CONTRACT OF PURCHASE AND SALE
THIS CONTRACT OF PURCHASE AND SALE (this "Contract"), dated as of
September 2, 2004, is by and between BEHRINGER HARVARD XXXXXXX XXXXXX XX
("Seller") and TEXAS LAND & REALTY, LLC, a Texas limited liability company
("Purchaser").
ARTICLE 1
SALE AND PURCHASE
SECTION 1.1 Subject to the terms and provisions hereof, Seller
agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the
real property owned by Seller, located in the City of Dallas, Dallas County,
Texas, containing approximately 69,913 square feet of land, more or less, and
more particularly described in EXHIBIT A attached hereto (the "Property"),
together with all right, title and interest of Seller in and to any and all
roads, easements, streets and ways bounding the Property, and rights of ingress
and egress thereto; provided, however, that the field notes for the Survey (as
hereafter defined) shall be the legal description for all conveyance and other
documents required pursuant to the terms hereof.
ARTICLE 2
CONSIDERATION FOR CONVEYANCE
SECTION 2.1 The Purchase Price (herein so called) to be paid by
Purchaser to Seller for the Property shall be the sum of $60.00 multiplied by
the number of square feet contained within the boundaries of the Property as
determined by the Survey (as hereinafter defined). The Purchase Price shall be
payable in cash or other immediately available funds at Closing (as hereafter
defined).
ARTICLE 3
XXXXXXX MONEY
SECTION 3.1 Within three (3) business days after the mutual
execution of this Contract by Seller and Purchaser, Purchaser will deliver to
the Title Company (as hereinafter defined) cash or other immediately available
funds in the amount of $100,000.00 (the "Initial Xxxxxxx Money"). In addition,
subject to Purchaser's right to terminate this Contract pursuant to Section 9.1,
on or before the last day of the Due Diligence Period (as defined in Section
9.1), Purchaser shall deliver to the Title Company cash or other immediately
available funds in the amount of $100,000.00 (the "Additional Xxxxxxx Money").
The Initial Xxxxxxx Money and the Additional Xxxxxxx Money are hereinafter
referred to collectively as the "Xxxxxxx Money". The Title Company shall hold
the Xxxxxxx Money in an interest-bearing account reasonably satisfactory to
Seller and Purchaser. All interest that accrues on the Xxxxxxx Money, together
with the Closing Extension Fees (as hereinafter defined and as applicable),
shall constitute a
CONTRACT OR PURCHASE AND SALE - Page 1
portion of the Xxxxxxx Money and shall be disbursed with the Xxxxxxx Money as
provided elsewhere herein.
ARTICLE 4
SURVEY, TITLE COMMITMENT, TITLE DOCUMENTS AND TITLE POLICY
SECTION 4.1 Within twenty (20) days after the Effective Date, Seller
shall, at its sole cost and expense, cause to be prepared and delivered to
Purchaser a current survey of the Property (the "Survey") certified to Seller,
Purchaser, and the Title Company. The Survey shall be in form acceptable to
Purchaser and the Title Company, shall be prepared by a surveyor licensed in the
State of Texas and otherwise acceptable to said parties, and shall show, without
limitation, (i) a correct legal description of the Property, (ii) the area,
boundaries and dimensions of the Property, (iii) any encroachments or
protrusions, (iv) the location of all easements, known, proposed or apparent,
building restrictions affecting the Property, and the current or proposed
location of any public utilities, (v) the gross and net square footage of the
Property, (vi) the approximate centerline of any springs or streams on the
Property and, if visible, the location of where they enter or exit the surface
of the Property, and (vii) any waterways and any other areas on the Property
designated by the Federal Emergency Management Agency (or other appropriate
agency) as being within the 100-year flood plain, including the matters
disclosed as title exceptions in the Title Commitment (as hereinafter defined).
The Survey shall form the basis for the legal description of the Property and
the calculation of the Purchase Price. Upon the identification by Purchaser of
its lender, the Survey shall be certified, at Purchaser's expense, to
Purchaser's lender.
SECTION 4.2 Within twenty (20) days after the Effective Date,
Seller, at Seller's sole cost and expense, shall furnish to Purchaser a current
commitment (the "Title Commitment") for the issuance of an Owner's Policy of
Title Insurance to Purchaser through Partners Title Company, 000 Xxxx, Xxxxx
0000X, Xxxxxxx, Xxxxx 00000 (the "Title Company"), together with legible copies
of all documents (the "Title Documents") constituting exceptions to Seller's
title as reflected in the Title Commitment, including legible copies of the
current plat, if any, filed in the map and plat records.
