Common use of TENANT ESTOPPEL CERTIFICATE Clause in Contracts

TENANT ESTOPPEL CERTIFICATE. Seller shall use commercially reasonable efforts to receive estoppel certificates from all the tenants of the Real Property. As used in this Agreement, “commercially reasonable efforts” shall not include any obligation to institute or threaten legal proceedings, to declare or threaten to declare any person in default, to incur any liabilities, to expend any monies, or to cause any other person to do any of the foregoing. Each estoppel certificate shall be substantially in the form attached as Exhibit E (or if Seller, after using commercially reasonable efforts to obtain certificates in such form, is unable to obtain the same, then in the form, if any, prescribed in or permitted by the applicable Lease); provided, however, that any provisions of the applicable estoppel certificates respecting defaults, defenses, disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited to the actual knowledge of the applicable tenant. Buyer’s failure to object to any estoppel certificate (or any information or provision therein) by written notice to Seller given within five (5) business days after Buyer’s receipt thereof (but not later than the Closing Date) shall be deemed to constitute Buyer’s acceptance and approval thereof. If an estoppel certificate (or a combination of estoppel certificates) will have a Material Adverse Effect, then notwithstanding anything to the contrary herein, Buyer shall have the right to terminate the Agreement and receive a refund of the Deposit, in which event, neither party shall have any further rights or obligations hereunder except for those obligations that expressly survive termination. Notwithstanding anything herein to the contrary, Seller’s failure to obtain such estoppel certificates shall in no event be deemed a default by Seller hereunder or a failed condition that will entitle Buyer to terminate the Agreement and receive a refund of the Deposit, but in the event that Seller fails to obtain an estoppel certificate for any Lease on or before the Outside Closing Date then, subject to the limitations of Section 16.4 hereof, Seller shall indemnify Buyer and hold Buyer harmless from any and all costs, losses, damages or expenses of any kind or nature arising out of or resulting from any defaults by Seller that exist pursuant to such Lease as of the Closing Date. Such indemnification obligation shall survive the Closing.

TENANT ESTOPPEL CERTIFICATE. Seller shall use commercially reasonable efforts obtain and deliver to receive Purchaser a tenant estoppel certificates from all the tenants certificate, substantially one of the Real Property. As used in this Agreementforms attached hereto as EXHIBIT F and EXHIBIT F-l, “commercially reasonable efforts” shall not include any obligation to institute or threaten legal proceedings, to declare or threaten to declare any person in default, to incur any liabilities, to expend any monies, or to cause any other person to do any from (i) each Major Tenant and (ii) eighty percent (80%) of the foregoing. Each estoppel certificate shall be substantially in remaining tenants under the form attached as Exhibit E remaining Leases (or if Seller, after using commercially reasonable efforts to obtain certificates in such form, is unable to obtain each of the same, then in the form, if any, prescribed in or permitted by the applicable Leaseforegoing a "REQUIRED TENANT ESTOPPEL CERTIFICATE"); provided, however, that any provisions within fifteen (15) days of the applicable Effective Date, Purchaser shall designate one of the two forms as the form on which such tenant estoppel certificates respecting defaultsshall be obtained and Seller shall be permitted to extend the Closing Date by the corresponding number of days in order to obtain the Required Tenant Estoppel Certificates. Additionally, defenses, disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited to the actual knowledge of extent requested, Seller shall deliver to the applicable tenantTenants and use reasonable efforts to obtain and deliver to PURCHASE AND SALE AGREEMENT (XXXXX XXXX) DALLAS/200403 Purchaser any subordination, non-disturbance and attornment agreement requested by Purchaser's lender. Buyer’s failure If, for any reason, Seller does not obtain any Required Tenant Estoppel Certificate, other than one for a Major Tenant, then Seller may, if it so elects, provide a Seller Estoppel Certificate similar to object the Required Tenant Estoppel Certificate for the applicable tenant instead of furnishing such Required Tenant Estoppel Certificate at Closing; provided, however, that Seller shall continue to any estoppel certificate (or any information or provision therein) by written notice use commercially reasonable efforts to Seller given within five (5) business days after Buyer’s receipt thereof (but not later than obtain the applicable Required Tenant Estoppel Certificate through the Closing Date. In the event that Seller believes that a Required Tenant Estoppel Certificate is not obtainable with commercially reasonable efforts and does not elect to provide a Seller Estoppel Certificate, if permitted above, for the applicable tenant at Closing, the Purchaser may, as its sole and exclusive remedy, either (i) waive the defect or shortcoming and close the transaction contemplated by this Agreement, or (ii) terminate this Agreement, whereupon the Contract Deposit shall be deemed delivered to constitute Buyer’s acceptance Purchaser and approval thereof. If an estoppel certificate (or a combination of estoppel certificates) neither Seller nor Purchaser will have a Material Adverse Effect, then notwithstanding anything to the contrary herein, Buyer shall have the right to terminate the Agreement and receive a refund of the Deposit, in which event, neither party shall have any further rights or obligations hereunder under this Agreement, except for those Purchaser's indemnity, repair and other obligations that expressly by their terms survive terminationthe termination of this Agreement. Notwithstanding anything herein the foregoing, if Seller notifies Purchaser, in writing, that it believes that a Required Tenant Estoppel Certificate is not obtainable with commercially reasonable efforts, and that it will not furnish a Seller Estoppel Certificate for such tenant, as the case may be, and Purchaser does not terminate this Agreement within five (5) days after its receipt of said notice, by giving written notice to the contrarySeller, Seller’s failure to obtain such estoppel certificates then Purchaser shall in have no event be deemed a default by Seller hereunder or a failed condition that will entitle Buyer further right to terminate the this Agreement and receive a refund of the Deposit, but in the event that Seller fails to obtain an estoppel certificate for any Lease on or before the Outside Closing Date then, subject to the limitations of Section 16.4 hereof, Seller shall indemnify Buyer and hold Buyer harmless from any and all costs, losses, damages or expenses of any kind or nature arising out of or resulting from any defaults by Seller that exist pursuant to such Lease as of the Closing Date. Such indemnification obligation shall survive the Closingfailure.

