Exhibit 99.1
CONTRACT OF SALE AND
PURCHASE OF REAL PROPERTY
This Contract of Sale and Purchase of Real Property ("Contract") is entered into
between the following parties: Parkway Monticello Partners, a Texas limited
Partnership ("Seller"), and Harvard Property Trust, LLC, a Delaware limited
liability company doing business as Behringer Harvard Funds ("Purchaser").
1. AGREEMENT TO SELL AND PURCHASE
1.1 SALE OF PROPERTY. Subject to the terms and conditions stated in this
Contract, Seller agrees to sell and convey to Purchaser and Purchaser agrees to
purchase, the Property defined in Section 1.2.
1.2 PROPERTY. The "Property" means, collectively, the Land, Improvements,
Personal Property, Intangible Personal Property and the Leases, described as
follows:
(a) "LAND" means the real property described on EXHIBIT "A" attached
to this Contract, together with any rights pertaining to such real property,
including, without limitation, any right, title and interest of Seller in and to
any adjacent streets, roads, alleys, rights-of-way, strips and gores adjoining
the real property, any development rights, air rights, water rights, and any
other easements, interests, rights, powers and privileges appurtenant or
incident to the use and enjoyment of the Land.
(b) "IMPROVEMENTS" means the buildings known as Parkway Vista, 0000
Xxxxx Xxxxxxx, Xxxxx, Xxxxx 00000, including common facilities, and all other
buildings, improvements, structures and fixtures constructed or installed on the
Land.
(c) "PERSONAL PROPERTY" means any equipment, inventory, fixtures and
tangible personal property owned or used by Seller located in, on or about and
used in connection with the Land or Improvements including, without limitation,
any furniture, furnishings, equipment, if any, and all replacements and
additions to such items made prior to Closing.
(d) "INTANGIBLE PERSONAL PROPERTY" means any plans and
specification, drawing and brochures, and Seller's interest in any licenses,
certificates and permits relating to the Improvements, Seller's interest in any
service, maintenance, management or other contracts relating to the ownership or
operation of the Property, Seller's interest in any transferable or assignable
warranties and guarantees relating to the ownership or trademarks and trade or
business names relating to the Property, telephone exchanges, if any, related to
the operation and management of the Property, keys to locks on the Property, and
any contract rights, receivables, deposits, security deposits and prepaid rents,
and any other general intangible personal property.
(e) "LEASES" means the tenant leases as defined in Section 5.1.
2. TERMS
2.1 The following capitalized terms shall have the meanings set forth below.
There are additional capitalized terms in this Contract which may be defined
subsequent to their initial use.
(a) "Closing Date" means the date specified in Section 10.1.
(b) "Date of this Contract" means the date specified in Section
12.11.
(c) "Xxxxxxx Money" means that portion of the Purchase Price
deposited by Purchaser with the Title Company at the times and in the form and
amounts specified in Section 3.3.
(d) "Inspection Period" means the time period described in Section
5.2.
(e) "Permitted Exceptions" means those exceptions or conditions
which affect or may affect Seller's title to the Property to which Purchaser
does not object or as to which Purchaser has waived any objections in accordance
with Section 4.3.
(f) "Purchase Price" means the consideration paid for the purchase
of the Property as set out in Section 3.1.
(g) "Regulation" means any zoning or land use requirement, or any
ordinance, regulation, code, rule, statute or law of any special district,
utility company, city, county, state or federal agency or authority.
(h) "Title Company" means Rattikin Title Company, Attention: Xxxxx
Xxxxxxxx, located at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx 00000.
(i) "Title Policy" means an owner's policy of title insurance to be
issued by Title Company in accordance with the terms and provisions of this
Contract.
3. PURCHASE PRICE
3.1 PURCHASE PRICE. The Purchase Price shall be $5,300,000.00.
3.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid at Closing
in cash or by certified or cashier's check or by wire transfer of funds into the
Title Company's bank escrow account.
3.3 XXXXXXX MONEY. Within two (2) business days after the Date of this
Contract, Purchaser shall deliver in escrow to the Title Company the sum of
$250,000.00, to be held as Xxxxxxx Money. At Closing, the Xxxxxxx Money shall,
at the option of Purchaser, either be returned to Purchaser or applied towards
payment of the Purchase Price; otherwise, the Xxxxxxx Money shall be disbursed
as required by other provisions of this Contract.
3.4 INDEPENDENT CONSIDERATION. Purchaser shall pay to Seller as of the Date
of this Contract the sum of $100.00 to be retained by Seller as a nonrefundable
fee in consideration of this Contract and the Inspection Period.
4. TITLE AND SURVEY
4.1 SURVEY. Within ten (10) days after the Date of this Contract, Seller
shall obtain and deliver to Purchaser, at Seller's sole cost and expense, an
as-built survey dated after the Date of this Contract (the "Survey") prepared by
a surveyor licensed in the State of Texas (the "Surveyor") acceptable to the
Title Company and in accordance with the Texas Surveyor's Association standards
for a Category IA, Condition II Survey.
