject to adjustment as herein 

provided; (iii) local, state and federal laws, ordinances or governmental regulations, including but 

not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect 

relating to the Property; and (iv) matters created by, through or under Purchaser. Notwithstanding 

anything to the contrary, Seller shall cause to be removed from title at or before Closing any and 

all liens secured by deeds of trust encumbering the Property, mechanic’s liens relating to the 

Property, judgment liens against Seller, and delinquent real estate taxes. 

3.3 Subsequent Title Defects. In the event any matter affecting title to the Property 

arises or is first disclosed to Purchaser after the expiration of the Due Diligence Period within five 

(5) business days of discovery, Purchaser must elect one of the following: (i) to terminate this 

Agreement, in which case the Earnest Money will be refunded in full to Purchaser and thereupon 

this Agreement shall terminate and be of no further force or effect whatsoever, except for the terms 

of this Agreement which expressly survive a termination hereof, and Purchaser shall cooperate 

with Seller to provide an instrument in recordable form that disclaims any and all continuing right, 

title or interest of Purchaser in and to the Property (as necessary); (ii) to waive such title defect 

and proceed with Closing pursuant to the terms and conditions hereof without offset or other credit 

or adjustment to the Purchase Price; or (iii) to give written notice of such title defect to Seller, and 

upon receipt of such notice, Seller may, at Seller’s option, give written notice to Purchaser within 

five (5) business days after receipt of Purchaser’s notice indicating Seller’s willingness to cure 

such title defect(s) prior to Closing. The failure by Seller to timely deliver such notice shall be 

deemed Seller’s election not to cure any such matter. If Seller does not elect (or is deemed to have 

not elected) to cure such title defect(s), then Purchaser shall have the right within five (5) business 

days to terminate this Agreement, in which event all Earnest Money shall be refunded to Purchaser, 

this Agreement shall be deemed to be terminated and of no further force or effect, and neither party 

shall have any further rights or obligations under this Agreement, other than those which expressly 

survive a termination hereof. A failure to make an affirmation election pursuant to the preceding 

clauses shall be deemed an election or option (iii) above. 

3.4 Notice. Purchaser will provide to Seller’s representative, Rob Martinson, VP of 

Investments, two (2) business days’ prior notice of when survey crews will be on the Property. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 43 of 99
1190996/LA 

-5- 

ARTICLE 4

INFORMATION AND DUE DILIGENCE 

4.1 Seller’s Deliveries. Seller shall, within three (3) business days after the Effective 

Date of this Agreement, make available to Purchaser in electronic format certain documentation 

pertaining to the Property (the “Information Documents”) to the extent available and in the 

possession or control of Seller or Seller's property manager. The Information Documents include, 

without limitation, the following: 

(a) Seller’s most recent ALTA survey; and any existing owner's policy of title 

insurance; and 

(b) a recent rent roll (“Rent Roll”); and 

(c) all third party due diligence reports obtained by Seller in its development of 

the property, including geotechnical & environmental reports; and 

(d) all Service Contracts that are in place; and 

(e) copies of all Unit Statistic Reports from operating software, and Meter 

Health Report from Utility Billing Company; and 

(f) documentation of the Property’s zoning status; and 

(g) copies of all Leases in place at the Property; and 

(h) schedule of capital improvements for past two (2) years; and 

(i) copies of any existing PCAs or Phase 1 reports; and 

(j) any existing leasing brochures, leasing plans for each unit type, and copies 

of form lease; and 

(k) payroll schedule for onsite employees (including, employees of property 

manager), including, any housing allowance; and 

(l) copy of RUBS and any 3rd party billing agencies; and 

(m) insurance loss runs for the last twenty-four (24) months; and 

(n) two (2) years of tax bills; and 

(o) copies of the following construction related documents relating to the Land 

and Improvements: as-built plans and drawings; plans and specifications. 

Furthermore, within three (3) business days after receipt of a written request from Purchaser, Seller 

will make available to Purchaser any other contracts, documents or building plans of significance 

to the Property and such other information relating to the Property that is specifically requested by 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 44 of 99
1190996/LA 

-6- 

Purchaser to the extent such information either is in the possession or control of Seller, or any 

manager retained by Seller to manage the Property, or any affiliate of Seller; provided, that, in no 

event shall Seller have any obligation to deliver any confidential, proprietary or attorney - client 

privileged information. 

4.2 Reliability of Information. The Information Documents and any additional 

information requested by Purchaser are being furnished to Purchaser for information purposes 

only. Purchaser acknowledges and agrees that it is accepting the Information Documents and other 

documents with the understanding that certain information therein has been compiled by persons 

and entities other than Seller, and Seller has not verified and does not independently certify that 

such information contained therein is true, correct or complete in all respects. With respect to any 

third-party reports, Purchaser further acknowledges and agrees that it understands and has been 

informed by Seller that Seller has not and does not adopt or ratify the findings of the third-Party 

consultants who prepared the third-party reports, does not represent that the third-party reports are 

accurate in all respects, and does not warrant or represent that the third-party reports can or should 

be relied upon by Purchaser in making its investment decisions concerning the Property. 

Notwithstanding the foregoing, Seller represents that Seller has no actual knowledge that any such 

information is incomplete or misleading in any material respect. 

4.3 Due Diligence Period Defined. As used in this Agreement, the term “Due 

Diligence Period” means the period commencing upon the Effective Date and ending at 6:00 p.m. 

Pacific Time on January 27, 2020 (i.e. the date that is twenty one (21) days after the Effective 

Date). 

4.4 Purchaser’s Due Diligence. During the Due Diligence Period (as hereinafter 

defined) and subject to this Agreement, Purchaser may inspect the Property and otherwise use due 

diligence to determine the suitability of the Property as an investment by Purchaser, at its sole cost 

and expense. In addition to such other activities that Purchaser may determine to be appropriate 

to carry out such due diligence, Purchaser may do any or all of the following activities: 

(a) examine the Information Documents; (b) interview Seller and Seller's property manager with 

respect to the construction of the Improvements; (c) examine the physical structures and 

components of the Improvements; (d) conduct studies to determine that the Property and the 

operation thereof complies with all requirements of all governmental agencies and authorities 

having jurisdiction with respect thereto, (e) make such studies and investigations, conduct such 

tests and surveys and engage such independent contractors, environmental engineers, 

environmental consultants, and experts as necessary to enable Purchaser to evaluate any and all 

environmental risks associated with the ownership and operation of the Property and its 

compliance with “Environmental Laws” (as defined in Section 4.8); and (f) otherwise conduct a 

complete and thorough investigation and examination of the Property. To the extent Purchaser 

does not currently have available its own employees who are competent to conduct such 

examinations and due diligence, Purchaser may retain such consultants, independent contractors 

and other professional advisors as Purchaser deems necessary. In performing its due diligence and 

examinations, Purchaser will provide Seller with appropriate advance notice regarding the scope 

and execution of its activities, including, proposed timing of inspections and any anticipated need 

to interview specified personnel. Purchaser will not unreasonably disturb or interfere with the 

operation, management or use of the Property by Seller, its contractors, suppliers and vendors, the 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 45 of 99
1190996/LA 

-7- 

tenants under the Leases, or by any of their respective agents, customers, invitees, or guests. In no 

event will Purchaser or any of its agents or contractors be entitled to conduct inspection activities 

that involve the drilling or boring into the Land or Improvements, or any other similar invasive or 

destructive activity without the written consent of Seller. Purchaser will give Seller two 

(2) business days’ notice of the arrival of any inspection personnel to the property. 

4.5 Indemnity and Liability Insurance. Purchaser will be responsible for any and all 

losses, damages, charges and other costs associated with its examinations, inspections, and other 

activities conducted as a part of its due diligence, and at the conclusion of the Due Diligence 

Period, will return the Property to the same condition as existed prior to such examinations, due 

diligence and other activities. Purchaser will immediately discharge any liens that attach against 

the Property as a result of its conducting of due diligence investigation by payment, bonding off 

or otherwise removing such liens promptly on demand. Purchaser agrees to indemnify and hold 

harmless Seller from and against any and all claims, charges, actions, costs (including reasonable 

attorneys’ fees), suits, damages, injuries, or other liabilities which arise, either directly or 

indirectly, from Purchaser’s or its agent’s, contractor’s, representative’s, or employee’s entry onto 

the Land and Improvements prior to Closing; provided, however, that the foregoing shall not apply 

to any such items caused by Seller or Seller’s property manager’s gross negligence or willful 

misconduct, nor shall the foregoing apply to the mere discovery of any pre-existing condition at 

the Property or any portion thereof. Prior to Purchaser or its employees, agents, inspectors or 

vendors accessing the Property, Purchaser shall provide Seller with a certificate of insurance 

naming Seller as an additional insured and evidencing liability coverage in form and substance 

acceptable to Seller in an amount not less than $1,000,000.00 per occurrence with an aggregate 

limit of not less than $2,000,000.00. 

4.6 Purchaser’s Right to Terminate. At any time prior to the expiration of the Due 

Diligence Period, Purchaser will have the right to elect to terminate this Agreement for any reason 

or for no reason whatsoever. Any such election shall be in writing, and upon receipt thereof by 

Seller, the Earnest Money will be refunded in full to Purchaser and thereupon this Agreement shall 

terminate and be of no further force and effect whatsoever, except for the terms of this Agreement 

which expressly survive termination by Purchaser. Notwithstanding anything to the contrary, 

unless Purchaser shall affirmatively elect to proceed with Closing at or before the expiration of the 

Due Diligence Period by written notice to Seller and Title Insurer, Purchaser shall be deemed to 

have timely elected to have terminated this Agreement. 

4.7 Continuing Agreement. If Purchaser does not elect (or is not deemed to have 

elected) to terminate this Agreement prior to the expiration of the Due Diligence Period, then: 

(a) this Agreement will remain in full force and effect, and (b) PURCHASER WILL BE 

DEEMED TO HAVE ACCEPTED THE PROPERTY ON AN “AS IS” BASIS, SUBJECT 

ONLY TO THE TERMS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS 

SET FORTH IN THE DOCUMENTS AND AGREEMENTS EXECUTED AND 

DELIVERED AT CLOSING, and (c) Purchaser will be deemed to have agreed to accept title to 

the Property subject to the Permitted Exceptions. PURCHASER HAS AGREED TO ACCEPT 

POSSESSION OF THE PROPERTY AT CLOSING ON AN “AS IS” BASIS. SELLER 

AND PURCHASER AGREE THAT THE PROPERTY WILL BE SOLD “AS IS” AND 

EXCEPT AS SET FORTH IN ARTICLE 5, SUCH SALE WILL BE WITHOUT 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 46 of 99
1190996/LA 

-8- 

REPRESENTATION OR WARRANTY BY SELLER OF ANY KIND, EXPRESS OR 

IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTY OF INCOME 

POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY, OR FITNESS 

FOR A PARTICULAR PURPOSE), AND SELLER HEREBY DISCLAIMS AND 

RENOUNCES ANY SUCH REPRESENTATION OR WARRANTY. 

Except as expressly set forth in this Agreement to the contrary, Purchaser releases Seller, 

its managers, and its respective direct or indirect members, partners, shareholders, officers, 

directors, employees or agents (collectively, the “Seller Related Parties”) and their respective 

successors and assigns from and against any and all claims that Purchaser or any party related to 

or affiliated with Purchaser (each, a “Purchaser Related Party”) has or may have arising from or 

related to any matter or thing related to or in connection with the Property except as expressly set 

forth in this Agreement to the contrary, including the documents and information referred to 

herein, the Leases, the Tenants (as defined below), and any environmental conditions and, except 

as expressly set forth in this Agreement to the contrary, neither Purchaser nor any Purchaser 

Related Party shall look to Seller, the Seller Related Parties or their respective successors and 

assigns in connection with the foregoing for any redress or relief. This release shall be given full 

force and effect according to each of its express terms and provisions, including those relating to 

unknown and unsuspected claims, damages, and causes of action. To the extent required to be 

operative, the disclaimers and warranties contained herein are “conspicuous” disclaimers for 

purposes of any applicable law, rule, regulation, or order. 

NOTWITHSTANDING THE FOREGOING, NEITHER THIS SECTION 4.7, NOR ANY 

OTHER TERM OR CONDITION CONTAINED IN THIS AGREEMENT OR ANY 

OTHER DOCUMENT OR INSTRUMENT GIVEN IN CONNECTION WITH THIS 

AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY, SHALL IN ANY 

WAY WAIVE OR OTHERWISE LIMIT ANY OF PURCHASER’S RIGHTS UNDER 

APPLICABLE WARRANTIES/GUARANTEES RELATING TO THE CONSTRUCTION 

OF THE IMPROVEMENTS AND/OR APPLICABLE TEXAS CONSTRUCTION 

DEFECT LAWS. 

4.8 “AS IS” Defined. As used in this Agreement, the term “AS IS” means, as and 

where the Property presently exists as of the expiration of the Due Diligence Period, including, 

without limitation, all faults, defects, claims, liens, and other conditions of every kind or 

description with respect to (a) physical and environmental condition of the Property, including 

defects seen and unseen and conditions natural and artificial, (b) the Permitted Exceptions, (c) the 

Service Contracts, (d) the financial operation and condition of the Property, (e) compliance with 

all laws, ordinances, rules and regulations to which the Property is subject, (f) all claims, demands, 

actions or causes of action that relate in any way to the Property or the ownership and operation 

thereof, whether known or unknown, and (g) all other matters related in any way to the ownership 

and operation of the Property, whether known or unknown. Notwithstanding the foregoing, 

neither this Section 4.8, nor any other term or condition contained in this Agreement or any 

other document or instrument given in connection with this Agreement or the transaction 

contemplated hereby, shall in any way waive or otherwise limit any of Purchaser’s rights 

under applicable warranties/guarantees relating to the construction of the Improvements 

and/or applicable Texas construction defect laws. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 47 of 99
1190996/LA 

-9- 

Except as otherwise provided in this Agreement, Seller makes no warranty with respect to 

the presence of Hazardous Materials on, above, or beneath the Property (or any parcel in proximity 

thereto) or in any water on or under the Property. The Closing hereunder shall be deemed to 

constitute an express waiver of Purchaser’s right to cause Seller to be joined in any action brought 

under any Environmental Laws. As used herein, the term “Hazardous Materials” shall mean: 

(a) those substances included within the definitions of any one or more of the terms “hazardous 

materials”, “hazardous wastes”, “hazardous substances”, “industrial wastes”, and “toxic 

pollutants”, as such terms are defined under the Environmental Laws, or any of them; 

(b) petroleum and petroleum products, including, without limitation, crude oil and any fractions 

thereof; (c) natural gas, synthetic gas and any mixtures thereof; (d) asbestos and or any material 

which contains any hydrated mineral silicate, including, without limitation, chrysotile, amosite, 

crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable; 

(e) polychlorinated biphenyl (“PCBs”) or PCB-containing materials or fluids; (f) radon; (g) any 

other hazardous or radioactive substance, material, pollutant, contaminant or waste, (h) radioactive 

materials or substances, and (i) any other substance with respect to which any Environmental Law 

or governmental authority requires environmental investigation, monitoring or remediation. As 

used herein, the term “Environmental Laws” shall mean all federal, state and local laws, statutes, 

ordinances and regulations, now or hereafter in effect, in each case as amended or supplemented 

from time to time, including, without limitation, all applicable judicial or administrative orders, 

applicable consent decrees and binding judgments relating to the regulation and protection of 

human health, safety, the environment and natural resources (including, without limitation, 

ambient air, surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, 

aquatic species and vegetation), including, without limitation, the Comprehensive Environmental 

Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.), the 

Hazardous Material Transportation Act, as amended (49 U.S.C. §§ 5101 et seq.), the Federal 

Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. §§ 136 et seq.), the Resource 

Conservation and Recovery Act, as amended (42 U.S.C. §§ 6901 et seq.), the Toxic Substances 

Control Act, as amended (15 U.S.C. §§ 2601 et seq.), the Clean Air Act, as amended (42 U.S.C. 

§§ 7401 et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. §§ 1251 et seq.), 

the Safe Drinking Water Act, as amended (42 U.S.C. §§ 300f et seq.), any state or local counterpart 

or equivalent of any of the foregoing, and any federal, state or local transfer of ownership 

notification or approval statutes. 

The provisions of Sections 4.5, 4.7 and 4.8 shall survive the Closing or the earlier 

termination of this Agreement and shall not be deemed to have merged into any of the documents 

executed or delivered at the Closing. 