TENANT ESTOPPEL CERTIFICATE. Seller shall use commercially reasonable efforts to receive estoppel certificates from all the tenants of the Real Property. As used in this AgreementBuyer will have received, “commercially reasonable efforts” shall not include any obligation to institute or threaten legal proceedingsreviewed and approved a completed, to declare or threaten to declare any person in default, to incur any liabilities, to expend any monies, or to cause any other person to do any of the foregoing. Each executed tenant estoppel certificate shall be from Tenant, substantially in the form estoppel certificate attached hereto as Exhibit E J or such other estoppel provided by Tenant provided that any such estoppel shall satisfy the “Minimum Estoppel Requirements” (the “Tenant Estoppel Certificate”), certified to Buyer and to VEREIT OFC Milford OH, LLC (“Assignee”), dated not more than forty five (45) days prior to the Closing Date, free from material and adverse exception, qualification or if Sellermodification. Seller will within fifteen (15) business days after the Effective Date, after using commercially reasonable efforts submit the form of Tenant Estoppel Certificate to obtain certificates in such formTenant for its review, is unable to obtain the same, then in the form, if any, prescribed in or permitted by the applicable Lease)completion and execution; provided, however, this act by Seller places no duty or obligation upon Seller except to deliver the form Tenant Estoppel Certificate to Tenant with such request as provided above. In the event the Tenant Estoppel Certificate is not obtained on or before three (3) business days prior to Closing, Seller shall have the option to extend the Closing for a period of up to thirty (30) days upon prior written notice to Buyer to renew its efforts to obtain a Tenant Estoppel Certificate. Seller has not covenanted that it will be able to deliver a Tenant Estoppel Certificate, and Seller shall not be in default hereunder if a Tenant Estoppel Certificate is not obtained. As used herein, the term “Minimum Estoppel Requirements” shall mean that such estoppel (i) verifies the basic facts of the Lease (term, rental, expiration date and any options) and contains no assertions materially adverse to the landlord or materially contrary to the provisions of the applicable estoppel certificates respecting defaultsLease, defenses, disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited (ii) confirms to the actual knowledge of the applicable tenant. Buyer’s failure to object to any estoppel certificate Tenant that there are no material defaults by the landlord under the Lease and (or any information or provision thereiniii) by written notice to Seller given within five (5) business days after Buyer’s receipt thereof (but not later than verifies the Closing Date) shall be deemed to constitute Buyer’s acceptance and approval thereof. If an estoppel certificate (or a combination of estoppel certificates) will have a Material Adverse Effect, then notwithstanding anything to the contrary herein, Buyer shall have the right to terminate the Agreement and receive a refund of the Deposit, in which event, neither party shall have any further rights or obligations hereunder except for those obligations that expressly survive termination. Notwithstanding anything herein to the contrary, Seller’s failure to obtain such estoppel certificates shall in no event be deemed a default by Seller hereunder or a failed condition that will entitle Buyer to terminate the Agreement and receive a refund of the Deposit, but in the event that Seller fails to obtain an estoppel certificate for any Lease on or before the Outside Closing Date then, subject to the limitations of Section 16.4 hereof, Seller shall indemnify Buyer and hold Buyer harmless from any and all costs, losses, damages or expenses amount of any kind or nature arising out of or resulting from any defaults by Seller that exist pursuant to such Lease as of the Closing Date. Such indemnification obligation shall survive the Closingunpaid tenant improvement allowances.