4.2 TITLE COMMITMENT. Within ten (10) days after the Date of this Contract,
Seller, at Seller's sole cost and expense, shall cause to be furnished to
Purchaser a commitment for Title Policy (the "Commitment") dated no earlier than
the Date of this Contract, issued through the Title Company, setting forth the
state of title to the Land and any exceptions and conditions affecting the Land
which would appear in a Title Policy if issued, together with correct, complete
and legible copies of all instruments referred to in the Commitment including,
without limitation, recorded plats, and all recorded lien instruments. The
Commitment shall insure good and indefeasible fee simple title in Purchaser
subject only to the Permitted Exceptions.
4.3 REVIEW OF COMMITMENT AND SURVEY. Purchaser shall have five (5) days (the
"Review Period") after actual receipt of the last of the Commitment, the
instruments affecting title, and the Survey (the "Title Documents") to review
the Title Documents and to give Seller written notice of each condition and
exception to which Purchaser objects. All conditions and exceptions shown in the
Title Documents to which Purchaser does not object within the Review Period and
any objection which Purchaser timely makes but is subsequently cured or waived
shall be considered "Permitted Exceptions". However, notwithstanding anything to
the contrary contained in this Contract, if at Closing there is any mechanic's
or materialmen's lien or mortgage, deed of trust or other instrument creating a
lien for borrowed money against all or any part of the Property (a "Lien"), such
Lien shall not be a Permitted Exception and Seller shall discharge all such
Liens of record and apply such portions of the Purchase Price or
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Seller's funds as may be necessary to accomplish the same. If Purchaser gives
Seller written notice of any objections within the Review Period, Seller shall
have five (5) days (the "Cure Period") after receipt of such notice in which to
satisfy Purchaser. If Seller is unable or chooses not to satisfy any of such
objections within the Cure Period, then Purchaser may terminate this Contract by
written notice to the Seller within three (3) days after expiration of the Cure
Period, in which case this Contract shall terminate and the Xxxxxxx Money shall
be immediately returned to Purchaser.
5. INSPECTION PERIOD
Purchaser's obligations under this Contract are subject to and contingent upon
the following:
5.1 DELIVERY OF DOCUMENTS. Within five (5) days after the Date of this
Contract, Seller at Seller's sole cost and expense, will deliver to Purchaser or
make available for Purchaser's review copies of all agreements, documents,
contracts and other pertinent information concerning the Property which are in
Seller's possession (the "Property Information") including, without limitation,
correct, complete and legible copies of the following:
(a) A current inventory of all Personal Property.
(b) Any service, maintenance, management and other contracts
relating to the ownership, management and operation of the Property.
(c) Any assignable warranties and guarantees relating to the
Property or to the Personal Property.
(d) Income and expense statements reflecting the operating history
of the Property for the two calendar years immediately preceding the Date of
this Contract, including without limitation expenses for utility charges and
municipal services, taxes, operating expenses, and capital improvements, gross
rental and income and cash flow, such statements to be certified as true,
complete and correct by an authorized officer or agent of Seller.
(e) "As-built" plans and specifications for the Property, inspection
reports, engineering plans and studies, soil and substrata studies, structural
reports, environmental impact reports, environmental assessment reports,
insurance loss histories in respect of the Property, and current permits issued
for the Property or the Improvements, to the extent in the possession or within
the control of Seller or Seller's agents.
(f) True and accurate copies of all Leases including any amendments
thereto.
(g) A rent roll of the Property ("Rent Roll"), dated as of the last
day of the month preceding the month in which the Rent Roll is delivered,
certified as true and correct by an authorized officer or representative of
Seller. The Rent Roll shall list by building the names of tenants, showing
commencement and termination dates of the Leases, the suite number, as
applicable, the square footage of the leased premises under the Leases, monthly
rental and other payments specified in the Leases, delinquent and prepaid rents,
the amount of security deposits, the percentage of occupancy and vacancy.
(h) Such other documents and information as Purchaser may reasonably
request in connection with its inspection of the Property and the documents
relating thereto.
5.2 PURCHASER'S INSPECTION. Purchaser shall have fifteen (15) days (the
"Inspection Period") from the Date of this Contract to inspect the Property
Information and the Property, including tenant spaces under the Leases, and to
conduct environmental, engineering and economic feasibility studies of the
Property. If Purchaser is not satisfied with the Property or any of the Property
Information or the feasibility studies for any reason, in Purchaser's sole and
absolute discretion, then Purchaser shall have the right to terminate this
Contract. If Purchaser fails to deliver notice to Seller on or before the
expiration of the Inspection Period that Purchaser has disapproved the Property
and Property Information, then Purchaser shall be deemed to have waived its
right to terminate pursuant to this Section.
5.3 ACCESS TO THE PROPERTY. Following twenty-four (24) hours advance written
notice to Seller and during regular business hours, Purchaser shall have the
right to enter on the Property, including the tenant spaces, during the
Inspection Period for the purpose of conducting inspections and studies at
Purchaser's cost and expense and is
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authorized to inspect and copy any records and information in Seller's
possession pertaining to the tenants and to the maintenance, zoning or use and
operation of the Property. Such inspections shall not unreasonably interfere
with the operations of the tenants at the Property. Purchaser shall indemnify,
defend and hold Seller harmless from any loss, claim, liability or cost,
including without limitation, damage to Property, injury to persons and claims
of mechanic's or materialmen's liens caused by Purchaser's entry and conduct of
tests on the Property. Notwithstanding anything to the contrary contained
elsewhere in this Contract, the indemnities set forth in this Section 5.3 shall
survive the Closing.