4.9 Availability of Information. Notwithstanding the fact that the Information 

Documents and other information concerning the Property may be located in more than one 

location, all such files and documents will be made available for Purchaser’s due diligence, review 

and copying at the Property.

4.10 Information from Agents. In making its investment decisions with respect to the 

Property, including its decision to elect or not elect to terminate this Agreement during the Due 

Diligence Period, subject to the terms of Section 14.1 of this Agreement, Purchaser may interview 

tenants, Seller's property manager, the other parties to the Service Contracts, and Seller’s 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 48 of 99
1190996/LA 

-10- 

employees, agents, contractors, and investment advisors. Seller shall cooperate with Purchaser in 

connection with its due diligence activities and will instruct its property manager and Seller’s 

employees (if any), agents, contractors, and investment advisors to cooperate with Purchaser and 

its agents, contractors and consultants. Notwithstanding the foregoing, Seller shall not have any 

liability with respect to any opinions, statements, warranties, representations, or other information 

furnished to Purchaser by such employees, agents, contractors, and investment advisors, unless 

expressly incorporated in this Agreement as Seller’s representations. 

ARTICLE 5

SELLER’S WARRANTIES & REPRESENTATIONS 

Seller represents and warrants to the Purchaser the following: 

5.1 Seller has been duly organized and is validly existing under the laws of the State of 

Delaware. Seller is duly qualified to do business and is in good standing in the State where the 

Property is located. Seller has the full right and authority to enter into this Agreement and to 

transfer all of the Property to be conveyed by Seller and to consummate or cause to be 

consummated the transactions contemplated herein in accordance with the terms hereof. No 

consents, approvals or other authorizations are required by other partners, entities, trusts or other 

organization or individuals in order to validly effectuate the transactions contemplated hereby. 

The person signing this Agreement on behalf of Seller is authorized to do so and may bind the 

Seller without the joinder or co-signature of any other person. 

5.2 There is no action, suit, arbitration, unsatisfied order or judgment, governmental 

investigation or proceeding threatened or to Seller's knowledge pending against Seller, the 

Property, or the transaction contemplated by this Agreement. 

5.3 Seller has received no written notification that any governmental agency has 

determined that there are any violations of any Environmental Laws with respect to the Property. 

5.4 To Seller’s knowledge, the Service Contracts Schedule is a true, correct and 

complete list of the Service Contracts in effect with respect to the Property as of the Effective Date 

of this Agreement. 

5.5 The Seller is the sole owner of, and shall convey at Closing fee simple title to, the 

Property, subject only to the Permitted Exceptions. 

5.6 The Seller owns legal and beneficial title to the Personal Property, other than any 

leased equipment at the Property, and at Closing shall convey the same free and clear of all liens, 

charges and encumbrances, subject only to the Permitted Exceptions. 

5.7 Seller has not granted to any person or entity any option or other right to purchase 

all or any portion of the Property and no person or entity has any option or other right to purchase 

the Property. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 49 of 99
1190996/LA 

-11- 

5.8 The execution and delivery of this Agreement, and its performance by Seller, will 

not conflict with, or result in the breach of, any contract, agreement, law, rule or regulation to 

which Seller is a party, or by which Seller or any Property owned by Seller is bound. 

5.9 This Agreement has been duly authorized, executed and delivered and is valid and 

enforceable against Seller in accordance with its terms, and each instrument to be executed by 

Seller pursuant to this Agreement, or in connection herewith, will, when executed and delivered, 

be valid and enforceable against Seller in accordance with its terms, except as such enforcement 

may be limited by bankruptcy and other laws affecting creditors’ rights generally and principles 

of equity. 

5.10 Seller has not made and does not intend to make a general assignment for the benefit 

of its creditors; nor has Seller had an attachment, execution or other judicial seizure of any property 

interest which remains in effect. 

5.11 There is not pending any case, proceeding or other action seeking reorganization, 

arrangement, adjustment, liquidation, dissolution or recomposition of Seller, or the debts of Seller, 

under any law relating to bankruptcy, insolvency, reorganization or the relief of debtors, or seeking 

the appointment of a receiver, trustee, custodian or other similar official for Seller or the Property. 

5.12 To Seller’s knowledge, the Property is not contaminated with any Hazardous 

Substances. 

5.13 To the best of Seller’s knowledge, the Rent Roll is the rent roll utilized by Seller in 

operating the Property in the ordinary course of business; and there are no leases, licenses or other 

similar occupancy agreements with respect to the leasing or occupancy of the Property other than 

those shown on the Rent Roll delivered to Purchaser. 

5.14 To the best of Seller’s knowledge, Seller has delivered to Purchaser true and correct 

copies of the Leases (including all amendments, supplements, and modifications thereto). No 

Person has a right to use or occupy the Property other than pursuant to the Leases. Neither Seller's 

interest in the Leases nor any of the rentals due or to become due under the Leases has been 

assigned or will be assigned, encumbered or subject to any liens at the Closing Date. 

5.15 Seller has not received any written notice from any governmental agency that the 

Property or any condition existing thereon or any present use thereof currently violates any law or 

regulations applicable to the Property. 

5.16 Seller has received no written notice of any unpaid charges, debts, liabilities, claims 

or obligations arising from the construction, occupancy, ownership, use or operation of the 

Property prior to Closing which could give rise to any mechanic’s or materialmen’s or other 

statutory liens against any of the Property which will not be paid by or bonded over by Seller at 

Closing, or for which Purchaser will be responsible. 

5.17 Other than any possible property tax appeal or property tax litigation, there is no 

litigation, arbitration or other legal or administrative suit, action, proceeding or investigation of 

any kind pending or, to Seller’s knowledge threatened against or involving Seller relating to the 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 50 of 99
1190996/LA 

-12- 

Property or any part thereof, including, but not limited to, any condemnation action relating to the 

Property or any part thereof. 

5.18 Neither Seller, nor any constituent owner of Seller, nor, to Seller’s knowledge, any 

person or entity (in each case, other than shareholders of any publicly traded company) with actual 

authority to direct the actions of any member, partner or shareholder of Seller, (i) are named on 

any list of persons, entities and governments issued by the Office of Foreign Assets Control of the 

United States Department of the Treasury (“OFAC”) pursuant to Executive Order 13224 – 

Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, 

or Support Terrorism (“Executive Order 13224”), as in effect on the date hereof, or any similar 

list known to Seller or publicly issued by OFAC or any other department or agency of the United 

States of America (collectively, the “OFAC Lists”), (ii) are included in, owned by, controlled by, 

knowingly acting for or on behalf of, knowingly providing assistance, support, sponsorship, or 

services of any kind to, or otherwise knowingly associated with any of the persons, entities or 

governments referred to or described in the OFAC Lists, or (iii) has knowingly conducted business 

with or knowingly engaged in any transaction with any person, entity or government named on 

any of the OFAC Lists or any person, entity or government included in, owned by, controlled by, 

acting for or on behalf of, providing assistance, support, sponsorship, or services of any kind to, 

or, to Seller's knowledge, otherwise associated with any of the persons, entities or governments 

referred to or described in the OFAC Lists. 

5.19 Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue 

Code of 1986, as amended, and the Income Tax Regulations thereunder. 

5.20 Garrett Construction acted as the general contractor but performed no actual work 

of construction on the Land or in connection with the Improvements, and the assignable warranties 

and guarantees described in Section 1.1(e)(iii) are the only warranties and guarantees relating to 

such work of construction except as may have been given by Garrett Construction. 

As used in this Agreement, the phrase “to Seller’s knowledge” and words of similar import 

shall mean the actual, current knowledge (as of the date the representation and warranty is made) 

of Eric Garrett regarding the Property without duty of investigation or inquiry, and no knowledge 

shall be imputed to any other person or entity. The representations and warranties of Seller set 

forth in this Article 5, as updated by the certificate of Seller to be delivered to Purchaser at Closing 

in accordance with Article 9 hereof, shall survive Closing for a period of twelve (12) months. No 

claim for a breach of any representation or warranty of Seller shall be actionable or payable (a) if 

the breach in question results from or is based on a condition, state of facts or other matter which 

was known to Purchaser prior to Closing, (b) unless the valid claims for all such breaches 

collectively exceed $25,000.00, in which event the full amount of such valid claims shall be 

actionable, up to but not exceeding the amount of the Liability Cap (as defined below), and 

(c) unless written notice containing a description of the specific nature of such breach shall have 

been given by Purchaser to Seller prior to the expiration of said twelve (12) months. As used 

herein, the term “Liability Cap” shall mean the total aggregate amount of $750,000.00. Except 

in connection with Seller's actual fraud, in no event shall Seller’s aggregate liability to Purchaser 

for breach of any representation or warranty of Seller in this Agreement exceed the amount of the 

Liability Cap. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 51 of 99
1190996/LA 

-13- 

ARTICLE 6

PURCHASER’S WARRANTIES & REPRESENTATIONS 

6.1 Purchaser’s Authority, Etc. Purchaser is a limited liability company, duly formed, 

validly existing, and in good standing under the laws of the State of Delaware. Purchaser has the 

full right, power and authority to purchase the Property as provided in this Agreement and to carry 

out Purchaser’s obligations hereunder, and all requisite action necessary to authorize Purchaser to 

enter into this Agreement and to carry out its obligations hereunder have been, or by the Closing 

will have been, taken. The person signing this Agreement on behalf of Purchaser is authorized to 

do so and may bind Purchaser without the joinder or co-signature of any other person. 

6.2 No Litigation. There is no action, suit, arbitration, unsatisfied order or judgment, 

government investigation or proceeding pending against Purchaser which, if adversely determined, 

could individually or in the aggregate interfere with the consummation of the transaction 

contemplated by this Agreement. 

6.3 Survival of Purchaser’s Representations and Warranties. The representations 

and warranties of Purchaser set forth this Agreement shall survive Closing for a period of six 

(6) months. No claim for a breach of any representation or warranty of Purchaser shall be 

actionable or payable (a) if the breach in question results from or is based on a condition, state of 

facts or other matter which was known to Seller prior to Closing, (b) unless the valid claims for all 

such breaches collectively aggregate more than $25,000.00, in which event the full amount of such 

valid claims shall be actionable, up to but not exceeding the amount of the Liability Cap (as defined 

below), and (c) unless written notice containing a description of the specific nature of such breach 

shall have been given by Seller to Purchaser prior to the expiration of said six (6) months. As used 

herein, the term “Liability Cap” shall mean the total aggregate amount of $200,000.00. In no 

event shall Purchaser’s aggregate liability to Seller for breach of any representation or warranty of 

Purchaser in this Agreement exceed the amount of the Liability Cap. 

ARTICLE 7

COVENANTS AND EXECUTORY AGREEMENTS PENDING CLOSING 

7.1 Contracts. From and after the Effective Date and continuing through the day 

immediately preceding the expiration of the Due Diligence Period, Seller shall not enter into any 

new contracts or any amendments or modifications to the existing contracts that will survive 

Closing without Purchaser's prior written consent, which consent shall not be unreasonably 

withheld, conditioned, or delayed (and provided that no such consent shall be necessary in the 

event such contract is required in connection with an emergency). From and after the expiration 

of the Due Diligence Period and continuing thereafter through the Closing (provided this 

Agreement has not been terminated), Seller will not enter into any new contracts or any 

amendments or modifications to the existing contracts that will survive Closing without 

Purchaser's prior written consent, which consent may be withheld in Purchaser's sole and absolute 

discretion. Seller shall provide Purchaser with copies of all contract proposals and new contracts 

upon the delivery or receipt thereof. 

7.2 Leases. From and after the Effective Date, Seller shall continue to operate and 

lease the Property in the ordinary course of business and consistent with past practice, provided, 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 52 of 99
1190996/LA 

-14- 

that, in no event shall Seller alter, amend, modify, supplement or extend the term of any Lease or 

enter into any new Lease upon terms other than as provided on Schedule 7.2 (attached hereto) 

without Purchaser’s prior written consent. Seller shall provide an updated rent roll depicting lease 

activity during the Due Diligence Period at least twenty-four (24) hours prior to the expiration of 

the Due Diligence Period for Purchaser’s review. 

7.3 Proceedings. Seller shall promptly deliver notice to Purchaser, and prior to 

Closing, if the same may adversely affect the Property, defend at Seller's expense in the ordinary 

course of business and consistent with past practice, any action, litigation, arbitrations, mediation, 

reference, condemnation or other proceeding affecting the Property, or the use, possession or 

occupancy thereof. 

7.4 Operation in the Ordinary Course. From the Effective Date until the Close of 

Escrow, Seller shall (i) operate and manage the Property in the ordinary course and consistent with 

Seller's past practices and all applicable laws, (ii) maintain all casualty and liability insurance in 

place as' of the Effective Date with respect to the Property in amounts and with deductibles 

substantially the same as existing on the Effective Date, (iii) maintain all present services and 

amenities, (iv) maintain the Property in good condition, repair and working order, ordinary wear 

and tear excepted, and comply with all applicable laws and regulations, (v) keep on hand sufficient 

materials, supplies, equipment and other personal property for the efficient operation and 

management of the Property, and (vi) perform when due, and otherwise comply with, all of Seller's 

obligations and duties under the Leases and Service Contracts. None of the Personal Property shall 

be removed from the Land, unless replaced by unencumbered (other than Seller’s first mortgage 

lien, which will be removed as of the Closing) personal property of equal or greater utility and 

value. 

7.5 Covenant Not to Convey or Encumber. From and after the Effective Date and 

continuing until the Closing (provided the Agreement has not been terminated), Seller shall not 

convey or encumber any portion of the Property or any rights therein, nor enter into any 

conveyance, security document, easement, or other agreement granting to any person or entity any 

rights with respect to the Property or any part thereof, or any interest whatsoever therein, or any 

option with respect thereto, without the prior written consent of Purchaser, which consent may be 

withheld in Purchaser's sole and absolute discretion. 

7.6 Keep Purchaser Informed. Seller shall endeavor to keep Purchaser informed as to 

the ongoing operations at the Property and to all material developments with respect to the Property 

(in each case, as soon as readily available after the Effective Date), including, providing Purchaser 

with (i) prompt notice of all new Leases and Service Contracts or modifications to existing Leases 

and Service Contracts entered into in accordance with the terms of this Agreement (together with 

copies thereof), and (ii) copies of all material third-party correspondence received or delivered 

with respect to the Property (including default notices under the Leases and Service Contracts but 

excluding correspondence with Seller’s investor(s) and electronic mail other than electronic mail 

that constitutes formal contractual notice of default), promptly following receipt or delivery. 

7.7 Zoning. Initiate, consent to, approve or otherwise take any action with respect to 

the zoning, or any other governmental rule or regulation, presently applicable to all or any part of 

the Property; or 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 53 of 99
1190996/LA 

-15- 

7.8 Press Releases. Issue any press release or other media publicity of any kind 

whatever with respect to this Agreement, or the transaction contemplated hereby, without the prior 

written consent of Purchaser. 

ARTICLE 8

CONDITIONS TO CLOSING 

8.1 Conditions to Purchaser’s Obligations. Purchaser’s obligation to close the 

purchase and sale of the Property is conditioned upon each of the foregoing conditions precedent: 

(a) Title Insurer shall be irrevocably committed to issue to Purchaser an ALTA 

extended coverage Owner’s Policy of Title Insurance with liability in the amount of the Purchase 

Price showing the Property vested in the name of Purchaser or Purchaser’s nominee, subject only 

to the Permitted Exceptions. 

(b) Seller shall have performed and observed in all material respects all 

covenants and agreements to be performed by Seller. 

(c) All of the representations and warranties of Seller contained in this 

Agreement shall be true and correct in all material respects as of the date of Closing subject to 

factual changes which do not materially affect the value of the Property. 

(d) There shall be no violations of any applicable laws, statutes, codes, or 

ordinances pertaining to the Property which substantially affect the value of the Property. 

8.2 Conditions to Seller’s Obligations. Seller’s obligation to close the purchase and 

sale of the Property is conditioned upon each of the foregoing conditions precedent: 

(a) Purchaser shall have performed and observed in all material respects all 

covenants and agreements to be performed by Purchaser under this Agreement. 

(b) All of the representations and warranties of Purchaser contained in this 

Agreement shall be true and correct in all material respects as of the date of Closing. 

ARTICLE 9

CLOSING 

9.1 Time and Place. The consummation of the transaction contemplated hereby 

(“Closing”) shall be completed through an escrow with Title Insurer on February 26, 2020 (i.e. 

the date that occurs fifty-one (51) days after the Effective Date) (the “Closing Date”). 