TENANT ESTOPPEL CERTIFICATE. A reliance letter in favor of Purchaser from each tenant substantially in the form attached hereto as Exhibit O, with no adverse exceptions or modifications thereto except Permitted Modifications, and of substance consistent with the representations made by the tenants in the Tenant Estoppels except for Permitted Modifications (“Reliance Letter”), for each estoppel certificate from each tenant in favor of Seller’s prospective lender substantially in the form attached hereto as Exhibit F with no adverse exceptions thereto except Permitted Modifications, and of substance consistent with the representations made by Seller except for Permitted Modifications (such Reliance Letters and estoppel certificates being collectively referred to herein as the “Tenant Estoppels”) and an estoppel certificate from Guarantor substantially in the form attached hereto as Exhibit F with no adverse exceptions thereto, and of substance consistent in all material respects with the representations made by Seller (estoppel certificates being collectively referred to herein as the “Guarantor Estoppels”, and together with the Tenant Estoppels, the “Estoppels”, and each individually, an “Estoppel”); provided that, so long as Seller has timely and properly requested the Estoppels, if Seller shall be unable to deliver either or both Estoppel(s) due to tenant’s or Guarantor’s (as applicable) failure to provide such Estoppel, then Seller shall not be in default hereunder for failing to deliver the Estoppels; provided further, that in such event, Seller agrees to use commercially reasonable efforts to receive estoppel certificates from all the tenants of the Real Property. As used in this Agreement, “commercially reasonable efforts” shall not include any obligation to institute or threaten legal proceedings, to declare or threaten to declare any person in default, to incur any liabilities, to expend any monies, or to cause any other person to do any of the foregoing. Each estoppel certificate shall be substantially in the form attached as Exhibit E (or if Seller, after using commercially reasonable efforts to obtain certificates in such form, is unable to obtain the sameEstoppels, then in the form, if any, prescribed in or permitted by the applicable Lease); provided, however, that any provisions of Seller shall not be obligated to (i) declare a default under either the applicable estoppel certificates respecting defaultsLease or the Guaranty or (ii) commence a legal action for enforcement of either the applicable Lease or the Guaranty. For purposes of this Section 7.3.8, defenses“Permitted Modifications” shall mean only (i) the addition of so-called “knowledge” qualifiers as to non-monetary information (other than the commencement and expiration dates), disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited (ii) certification of documents ancillary to the actual knowledge of the applicable tenant. Buyer’s failure to object to any estoppel certificate lease or guaranty documents that are less inclusive that those set forth on Schedule 2.1.2, and (or any information or provision thereiniii) by written notice to Seller given within five (5) business days after Buyer’s receipt thereof form (but not later substance) changes (e.g., identifying disclosures on an exhibit rather than in the Closing Date) shall be deemed to constitute Buyer’s acceptance and approval thereof. If an estoppel certificate (or a combination of estoppel certificates) will have a Material Adverse Effect, then notwithstanding anything to the contrary herein, Buyer shall have the right to terminate the Agreement and receive a refund text of the Deposit, in which event, neither party shall have any further rights or obligations hereunder except for those obligations that expressly survive termination. Notwithstanding anything herein to the contrary, Seller’s failure to obtain such estoppel certificates shall in no event be deemed a default by Seller hereunder or a failed condition that will entitle Buyer to terminate the Agreement and receive a refund of the Deposit, but in the event that Seller fails to obtain an estoppel certificate for any Lease on or before the Outside Closing Date then, subject to the limitations of Section 16.4 hereof, Seller shall indemnify Buyer and hold Buyer harmless from any and all costs, losses, damages or expenses of any kind or nature arising out of or resulting from any defaults by Seller that exist pursuant to such Lease as of the Closing Date. Such indemnification obligation shall survive the Closing.document);

TENANT ESTOPPEL CERTIFICATE. Following the execution of this Agreement, Seller shall covenants to use commercially reasonable efforts to receive obtain an estoppel certificates from all the tenants sole tenant at the Property, CitiCorp North America, Inc., such estoppel to be in the form of Exhibit "H" attached hereto. In the Real Property. As used in this Agreement, “commercially reasonable efforts” shall not include any obligation event that Seller is unable to institute or threaten legal proceedings, to declare or threaten to declare any person in default, to incur any liabilities, to expend any monies, or to cause any other person to do any of the foregoing. Each obtain such estoppel certificate shall then Buyer may elect not to close the subject purchase transaction and may elect to terminate this Agreement provided Buyer gives written notice of termination to Seller on or prior to the earlier of (i) two (2) business days following the date Seller notifies Buyer Seller will not be substantially able to obtain an estoppel certificate in the form attached hereto as Exhibit E EXHIBIT "H" or (or if Seller, after using commercially reasonable efforts to obtain certificates