5.4 AUDIT. Purchaser has advised Seller that Purchaser must cause to be
prepared up to three (3) years of audited financial statements in respect of the
Property in compliance with the policies of Purchaser and certain laws and
regulations, including, without limitation, Securities and Exchange Commission
Regulation S-X, Rule 3-14. Seller agrees to use reasonable efforts to cooperate
with Purchaser's auditors in the preparation of such audited financial
statements (it being understood and agreed that the foregoing covenant shall
survive the Closing). Without limiting the generality of the preceding sentence
(a) Seller shall, during normal business hours, allow Purchaser's auditors
reasonable access to such books and records maintained by Seller (and Seller's
manager of the Property) in respect of the Property as necessary to prepare such
audited financial statements; (b) Seller shall use reasonable efforts to provide
to Purchaser such financial information and supporting documentation as are
necessary for Purchaser's auditors to prepare audited financial statements; (c)
Seller will make available for interview by Purchaser and Purchaser's auditors
the manager of the Property or other agents or representatives of Seller
responsible for the day-to-day operation of the Property and the keeping of the
books and records in respect of the operation of the Property; and (d) if Seller
has audited financial statements with respect to the Property, Seller shall
promptly provide Purchaser's auditors with a copy of such audited financial
statements. If after the Closing Date Seller obtains an audited financial
statement in respect of the Property for a fiscal period prior to the Closing
Date that was not completed as of the Closing Date, then Seller shall promptly
provide Purchaser with a copy of such audited financial statement, and the
foregoing covenant shall survive Closing.
5.5 TENANT ESTOPPELS. Seller shall make commercially reasonable efforts to
obtain and deliver to Purchaser, no later than five (5) days prior to the
Closing Date (the "Estoppel Return Date"), a tenant estoppel certificate in the
form of EXHIBIT "B" attached hereto executed by each tenant at the Property;
provided, however, the form of tenant estoppel certificate shall reflect
appropriate changes thereto for any tenant whose lease requires a different form
of tenant estoppel certificate. An executed tenant estoppel certificate in the
form of EXHIBIT "B" (as such form may be changed for any tenant whose lease
requires a different form of tenant estoppel certificate) is herein referred to
as a "Tenant Estoppel". Seller shall deliver each executed tenant estoppel
certificate to Purchaser (regardless of whether it complies with this Agreement)
promptly following Seller's receipt thereof. Notwithstanding anything contained
herein to the contrary, it shall be a condition precedent to the obligation of
Purchaser to consummate the transaction that is the subject of this Agreement
that Seller deliver to Purchaser, on or before the Estoppel Return Date, Tenant
Estoppels executed by (a) tenants occupying, in the aggregate, at least ninety
percent (90%) of the leased square footage at the Property, and (b) each tenant
that leases more than two thousand (2,000) square feet at the Property (such
condition being herein referred to as the "Tenant Estoppel Condition"). In the
event that Seller is unable to satisfy the Tenant Estoppel Condition by the
Estoppel Return Date, Seller shall not be in default under this Agreement.
However, if the Tenant Estoppel Condition is not fulfilled as of the Estoppel
Return Date, then, for three (3) business days thereafter, Purchaser shall have
the option either to (i) waive the Tenant Estoppel Condition, (ii) extend the
Closing Date for up to fourteen (14) days to allow Seller more time to obtain
additional tenant estoppel certificates; or (iii) terminate this Agreement, in
which event all of the Xxxxxxx Money shall be returned to Purchaser. If
Purchaser elects to extend the Closing Date pursuant to clause (ii) of the
preceding sentence and the Tenant Estoppel Condition is still not fulfilled on
or before the expiration of the fourteen (14) day extension period, then
Purchaser may elect one of the options set forth in clauses (i) and (iii) of the
preceding sentence.
6. TITLE POLICY
6.1 TITLE POLICY. The Title Policy to be issued to Purchaser by the Title
Company pursuant to this Contract shall be in the amount of the Purchase Price,
dated as of the Closing Date and shall contain only the Permitted Exceptions
with the standard printed exceptions deleted except that (i) the exception for
"rights of parties in possession" shall be modified to except only to "rights of
tenants in possession under the Leases, as tenants", and (ii) the standard
survey exception may be modified, at Purchaser's sole expense, to except only to
"shortages in area" (the "Survey Deletion").
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7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants
to Purchaser the following as of the Date of this Contract and as of the Closing
Date (which representations and warranties shall survive Closing for a period of
one (1) year):
(a) That Seller has, and as of the Closing Date will have and will
convey to Purchaser, good and indefeasible fee simple title to the Property,
free and clear of all conditions, exceptions, easements, and reservations,
except the Permitted Exceptions.
(b) With respect to the Leases: (1) to the best of Seller's
knowledge, the Leases are in full force and effect in accordance with their
terms, no tenant has any claim of offset or defense to the payment of rent or
has asserted any such claim of offset or defense to the payment of rent or has
asserted any such claim, and no tenant has notified Seller in writing of any
claim of defect in the Property or injury to persons or damage to property other
than as disclosed in the Property Information, (2) each tenant under a Lease has
accepted the leased premises and has commenced occupancy and payment of rent,
(3) all rent payable by tenants is current, (4) all construction and repair of
any improvements or facilities required to be performed by Seller have been
completed, and (5) except as set out in the Leases, no tenant is entitled to any
concession, rebate, allowance or period of occupancy free of rent.