Notwithstanding the foregoing, Purchaser shall have the right upon written notice to Seller 

delivered not later than five (5) business days prior to the originally scheduled Closing Date to 

extend the Closing to March 12, 2020 (i.e. one period of fifteen (15) days) upon depositing with 

the Title Insurer the sum of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) 

(together with all interest earned thereon, the “Extension Deposit”) on or prior to the Closing. 

The Extension Deposit shall be immediately non-refundable, except as otherwise set forth herein. 

The Extension Deposit shall apply to the Purchase Price. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 54 of 99
1190996/LA 

-16- 

9.2 Seller’s Obligations at Closing. At Closing, Seller shall: 

(a) execute and deliver to Purchaser, in recordable form, a Special Warranty 

Deed in the form of Exhibit E (the “Deed”), conveying the Land and Improvements to Purchaser, 

subject only to the Permitted Exceptions; 

(b) execute and deliver to Purchaser a Bill of Sale in the form of Exhibit F (the 

“Bill of Sale”), conveying the Personal Property without warranty of title or use and without 

warranty, expressed or implied, as to merchantability and fitness for any particular purpose, subject 

only to the Permitted Exceptions; 

(c) execute and deliver to Purchaser the “Assignment and Assumption” of 

Leases in the form attached hereto as Exhibit G, pursuant to which Seller will transfer and assign 

its interest in the Leases to Purchaser and Purchaser shall assume all obligations of Seller with 

respect thereto; 

(d) execute and deliver the “Assignment and Assumption of Service 

Contracts” in the form attached hereto as Exhibit H, pursuant to which Seller shall assign (to the 

extent its interests are assignable) its interest in the Service Contracts to Purchaser, and Purchaser 

shall assume all Seller’s obligations with respect thereto; 

(e) execute and deliver the “General Assignment of Intangibles” in the form 

attached hereto as Exhibit I, pursuant to which Seller shall assign its interest in the Intangibles to 

Purchaser; 

(f) join with Purchaser in the execution of a Tenant Notice in the form of 

Exhibit J, which Purchaser shall send to each tenant at the Property (collectively, the ‘Tenants” 

and each a “Tenant”) under Leases, informing such Tenant of the sale of the Property and of the 

assignment to Purchaser of Seller’s interest in, and obligations under, the Leases (including, if 

applicable any security deposits) and directing that all rent and other sums payable after the 

Closing under each such Lease shall be paid as set forth in the notice; 

(g) deliver to the Title Insurer such evidence as the Title Insurer may 

reasonably require as to the authority of the person or persons executing documents on behalf of 

Seller; 

(h) deliver to Purchaser a Certificate of Non-Foreign Status in the form of 

Exhibit K, duly executed by Seller stating that Seller is not a “foreign person” as defined in the 

Federal Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act; 

(i) cause the delivery, at the Property, of the Leases, Service Contracts and 

licenses and Permits, if any, in the possession of Seller or Seller’s agents, together with such 

leasing and property files and records which are material in connection with the continued 

operation, leasing and maintenance of the Property; 

(j) deliver to Purchaser possession and occupancy of the Property, subject only 

to the Permitted Exceptions; 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 55 of 99
1190996/LA 

-17- 

(k) execute and deliver a closing statement (the “Closing Statement”) for the 

purchase and sale of the Property; and 

(l) deliver such additional documents as shall be reasonably required by 

Purchaser or the Title Insurer or any other parties to consummate the transaction contemplated by 

this Agreement. 

9.3 Purchaser’s Obligations at Closing. At Closing, Purchaser shall: 

(a) pay to Seller the full amount of the Purchase Price in the manner and subject 

to the adjustments and credits described in Section 9.4; 

(b) join Seller in execution of the instruments described in subsections 9.2(c), 

(d), (e), (f), (h), (k) and (l); 

(c) deliver to the Title Insurer such evidence as the Title Insurer may 

reasonably require as to the authority of the person or persons executing documents on behalf of 

Purchaser; 

(d) deliver such additional documents as shall be reasonably required to 

consummate the transaction contemplated by this Agreement. 

9.4 Credits and Prorations.

(a) The following shall be apportioned with respect to the Property as of 12:01 

a.m. (local time at the Property), on the day of Closing, as if Purchaser were vested with title to 

the Property during the entire day upon which Closing occurs (except that if Escrow Agent does 

not receive the Purchase Price by receipt of wired funds and authorization from Purchaser to 

disburse the Purchase Price, as adjusted, to Seller by 3:00 P.M. Pacific Time on the day upon 

which Closing occurs, all prorations shall be made as of the following business day): 

(i) all paid rents and prepaid rents, if any, as and when collected (the 

term “rents” as used in this Agreement includes all payments due and payable by Tenants under 

the Leases); 

(ii) taxes (including personal property taxes on the Personal Property) 

and assessments levied against the Property; 

(iii) payments under the Service Contracts that are assumed by 

Purchaser, other than any prior payments made under any cable, internet, phone and/or 

telecommunications agreements (and Seller shall terminate and pay all fees due or payable under 

any Service Contracts not being assumed by Purchaser); 

(iv) the cost of gas, electricity, water, sewer, and other utility charges for 

which Seller is liable, if any, such charges to be apportioned at Closing on the basis of the most 

recent meter reading occurring prior to Closing (it being the intention of the parties that all meters 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 56 of 99
1190996/LA 

-18- 

will be ready by the utility companies by the close of business on the day immediately prior to 

Closing). 

(v) any other operating expenses, pre-paid expenses, or other items of 

expense pertaining to the Property. 

(b) Notwithstanding anything contained in the foregoing provisions: 

(i) At Closing, (A) Seller shall deliver to Purchaser any refundable 

security deposits actually held by or obligated to be held by Seller pursuant to the Leases, and 

(B) Seller shall be entitled to receive and retain such refundable cash and deposits posted with 

Utility Companies. 

(ii) City, state and county real property taxes and all assessments and 

personal property taxes payable during the calendar year of Closing shall be prorated based on the 

ad valorem tax bills for the Property for such period, if any. All real property taxes will include 

all city, state, county, and school district ad valorem taxes and special assessments based on the 

current property tax bills for the Property. Seller shall cause to be paid at the Closing, the prorated 

portion of any improvement lien assessments, levied and pending special assessments, delinquent 

assessments due under any covenants, conditions and restrictions or similar documents affecting 

the Land and/or Improvements, and any other special taxing district assessments against the 

Property. If the amount of any such taxes is not ascertainable on the Closing date, the proration 

for such taxes shall be based on the most recent available bill; provided, however, that after the 

Closing, the Seller and Purchaser shall reprorate the taxes and pay any deficiency in the original 

proration to the other party promptly upon receipt of the actual bill for the relevant taxable period. 

In the event that the Property or any part thereof shall be or shall have been affected by an 

assessment or assessments by federal, state or municipal agencies, whether or not the same become 

payable in annual installments, the Seller shall, at the Closing, be responsible for any installments 

due prior to the Closing and Purchaser shall be responsible for any installments due on or after the 

Closing. Additionally, Purchaser understands and agrees that if Seller is currently in litigation, 

formal challenge or appeal for the purposes of challenging ad valorem property tax liability for the 

period of Seller’s ownership of the Property or some portion thereof, whether said formal challenge 

is to assessed value, tax rate or otherwise, Seller shall be entitled (i) to continue said litigation, 

formal challenge or appeal until a final, un-appealable judgment is reached, and to remain the party 

responsible for the same despite Purchaser’s ownership of the Property after Closing, and (ii) to 

recoup the full amount of any reimbursement for property tax payments attributable to the period 

occurring prior to Closing (including that portion of 2020 prior to Closing) in the event Seller’s 

efforts directly or indirectly lead to a decreased tax liability with the applicable office or offices 

that establish ad valorem property taxes. In the event any such reimbursement funds are 

transmitted to Purchaser, Purchaser shall remit the same to Seller within seven (7) business days. 

Purchaser agrees to cooperate in good faith with any on-going efforts of Seller as described herein, 

provided Purchaser shall not be obligated to expend money or undergo actions detrimental to the 

use or value of the Project. Nothing in this paragraph 6.5 shall require or obligate Seller to continue 

or commence litigation, formal challenge or appeal of property taxes; it shall be in Seller’s sole 

discretion whether to engage in such action(s). The reproration obligation and property tax 

challenge mechanics under this subsection 9.4(b)(ii) shall survive the Closing without limitation. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 57 of 99
1190996/LA 

-19- 

In addition, if after the Closing there is an adjustment or reassessment by 

any governmental authority for the year of the Closing or any prior year (whether in the nature of 

a “roll-back” tax or otherwise), any additional tax payment assessed on the Property will be paid 

by Seller. If it is known, as of the date of Closing, that a so-called “roll-back” tax will be assessed 

after Closing, the estimated amount of the “roll-back” taxes will be escrowed with the 

Title Insurer at Closing. The taxes will then be paid by the Title Insurer when actually assessed 

and Seller agrees to pay its share of any shortfall in the estimate, if applicable. 

(iii) The Personal Property is included in this sale, without further 

charge. 

(iv) Purchaser shall deliver to Seller (together with a detailed billing 

report with respect to the same) within ninety (90) days after the date of Closing the amount of all 

tenant reimbursements due and payable by tenants after the Closing with respect to costs incurred 

by Seller prior to Closing for the provision of utilities, gas, electricity, water and sewer to the 

Property, if any. 

(v) Purchaser will make a good faith effort after Closing to collect all 

rents, reimbursements and any and all other amounts due and payable by the tenants at the Property 

in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to 

institute any lawsuit or other collection procedures to collect delinquent rents. Unpaid and 

delinquent rent collected by Seller after the date of Closing shall be delivered, without setoff or 

deduction, within two (2) business days after the receipt thereof, to Purchaser. Additionally, Seller 

and Purchaser agree that all unpaid and delinquent rent received by Purchaser shall first be applied 

to rents that became due on or after the date of Closing, with anything remaining being paid to 

Seller with respect to rent that was due but unpaid as of the Closing. 

(c) Those items for which actual bills are not available at Closing, shall be 

prorated based upon the good faith estimates or the previous month’s or year’s bill(s), as 

applicable. 

(d) All apartment units within the Improvements that are vacant as of the date 

which is five (5) business days prior to Closing shall be made "rent ready" by Seller prior to 

Closing; provided, that if Seller fails to do so (and as Buyer's sole remedy for such failure), Buyer 

shall receive a credit against the Purchase Price of $1,000.00 for each such unit which is not in 

rent ready condition as of the Closing. 

(e) Other expenses relating to the Property as of 12:01 A.M. on the day of 

Closing and all periods thereafter, including those required by any assumed contract or agreement 

for any services to the Property and those incurred or ordered by Seller or Seller’s agents which 

are transferred to and assumed by Purchaser will be paid for by Purchaser and Seller shall not have 

any liability for such costs. 

(f) The provisions of this Section 9.4 shall survive the Closing for a period of 

twelve (12) months. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 58 of 99
1190996/LA 

-20- 

9.5 Closing Costs. 

(a) Seller shall pay or reimburse Purchaser for: 

(i) one-half of any escrow fees charged by the Title Insurer; 

(ii) all costs incurred to defease, repay or satisfy any liens that the Seller 

is obligated to remove or has otherwise previously agreed, in writing, to satisfy prior to Closing, 

including all recording fees relating thereto; 

(iii) any termination fees associated with the Rejected Service Contracts; 

(iv) any transfer or assignment fees on transferable licenses and Permits; 

(v) all real estate transfer or documentary stamp taxes; 

(vi) all real estate brokerage commissions payable for services provided 

by Jeff Rowerdink with Berkadia as outlined in a separate agreement between Seller and Berkadia; 

(vii) the costs for an owner’s policy of title insurance on the Property in 

the amount of the Purchase Price including any waivers of pre-printed exceptions or shortages of 

area, and affirmative covenants over exceptions otherwise not acceptable to Purchaser; and 

(viii) all other expenses due or incurred by Seller in connection with this 

transaction customarily paid by sellers in Texas. 

(b) Purchaser shall pay: 

(i) all recording costs and fees relating to the recordation of the Deed 

and any mortgage obtained by Purchaser, including any state, county or other recordation taxes or 

similar charges relating thereto; 

(ii) all costs associated with any financing obtained by Purchaser, 

including any costs associated with its lender’s title insurance policy; 

(iii) all costs associated with Purchaser’s investigation of the Property, 

including, without limitation, costs associated with environmental investigations and reports, and 

expenses and engineering expenses; 

(iv) the costs of any endorsements to the owner’s or lender’s title 

insurance policy (other than endorsements required to insure over items Seller has agreed to insure 

over); 

(v) one-half of any escrow fees charged by the Title Insurer and all other 

costs, expenses and charges by the Title Company for conducting the closing; and 

(vi) all other expenses due or incurred by Purchaser in connection with 

this transaction customarily paid by purchasers in Texas. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 59 of 99
1190996/LA 

-21- 

(c) Seller and Purchaser shall each pay the fees of their respective attorneys 

incurred in connection with this transaction. 

ARTICLE 10

DEFAULT

10.1 Default by Purchaser. If Purchaser breaches, defaults or fails to perform its 

obligations under this Agreement which breach, default or failure is not cured within ten (10) 

business days after delivery of written notice thereof to Purchaser, and Seller has not breached, 

defaulted or failed to perform its obligations under this Agreement, then, as Seller’s sole and 

absolute remedy, to the exclusion of all other remedies including, without limitation, specific 

performance, the Earnest Money shall be paid to Seller, in which case the Earnest Money shall 

constitute the entire liquidated damages of Seller and Purchaser shall thereupon be relieved of all 

further obligations and liabilities arising out of this Agreement, it being agreed that the actual 

damages of Seller are difficult or impossible to ascertain and that said Earnest Money represents 

the parties best estimate of the actual damages of Seller. Notwithstanding, the foregoing is not 

intended to limit Purchaser’s surviving obligations under this Agreement, including any obligation 

of Purchaser to indemnify Seller. Nothing in this Section 10.1 excuses Purchaser from making the 

Earnest Money deposits when required pursuant to this Agreement. 

10.2 Default by Seller. In the event Seller breaches, defaults or fails to perform its 

obligations under this Agreement for any reason other than Purchaser’s default or the permitted 

termination of this Agreement by Seller or Purchaser as herein expressly provided, and such 

breach, default or failure is not cured within ten (10) business days after delivery of written notice 

thereof to Seller, Purchaser, as its sole and exclusive remedy, shall be entitled to either: (i) receive 

the return of the Earnest Money, which return shall operate to terminate this Agreement and release 

Seller from any and all liability hereunder, and, within two (2) business days of written demand 

therefor, receive full reimbursement from Seller of all actual and verifiable out-of-pocket costs, 

expenses and fees (including reasonable attorneys’ fees) incurred by Purchaser as a result of its 

due diligence on the Property, negotiation of this Agreement, and obtaining financing (or a 

commitment therefor) in an amount not to exceed $100,000.00, or (ii) seek specific performance 

of this Agreement. The provisions of this Article 10 shall survive the termination of this 

Agreement and the Closing. 

ARTICLE 11

RISK OF LOSS 

11.1 Minor Damage. In the event of loss or damage to the Property or any portion 

thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force 

and effect provided Seller performs any necessary repairs or, at Seller’s option, assigns to 

Purchaser all of Seller’s right, title and interest to any claims and proceeds Seller may have with 

respect to any casualty insurance policies or condemnation awards relating to the premises in 

question. If Seller elects to perform repairs upon the Property, Seller shall use reasonable efforts 

to complete such repairs promptly and the date of Closing shall be extended a reasonable time in 

order to allow for the completion of such repairs. If Seller elects to assign a casualty claim to 

Purchaser, the Purchase Price shall be reduced by an amount equal to the deductible amount under 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 60 of 99
1190996/LA 

-22- 

Seller’s insurance policy. Upon Closing, full risk of loss with respect to the Property shall pass to 

Purchaser. 

11.2 Major Damage. In the event of a “major” loss or damage, Purchaser may 

terminate this Agreement by written notice to Seller, in which event the Earnest Money shall be 

returned to Purchaser. If Purchaser does not elect to terminate this Agreement within ten 

(10) business days after Seller sends Purchaser written notice of the occurrence of major loss or 

damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event 

Seller shall, at Seller’s option, either (a) perform any necessary repairs, or (b) assign to Purchaser 

all of Seller’s right, title and interest to any claims and proceeds Seller may have with respect to 

any casualty insurance policies or condemnation awards relating to the portion of the Property in 

question, together with cash equal to the amount of any deductible relating thereto. If Seller elects 

to perform repairs upon the Property, Seller shall use reasonable efforts to complete such repairs 

promptly and the date of Closing shall be extended a reasonable time in order to allow for the 

completion of such repairs. If Seller elects to assign a casualty claim to Purchaser, the Purchase 

Price shall be reduced by an amount equal to the deductible amount under Seller’s insurance 

policy. Upon Closing, full risk of loss with respect to the Property shall pass to Purchaser. 