SECTION 4.3 Purchaser shall have a period of ten (10) days (the
"Title and Survey Review Period") from its receipt of the Survey, the Title
Commitment and the Title Documents (collectively, "Title and Survey") to review
the Title and Survey and to object in writing to Seller as to any matters
therein to which Purchaser objects (the "Objections"). If Purchaser fails to so
object prior to the expiration of the Title and Survey Review Period, Purchaser
shall be deemed to have approved and accepted Title and Survey, and all matters
set forth on Schedule B of the Title Commitment and all matters shown on the
Survey shall be deemed Permitted Exceptions (herein so called), and Purchaser
shall accept title to the Property subject to such Permitted Exceptions. If
Purchaser notifies Seller in writing of any Objections prior to the expiration
of the Title and Survey Review Period, Seller shall then have a period of ten
(10) days after its receipt of such notice to use its reasonable efforts to cure
the Objections (provided, Seller shall have no obligation to cure any of the
Objections, the cure of which, in the aggregate, would exceed the sum of
$1,000.00), or to notify Purchaser in writing of any Objections Seller cannot,
or as to any Objections whose cost to cure exceeds $1,000.00 (the "Cure
Notice"); provided further, Seller shall have the absolute obligation to cure or
remove those Objections that are liens of a definite
CONTRACT OR PURCHASE AND SALE - Page 2
or ascertainable dollar amount and were created by Seller. Upon Purchaser's
receipt of the Cure Notice, Purchaser shall have until the expiration of the Due
Diligence Period (as hereinafter defined) to either (i) terminate this Contract,
and be entitled to the return of the Xxxxxxx Money, with neither party hereto
being thereafter obligated to the other, except as to Purchaser's
indemnification liability pursuant to Section 9.1 hereof, or (ii) waive the
Objections by written notice to Seller and proceed to Closing with all uncured
Objections constituting Permitted Exceptions. If Purchaser fails to notify
Seller of its election prior to the expiration of the Due Diligence Period,
Purchaser shall be deemed to have elected to waive the uncured objections
pursuant to (ii) above. Notwithstanding anything contained herein to the
contrary, Seller may not, at any time after the Effective Date, place any
encumbrances and/or restrictions on the Property without the prior written
consent of Purchaser.
SECTION 4.4 At Closing, Seller shall furnish Purchaser, at Seller's
cost and expense (provided that Purchaser shall pay the additional premiums for
the survey exception deletion and any endorsements requested by Purchaser), with
an Owner's Policy of Title Insurance (the "Title Policy") issued through the
Title Company on the standard form in use in the State of Texas, from a title
insurance underwriter reasonably acceptable to Purchaser, insuring good and
indefeasible title to the Property in the Purchaser, subject only to the
Permitted Exceptions.
ARTICLE 5
ADDITIONAL ITEMS TO BE
FURNISHED TO PURCHASER BY SELLER
SECTION 5.1 Within ten (10) days after the Effective Date, Seller
shall deliver to Purchaser complete and legible copies of the following
information relating to the Property, to the extent Seller is in possession or
control of such items:
(a) The real estate property tax statements with respect to the
Property for the calendar year 2003;
(b) Any lease agreements regarding the use of the property;
(c) Copies of all engineering and/or soils reports relating to the
Property;
(d) Copies of all environmental reports relating to the Property;
(e) Copies of the most recent "Title Insurance Policies" with
respect to the Property; and
(f) Copies of the most recent surveys with respect to the Property.