(c) There are no bills unpaid, liens filed or claims pending in
connection with the construction, maintenance, repair, or the ownership,
management, and operation of the Property, and none will exist as of the Closing
Date.
(d) Except for the rights of those tenants in possession of the
Property under the Leases, there are no other parties in possession of the
Property under the Leases, there are no parties claiming any right to use or
occupancy of any portion of the Property as lessees, tenants at sufferance,
licensees or otherwise.
(e) Seller has received no written notice from any governmental
authority, board of fire underwriters, improvement association, or architectural
committee relating to defects in the improvements on the Property, relating to
noncompliance with any applicable building code or restriction that has not been
corrected, or relating to any threat of impending condemnation.
(f) To the best of Seller's knowledge, there is no litigation
pending that might materially affect the value or the use or operation of the
Property for its intended purpose or the ability of Seller to perform its
obligations under this Contract. Seller shall notify Buyer promptly of any such
litigation of which Seller becomes aware.
7.2 AS-IS CONVEYANCE. Seller will convey the Property "AS IS". Purchaser
expressly acknowledges that, in consideration of Seller's agreements, except as
otherwise specified in this Contract or in the Deed, SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING,
BUT NOT LIMITED TO, ANY WARRANTY OF THE PROPERTY'S CONDITION, HABITABILITY,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Purchaser acknowledges
that it is sophisticated in the purchase of real property and is entering into
this Contract in reliance on its own abilities and investigation and not on any
representation, warranty, or agreement of Seller, other than as stated in this
Contract. Purchaser acknowledges that no representations have been made by
Seller or its agents or employees to induce Purchaser to enter into this
transaction other than as expressly stated in this Contract. This Section 7.2
survives the Closing.
7.3 OPERATIONS PENDING CLOSING. Pending Closing, Seller shall operate and
manage the Property in a normal businesslike manner, maintaining present
services and insurance policies, shall maintain the Property in good repair and
working order, and shall perform when due all of Seller's obligations under the
Leases and other contracts affecting the Property and otherwise in accordance
with applicable laws, ordinances, rules and regulations affecting the Property.
Seller shall not enter into any lease or other contract (or an extension or
modification of any lease or other contract) with respect to the Property which
will survive the Closing or otherwise affect the use, operation or enjoyment of
the Property after the Closing, without first obtaining Purchaser's prior
written consent thereto. After the date hereof and prior to Closing, no part of
the Property, nor any interest therein, will be alienated, liened, encumbered or
otherwise transferred.
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8. BROKERS
8.1 BROKER. Neither party has engaged any broker, finder or agent in
connection with this transaction except Realty America Group ("Broker") (which
Seller agrees to pay pursuant to a separate written agreement). Each party to
this Contract agrees to indemnify, defend, and hold the other party harmless
from any cost, damages or expense, including reasonable attorneys fees and court
costs, resulting from any claim for a commission, finder's fee or other
compensation in connection with this transaction asserted by any person acting
or claiming to act based upon an agreement with such indemnifying party, other
than Broker. Notwithstanding anything to the contrary contained elsewhere in
this Contract, the indemnities set forth in this Section 8.1 shall survive the
Closing.
9. CONDEMNATION AND CASUALTY
9.1 CONDEMNATION. If on or before the Closing Date, any material portion of
the Property has been condemned or sold under threat of condemnation or becomes
the subject of any condemnation proceeding, Seller shall notify Purchaser and
Purchaser may at its sole election, within ten (10) days after receipt of such
notice, terminate this Contract by written notice to Seller, in which event the
Xxxxxxx Money shall be returned to Purchaser. If Purchaser does not elect to
terminate within such ten (10) day period, then Purchaser shall be deemed to
have waived any objection to such condemnation, in which event Purchaser shall
accept title to the Property at Closing subject to such condemnation, and Seller
shall deliver all condemnation proceeds or assign its rights to such proceeds to
Purchaser.
9.2 CASUALTY. If, on or before the Closing Date, a material portion of the
Property has been damaged by fire, storm, flood or other casualty, Seller shall
promptly notify Purchaser in writing. If the Property cannot be restored to its
present condition prior to Closing, then Purchaser shall have the right at its
sole election, within three (3) days after receipt of such notice, to terminate
this Contract by written notice to Seller, in which event Purchaser's Xxxxxxx
Money shall be returned. If Purchaser fails to give such notice of termination,
Purchaser shall be deemed to have waived any objection to such damage, in which
event Purchaser shall accept title to the Property at Closing subject to such
damage, and Seller shall give Purchaser a credit for the amount of any
deductible under the applicable insurance policy and deliver to Purchaser all
insurance proceeds received by Seller or assign to Purchaser all rights to
negotiate, settle and collect such proceeds with respect to such damage.
10. CLOSING
10.1 DATE AND PLACE OF CLOSING. The Closing of this Contract shall take place
at the offices of the Title Company on the Closing Date. The Closing Date shall
be no later than five (5) days after the expiration of the Inspection Period.