11.3 Definition of “Major” Loss or Damage. For purposes of Sections 11.1 and 11.2, 

“major” loss or damage refers to the following: (i) loss or damage to the Property or any portion 

thereof such that the cost of repairing or restoring the portion of the Property in question to a 

condition substantially identical to that of the premises in question prior to the event of damage 

would be, in the opinion of an architect selected by Seller and approved by Purchaser, equal to or 

greater than $1,500,000, and (ii) any loss due to a condemnation which permanently and materially 

impairs the current use of the Property. If Purchaser does not give notice to Seller of Purchaser’s 

reasons for disapproving an architect within ten (10) business days after receipt of notice of the 

proposed architect, Purchaser shall be deemed to have approved the architect selected by Seller. 

ARTICLE 12

BROKERAGE COMMISSIONS 

Seller represents and warrants that, other than Jeff Rowerdink with Berkadia (who shall be 

paid a commission by Seller pursuant to a separate written agreement), it has not dealt with any 

investment adviser, real estate broker or finder, or incurred any liability for any commission or fee 

to any investment adviser, real estate broker or finder, in connection with the sale of the Property 

to Purchaser or this Agreement. Seller hereby agrees to indemnify and hold Purchaser harmless 

from and against any and all claims for brokerage or finder’s fees or other similar commissions or 

compensation made by any and all brokers or finders claiming to have dealt with Seller in 

connection with this Agreement or the consummation of the transaction contemplated hereby. 

Purchaser represents and warrants that, other than Jeff Rowerdink with Berkadia, it has not dealt 

with any investment adviser, real estate broker or finder, or incurred any liability for any 

commission or fee to any investment adviser, real estate broker or finder, in connection with the 

purchase of the Property or this Agreement. Purchaser hereby agrees to indemnify and hold Seller 

harmless from and against any and all claims for brokerage or finder’s fees or other similar 

commissions or compensation made by any and all brokers or finders claiming to have dealt with 

Purchaser in connection with this Agreement or the consummation of the transaction contemplated 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 61 of 99
1190996/LA 

-23- 

hereby. The foregoing indemnities are a material inducement to the parties entering into this 

Agreement and shall survive Closing until the expiration of the statute of limitations period within 

which any such investment adviser, real estate broker or finder must assert its claim to such fee or 

commission or forever be barred. 

ARTICLE 13

ESCROW

13.1 Escrow Agent. The Title Insurer has agreed to act as escrow agent for the 

convenience of the parties (the “Escrow Agent”). 

ARTICLE 14

MISCELLANEOUS

14.1 Confidentiality. Purchaser and its representatives shall hold in confidence all data 

and information obtained with respect to Seller, its business, or the Property that is not otherwise 

available to the public, whether obtained before or after the execution and delivery of this 

Agreement, and shall not disclose the same to others; provided, however, it is understood and 

agreed that Purchaser may disclose such data and information to Purchaser’s Lender and to the 

employees, consultants, accountants, investors, partners, and attorneys of Purchaser. In the event 

this Agreement is terminated or Purchaser fails to perform hereunder, Purchaser shall promptly 

return to Seller any statements, documents, schedules, exhibits or other written information 

obtained from Seller in connection with this Agreement or the transaction contemplated herein, 

together with copies of any and all studies, reports, plans, financial projections, title reports, 

surveys or other documents prepared by or for Purchaser in connection with its proposed 

acquisition of the Property (all at no cost or expense to Seller, but without any representation or 

warranty as to Seller’s right to use any such materials). This Section 14.1 shall survive termination 

or Closing for a period of six (6) months. 

14.2 Public Disclosure. Any release to the public of information with respect to the sale 

contemplated herein or any matters set forth in this Agreement will be made only in the form 

approved by Purchaser and Seller and their respective counsel. 

14.3 Discharge of Obligations. The delivery and acceptance of the Deed by Seller and 

Purchaser shall be deemed to be a full performance and discharge of every representation and 

warranty made by Purchaser and Seller herein and every agreement and obligation on the part of 

Purchaser and Seller to be performed pursuant to the provisions of this Agreement, except those 

which are herein specifically stated to survive Closing. 

14.4 Assignment. Purchaser may assign its rights under this Agreement to an affiliate 

of Purchaser or an entity controlling, controlled by, or under common control with Purchaser 

pursuant to an agreement whereby the assignee expressly assumes all of the obligations of the 

originally named Purchaser; provided, however, that Purchaser originally named herein shall 

remain jointly and severally liable for all of the obligations of the Purchaser under this Agreement. 

Purchaser shall give Seller written notice of any such assignment together with a copy of the 

assignment document. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 62 of 99
1190996/LA 

-24- 

14.5 Notices. Any notice pursuant to this Agreement shall be given in writing by 

(a) internet e-mail with conforming copy sent by other means, or (b) personal delivery, or 

(c) reputable overnight delivery service with proof of delivery, or (d) United States Mail, postage 

prepaid, certified mail, return receipt requested, sent to the intended addressee at the address set 

forth below, or to such other address or to the attention of such other person as the addressee shall 

have designated by written notice sent in accordance herewith, and shall be deemed to have been 

given either at the time of personal delivery, or, in the case of expedited delivery service or mail, 

as of the date of first attempted delivery at the address and in the manner provided herein, or, in 

the case of an email transmission, as of the date of the email transmission (or next business day if 

transmitted on a day other than a business day) provided that an original of such email is also sent 

to the intended addressee by means described in clauses (b), (c) or (d) above. Unless changed in 

accordance with the preceding sentence, the addresses for notices given pursuant to this Agreement 

shall be as follows: 

If to Seller: WG Monterrey Venture LLC 

c/o The Garrett Companies 

1051 Greenwood Springs Blvd., Suite 101 

Greenwood, Indiana 46143 

Attn: Eric Garrett 

Tel: (317) 743-5995 

Email: Eric@TheGarrettCo.com 

with a copy to: WG Monterrey Venture LLC 

c/o The Garrett Companies 

1051 Greenwood Springs Blvd., Suite 101 

Greenwood, Indiana 46143 

Attn: Kyle McClammer 

Tel: (317) 743-8591 

Email: Eric@TheGarrettCo.com 

If to Purchaser: Dornin Investment Group 

6725 Via Austi Parkway, Suite 380 

Las Vegas, Nevada 89119 

Attn: Chris Dornin 

Email: chris@dorningroup.com 

With Copy to: Allen Matkins 

865 South Figueroa Street, Suite 2800 

Los Angeles, California 90017 

Attn: Mark Nicoletti, Esq. 

Tel: (213) 955-5517 

Email: mnicoletti@allenmatkins.com 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 63 of 99
1190996/LA 

-25- 

Escrow Agent: Fidelity National Title 

4400 MacArthur Boulevard, Suite 200 

Newport Beach, California 92660 

Attn: Valerie Rapp 

Tel: (949) 477-3646 

Email: Valerie.Rapp@fnt.com 

14.6 Modifications. This Agreement cannot be changed orally, and no executory 

agreement shall be effective to waive, change, modify or discharge it in whole or in part unless 

such executory agreement is in writing and is signed by the parties hereto. 

14.7 Calculation of Time Periods. Unless otherwise specified, in computing any period 

of time described in this Agreement, the day of the act or event after which the designated period 

of time begins to run is not to be included and the last day of the period so computed is to be 

included, unless such last day is a Saturday, Sunday or legal holiday under the laws of the State in 

which the Property is located, in which event the period shall run until the end of the next day 

which is neither a Saturday, Sunday or legal holiday. The final day of any such period shall be 

deemed to end at 5 p.m. Pacific Time. 

14.8 Successors and Assigns. The terms and provisions of this Agreement are to apply 

to and bind the permitted successors and assigns of the parties hereto. 

14.9 Entire Agreement. This Agreement, including the Exhibits, contains the entire 

agreement between the parties pertaining to the subject matter hereof and fully supersedes all prior 

written or oral agreements and understandings between the parties pertaining to such subject 

matter. 

14.10 Further Assurances. Each party agrees that it will without further consideration 

execute and deliver such other documents (including acknowledgments of receipt) and take such 

other action, whether prior or subsequent to Closing, as may be reasonably requested by the other 

party to consummate more effectively the purposes or subject matter of this Agreement. The 

provisions of this Section 14.10 shall survive Closing. 

14.11 Counterparts. This Agreement may be executed in counterparts, and all such 

executed counterparts shall constitute the same agreement. It shall be necessary to account for 

only one such counterpart in proving this Agreement. 

14.12 Severability. If any provision of this Agreement is determined by a court of 

competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall 

nonetheless remain in full force and effect. 

14.13 Applicable Law. This Agreement is performable in the state in which the Property 

is located and shall in all respects be governed by, and construed in accordance with, the 

substantive federal laws of the United States and the laws of such state. Seller and Purchaser 

hereby irrevocably submit to the jurisdiction of any state or federal court sitting in the state in 

which the Property is located in any action or proceeding arising out of or relating to this 

Agreement and hereby irrevocably agree that all claims in respect of such action or proceeding 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 64 of 99
1190996/LA 

-26- 

shall be heard and determined in a state or federal court sitting in the state in which the Property 

is located. Purchaser and Seller agree that the provisions of this Section 14.13 shall survive the 

Closing. 

14.14 Jury Trial Waiver. EACH OF THE PARTIES HEREBY WAIVES TRIAL BY 

JURY IN ANY ACTION OR PROCEEDING TO WHICH SELLER AND/OR PURCHASER 

MAY BE PARTIES ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY 

PERTAINING TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY 

AND VOLUNTARILY MADE BY THE PARTIES AND EACH HEREBY REPRESENTS AND 

WARRANTS TO THE OTHER THAT NO REPRESENTATIONS OF FACT OR OPINION 

HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY 

JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. EACH PARTY FURTHER 

REPRESENTS AND WARRANTS TO THE OTHER THAT IT HAS BEEN REPRESENTED 

IN THE SIGNING OF THIS AGREEMENT AND THE MAKING OF THIS WAIVER BY 

INDEPENDENT LEGAL COUNSEL, OF ITS OWN FREE WILL, AND HAS HAD THE 

OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE PROVISIONS OF 

THIS SECTION SHALL SURVIVE CLOSING OR THE TERMINATION OF THIS 

AGREEMENT.

14.15 Counsel. EACH PARTY HERETO WARRANTS AND REPRESENTS THAT 

EACH PARTY HAS BEEN AFFORDED THE OPPORTUNITY TO BE REPRESENTED BY 

COUNSEL OF ITS CHOICE IN CONNECTION WITH THE EXECUTION OF THIS 

AGREEMENT AND HAS HAD AMPLE OPPORTUNITY TO READ, REVIEW, AND 

UNDERSTAND THE PROVISIONS OF THIS AGREEMENT. 

14.16 Equal Participation. SELLER AND PURCHASER HAVE PARTICIPATED 

EQUALLY IN THE PREPARATION OF THIS AGREEMENT, AND, THEREFORE, THIS 

AGREEMENT AND EACH PROVISION THEREOF SHALL NOT BE CONSTRUED IN 

FAVOR OF OR AGAINST ANY PARTY TO THIS AGREEMENT BY REASON OF ONE 

PARTY’S BEING DEEMED TO HAVE PREPARED THIS AGREEMENT OR IMPOSED 

SUCH PROVISION. 

14.17 No Third-Party Beneficiary. The provisions of this Agreement and of the 

documents to be executed and delivered at Closing are and will be for the benefit of Seller and 

Purchaser only and are not for the benefit of any third-party, and accordingly, no third-party shall 

have the right to enforce the provisions of this Agreement or of the documents to be executed and 

delivered at Closing. 

14.18 Captions. The section headings appearing in this Agreement are for convenience 

of reference only and are not intended, to any extent and for any purpose, to limit or define the text 

of any section or any subsection hereof. 

14.19 Construction. The parties acknowledge that they and their counsel have reviewed 

and revised this Agreement and that the normal rule of construction to the effect that any 

ambiguities are to be resolved against the drafting party shall not be employed in the interpretation 

of this Agreement or any exhibits or amendments hereto. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 65 of 99
1190996/LA 

-27- 

14.20 Termination of Agreement. It is understood and agreed that if either Purchaser or 

Seller terminates this Agreement pursuant to a right of termination granted hereunder, such 

termination shall operate to relieve Seller and Purchaser from all obligations under this Agreement, 

except for such obligations as are specifically stated herein to survive the termination of this 

Agreement. Additionally, except as otherwise expressly stated herein, the provisions, terms and 

conditions in this Agreement shall merge into the Deed upon Closing and expire therewith. 

14.21 Exculpation. Notwithstanding anything to the contrary contained in this 

Agreement or in any exhibits attached hereto or in any documents executed in connection herewith 

(collectively, including this Agreement, said exhibits and any such document, the “Purchase 

Documents”), it is expressly understood and agreed by and between the parties hereto that no 

personal liability or personal responsibility of any sort with respect to any of Seller’s or Purchaser’s 

respective duties or obligations hereunder is assumed by, or shall at any time be asserted or 

enforceable against, Seller, Purchaser or their respective affiliates, or against any of their 

respective shareholders, directors, officers, employees, agents, advisors, constituent partners, 

members, managers, beneficiaries, trustees or representatives. 

14.22 TIME OF THE ESSENCE. TIME IS OF THE ESSENCE IN THIS 

AGREEMENT. 

14.23 Subcontractor and Supplier Warranties. With respect to any warranty or guaranty 

assigned by the terms and conditions of this Agreement or the General Assignment of Intangibles 

(collectively, the “Subcontractor Warranties”), upon written notice from Purchaser of a warranty 

or guarantee claim under one or more of the Subcontractor Warranties, Seller shall use good faith 

efforts to facilitate the claims-making process of Purchaser; provided, however, Seller shall not be 

obligated to expend money or incur costs or fees, including attorneys’ fees, in exercising such 

good faith effort. This Section 14.23 shall survive Closing. 

14.24 1031 Exchange. Seller and Buyer acknowledge that either party may wish to 

structure this transaction as a tax deferred exchange of like-kind property within the meaning of 

Section 1031 of the Internal Revenue Code and each party agrees to reasonably cooperate with the 

other party to effect such an exchange. Buyer shall be permitted to assign this Agreement to any 

"qualified intermediary" to effect an Internal Revenue Code Section 1031 deferred like kind 

exchange of properties. Seller agrees to cooperate with Buyer and Buyer's qualified intermediary 

to effect any such exchange of Property, however, Seller shall not be obligated to spend any 

additional time or money or incur any liability in so cooperating. This Agreement is not subject 

to or conditioned upon the Buyer's ability to dispose of a relinquished property or to effectuate an 

exchange. Further, any such exchange shall be effected by such qualified intermediary in such a 

manner that title to the property is directly deeded from the Seller to the Buyer. 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK; 

SIGNATURES TO FOLLOW] 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 66 of 99
1190996/LA 

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of 

the Effective Date. 

SELLER: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: Garrett Partners IV, LLC 

an Indiana limited liability company, 

its Manager 

By: ____________________________ 

Eric Garrett, Manager 

PURCHASER: 

DORNIN INVESTMENT GROUP, LLC, 

a Delaware limited liability company 

By: _________________________________ 

Chris Dornin, President 

 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 67 of 99
{10717663.2} 

JOINDER OF ESCROW AGENT 

Escrow Agent has executed this Agreement in order to confirm that Escrow Agent shall 

strictly comply with the provisions of this Agreement relating to Escrow Agent’s duties. 