in such form, is unable to obtain ii) the same, then in date of the form, if any, prescribed in or permitted by the applicable Lease); providedClosing. Buyer acknowledges, however, that any provisions of the applicable estoppel certificates respecting defaults, defenses, disputes, environmental matters, claims, offsets, credits, abatements, concessions and recaptures against rent and other charges may be limited to the actual knowledge of the applicable tenant. Buyer’s failure to object to any estoppel certificate (or any information or provision therein) by written notice to Seller given within five (5) business days after Buyer’s receipt thereof (but not later than the Closing Date) shall be deemed to constitute Buyer’s acceptance and approval thereof. If an estoppel certificate (or a combination of estoppel certificates) will have a Material Adverse Effect, then notwithstanding anything to the contrary herein, Buyer shall have the right to terminate the Agreement and receive a refund of the Deposit, in which event, neither party shall have any further rights or obligations hereunder except for those obligations that expressly survive termination. Notwithstanding anything herein to the contrary, Seller’s 's failure to obtain such estoppel certificates certificate shall in no not constitute an event be deemed a of default by Seller hereunder or a failed condition that will entitle and, even if Buyer shall terminate this Agreement as provided above in this Section, Seller shall be entitled to terminate retain the Agreement Deposit (and receive a refund of the Deposit, but all interest earned thereon) in the event that Seller fails Buyer elects to terminate this Agreement and not to close the subject purchase hereunder as a result of Seller's inability to obtain such tenant estoppel. Buyer further acknowledges that the form of Tenant estoppel attached hereto, at Buyer's request, is broader in scope than the estoppel obligation set forth in the CitiGroup Lease. The parties hereto have executed this Agreement as of the date first written above. SELLER: MARTEL OFFICE BUILDINGS I, XXX, a Delaware limited liability company By: ------------------------------------- D. Andrew Beal Sole Manager BUYER: HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company d/b/a Behringer Harvard Funds By: ------------------------------------- Name: ----------------------------------- Title: ---------------------------------- JOINDER OF THE TITLE COMPANY The Title Company joins in the execution of this Agreement for the sole purpose of acknowledging the Title Company's receipt of an estoppel certificate executed copy of this Agreement. REPUBLIC TITLE OF TEXAS, INC. By: ------------------------------------- Name: ----------------------------------- Title: ---------------------------------- JOINDER OF THE BROKER The Broker(s) join in the execution of this Agreement for any Lease on or before the Outside Closing Date then, subject to sole purpose of evidencing its agreement with the limitations provisions of Section 16.4 hereof6.1 hereto. CUSHMAN & WAKEFIELD OF TEXXX, Seller shall indemnify Buyer XXX. By: ------------------------------------- Name: ----------------------------------- Title: ---------------------------------- EXHIBIT "A" TO PURCHASE AND SALE AGREEMENT THE LAND [TO BE INSERTED] EXHIBIT "B" TO PURCHASE AND SALE AGREEMENT SPECIAL WARRANTY DEED NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER STATE OF TEXAS SS. SS. KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DALLAS SS. THAT MARTEL OFFICE BUILDINGS I, XXX, a Delaware limited liability company ("Grantor"), for and hold Buyer harmless from in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration to it paid by HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company d/b/a Behringer Harvard Funds ("Grantee"), the receipt and sufficiency of which are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does hereby GRANT, BARGAIN, SELL and CONVEY unto Grantee: (a) that certain tract or parcel of land situated in the City of Irving, County of Dallas, State of Texas, as more particularly described in EXHIBIT "A" attached hereto and made a part hereof for all purposes (the "Land"); (b) all right, title and interest of Seller, if any, in and to all privileges and easements appurtenant to Seller's interest in the Land, including, without limitation, all of Seller's right, title and interest, if any, in and to (i) all minerals, if any, oil, gas and other hydrocarbon substances on and under the Land, if any, (ii) any and all costsdevelopment rights, lossesair rights, damages sewer rights and permits, water, water rights, riparian rights and water stock relating to the Land, if any, and (iii) any easements, licenses, covenants and other rights-of-way or expenses of any kind or nature arising out of or resulting from any defaults by Seller that exist pursuant to such Lease as other appurtenances used in connection with the beneficial use and enjoyment of the Closing Date. Such indemnification obligation shall survive Land and all of Seller's right, title and interest, if any, in and to all roads and alleys adjoining or servicing the ClosingLand (collectively, the "Appurtenances"); (c) all right, title and interest of Seller, if any, in and to all improvements and fixtures located on the Land, if any, as well as all buildings and structures presently located on the Land, if any, including, without limitation, all apparatus, equipment and appliances used in connection with the operation or occupancy of the Land or any of the foregoing improvements, such as heating and air conditioning systems and facilities used to provide any utility, refrigeration, ventilation, garbage disposal or other services (collectively, the "Improvements").