"Closing" shall mean the consummation of this transaction including without
limitation the execution and delivery by Purchaser and Seller of the items
specified in Section 10.2 and recordation of the warranty deed.
10.2 ITEMS TO BE DELIVERED AT THE CLOSING.
(a) SELLER. Prior to the Closing Date, Seller shall deliver or cause
to be delivered to the Title Company, at Seller's sole cost and expense,
duplicate originals or duplicate original counterparts of each of the following
items, duly executed and acknowledged by Seller in recordable form where
applicable:
(1) Such documents as may be required by the Title Company
to issue a Title Policy pursuant to this Contract, including without limitation,
affidavits pertaining to mechanic's liens.
(2) A Special Warranty Deed in the form of EXHIBIT "C"
attached hereto properly executed and in proper form for recording so as to
convey to Purchaser or its assignee good and indefeasible title to the Property
as required by this Contract.
(3) A Special Warranty Xxxx of Sale with no covenants of
warranty, conveying title to the Personal Property and the Intangible Personal
Property, subject only to the Permitted Exceptions.
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(4) Executed originals of all Leases and security deposit
agreements and all of Seller's keys for the Property.
(5) An Assignment of Service Contracts, Warranties and
Guarantees assigning to Purchaser all assignable warranties and guarantees, if
any, pertaining to the Property and requested by Purchaser.
(6) An Assignment and Assumption of Leases transferring to
Purchaser all of Seller's right, title and interest in the Leases, security
deposits and prepaid rents, if any.
(7) Letters addressed to each tenant under the Leases and to
the parties to any assigned service and maintenance agreements notifying such
tenant or party of the sale of the Property to Purchaser and of the assignment
to Purchaser of any deposits held or made by such parties.
(8) An affidavit, sworn to by the Seller, or if Seller is a
corporation by the President or any Vice President of Seller, stating under
penalty of perjury, that the Seller is not a "foreign person" as defined in the
Internal Revenue Code Section 1445 and the regulations promulgated under such
Code, that the Purchaser is not required to withhold any portion of the Purchase
Price under the provisions of such Code, and stating the Seller's United States
taxpayer identification number.
(9) All additional documents and instruments which Purchaser
and Seller may mutually and reasonably determine are necessary to the
consummation of this transaction.
(b) PURCHASER. At Closing, Purchaser shall deliver the following to
Title Company: (1) the Purchase Price by wire transfer of funds into the bank
escrow account of the Title Company; (2) executed notices, if required by
applicable law or statutes; (3) such other documents as may be required by the
Title Company to issue a Title Policy pursuant to this Contract; (4) an
Assignment and Assumption of Leases in which Purchaser assumes Seller's duties
under the Leases; and (5) all additional documents and instruments which
Purchaser and Seller may mutually and reasonably determine are necessary to the
consummation of this transaction.
10.3 ADJUSTMENTS AT CLOSING. Notwithstanding anything to the contrary
contained in this Contract, the provisions of this Section shall survive the
Closing. The following items shall be adjusted or prorated between Seller and
Purchaser at Closing or at such other time as is provided in this Section:
(a) Ad valorem and similar taxes relating to the Property for the
calendar year in which the Closing Date occurs shall be prorated between Seller
and Purchaser as of the Closing Date, based upon the most recent ascertainable
assessed valuation and tax rate applicable to the Property. Upon receipt of the
actual tax xxxx for the Property, the proration of taxes made at Closing shall
be adjusted as appropriate.
(b) Any rent or other payment under the Leases paid for the calendar
month during which Closing occurs shall be prorated between the Seller and the
Purchaser, as of 11:59 p.m. of the day prior to Closing. If any rent or other
payment for such calendar month is unpaid as of Closing, such rent shall be
treated as if collected by Seller on the first day of such calendar month for
the purpose of prorating rents. After Closing, if the Purchaser actually
receives any such rent or other payments, then Purchaser shall remit the
Seller's portion to Seller, except that Purchaser shall be entitled to apply
such rents and other payments first to arrearages in rent which accrue after
Closing.
(c) Purchaser will be credited at Closing with the amount of any
security or other deposits and advance rental payments made by tenants under the
Leases.
(d) All other income and normal operating expenses pertaining to the
Property which are not the responsibility of tenants under the Leases shall be
prorated between the Seller and the Purchaser, as of 11:59 p.m. of the day prior
to Closing.
(e) Seller shall endeavor to have all meters read and final bills
rendered for all utilities servicing the Property which are payable by Seller
for the period to and including the day preceding Closing. Seller shall remit
the Seller's portion to Purchaser.
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(f) Any rents or other income received by Seller after Closing,
attributable to the period of time after the Closing Date and not previously
prorated to Purchaser at Closing, shall be remitted to Purchaser within ten (10)
days after receipt. Any rents or other income received by Purchaser after
Closing, attributable to the period of time before the Closing Date and not
previously prorated at Closing, shall be remitted to Seller within ten (10) days
after receipt.
10.4 POSSESSION AT CLOSING. Full possession of the Property shall be
delivered to Purchaser by Seller at the Closing, subject only to the Leases.