Dated: December ____, 2019 

ESCROW AGENT: 

FIDELITY NATIONAL TITLE COMPANY 

By: ______________________________ 

Name: ________________________ 

Title: _________________________ 

31

Valerie Rapp

VP

h_____ 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 68 of 99
1190996/LA 

SCHEDULE OF EXHIBITS: 

SCHEDULE 7.2 MARKET LEASE TERMS 

EXHIBIT A LEGAL DESCRIPTION OF THE LAND 

EXHIBIT B SERVICE CONTRACTS SCHEDULE 

EXHIBIT C RENT ROLL 

EXHIBIT D FORM OF DEED 

EXHIBIT E FORM OF BILL OF SALE 

EXHIBIT F FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES 

EXHIBIT G FORM OF ASSIGNMENT AND ASSUMPTION OF SERVICE 

CONTRACTS 

EXHIBIT H GENERAL ASSIGNMENT OF INTANGIBLES 

EXHIBIT I FORM OF TENANT NOTICE 

EXHIBIT J FORM OF CERTIFICATE OF NON-FOREIGN STATUS 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 69 of 99
1190996/LA 

SCHEDULE 7.2 

MARKET LEASE 

TERMS 

-1- 

SCHEDULE 7.2 

MARKET LEASE TERMS 

TYPE Floorplan # of

Units

SF Rent Concession

1B1B A1 10 757 $1,165   One Month Free On A 13 Month Lease

1B1B A1G 10 757 $1,265   One Month Free On A 13 Month Lease

1B1B A2 10 859 $1,245   2 Weeks Free On A 13 Month Lease

1B1B A2G 10 859 $1,445   One Month Free On A 13 Month Lease

1B1B A3 20 769 $1,050   One Month Free On A 13 Month Lease

1B1B A4 20 954 $1,099   One Month Free On A 13 Month Lease

1B1B A4G 20 954 $1,199   2 Weeks Free On A 13 Month Lease

2B2B B1 20 1,024 $1,299   One Month Free On A 13 Month Lease

2B2B B2 20 1,084 $1,500   One Month Free On A 13 Month Lease

2B2B B2G 20 1,084 $1,550   One Month Free On A 13 Month Lease

2B2B B3 10 1,299 $1,475   One Month Free On A 13 Month Lease

2B2B B3G 10 1,299 $1,625   One Month Free On A 13 Month Lease

2B2B B4 10 1,389 $1,525   One Month Free On A 13 Month Lease

2B2B B4G 10 1,389 $1,625   One Month Free On A 13 Month Lease

3B2B C1 10 1,376 $1,625   One Month Free On A 13 Month Lease

3B2B C1G 10 1,376 $1,699   One Month Free On A 13 Month Lease

3B2B C2 10 1,477 $1,699   One Month Free On A 13 Month Lease

3B2B C2G 10 1,477 $1,750   One Month Free On A 13 Month Lease

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 70 of 99
1190996/LA 

EXHIBIT A 

-1- 

EXHIBIT A 

LEGAL DESCRIPTION OF THE LAND 

Lot 10. Block 8. ew City Block 1912 . ECHELO J AT ONTERREY VILLAGE MPCD. a 

ubdivision in Bexar County. Texas. according to the map or plat thereof. recorded in Volume 969 . Page 

143 of the Deed and Plat Records of Bexar County. Texa . 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 71 of 99
1190996/LA 

EXHIBIT B 

-1- 

EXHIBIT B 

SERVICE CONTRACTS SCHEDULE 

Contractor Name Service Description

Realpage Answering Service

Bizdoc Copier/Printer Lease

Gratr Landscaping

AT&T Phone, Internet, Cable

Ecoteam Pest Control

Parks Coffee Coffee Service

Waste Management Waste Mgmt

GSC Monitoring Fire Monitoring

Pool Sure Pool service

River City Pool Service Monthly pool cleaning and chemical testing

r 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 72 of 99
1190996/LA 

EXHIBIT C 

-1- 

EXHIBIT C 

RENT ROLL 

(to be attached) 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 73 of 99
Unit Unit Type Unit Resident Name Market Actual Resident Other Move In Lease Move Out Balance

Sq Ft Rent Rent Deposit Deposit Expiration

Current/Notice/Vacant Residents

01101 4810-c1 1,376.00 t0056620 Just Like Home 1,750.00 1,614.00 0.00 0.00 04/23/2018 06/08/2020 0.00

01102 4810-a1 757.00 t0098878 Jennifer Garibay 1,165.00 1,005.00 400.00 0.00 10/26/2019 10/31/2020 0.00

01103 4810-b3 1,299.00 t0401784 Sean Fenton 1,575.00 1,500.00 0.00 0.00 09/07/2018 10/26/2020 0.00

01105 4810-b1 1,024.00 MODEL MODEL 1,475.00 0.00 0.00 0.00 0.00

01108 4810-a3 769.00 t0398852 Aaliyah Vargas 1,070.00 950.00 0.00 0.00 10/31/2018 11/02/2020 0.00

01110 4810-a3 769.00 t0387489 Marc Hartline 1,070.00 989.00 0.00 0.00 07/27/2018 09/28/2020 0.00

01113 4810-b1 1,024.00 t0065753 Just Like Home 1,475.00 1,350.00 0.00 0.00 08/03/2018 06/01/2020 0.00

01204 4810-b4 1,389.00 t0294587 Anibal Martinez 1,650.00 1,540.00 0.00 0.00 09/07/2018 03/09/2020 -1,676.73

01206 4810-b2 1,084.00 t0097289 Jennifer Smith-Steiner 1,500.00 1,200.00 400.00 0.00 10/10/2019 10/12/2020 0.00

01207 4810-a4 954.00 t0104964 Jorge Baez 1,260.00 1,099.00 0.00 0.00 12/20/2019 01/31/2021 -1,013.5501209 4810-a2 859.00 t0238801 Rita Celedon 1,245.00 1,099.00 0.00 0.00 08/10/2017 08/17/2020 -1,156.8601211 4810-a4 954.00 t0094084 Abdulrahman Bahri 1,260.00 1,195.00 0.00 0.00 08/22/2019 05/25/2020 0.00

01212 4810-b2 1,084.00 t0097003 Victor Buonomo 1,500.00 1,200.00 400.00 0.00 10/05/2019 09/30/2020 0.00

01214 4810-c2 1,477.00 t0455427 Jessie Ramirez 1,799.00 1,599.00 0.00 0.00 01/04/2019 01/06/2020 01/06/2020 0.00

02101 4810-c1g 1,376.00 t0389654 Luz Martinez 1,850.00 1,699.00 0.00 0.00 07/13/2018 03/02/2020 0.00

02102 4810-a1g 757.00 t0083510 Matthew Hollingsworth 1,265.00 1,265.00 0.00 0.00 07/11/2019 07/13/2020 0.00

02103 4810-b3g 1,299.00 t0097880 PATRICIA CORTINAS 1,625.00 1,499.00 0.00 0.00 10/22/2019 10/31/2020 0.00

02204 4810-b4g 1,389.00 t0042993 Christopher Robinson 1,750.00 0.00 0.00 0.00 08/23/2017 10/26/2020 12/31/2019 50.00

02206 4810-b2g 1,084.00 t0082180 Thomas Gaylord 1,550.00 1,550.00 0.00 0.00 04/28/2019 04/27/2020 0.00

02207 4810-a4g 954.00 t0102141 Vicente Santos Jr 1,325.00 1,199.00 0.00 0.00 12/16/2019 01/31/2021 -575.32

02209 4810-a2g 859.00 t0086627 Christopher Poore 1,445.00 1,049.00 400.00 0.00 08/28/2019 08/31/2020 0.00

02211 4810-a4g 954.00 t0102597 Feliciano Lopez 1,325.00 1,199.00 0.00 0.00 12/01/2019 12/31/2020 0.00

02212 4810-b2g 1,084.00 t0416654 Victoria Vu 1,550.00 1,581.00 0.00 0.00 10/05/2018 09/07/2020 -1,660.22

02214 4810-c2g 1,477.00 VACANT VACANT 1,899.00 0.00 0.00 0.00 0.00

03101 4810-c1 1,376.00 t0100505 Miguel Martinez 1,750.00 1,625.00 0.00 0.00 11/01/2019 12/07/2020 01/31/2020 1,863.71

03102 4810-a1 757.00 t0086805 Flor Cruz 1,165.00 949.00 400.00 0.00 06/29/2019 06/29/2020 -1,020.3203103 4810-b3 1,299.00 t0441467 Travis Kaja 1,575.00 1,550.00 0.00 0.00 10/25/2018 11/02/2020 0.00

03105 4810-b1 1,024.00 VACANT VACANT 1,475.00 0.00 0.00 0.00 0.00

03108 4810-a3 769.00 t0097340 Abdulla Al-khulaifi 1,070.00 1,049.00 0.00 0.00 10/06/2019 04/05/2020 0.00

03110 4810-a3 769.00 VACANT VACANT 1,070.00 0.00 0.00 0.00 0.00

03113 4810-b1 1,024.00 t0075574 Elvia Garza 1,475.00 1,399.00 0.00 0.00 02/23/2019 02/24/2020 0.00

03204 4810-b4 1,389.00 t0071011 Mohammed Alnaimi 1,650.00 1,650.00 0.00 0.00 12/14/2018 11/25/2019 75.00

03206 4810-b2 1,084.00 t0091510 Thamer Mohammed 1,500.00 1,500.00 400.00 0.00 08/06/2019 08/03/2020 -1,570.76

03207 4810-a4 954.00 VACANT VACANT 1,260.00 0.00 0.00 0.00 0.00

03209 4810-a2 859.00 t0086725 Ariel Cruz 1,245.00 999.00 0.00 0.00 08/14/2019 08/17/2020 0.00

03211 4810-a4 954.00 t0043220 Gregory Pinnekins 1,260.00 1,121.00 0.00 0.00 08/01/2017 08/17/2020 0.00

03212 4810-b2 1,084.00 t0067416 Shania Thomas 1,500.00 1,300.00 0.00 0.00 09/15/2018 11/30/2020 0.00

03214 4810-c2 1,477.00 t0069091 Aurora Lozano 1,799.00 1,640.00 0.00 0.00 11/15/2018 12/28/2020 0.00

Rent Roll Page 1

Echelon at Monterrey Village (4810)As Of = 12/31/2020Month Year = 12/2019

Tuesday, December 31, 2019

11:45 AM

_,_ 

_,_ 

_,_ 

_,_ 

-,-

-,-

_,_ 

_,_ 

-,-

-,-

-,-

-,-

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 74 of 99
Unit Unit Type Unit Resident Name Market Actual Resident Other Move In Lease Move Out Balance

Sq Ft Rent Rent Deposit Deposit Expiration

04101 4810-c1g 1,376.00 t0099927 Theresa Williams 1,850.00 1,499.00 0.00 0.00 11/02/2019 12/07/2020 0.0004102 4810-a1g 757.00 t0067417 Alejandro Ruiz 1,265.00 1,265.00 0.00 0.00 06/20/2019 06/22/2020 -1,334.1504103 4810-b3g 1,299.00 t0354320 Philomene Balihe 1,625.00 1,535.00 0.00 0.00 06/22/2018 06/29/2020 0.0004204 4810-b4g 1,389.00 t0042727 Justin Contreras 1,750.00 1,750.00 0.00 0.00 06/24/2019 06/29/2020 0.0004206 4810-b2g 1,084.00 t0071770 Jeaneen Spears 1,550.00 1,500.00 0.00 0.00 02/17/2019 02/29/2020 0.0004207 4810-a4g 954.00 t0102159 DaNae Vazquez 1,325.00 1,099.00 0.00 0.00 11/26/2019 03/01/2021 0.0004209 4810-a2g 859.00 t0095717 Anthony Johnson 1,445.00 1,200.00 0.00 0.00 11/07/2019 11/02/2020 0.0004211 4810-a4g 954.00 t0102155 Taylor Keown 1,325.00 1,199.00 400.00 0.00 11/22/2019 12/21/2020 -1,164.0004212 4810-b2g 1,084.00 VACANT VACANT 1,550.00 0.00 0.00 0.00 0.0004214 4810-c2g 1,477.00 t0101893 Sandra Lopez 1,899.00 1,775.00 0.00 0.00 11/09/2019 12/07/2020 37.3405101 4810-c1 1,376.00 t0067468 Diana Cantu 1,750.00 1,606.00 0.00 0.00 08/31/2018 08/31/2020 0.0005102 4810-a1 757.00 t0091651 Jodi Moore 1,165.00 995.00 400.00 0.00 08/03/2019 08/03/2020 0.0005103 4810-b3 1,299.00 t0102474 Moses Casas 1,575.00 1,475.00 0.00 0.00 11/22/2019 12/21/2020 35.0005105 4810-b1 1,024.00 t0083505 Francis Lyons 1,475.00 1,475.00 0.00 0.00 07/17/2019 07/20/2020 0.0005108 4810-a3 769.00 t0081548 Laura Vincent 1,070.00 1,070.00 0.00 0.00 05/25/2019 05/31/2020 0.0005110 4810-a3 769.00 t0101527 Benjamin Dysart 1,070.00 999.00 0.00 0.00 11/15/2019 12/14/2020 0.0005113 4810-b1 1,024.00 t0076830 Donnie Avina 1,475.00 1,399.00 0.00 0.00 03/13/2019 03/16/2020 34.8105204 4810-b4 1,389.00 t0085673 Neil Langgaard 1,650.00 1,650.00 400.00 0.00 07/11/2019 07/13/2020 0.0005206 4810-b2 1,084.00 t0070163 John Wakabi 1,500.00 1,350.00 0.00 0.00 11/06/2018 05/11/2020 0.0005207 4810-a4 954.00 t0353991 Angelica Mora 1,260.00 1,260.00 0.00 0.00 07/27/2019 07/31/2020 0.0005209 4810-a2 859.00 t0077989 Katherine Serna 1,245.00 1,085.00 0.00 0.00 03/25/2019 03/30/2020 0.0005211 4810-a4 954.00 t0043346 Joey Cross 1,260.00 1,099.00 0.00 0.00 09/01/2017 02/24/2020 0.0005212 4810-b2 1,084.00 t0086959 Vanessa Zermeno 1,500.00 1,250.00 0.00 0.00 07/12/2019 07/13/2020 -1,381.6805214 4810-c2 1,477.00 t0069085 Johnny Maldonado Jr 1,799.00 1,699.00 0.00 0.00 10/31/2018 11/30/2020 0.0006101 4810-c1g 1,376.00 t0095426 Tina Turcios 1,850.00 1,705.00 0.00 0.00 09/07/2019 09/07/2020 -1,885.1006102 4810-a1g 757.00 t0430251 Samantha Amaro 1,265.00 930.00 0.00 0.00 11/23/2018 12/07/2020 0.0006103 4810-b3g 1,299.00 t0082865 Jorge Caldera 1,625.00 1,625.00 0.00 0.00 05/31/2019 06/01/2020 0.0006204 4810-b4g 1,389.00 t0258109 Kaylen Jones 1,750.00 1,650.00 0.00 0.00 10/10/2018 12/07/2020 -92.5706206 4810-b2g 1,084.00 t0449040 James Henderson 1,550.00 1,450.00 0.00 0.00 12/08/2018 01/13/2020 -1,546.3606207 4810-a4g 954.00 t0433883 Kacia Hall 1,325.00 1,149.00 0.00 0.00 10/19/2018 05/04/2020 0.0006209 4810-a2g 859.00 t0434056 Adrian Ortiz 1,445.00 1,200.00 0.00 0.00 12/13/2019 11/30/2020 506.6106211 4810-a4g 954.00 t0437538 Tom Gillis 1,325.00 1,199.00 0.00 0.00 11/30/2018 01/06/2020 01/06/2020 -292.1806212 4810-b2g 1,084.00 t0086183 Carelton Burkett 1,550.00 1,300.00 0.00 0.00 06/28/2019 06/29/2020 -1,507.5506214 4810-c2g 1,477.00 t0373909 Yamica Mumphery 1,899.00 1,835.00 0.00 0.00 07/09/2018 09/14/2020 -1,896.1707101 4810-c1g 1,376.00 t0411937 John Flores 1,850.00 1,850.00 0.00 0.00 08/31/2018 11/04/2019 0.0007102 4810-a1g 757.00 t0086918 Javier Gonzalez 1,265.00 1,079.00 0.00 0.00 07/31/2019 07/27/2020 0.0007103 4810-b3g 1,299.00 t0102086 Doris Smith 1,625.00 1,499.00 0.00 0.00 12/15/2019 01/31/2021 -696.9707204 4810-b4g 1,389.00 VACANT VACANT 1,750.00 0.00 0.00 0.00 0.00R07206 4810-b2g 1,084.00 t0052057 Eric Saunders Malave 1,550.00 1,390.26 0.00 0.00 02/03/2018 03/02/2020 0.00

ent R

oll Page 2

Echelon at Monterrey Village (4810)As Of = 12/31/2020Month Year = 12/2019

Tuesday, December 31, 2019

11:45 AM

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 75 of 99
Unit Unit Type Unit Resident Name Market Actual Resident Other Move In Lease Move Out Balance