10.5 CLOSING COSTS. The Purchaser and the Seller shall each bear the cost of
any recording fees incurred in connection with any documents required to be
recorded by such party. The Seller shall pay the cost for recording the warranty
deed and Title Policy premiums; provided, however, Purchaser shall pay the costs
associated with the Survey Deletion. Any fee charged by the Title Company for
serving as escrow agent in connection with the Closing shall be divided equally
between the parties. Purchaser shall pay for the mortgagee's title policy, if
issued. Each party shall be responsible for the payment of its own attorney's
fees.
11. DEFAULTS AND REMEDIES
11.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
(a) SELLER'S DEFAULT. Seller shall be deemed to be in default under
this Contract if Seller fails to comply with or perform any covenant, agreement
, or obligation required on Seller's part within the time limits and in the
manner required in this Contract or if Seller fails to close this transaction
for any reason other that the default of Purchaser.
(b) PURCHASER'S REMEDIES. If Seller is deemed to be in default under
this Contract, Purchaser's sole and exclusive remedies shall be to either:
(i) Terminate this Contract by written notice delivered to
Seller on or before the Closing Date; or
(ii) Enforce specific performance of this Contract against
Seller.
(c) RETURN OF XXXXXXX MONEY. Upon termination of this Contract
pursuant to a right of termination expressly granted in this Contract (a
"Permitted Termination"), the Xxxxxxx Money shall be returned to Purchaser by
the Title Company, and Seller shall execute and deliver such documents as may be
required to cause the Title Company to return the Xxxxxxx Money to Purchaser.
11.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
(a) PURCHASER'S DEFAULT. Purchaser shall be deemed to be in default
if Purchaser fails to close this transaction for any reason other than a default
by Seller or termination of this Contract at or before Closing pursuant to a
Permitted Termination.
(b) SELLER'S REMEDY; LIQUIDATED DAMAGES. If Purchaser is deemed to
be in default under this Contract, Seller, as Seller's sole and exclusive remedy
for such default, shall be entitled to the Xxxxxxx Money previously deposited by
Purchaser with the Title Company, it being agreed between Purchaser and Seller
that such sum shall be liquidated damages for a default of Purchaser under this
Contract because of the difficulty, inconvenience, and uncertainty of
ascertaining actual damages for such default. The amount of the Xxxxxxx Money
represents Seller's and Purchaser's best estimate of the damages that will be
suffered by Seller because of Purchaser's default. If Seller is entitled to the
Xxxxxxx Money in accordance with this section, Purchaser shall promptly, on
written request of Seller or the Title Company, execute and deliver such
documents as may be required to cause the Title Company to deliver the Xxxxxxx
Money to Seller.
11.3 INDEMNIFICATION. Purchaser and Seller each hereby indemnify and hold
Title Company harmless from any liability, cost or expense, including reasonable
attorney's fees and court costs, by reason of the disbursement of the Xxxxxxx
Money by Title Company in good faith pursuant to this Section 11.
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12. MISCELLANEOUS
12.1 REFERENCES. All references to "Section" or "Paragraph" are, unless
specifically stated otherwise, references to sections and paragraphs as numbered
or lettered in this Contract. All references to the expiration of any time
period under this Contract shall mean and refer to the expiration of such time
periods pursuant to this Contact or the agreement of Purchaser and Seller of any
extensions of such time periods.
12.2 EXHIBITS. All Exhibits attached to this Contract are incorporated into
and made a part of this contract by reference.
12.3 CAPTIONS. The options, headings and arrangements in this Contract are
for convenience only and do not in any way define, limit or modify the terms and
provisions of this Contract.
12.4 NUMBER AND GENDER OF WORDS. Whenever the singular number is used in this
Contract, the same shall include the plural where appropriate, and words of any
gender shall include the other gender where appropriate.
12.5 NOTICES. All notices, demands, requests and other communications
("Notices") required or permitted by this Contract shall be in writing and shall
be deemed to be received (1) when actually received by any person at the
intended address, if personally served or sent by overnight delivery or courier
or (2) whether actually received or not, forty-eight (48) hours after the date
of deposit of the Notice (and on the date of deposit in the case of any
Permitted Termination)in a regularly maintained receptacle for the United States
mail, registered or certified, return receipt requested, postage fully prepaid,
addressed as follows:
If to the Purchaser: Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Copies to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Seller: Parkway Monticello Partners, Ltd.
Attention: Xxx Xxxxxxx
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Copies to: Xxxxx, Xxxx & Xxxxxxx, P.C.
c/o J. Xxxxxx Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Either party may, in substitution of the foregoing, designate a different street
address and addressee for purposes of this section by written notice delivered
to the other party in the manner prescribed above at least ten (10) days in
advance of the date upon which such change of address is to be effective,
provided that for purposes of receiving
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notice of any termination rights under this Contract, only one addressee at one
street address shall be specified at any given time.
12.6 ENTIRE AGREEMENT. This Contract embodies the entire agreement between
the parties and supersedes all prior agreements, negotiations, warranties,
representations and understandings, if any, relating to the Property, and may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought.
12.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties and indemnities set forth in this Contract shall survive the Closing
for a period of one (1) year.
12.8 MULTIPLE COUNTERPARTS. This Contract may be executed in a number of
identical counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement.
12.9 PARTIES BOUND. This Contract shall be binding upon and inure to the
benefit of Seller and Purchaser and their respective heirs, personal
representatives, successors, and assigns.
12.10 FURTHER ACTS. In addition to the acts and deeds recited in this Contract
and contemplated to be performed, executed, and/or delivered by seller and
Purchaser, Seller and Purchaser agree to perform execute, and/or deliver or
cause to be performed, executed, and/or delivered at the Closing or after the
Closing any and all such further acts, deeds, and assurances as may be necessary
to consummate the transactions contemplated by this Contract.
12.11 DATE OF THIS CONTRACT. The term "Date of this Contract" or "date hereof"
or similar references shall for all purposes in this Contract mean the date on
which a copy of this Contract has been fully executed and acknowledged by
Purchaser and Seller with all changes to the typewritten portion of this
Contract initialed by Purchaser and Seller.
12.12 TIME OF THE ESSENCE. It is expressly agreed that time is of the essence
with respect to this Contract and each provision contained in this Contract.
12.13 BUSINESS DAYS. All reference to "business days" in this Contract are
references to working days, Monday through Friday of each calendar week. If any
date in this Contract for commencement or expiration of time periods, for
termination or approval, or if the Closing Date, occurs on a Saturday, Sunday or
a holiday observed by national banks or the Title Company, then any such date
shall be postponed to the next following business day.
12.14 ATTORNEY FEES. In the event of a dispute arising between the parties to
this Contract, the prevailing party shall be paid by the non-prevailing party
reasonable attorney's fees and court costs, if any, incurred in connection with
such dispute.
12.15 AUTHORIZATION AND CAPACITY. Purchaser and Seller each represents to the
other that it has the full right, power and authority to enter into this
Contract and to fully perform its obligations. Each person executing this
Contract warrants and represents that each has the authority to execute this
Contract in the capacity stated and to bind the Purchaser and Seller,
respectively.
12.16 ASSIGNMENT. Purchaser shall have the right to assign this Contract. If
the assignee assumes all obligations of Purchaser and agrees to execute all
documents and to perform all obligations imposed on Purchaser as if the assignee
were the original purchaser in this Contract, then Purchaser shall be relieved
of its obligations under this Contract.
12.17 GOVERNING LAW. This Contract is to be performed in Tarrant County, Texas
and the laws of the State of Texas shall govern the validity, construction and
enforcement of this Contract. Venue for any litigation shall be fixed in Tarrant
County, Texas.
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Executed by Seller on this ___ day of ______________, Executed by Purchaser on this ___ day of _________.
_____________.
SELLER: PURCHASER:
Parkway Monticello Partners, Ltd. Harvard Property Trust, LLC, dba Behringer Harvard Funds
By: Realty Capital Corporation
a Texas corporation, its General Partner
By: By:
-------------------------------------------------- -------------------------------------------------
Name: XXXXXX X. XXXXXXX Name:
------------------------------------------------ -----------------------------------------------
Title: SENIOR VICE PRESIDENT
-----------------------------------------------
Title:
-----------------------------------------------
11
EXHIBIT A
LEGAL DESCRIPTION
12
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
Harvard Property Trust, LLC
Behringer Harvard 0000 Xxxxx Xxxxxxx LP
Behringer Harvard Mid-Term Value
Enhancement Fund I LP
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Re: Parkway Vista Office Building located at 0000 Xxxxx Xxxxxxx in
Plano, Texas (the "PROPERTY")
Gentlemen:
Reference is made to that certain Lease Agreement dated as of
____________ __, ____ between Parkway Monticello Partners, a Texas limited
partnership, as landlord ("LANDLORD"), and the undersigned, as tenant
("TENANT"), demising premises at the captioned address more particularly
described in the Lease (the "PREMISES"). The lease, together with any amendments
and supplements thereto listed on ANNEX 1 attached hereto, is herein referred to
as the "LEASE". All capitalized terms used and not otherwise defined herein
shall have the meanings assigned thereto in the Lease. Tenant hereby represents
to the Benefited Parties (as herein defined) that the following statements are
true and correct as of the date hereof:
1. Tenant is the current Tenant under the Lease. The Lease is in full force
and effect and is the only lease, agreement or understanding between
Landlord and Tenant affecting the Premises. The Lease has not been
modified, altered, sublet, or amended, except by the documents listed on
ANNEX I attached hereto.
2. The Commencement Date of the Lease occurred on _____________, and the
Expiration Date of the Lease will occur on ________________.
3. The Annual Rent under the Lease for the current Lease Year is
$___________.
4. As of the date of this Certificate, (i) Landlord is not in default under
any of the terms, conditions or covenants of the Lease to be performed
or complied with by Landlord, and no event has occurred and no
circumstance exists which, with the passage of time or the giving of
notice by Tenant, or both, would constitute such a default, and (ii)
Tenant is not in default under any of the terms, conditions or covenants
of the Lease to be performed or complied with by Tenant, and no event
has occurred and no circumstance exists which, with the passage of time
or the giving of notice by Landlord, or both, would constitute such a
default.
5. As of the date of this Certificate, Tenant has no existing defenses,
offsets or credits against the payment of Rent and other sums due or to
become due under the Lease or against the performance of any other of
Tenant's obligations under the Lease. All improvements to be constructed
in the Premises by Landlord have been completed to the satisfaction of
Tenant and accepted by Tenant and any tenant construction allowances
have been paid in full, and all duties of an inducement nature required
of Landlord in the Lease have been fulfilled to Tenant's satisfaction.