Sq Ft Rent Rent Deposit Deposit Expiration

07207 4810-a4g 954.00 t0103046 Mohammed ALSHAHRANI 1,325.00 1,199.00 0.00 0.00 11/30/2019 12/31/2020 0.0007209 4810-a2g 859.00 t0089515 Hui Chung Lu 1,445.00 1,200.00 0.00 0.00 07/20/2019 02/17/2020 0.0007211 4810-a4g 954.00 t0049591 Gilberto Castillo 1,325.00 1,199.00 0.00 0.00 12/07/2019 11/30/2020 270.7307212 4810-b2g 1,084.00 t0086150 Alishyante Chavis 1,550.00 1,550.00 0.00 0.00 08/12/2019 08/10/2020 -2,167.9807214 4810-c2g 1,477.00 t0066645 Rodolfo Guevara 1,899.00 1,799.00 0.00 0.00 08/18/2018 07/27/2020 0.0008101 4810-c1g 1,376.00 VACANT VACANT 1,850.00 0.00 0.00 0.00 0.0008102 4810-a1g 757.00 t0409294 Chad VanMeter 1,265.00 1,225.00 0.00 0.00 07/28/2018 10/12/2020 -1,284.0308103 4810-b3g 1,299.00 VACANT VACANT 1,625.00 0.00 0.00 0.00 0.0008204 4810-b4g 1,389.00 t0391482 Brittany Midkiff 1,750.00 1,615.00 0.00 0.00 08/04/2018 10/05/2020 0.0008206 4810-b2g 1,084.00 t0085417 Bryona Estrada 1,550.00 1,550.00 0.00 0.00 07/01/2019 07/06/2020 -74.5608207 4810-a4g 954.00 t0083923 Lexus Murray 1,325.00 1,325.00 0.00 0.00 09/06/2019 10/12/2020 -2,414.6408209 4810-a2g 859.00 t0086366 Sydney Leach 1,445.00 1,049.00 0.00 0.00 08/16/2019 08/17/2020 0.0008211 4810-a4g 954.00 t0084357 Brandi Wall 1,325.00 1,325.00 0.00 0.00 07/13/2019 07/13/2020 0.0008212 4810-b2g 1,084.00 t0086274 Ubal Andaya Duarte 1,550.00 1,300.00 0.00 0.00 06/28/2019 06/29/2020 50.0008214 4810-c2g 1,477.00 t0435246 Hector Rodriguez 1,899.00 1,899.00 0.00 0.00 09/13/2019 09/14/2020 -2,061.5009101 4810-c1 1,376.00 t0093613 Gilbert Garza 1,750.00 1,650.00 0.00 0.00 08/16/2019 08/31/2020 -160.0009102 4810-a1 757.00 VACANT VACANT 1,165.00 0.00 0.00 0.00 0.0009103 4810-b3 1,299.00 t0077470 Alexandra Layman 1,575.00 1,575.00 0.00 0.00 03/31/2019 04/06/2020 0.0009105 4810-b1 1,024.00 t0094723 Addison Starr 1,475.00 1,200.00 0.00 0.00 09/18/2019 09/21/2020 0.0009108 4810-a3 769.00 t0085725 Arleen Lopez 1,070.00 1,070.00 0.00 0.00 07/19/2019 07/20/2020 -1,940.8709110 4810-a3 769.00 t0097463 CHARLOTTE MAHER 1,070.00 999.00 0.00 0.00 11/16/2019 11/30/2020 -75.0009113 4810-b1 1,024.00 t0372694 David Clark 1,475.00 1,249.00 0.00 0.00 05/10/2018 05/18/2020 -309.6509204 4810-b4 1,389.00 t0095840 Quentin Foster 1,650.00 1,525.00 0.00 0.00 09/24/2019 09/21/2020 -1,620.9309206 4810-b2 1,084.00 t0093644 ahmed aldossary 1,500.00 1,250.00 0.00 0.00 08/16/2019 08/17/2020 -197.3009207 4810-a4 954.00 VACANT VACANT 1,260.00 0.00 0.00 0.00 0.0009209 4810-a2 859.00 VACANT VACANT 1,245.00 0.00 0.00 0.00 0.0009211 4810-a4 954.00 t0096794 Mariah Avery-Williams 1,260.00 1,099.00 0.00 0.00 10/14/2019 10/12/2020 0.0009212 4810-b2 1,084.00 t0324338 Kathleen Alland 1,500.00 1,199.00 0.00 0.00 06/02/2018 06/08/2020 0.0009214 4810-c2 1,477.00 VACANT VACANT 1,799.00 0.00 0.00 0.00 0.0010101 4810-c1g 1,376.00 VACANT VACANT 1,850.00 0.00 0.00 0.00 0.0010102 4810-a1g 757.00 t0094511 Malik West 1,265.00 1,200.00 400.00 0.00 09/16/2019 09/14/2020 -121.5010103 4810-b3g 1,299.00 t0088666 Francisco Olivares 1,625.00 1,625.00 0.00 0.00 07/13/2019 07/13/2020 0.0010204 4810-b4g 1,389.00 VACANT VACANT 1,750.00 0.00 0.00 0.00 0.0010206 4810-b2g 1,084.00 t0079582 Karlis Bowman 1,550.00 1,550.00 0.00 0.00 04/10/2019 01/13/2020 -1,618.6910207 4810-a4g 954.00 t0097848 Gersam Morales 1,325.00 1,200.00 0.00 0.00 12/06/2019 12/07/2020 0.0010209 4810-a2g 859.00 t0089748 sultan alashry 1,445.00 1,200.00 0.00 0.00 07/18/2019 02/24/2020 01/04/2020 317.6810211 4810-a4g 954.00 t0077343 Bethany Ramos 1,325.00 1,199.00 0.00 0.00 04/01/2019 04/06/2020 0.0010212 4810-b2g 1,084.00 VACANT VACANT 1,550.00 0.00 0.00 0.00 0.00R10214 4810-c2g 1,477.00 t0054109 Antoinette Suer 1,899.00 1,741.15 0.00 0.00 05/01/2018 06/08/2020 0.00

ent R

oll Page 3

Echelon at Monterrey Village (4810)As Of = 12/31/2020Month Year = 12/2019

Tuesday, December 31, 2019

11:45 AM

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 76 of 99
Unit Unit Type Unit Resident Name Market Actual Resident Other Move In Lease Move Out Balance

Sq Ft Rent Rent Deposit Deposit Expiration

11101 4810-c1g 1,376.00 t0400961 Viridiana Barrera 1,850.00 1,699.00 0.00 0.00 08/31/2018 11/09/2020 0.0011102 4810-a1g 757.00 t0438396 Jenna Perez 1,265.00 930.00 0.00 0.00 11/30/2018 12/07/2020 -1,001.3211103 4810-b3g 1,299.00 t0100526 Perla Amos 1,625.00 1,499.00 0.00 0.00 11/06/2019 12/07/2020 0.0011204 4810-b4g 1,389.00 VACANT VACANT 1,750.00 0.00 0.00 0.00 0.0011206 4810-b2g 1,084.00 t0084822 Adrienne Kennedy 1,550.00 1,550.00 0.00 0.00 06/20/2019 04/20/2020 -3,606.0911207 4810-a4g 954.00 t0086734 Michael Contreras 1,325.00 1,325.00 0.00 0.00 08/16/2019 08/31/2020 0.0011209 4810-a2g 859.00 t0441451 Earnest Amuyinegbe 1,445.00 999.00 0.00 0.00 10/29/2018 05/04/2020 -1,061.4311211 4810-a4g 954.00 t0071084 April Ledesma 1,325.00 1,199.00 0.00 0.00 12/17/2018 01/06/2020 01/06/2020 -288.4911212 4810-b2g 1,084.00 t0102908 Sara Hendrix 1,550.00 1,499.00 0.00 0.00 12/06/2019 12/28/2020 -776.7711214 4810-c2g 1,477.00 VACANT VACANT 1,899.00 0.00 0.00 0.00 0.0012101 4810-c1 1,376.00 VACANT VACANT 1,750.00 0.00 0.00 0.00 0.0012102 4810-a1 757.00 t0083269 Just Like Home 1,165.00 1,165.00 0.00 0.00 05/15/2019 05/18/2020 0.0012103 4810-b3 1,299.00 t0097305 khalid khormi 1,575.00 1,475.00 0.00 0.00 10/05/2019 10/05/2020 -1,547.5112105 4810-b1 1,024.00 t0352057 John Morgan 1,475.00 1,325.00 0.00 0.00 03/22/2018 03/23/2020 0.0012108 4810-a3 769.00 t0086485 Catherine Herrera 1,070.00 1,070.00 0.00 0.00 09/06/2019 08/31/2020 02/01/2020 0.0012110 4810-a3 769.00 t0067708 Giselle Gallegos 1,070.00 1,090.00 0.00 0.00 11/17/2018 01/27/2020 01/27/2020 -1,034.8312113 4810-b1 1,024.00 t0094655 Angie Flores 1,475.00 1,300.00 400.00 0.00 09/06/2019 09/07/2020 0.0012204 4810-b4 1,389.00 t0071733 David Harvey 1,650.00 1,550.00 0.00 0.00 01/26/2019 02/03/2020 -20.0012206 4810-b2 1,084.00 t0371606 Rhonda Lyons 1,500.00 1,325.00 0.00 0.00 05/14/2018 05/25/2020 0.0012207 4810-a4 954.00 t0307353 Robert Chambers 1,260.00 999.00 0.00 0.00 03/02/2018 06/01/2020 01/31/2020 1,261.6312209 4810-a2 859.00 t0088601 Elizabeth LejK 1,245.00 1,096.00 400.00 0.00 07/25/2019 07/31/2020 0.0012211 4810-a4 954.00 VACANT VACANT 1,260.00 0.00 0.00 0.00 0.0012212 4810-b2 1,084.00 t0096702 Joslyn Reed 1,500.00 1,200.00 0.00 0.00 11/09/2019 10/31/2020 -1,338.8812214 4810-c2 1,477.00 VACANT VACANT 1,799.00 0.00 0.00 0.00 0.0013101 4810-c1g 1,376.00 t0074242 Marife Cayas 1,850.00 1,850.00 0.00 0.00 02/10/2019 01/27/2020 02/08/2020 0.0013102 4810-a1g 757.00 t0044760 Jaxon Abdoo 1,265.00 1,250.00 0.00 0.00 08/24/2018 09/07/2020 0.0013103 4810-b3g 1,299.00 t0368328 Laryn Nelson 1,625.00 1,555.00 0.00 0.00 05/09/2018 07/06/2020 0.0013204 4810-b4g 1,389.00 t0052130 Quincy Williams 1,750.00 1,615.00 0.00 0.00 07/31/2018 07/27/2020 0.0013206 4810-b2g 1,084.00 t0103092 Selina Banda 1,550.00 1,499.00 0.00 0.00 12/02/2019 12/31/2020 -83.3513207 4810-a4g 954.00 t0084094 Wataru Miyoshi 1,325.00 1,325.00 0.00 0.00 06/12/2019 06/15/2020 0.0013209 4810-a2g 859.00 t0070131 Aaron Blue 1,445.00 999.00 0.00 0.00 11/24/2018 11/30/2020 0.0013211 4810-a4g 954.00 t0433717 Akintunde Erophillips 1,325.00 1,099.00 0.00 0.00 10/04/2018 02/03/2020 0.0013212 4810-b2g 1,084.00 t0044215 Eloy Arechiga 1,550.00 1,450.00 0.00 0.00 03/23/2018 03/30/2020 0.0013214 4810-c2g 1,477.00 VACANT VACANT 1,899.00 0.00 0.00 0.00 0.00R14101 4810-c1g 1,376.00 t0058686 Laveshia Williams 1,850.00 1,735.00 0.00 0.00 05/01/2018 07/06/2020 0.0014102 4810-a1g 757.00 t0436269 Jeffery Massey 1,265.00 920.00 0.00 0.00 12/16/2018 01/27/2020 01/27/2020 0.0014103 4810-b3g 1,299.00 t0045751 Alec Pena 1,625.00 1,581.00 0.00 0.00 09/22/2018 09/30/2020 0.0014204 4810-b4g 1,389.00 t0070470 Zena Garcia 1,750.00 1,750.00 0.00 0.00 05/01/2019 05/04/2020 0.0014206 4810-b2g 1,084.00 t0047684 Sadday Hernandez 1,550.00 1,450.15 0.00 0.00 01/13/2018 02/24/2020 -68.15

ent R

oll Page 4

Echelon at Monterrey Village (4810)As Of = 12/31/2020Month Year = 12/2019

Tuesday, December 31, 2019

11:45 AM

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 77 of 99
Unit Unit Type Unit Resident Name Market Actual Resident Other Move In Lease Move Out Balance

Sq Ft Rent Rent Deposit Deposit Expiration

14207 4810-a4g 954.00 VACANT VACANT 1,325.00 0.00 0.00 0.00 0.0014209 4810-a2g 859.00 t0440489 Teresa Goshman 1,445.00 1,049.00 0.00 0.00 11/01/2018 01/27/2020 -50.0014211 4810-a4g 954.00 t0083195 Kelsey Fort 1,325.00 1,325.00 0.00 0.00 05/17/2019 05/18/2020 -489.8114212 4810-b2g 1,084.00 t0054818 Francheska plass Rodriguez 1,550.00 1,435.50 0.00 0.00 03/15/2018 03/30/2020 0.0014214 4810-c2g 1,477.00 t0093466 Amer Alshehri 1,899.00 1,899.00 0.00 0.00 08/15/2019 05/25/2020 0.0015101 4810-c1 1,376.00 VACANT VACANT 1,750.00 0.00 0.00 0.00 0.0015102 4810-a1 757.00 t0095507 Myeshia Bradley 1,165.00 975.00 0.00 0.00 10/05/2019 10/05/2020 -1,051.9915103 4810-b3 1,299.00 t0086735 Wendy Hinojosa 1,575.00 1,575.00 400.00 0.00 07/02/2019 07/06/2020 -1,533.5215105 4810-b1 1,024.00 t0321707 Shaianna Pallesen 1,475.00 1,399.00 0.00 0.00 03/14/2019 03/16/2020 -1,502.6715108 4810-a3 769.00 t0074135 David Claar 1,070.00 1,070.00 0.00 0.00 03/30/2019 03/30/2020 0.0015110 4810-a3 769.00 VACANT VACANT 1,070.00 0.00 0.00 0.00 0.0015113 4810-b1 1,024.00 VACANT VACANT 1,475.00 0.00 0.00 0.00 0.0015204 4810-b4 1,389.00 t0050354 Spencer Mason 1,650.00 1,649.00 0.00 0.00 12/14/2017 12/16/2019 02/15/2020 0.0015206 4810-b2 1,084.00 t0089813 Ahmad Al-Mulla 1,500.00 1,500.00 0.00 0.00 07/18/2019 02/17/2020 01/10/2020 -36.1315207 4810-a4 954.00 t0311444 Kyle Hubert 1,260.00 969.03 0.00 0.00 03/12/2018 01/20/2020 0.0015209 4810-a2 859.00 t0449443 Kyra Farmer 1,245.00 1,096.00 0.00 0.00 11/09/2019 10/31/2020 0.0015211 4810-a4 954.00 t0289521 Monica Gonzalez 1,260.00 1,099.00 0.00 0.00 03/11/2019 03/16/2020 0.0015212 4810-b2 1,084.00 t0044978 Catarino Gomez 1,500.00 1,200.00 0.00 0.00 10/01/2019 09/30/2020 0.0015214 4810-c2 1,477.00 t0093625 Mohammed AL AKLABI 1,799.00 1,799.00 0.00 0.00 08/16/2019 05/25/2020 0.0016101 4810-c1 1,376.00 VACANT VACANT 1,750.00 0.00 0.00 0.00 0.0016102 4810-a1 757.00 t0095550 Marissa Botello 1,165.00 975.00 0.00 0.00 09/13/2019 09/14/2020 0.0016103 4810-b3 1,299.00 t0418651 Courtney Simms 1,575.00 1,500.00 0.00 0.00 10/01/2018 10/26/2020 0.0016105 4810-b1 1,024.00 t0075295 Anton Channel 1,475.00 1,399.00 0.00 0.00 02/15/2019 02/24/2020 02/24/2020 0.0016108 4810-a3 769.00 t0073000 Darek Peterson 1,070.00 1,070.00 0.00 0.00 03/12/2019 03/16/2020 0.0016110 4810-a3 769.00 t0437126 Raymond Arredondo 1,070.00 1,009.00 0.00 0.00 11/17/2018 12/02/2020 50.0016113 4810-b1 1,024.00 t0094645 Latisha Cole 1,475.00 1,300.00 0.00 0.00 09/11/2019 09/14/2020 0.0016204 4810-b4 1,389.00 t0093117 bakheet alhajri 1,650.00 1,650.00 0.00 0.00 08/09/2019 04/30/2020 0.0016206 4810-b2 1,084.00 t0097492 Jessica Tuff-Harvey 1,500.00 1,200.00 400.00 0.00 10/11/2019 10/05/2020 0.0016207 4810-a4 954.00 t0077576 Devin Ramirez 1,260.00 1,099.00 0.00 0.00 03/10/2019 02/29/2020 0.0016209 4810-a2 859.00 VACANT VACANT 1,245.00 0.00 0.00 0.00 0.0016211 4810-a4 954.00 t0096069 Mazen Alsulami 1,260.00 1,099.00 0.00 0.00 10/02/2019 03/30/2020 -1,155.9616212 4810-b2 1,084.00 t0070639 Oluwaseun Owoola 1,500.00 1,390.00 0.00 0.00 12/22/2018 01/20/2020 -1,436.9616214 4810-c2 1,477.00 t0085036 Marwan Aljahdali 1,799.00 1,799.00 0.00 0.00 06/05/2019 03/09/2020 0.0017101 4810-c1 1,376.00 t0095329 Christopher Gerhart 1,750.00 1,599.00 400.00 0.00 09/09/2019 09/07/2020 0.0017102 4810-a1 757.00 t0095472 Phoenix Ostwald 1,165.00 975.00 400.00 0.00 09/11/2019 09/07/2020 0.0017103 4810-b3 1,299.00 VACANT VACANT 1,575.00 0.00 0.00 0.00 0.0017105 4810-b1 1,024.00 t0105253 Corderro Saunders 1,475.00 1,299.00 0.00 0.00 12/27/2019 01/26/2021 -1,739.6417108 4810-a3 769.00 t0444110 Kimberly Olivo 1,070.00 1,070.00 0.00 0.00 12/20/2018 12/30/2019 125.0017110 4810-a3 769.00 VACANT VACANT 1,070.00 0.00 0.00 0.00 0.00R

ent R

oll Page 5

Echelon at Monterrey Village (4810)As Of = 12/31/2020Month Year = 12/2019

Tuesday, December 31, 2019

11:45 AM

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 78 of 99
Unit Unit Type Unit Resident Name Market Actual Resident Other Move In Lease Move Out Balance