6. Tenant (or its sublessee, if applicable, as provided on ANNEX I
attached) has accepted and is presently occupying the Premises, and the
Premises have been completed in accordance with the terms of the Lease.
Tenant has no right to lease or occupy any parking spaces within the
Property except as set forth in the Lease.
7. Tenant has no option or right of first refusal to purchase the Premises.
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8. Tenant has paid to Landlord a security deposit in the amount of
$___________. Tenant has no claim against Landlord for any other
security, rental, access card, key or other deposits or any prepaid
rentals.
9. Tenant agrees that, from and after the date hereof, Tenant will not pay
any rent under the Lease more than thirty (30) days in advance of its
due date.
10. The party executing this document on behalf of Tenant represents that
he/she has been authorized to do so on behalf of Tenant.
11. The above certifications are made to the Benefited Parties knowing that
the Benefited Parties will rely thereon in making an investment in the
Property. For purposes hereof, the term "BENEFITED PARTIES" means (a)
Landlord, and (b) each addressee of this letter and its successors,
assigns, and designees (including, without limitation, any tenant in
common acquiring an interest in the Property by or through Purchaser);
and (c) any lender to which any party described in the foregoing clause
(b) grants a deed of trust or other lien upon the Property and its
successors and assigns.
EXECUTED on this _______ day of ________________, 2005.
"TENANT"
__________________________________
BY: ___________________________
Name: ___________________________
Title: ___________________________
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EXHIBIT C
SPECIAL WARRANTY DEED
STATE OF TEXAS ss.
ss. KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF ____________ ss.
THAT ____________________, a ____________________ (herein referred to as
"Grantor"), for and in consideration of the sum of Ten Dollars ($10.00) in hand
paid to Grantor by ____________________, a _______________ (herein referred to
as "Grantee"), whose mailing address is ____________________, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED unto Grantee that
certain tract of real property located in Tarrant County, Texas, more
particularly described on EXHIBIT A attached hereto and made a part hereof for
all purposes, together with (a) any and all appurtenances belonging or
appertaining thereto; (b) any and all improvements located thereon; (c) any and
all appurtenant easements or rights of way affecting said real property and any
of Grantor's rights to use same; (d) any and all rights of ingress and egress to
and from said real property and any of Grantor's rights to use same; (e) any and
all mineral rights and interests of Grantor relating to said real property
(present or reversionary); (f) any and all rights to the present or future use
of wastewater, wastewater capacity, drainage, water or other utility facilities
to the extent same pertain to or benefit said real property or the improvements
located thereon, including without limitation, all reservations of or
commitments or letters covering any such use in the future, whether now owned or
hereafter acquired; and (g) all right, title and interest of Grantor, if any, in
and to (i) any and all roads, streets, alleys and ways (open or proposed)
affecting, crossing, fronting or bounding said real property, including any
awards made or to be made relating thereto including, without limitation, any
unpaid awards or damages payable by reason of damages thereto or by reason of a
widening of or changing of the grade with respect to same, (ii) any and all
strips, gores or pieces of property abutting, bounding or which are adjacent or
contiguous to said real property (whether owned or claimed by deed, limitations
or otherwise), (iii) any and all air rights relating to said real property, and
(iv) any and all reversionary interests in and to said real property (said real
property together with any and all of the related improvements, appurtenances,
rights and interests referenced in clauses (a) through (g) above being herein
collectively referred to as the "Property").
This Special Warranty Deed and the conveyance hereinabove set forth is
executed by Grantor and accepted by Grantee subject to the matters described in
EXHIBIT B attached hereto and incorporated herein by this reference, to the
extent the same are validly existing and applicable to the Property (hereinafter
referred to collectively as the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging, unto Grantee, its
successors and assigns forever, subject to the matters herein stated; and
Grantor does hereby bind itself and its successors and assigns to WARRANT AND
FOREVER DEFEND all and singular the Property unto Grantee, its successors and
assigns, against every person whomsoever lawfully claiming or to claim the same
or any part thereof, by, through or under Grantor, but not otherwise, subject to
the Permitted Exceptions.
Grantor warrants and represents that all ad valorem taxes and
assessments on the Property for the year 2004 and all prior years have been
fully paid.
(signature page follows)
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EXECUTED to be effective as of the _____ day of ____________________,
20_____.
GRANTOR:
[Name of Seller],
a __________________________________
By:_________________________________
Name:_______________________________
Title:______________________________
THE STATE OF ___________ ss.
ss.
COUNTY OF ______________ss.
BEFORE ME, the undersigned authority, on this day personally appeared
____________________, ___________________ of ___________________, a
____________________, known to me to be the person and ____________________
whose name is subscribed to the foregoing instrument, who acknowledged to me
that, being duly authorized so to do, he executed the same for the purposes and
consideration therein expressed and in the capacity therein stated for and on
behalf of said ____________________.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _____ day of
_______________, 20_____.
____________________________________
Notary Public in and for
the State of
____________________________________
____________________________________
Printed/Typed Name of Notary
My commission expires:
____________________________________
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