Sq Ft Rent Rent Deposit Deposit Expiration

17113 4810-b1 1,024.00 t0054041 Isaac Gabe Hale 1,475.00 1,351.00 0.00 0.00 03/03/2018 03/04/2020 0.0017204 4810-b4 1,389.00 VACANT VACANT 1,650.00 0.00 0.00 0.00 0.0017206 4810-b2 1,084.00 t0051547 Yaneth Paiz 1,500.00 1,379.00 0.00 0.00 02/01/2018 04/13/2020 0.0017207 4810-a4 954.00 t0094711 Cristobal Altamirano 1,260.00 1,165.00 400.00 0.00 08/31/2019 05/31/2020 0.0017209 4810-a2 859.00 t0367368 Tyasia Priester 1,245.00 1,186.00 0.00 0.00 05/03/2018 06/08/2020 -1,246.2117211 4810-a4 954.00 t0078027 Nicholas Morales 1,260.00 1,099.00 0.00 0.00 04/05/2019 03/30/2020 0.0017212 4810-b2 1,084.00 t0087324 Natasha Finklea 1,500.00 1,250.00 0.00 0.00 07/01/2019 07/06/2020 0.0017214 4810-c2 1,477.00 VACANT VACANT 1,799.00 0.00 0.00 0.00 0.0018101 4810-c1 1,376.00 t0056584 Just Like Home 1,750.00 1,614.00 0.00 0.00 04/30/2018 06/08/2020 0.0018102 4810-a1 757.00 t0094704 Robert Quintero 1,165.00 1,071.00 0.00 0.00 08/01/2018 03/30/2020 0.0018103 4810-b3 1,299.00 VACANT VACANT 1,575.00 0.00 0.00 0.00 0.0018105 4810-b1 1,024.00 t0095574 Lanae Garcia 1,475.00 1,200.00 0.00 0.00 10/03/2019 09/28/2020 0.0018108 4810-a3 769.00 t0043211 Alejandro Donner 1,070.00 979.00 0.00 0.00 07/06/2018 07/06/2020 0.0018110 4810-a3 769.00 t0097862 oscar rosales 1,070.00 999.00 0.00 0.00 10/19/2019 07/20/2020 0.0018113 4810-b1 1,024.00 t0368686 Andy Overgard 1,475.00 1,475.00 0.00 0.00 05/05/2018 12/16/2019 0.0018204 4810-b4 1,389.00 VACANT VACANT 1,650.00 0.00 0.00 0.00 0.0018206 4810-b2 1,084.00 t0097117 Tiara Davis 1,500.00 1,200.00 400.00 0.00 10/03/2019 11/02/2020 -1,262.9118207 4810-a4 954.00 t0102314 Morgan Charles 1,260.00 1,099.00 0.00 0.00 11/23/2019 12/21/2020 -1,154.6218209 4810-a2 859.00 t0077946 Nicole Gennawey 1,245.00 1,085.00 0.00 0.00 04/03/2019 04/06/2020 0.0018211 4810-a4 954.00 t0079337 Marcus Wimbush 1,260.00 1,260.00 0.00 0.00 05/06/2019 04/30/2020 0.0018212 4810-b2 1,084.00 t0096775 Jazzmin Cervera 1,500.00 1,200.00 0.00 0.00 10/01/2019 09/28/2020 0.0018214 4810-c2 1,477.00 VACANT VACANT 1,799.00 0.00 0.00 0.00 0.0019101 4810-c1g 1,376.00 t0067699 Joey Hurley 1,850.00 1,709.00 0.00 0.00 10/31/2018 12/28/2020 -100.0019102 4810-a1g 757.00 t0083491 Aaron Villarreal 1,265.00 1,265.00 0.00 0.00 06/24/2019 06/29/2020 -794.6319103 4810-b3g 1,299.00 t0097740 Myra Hunter 1,625.00 1,499.00 0.00 0.00 10/11/2019 10/12/2020 -2,207.1519204 4810-b4g 1,389.00 t0060016 Julio Guajardo 1,750.00 1,635.00 0.00 0.00 05/31/2018 07/27/2020 0.0019206 4810-b2g 1,084.00 VACANT VACANT 1,550.00 0.00 0.00 0.00 0.0019207 4810-a4g 954.00 t0103189 Jasmine Valdez 1,325.00 1,199.00 0.00 0.00 12/20/2019 01/31/2021 -1,112.5519209 4810-a2g 859.00 VACANT VACANT 1,445.00 0.00 0.00 0.00 0.0019211 4810-a4g 954.00 t0318496 Marlon Hudson 1,325.00 1,173.00 0.00 0.00 03/31/2018 03/30/2020 0.0019212 4810-b2g 1,084.00 t0102172 Joniece Dorsey 1,550.00 1,499.00 0.00 0.00 11/15/2019 12/14/2020 -2,621.5319214 4810-c2g 1,477.00 t0066953 Annette Gomez 1,899.00 1,760.00 0.00 0.00 09/26/2018 03/30/2020 0.0020101 4810-c1 1,376.00 t0080478 Alfredo Mendez 1,750.00 1,750.00 0.00 0.00 04/12/2019 04/06/2020 0.0020102 4810-a1 757.00 t0425548 Nicole Pompei 1,165.00 1,075.00 0.00 0.00 09/07/2018 10/05/2020 0.0020103 4810-b3 1,299.00 VACANT VACANT 1,575.00 0.00 0.00 0.00 0.0020105 4810-b1 1,024.00 t0376188 Juanicia Page 1,475.00 1,249.00 0.00 0.00 06/16/2018 08/24/2020 0.0020108 4810-a3 769.00 t0089792 Eric Agosto 1,070.00 1,070.00 400.00 0.00 08/30/2019 08/31/2020 -3.3820110 4810-a3 769.00 VACANT VACANT 1,070.00 0.00 0.00 0.00 0.00R20113 4810-b1 1,024.00 t0094546 Jennifer Banda 1,475.00 1,300.00 0.00 0.00 09/20/2019 09/28/2020 0.00

ent R

oll Page 6

Echelon at Monterrey Village (4810)As Of = 12/31/2020Month Year = 12/2019

Tuesday, December 31, 2019

11:45 AM

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 79 of 99
Unit Unit Type Unit Resident Name Market Actual Resident Other Move In Lease Move Out Balance

Sq Ft Rent Rent Deposit Deposit Expiration

20204 4810-b4 1,389.00 t0097877 Enver Topsakal 1,650.00 1,525.00 0.00 0.00 10/18/2019 07/31/2020 0.0020206 4810-b2 1,084.00 t0057470 Martin Garza 1,500.00 1,199.00 0.00 0.00 04/20/2018 06/29/2020 -84.5820207 4810-a4 954.00 t0070130 Raymond Marin 1,260.00 1,010.00 0.00 0.00 10/31/2018 07/27/2020 0.0020209 4810-a2 859.00 t0093371 Rashid Al-Naimi 1,245.00 1,146.00 400.00 0.00 08/13/2019 02/17/2020 0.0020211 4810-a4 954.00 t0077032 Daniel Shue 1,260.00 1,099.00 0.00 0.00 04/19/2019 04/20/2020 0.0020212 4810-b2 1,084.00 t0093618 Delio Dominguez 1,500.00 1,250.00 0.00 0.00 08/23/2019 08/24/2020 0.0020214 4810-c2 1,477.00 t0088378 Faisal H A Al-Naimi 1,799.00 1,799.00 0.00 0.00 07/11/2019 02/10/2020 0.00Future Residents/Applicants03110 4810-a3 769.00 t0105000 Antoine Lewis 1,070.00 0.00 0.00 0.00 01/02/2020 01/31/2021 0.0006211 4810-a4g 954.00 t0102006 Amanda Minter 1,325.00 0.00 0.00 0.00 01/13/2020 02/01/2021 0.0018204 4810-b4 1,389.00 t0105163 micheal deen 1,650.00 0.00 0.00 0.00 12/31/2019 01/31/2021 0.00

Total Echelon at Monterrey Village(4810) 353,780.00 266,693.09 8,000.00 0.00 -60,250.69

Sum

mary Groups Square Market Actual Security Other # Of % Unit % Sqft Balance

Footage Rent Rent Deposit Deposits Units Occupancy Occupied

Current/Notice/Vacant Residents 260,520.00 353,780.00 266,693.09 8,000.00 0.00 240.00 83.75 82.37 -60,250.69Future Residents/Applicants 3,112.00 4,045.00 0.00 0.00 0.00 3.00 0.00Occupied Units 214,610.00 293,477.00 201 83.75 82.37Total Non Rev Units 1,024.00 1,475.00 1 0.41 0.47Total Vacant Units 44,886.00 58,828.00 38 15.83 17.29Totals: 260,520.00 353,780.00 266,693.09 8,000.00 0.00 240 100.00 100.00 -60,250.69R

ent R

oll Page 7

Echelon at Monterrey Village (4810)As Of = 12/31/2020Month Year = 12/2019

Tuesday, December 31, 2019

11:45 AM

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 80 of 99
1190996/LA 

EXHIBIT D 

-1- 

EXHIBIT D 

FORM OF DEED 

RECORDING REQUESTED BY: 

AFTER RECORDING, RETURN TO: 

Dornin Investment Group, LLC 

1110 Glenneyre Street 

Laguna Beach, California 92652 

Attn.: Chris Dornin 

(Space Above For Recorder’s Use Only) 

SPECIAL WARRANTY DEED

STATE OF TEXAS § 

§ KNOW ALL MEN BY THESE PRESENTS: 

COUNTY OF BEXAR § 

THAT _________________________, a ________________________ (hereinafter 

referred to as “Grantor”), for and in consideration of the sum of TEN DOLLARS ($10.00) and 

other good and valuable consideration paid by the Grantee hereinafter named, the receipt and 

sufficiency of which is hereby acknowledged, has GRANTED, SOLD and CONVEYED, and by 

these presents does GRANT, SELL and CONVEY unto ________________________, a 

_______________________ (hereinafter referred to as “Grantee”, whose address is 

__________________________________________), all of the following described property 

located in the District of ___________, City of _______________, _______________ County, 

Texas, to-wit: 

A tract of land containing ______ acres, more or less, being more particularly 

described on Exhibit ”A” attached hereto and made a part hereof by this reference 

(hereinafter referred to as the “Land”); together with any and all improvements, 

appurtenances, rights, privileges and easements benefitting, belonging or pertaining 

to the Land and held by Grantor, and any right, title or interest of Grantor in and to 

any land lying in the bed of any street, road or highway in front of or adjoining the 

Land, together with any strips or gores relating to the Land (all of the foregoing 

being hereinafter collectively referred to as the “Property”). 

TO HAVE AND TO HOLD the Property, together with all and singular the rights and 

appurtenances thereto in anywise belonging unto the said Grantee, its successors and assigns 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 81 of 99
1190996/LA 

EXHIBIT D 

-2- 

forever; and Grantor does hereby bind itself, its successors and assigns to WARRANT AND 

FOREVER DEFEND, all and singular, the Property unto the said 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, excepting only those claims arising by 

reason of the conditions, covenants, restrictions, liens, encumbrances and other matters as are set 

forth on Exhibit “B” attached hereto and incorporated herein by reference. 

[Signatures on following page]

 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 82 of 99
1190996/LA 

EXHIBIT D 

-3- 

IN WITNESS WHEREOF, this Special Warranty Deed has been executed by Grantor on 

this ___ day of ________, 2020. 

GRANTOR: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: Garrett Partners IV, LLC 

an Indiana limited liability company, 

its Manager 

By: ____________________________ 

Eric Garrett, Manager 

STATE OF ________ _______ § 

§ 

COUNTY OF _____________ § 

This instrument was acknowledged before me this _____ day of _____________, 2020, by 

Manager of Garrett Partners IV, LLC, an Indiana limited liability company, which is the Manager 

of WG Monterrey Venture LLC, a Delaware limited liability company, on behalf of said WG 

Monterrey Venture LLC. 

 [seal] 

 

Notary Public, State of Texas 

Notary’s printed name ________________ 

Commission expires__________________ 

 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 83 of 99
1190996/LA 

EXHIBIT D 

-4- 

Exhibit A to Exhibit F 

Legal Description 

 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 84 of 99
1190996/LA 

EXHIBIT D 

-5- 

Exhibit B to Exhibit F 

Title Exceptions 

[INSERT TITLE EXCEPTIONS FROM FINAL TITLE COMMITMENT] 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 85 of 99
1190996/LA 

EXHIBIT E 

-1- 

EXHIBIT E 

FORM OF BILL OF SALE

For good and valuable consideration, the receipt and sufficiency of which is hereby 

acknowledged, ____________________________________ (“Seller”), hereby conveys to 

_____________________________________________ (“Purchaser”), all of Seller’s right, title 

and interest in and to those certain items of personal property described on Exhibit A attached 

hereto and made a part hereof (the “Personal Property”) relating to certain real property located 

at _____________________________________ ____________________________________. 

Seller specifically does not make any express or implied warranty or representation with 

respect to the Personal Property, including, but not limited to, title, use, merchantability, fitness 

for any particular purpose; the design or condition of the Personal Property; the quality or capacity 

of the Personal Property; workmanship or compliance of the Personal Property with the 

requirements of any law, rule, specification or contract relating thereto; patent infringement; or 

latent defect. Except as expressly stated herein, Purchaser accepts the Personal Property on an “as 

is, where is” basis. 

IN WITNESS WHEREOF, Seller has caused this instrument to be executed and delivered 

as of this _____ day of ___________________, ________. 

SELLER: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: Garrett Partners IV, LLC 

an Indiana limited liability company, 

its Manager 

By: ____________________________ 

Eric Garrett, Manager 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 86 of 99
1190996/LA 

EXHIBIT F 

-1- 

EXHIBIT F 

FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES 

For good and valuable consideration, the receipt and sufficiency of which are hereby 

acknowledged, ___________________________, having its principal office at 1051 Greenwood 

Springs Blvd., Suite 101, Greenwood, IN 46143 (“Assignor”), hereby sells, transfers, assigns and 

sets over unto __________________________________________________, having its principal 

office at ___________________________________(“Assignee”), its legal representatives, 

successors and assigns, all of Assignor’s right, title and interest in, to and under (a) those certain 

leases referred to on Exhibit A attached hereto and made a part hereof (the “Leases”) affecting the 

real estate legally described in the Agreement (as hereinafter defined) and commonly known as 

________________________________________ ______________, _____________ (the 

“Property”), and (b) the rent therein referred except, however, that portion of said rent attributable 

to periods of time prior to the Closing Date (as defined in that certain Agreement of Purchase and 

Sale by and between Assignor and Assignee, dated as of _______________, ________(the 

“Agreement”). 

Assignee does hereby accept the foregoing Assignment and Assumption of Leases subject 

to the terms and conditions herein and in the Leases, and does hereby agree to perform, discharge, 

fulfill and observe all the obligations, terms, covenants, provisions and conditions under the Leases 

arising from and after the Closing Date. 

Assignor agrees to protect, defend, indemnify and hold harmless Assignee, its legal 

representatives, successors and assigns from any and all losses, damages, expenses, fees 

(including, without limitation, reasonable attorneys’ fees), court costs, suits, judgments, liability, 

claims and demands whatsoever in law or in equity, incurred or suffered by Assignee, its legal 

representatives, successors and assigns or any of them arising out of or in connection with the 

Leases as to events occurring prior to the Closing Date. 

Assignee agrees to protect, defend, indemnify and hold harmless Assignor, its legal 

representatives, successors and assigns from any and all losses, damages, expenses, fees 

(including, without limitation, reasonable attorneys’ fees), court costs, suits, judgments, liability, 

claims and demands whatsoever in law or in equity, incurred or suffered by Assignor, its legal 

representatives, successors and assigns or any of them arising out of or in connection with the 

Leases as to events occurring from and after the Closing Date. 

Notwithstanding anything to the contrary contained in this Assignment and Assumption of 

Leases, it is expressly understood and agreed by and between the parties hereto that any liability 

of Assignee or Assignor hereunder shall be limited as set forth in the Agreement. 

This Assignment and Assumption of Leases shall be binding upon and shall inure to the 

benefit of Assignor and Assignee and their respective beneficiaries, legal representatives, heirs, 

successors and assigns. 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 87 of 99
1190996/LA 

EXHIBIT F 

-2- 

This Assignment and Assumption of Leases may be executed and delivered in any number 

of counterparts, each of which when so executed and delivered shall be deemed to be an original 

and all of which shall constitute one and the same agreement. 

IN WITNESS WHEREOF, the parties hereto have executed this Assignment and 

Assumption of Leases this _____ day of _________________, _______. 

ASSIGNOR: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: Garrett Partners IV, LLC 

an Indiana limited liability company, 

its Manager 

By: ____________________________ 

Eric Garrett, Manager 

ASSIGNEE: 

DORNIN INVESTMENT GROUP, LLC, 

a Delaware limited liability company 

By: _________________________________ 

Chris Dornin, President 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 88 of 99
1190996/LA 

EXHIBIT G 

-1- 

EXHIBIT G 

FORM OF ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS 

For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, 

____________________________, having its principal office at 1051 Greenwood Springs Blvd., 

Suite 101, Greenwood, IN 46143 (“Assignor”), hereby sells, transfers, assigns and sets over to 

_________________________________ (the “Assignee”), having its principal office at 

____________________________________________, and Assignee hereby assumes and accepts 

the assignment and delegation of all of Assignor’s right, title and interest in and to the contracts 

described on Exhibit A attached hereto relating to certain real property located at 

_____________________________________________, and Assignee hereby accepts such 

assignment and hereby assumes the performance of all of the terms, covenants and conditions 

imposed upon Assignor under said contracts accruing or arising on or after the date of this 

Assignment. 

Assignor hereby covenants that Assignor will, upon written request, execute and deliver to 

Assignee or Assignee’s successors, nominees or assigns (collectively, “Assignee’s Successors”), 

any instruments as Assignee or Assignee’s Successors may reasonably request in order to fully 

assign to Assignee or Assignee’s Successors all Assignor’s right, title, and interest in and to the 

contracts listed on Exhibit A hereto. 

Assignor shall be responsible for and Assignee shall not be liable for any and all costs 

(including reasonable attorneys’ fees and costs), damages, liabilities, claims, losses and causes of 

action incurred by or asserted against Assignee as a result of any failure to perform any obligation 

of Assignor under said contracts which accrued prior to the date of this Assignment. 

Assignee shall be responsible for and Assignor shall not be liable for any and all costs 

(including reasonable attorneys’ fees and costs), damages, liabilities, claims, losses, and causes of 

action incurred by or asserted against Assignor as a result of any breach by Assignee, from and 

after the date of this Assignment, of any of Assignee’s obligations under the contracts listed on 

Exhibit A hereto. 

Notwithstanding anything to the contrary contained in this Assignment and Assumption of 

Service Contracts, it is expressly understood and agreed by and between the parties hereto that any 

liability of Assignee or Assignor hereunder shall be limited as set forth in the Agreement. 

This Assignment and Assumption of Service Contracts shall be binding upon and shall 

inure to the benefit of Assignor and Assignee and their respective beneficiaries, legal 

representatives, heirs, successors and assigns. 

This Agreement may be executed and delivered in any number of counterparts, each of 

which so executed and delivered shall be deemed to be an original and all of which shall constitute 

one and the same instrument. 

 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 89 of 99
1190996/LA 

EXHIBIT G 

-2- 

IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment 

effective as of the date set forth below. 

Executed as of this ______ day of ______________, _______. 

ASSIGNOR: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: Garrett Partners IV, LLC 

an Indiana limited liability company, 

its Manager 

By: ____________________________ 

Eric Garrett, Manager 

ASSIGNEE: 

DORNIN INVESTMENT GROUP, LLC, 

a Delaware limited liability company 

By: _________________________________ 

Chris Dornin, President 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 90 of 99
1190996/LA 

EXHIBIT H 

-1- 

EXHIBIT H 

GENERAL ASSIGNMENT OF INTANGIBLES 

For good and valuable consideration, the receipt and sufficiency of which are hereby 

acknowledged, __________________, having its principal 1051 Greenwood Springs Boulevard, 

Suite 101, Greenwood, IN 46143 (“Assignor”), hereby sells, transfers, assigns and sets over unto 

______________________________________________________, having its principal office at 

___________________________________(“Assignee”), its legal representatives, successors and 

assigns, all of Assignor’s right, title and interest in and to: (i) all freely assignable existing 

warranties and guaranties (express or implied) relating to the Improvements and the other Property 

other than any warranty or guarantee from The Garrett Construction Company, LLC; (ii) all 

assignable licenses, permits, certificates of occupancy, approvals, dedications, subdivision maps 

or plats, land sale registrations, property reports, conditional use permits, special use permits, 

declarations of non-significance, environmental impact statements and entitlements issued, 

approved or granted to or for the benefit of Seller or Seller’s predecessors in interest by applicable 

governmental authorities or otherwise in effect and which relate to the Property, and including 

(without limitation) all assignable development rights and other intangible rights, titles, interests, 

privileges and appurtenances owned by Seller or Seller’s predecessors-in-interest as owner of the 

Property and in any way related to or used in connection with the Property, (iii) all assignable trade 

names, logos, marks, trademarks, service marks, symbols and items of identification relative to the 

Property which are owned by Seller, (iv) all assignable licenses, consents, easements, rights of 

way and approvals required to make use of utilities and to ensure vehicular and pedestrian ingress 

and egress to the Property, and (v) all plans, drawings, specifications, surveys, engineering reports, 

and other technical descriptions, if any, relating to the construction of the Improvements and the 

other Property in Assignor’s possession or control (collectively, the “Intangibles”). 

Notwithstanding the foregoing, this General Assignment of Intangibles expressly 

excluding the “Echelon” trademark, trade name and logo, web domain, and internet address, and 

any other trademark, trade name, logo, website, web domain or internet address that includes the 

term “Echelon.” 

This General Assignment of Intangibles shall be binding upon and shall inure to the benefit 

of Assignor and Assignee and their respective beneficiaries, legal representatives, heirs, successors 

and assigns. 

This General Assignment of Intangibles may be executed and delivered in any number of 

counterparts, each of which so executed and delivered shall be deemed to be an original and all of 

which shall constitute one and the same agreement. 

All capitalized terms unless otherwise defined have the same meaning as set forth in that 

certain Purchase and Sale Agreement between Assignor and Assignee dated the ___ day of 

______________, ______. 

 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 91 of 99
1190996/LA 

EXHIBIT H 

-2- 

IN WITNESS WHEREOF, the parties hereto have executed this General Assignment of 

Intangibles this _____ day of _________________, _______. 

ASSIGNOR: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: Garrett Partners IV, LLC 

an Indiana limited liability company, 

its Manager 

By: ____________________________ 

Eric Garrett, Manager 

ASSIGNEE: 

DORNIN INVESTMENT GROUP, LLC, 

a Delaware limited liability company 

By: _________________________________ 

Chris Dornin, President 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 92 of 99
1190996/LA 

EXHIBIT I 

-1- 

EXHIBIT I 

FORM OF TENANT NOTICE 

(MONTH) (DATE), (YEAR) 

___________________ 

___________________ 

___________________ 

Re: NOTICE OF CHANGE OF OWNERSHIP 

Dear Resident, 

Effective (MONTH) (DATE), (YEAR), ____________________________ has sold, assigned, 

and conveyed the property, a.k.a. [________________________ Apartments, to 

_______________________________, a ___________. 

The refundable deposit and/or refundable pet deposit that you paid in conjunction with your leased 

apartment home has been transferred to the new ownership for distribution in accordance to the 

terms and conditions set forth in your lease agreement. All future rental payments with respect to 

your apartment lease agreement should continue to be paid on the 1st of each month directly to and 

made payable to __________________________. 

Please feel free to contact the management office at ___________________ if you should have 

any questions. 

 

Sincerely, 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 93 of 99
1190996/LA 

EXHIBIT J 

-1- 

EXHIBIT J 

FORM OF CERTIFICATE OF NON-FOREIGN STATUS 

Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property 

interest must withhold tax if the transferor is a foreign person. To inform the transferee that 

withholding of tax is not required upon the disposition of a U.S. real property interest by 

___________________, a ___________ limited liability company (“Seller”), the undersigned 

hereby certifies the following on behalf of the Seller: 

1. Seller is not a foreign limited partnership as that term is defined in the Internal 

Revenue Code and Income Tax Regulations); 

2. Seller’s U.S. employer identification number is _______________; and 

3. Seller’s address is ____________________________________________. 

Seller understands that this certification may be disclosed to the 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 it has examined this certification 

and to the best of its knowledge and believe it is true, correct and complete, and it further declares 

that it has authority to sign this document on behalf of Seller. 

Dated: ____________________, ________ 

SELLER: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: Garrett Partners IV, LLC 

an Indiana limited liability company, 

its Manager 

By: ____________________________ 

Eric Garrett, Manager 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 94 of 99
23

DEFENDANTS’ ORIGINAL ANSWER AND COUNTERCLAIM

EXHIBIT B

FIRST AMENDMENT TO PURCHASE AGREEMENT

25512837v.11 156571/00001

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 95 of 99
1195691.04/LA

378730-00054/1-28-20/mcn/mcn

FIRST AMENDMENT TO PURCHASE

This FIRST AMENDMENT TO PURCHASE AGREEMENT (this "First

Amendment") is made and entered into as of January 27, 2020 (the "Effective Date"), by and 

between WG MONTERREY VENTURE LLC, a Delaware limited liability company (“Seller”), 

and DORNIN INVESTMENT GROUP, LLC, a Delaware limited liability company 

(“Purchaser”).

RECITALS

WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement 

dated as of January 6, 2020 (the "Purchase Agreement"), relating to the sale of that certain real 

property located in the City of San Antonio, Texas, as more particularly described in the Purchase 

Agreement. Capitalized terms used in this First Amendment and not otherwise defined herein

shall have the meanings ascribed to them in the Purchase Agreement; and

WHEREAS, Seller and Purchaser desire to amend the Purchase Agreement in certain 

respects as set forth herein.

NOW, THEREFORE, in consideration of the foregoing, and for good and valuable 

consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser

hereby agree as follows:

1. Purchase Price. Section 2.1 of the Purchase Agreement is hereby amended and 

restated in its entirety and replaced with the following:

Purchase Price. The purchase price for the Property is Thirty Eight 

Million and 00/100 Dollars ($38,000,000.00) (the “Purchase 

Price”).

2. Due Diligence Period. Section 4.3 of the Purchase Agreement is hereby amended 

and restated in its entirety and replaced with the following:

Due Diligence Period Defined. As used in this Agreement, the term 

“Due Diligence Period” means the period commencing upon the 

Effective Date and ending at 6:00 p.m. Pacific Time on February 

10, 2020.

3. Reserved.

4. Closing. Section 9.1 of the Purchase Agreement is hereby amended and restated 

in its entirety and replaced with the following:

Time and Place. The consummation of the transaction 

contemplated hereby (“Closing”) shall be completed through an 

escrow with Title Insurer on the date that occurs thirty (30) days 

following the expiration of the Due Diligence Period) (the “Closing 

Date”). Notwithstanding the foregoing, Purchaser shall have the 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 96 of 99
1195691.04/LA

378730-00054/1-28-20/mcn/mcn -2-

right upon written notice to Seller delivered not later than five 

(5) business days prior to the originally scheduled Closing Date to 

extend the Closing for one period of fifteen (15) days upon 

depositing with the Title Insurer the sum of Two Hundred Fifty 

Thousand and 00/100 Dollars ($250,000.00) (together with all 

interest earned thereon, the “Extension Deposit”) on or prior to the 

Closing. The Extension Deposit shall be immediately nonrefundable, except as otherwise set forth herein. The Extension 

Deposit shall apply to the Purchase Price.

5. Reserved. 

6. Service Contracts. This Amendment shall serve as notice to Seller that Purchaser 

will not assume any of the Service Contracts, other than the contract for provision of cable, 

internet, phone and/or telecommunications services to the Property a copy of which is attached as 

Exhibit K to the Purchase Agreement.

7. Limited Waiver of Right to Terminate. 

(a) For the purposes hereof, the “Tax Contingency” shall be deemed to have 

been satisfied if, and only if, Seller obtains a final determination from the applicable court/agency 

(i.e. Bexar County real property tax appraisal review board, the Texas State office of 

Administrative Hearings, or a district court of competent jurisdiction) valuing the Land and 

Improvements for the tax year 2019 at an amount equal to or less than $35,000,000 with no more 

than $929,788 of taxes due for such period. 

(b) Purchaser hereby acknowledges that it hereby waives its right to terminate 

pursuant to Section 4.6 of the Purchase Agreement; provided, that, for the avoidance of doubt, the 

foregoing waiver shall not affect Purchaser’s right to terminate in connection with (i) the failure 

of Seller to satisfy the Tax Contingency on or before the expiration of the Due Diligence Period; 

or (ii) as provided in Section 3.2 of the Purchase Agreement. Other than as expressly provided 

herein, the foregoing waiver shall in no event affect any of the other rights of Purchaser under the 

Purchase Agreement.

8. Counterparts. This First Amendment may be executed in any number of 

counterparts, each of which shall be deemed an original, but all of which when taken together will 

constitute one and the same instrument. The signature page of any counterpart may be detached 

therefrom without impairing the legal effect of the signature(s) thereon provided such signature 

page is attached to any other counterpart identical thereto except having additional signature pages 

executed by other parties to this First Amendment attached thereto.

9. Ratification. Seller and Purchaser hereby ratify and confirm all of their obligations 

under the Purchase Agreement. Except as set forth in this First Amendment, all of the terms and 

provisions of the Purchase Agreement shall remain unmodified and in full force and effect.

10. Electronic Signatures. Seller and Purchaser each (i) have agreed to permit the use 

of facsimile or other electronic signatures in order to expedite the execution of this First

Amendment, (ii) intends to be bound by its respective facsimile or other electronic signature, 

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 97 of 99
1195691.04/LA

378730-00054/1-28-20/mcn/mcn -3-

(iii) is aware that the other will rely on such facsimile or other electronically transmitted signature, 

and (iv) acknowledges such reliance and waives any defenses to the enforcement of this First

Amendment based on the fact that a signature was sent by facsimile or electronic transmission 

only.

[SIGNATURES APPEAR ON FOLLOWING PAGE]

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 98 of 99
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of 

the date and year hereinabove written. 

119569 I. 04/LA 

378730-00054/ 1-28-20/mcn/mcn 

SELLER: 

WG MONTERREY VENTURE LLC, 

a Delaware limited liability company 

By: ers IV, LLC 

ited liability company, 

By: 

Eric Garrett, Manager 

PURCHASER: 

DORNIN INVESTMENT GROUP, LLC, 

a Delaware limited liability company 

By: 

Chris Domin, President 

-4-

Case 5:20-cv-00533 Document 1-3 Filed 04/29/20 Page 99 of 99