ARTICLE 6
EMINENT DOMAIN
SECTION 6.1 In the event all or any portion of the Property should
be the subject of the actual filing, or any written threat, of any condemnation
or other eminent domain proceeding
CONTRACT OR PURCHASE AND SALE - Page 3
prior to Closing, then Purchaser, within ten (10) days after being notified in
writing by Seller or otherwise acquiring knowledge of such eminent domain
proceeding or threatened proceeding, and being furnished with copies of all
material documents relating thereto, shall either (i) terminate this Contract,
whereupon the Xxxxxxx Money shall be returned to Purchaser and the parties
hereto shall have no further obligations one to the other hereunder, except as
to Purchaser's indemnification liability pursuant to Section 9.1 hereof, or (ii)
elect to close the transaction contemplated by this Contract, in which event any
and all damages or awards payable as a result of such eminent domain proceedings
shall be assigned and/or paid to Purchaser. If Purchaser fails to notify Seller
of its election prior to the expiration of such ten (10) day period, Purchaser
shall be deemed to have elected to close the transaction contemplated by this
Contract pursuant to (ii) above.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 7.1 As of the Effective Date hereof, Seller represents and
warrants to Purchaser, both as of the Effective Date and as of the Closing,
that:
(a) Seller has fee simple title to the Property;
(b) Seller has received no written notice of any pending or
threatened condemnation or other eminent domain proceedings instituted against
the Property;
(c) There are no lease, rental, concession, occupancy or other
agreements, either currently in effect or scheduled to commence in the future,
with regard to the Property other than the Remote Parking Agreement dated
February 20, 1996 and recorded in Volume 96036, Page 2027 in the Deed Records of
Dallas County, Texas, nor has Seller entered into any unrecorded covenants,
restrictions, cross-access easements, reciprocal easement agreements, or any
other agreements which would effect the use or development thereof in any way;
(d) To the best of Seller's actual knowledge, there exists no lien
assessments, general or special assessments, or any other type of assessment or
similar fee or financial obligation with respect to the Property, or any portion
thereof (other than the lien for ad valorem taxes), nor has Seller received
written notice that any have been proposed;
(e) Seller has granted no rights of first refusal or options to
purchase the Property, or any portion thereof;
(f) Seller has received no written notice of any current, pending or
threatened litigation or claim involving the Property or any portion thereof;
(g) Seller has received no written notice of, nor, to the best of
Seller's actual knowledge, is Seller aware of (i) any Environmental Activity
(hereinafter defined) at or around the Property, (ii) any violation of any
applicable Environmental Law at, around or with respect to the Property, or
(iii) any illegal Hazardous Materials (hereinafter defined) discharge or seepage
at or around the Property. For purposes of this Contract, "Environmental
Activity" means any past, present or future storage, holding, existence,
release, threatened release, emission, discharge,
CONTRACT OR PURCHASE AND SALE - Page 4
generation, processing, use, abatement, disposition, handling or transportation
of any Hazardous Materials in violation of any applicable Environmental Law
from, under, into or on the Property, or otherwise relating to the Property or
the ownership, use, operating or occupancy thereof, or any threat of such
activity, and, "Environmental Law" means any applicable federal, state or local
environmental, hazardous waste or hazardous substance law, rule or regulation,
including those which impose strict liability on the offending party.
Additionally, and as used herein, the term "Hazardous Materials" means any
hazardous or toxic substances, materials or wastes, including, but not limited
to, those substances, materials, and wastes listed in the United States
Department of Transportation Hazardous Materials Table (49 C.F.R. ss.172.101) or
by the Environmental Protection Agency as hazardous substances (40 C.F.R. Part
302) and amendments thereto, or such substances, materials, constituents, and
wastes which are currently regulated under any applicable local, state, or
federal law including, without limitation: (i) petroleum, gasoline or other
petroleum derivatives, or additives to gasoline or other petroleum derivatives;
(ii) asbestos or asbestos-containing materials; (iii) polychlorinated biphenyls;
(iv) materials designated as a "hazardous substance" pursuant to section 311 of
the Clean Water Act, 33 U.S.C. ss.1251 ET SEQ. (33 U.S.C. ss.1321) or listed
pursuant to section 307 of the Clean Water Act (33 U.S.C. ss.1317); (v)
materials defined as a "hazardous waste" pursuant to section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. ss.6901 ET SEQ. (42 U.S.C.
ss.6903); (vi) materials defined as a "hazardous substance" pursuant to section
101 of the Comprehensive Environmental Response, Compensation, and Liability
Act, 2 U.S.C. ss.9601 ET SEQ. (42 U.S.C. ss.9601); or (vii) any substance the
nature, use, manufacture, or effect of which render it subject to federal,
state, or local regulation, investigation, removal, or remediation as
potentially hazardous or toxic, injurious to human health or welfare, or
injurious to the environment;
(h) Seller has received no written notice of any violations of any
laws, ordinances, rules and regulations of any government, or any agency, body
or subdivision thereof, relating to the Property;
(i) To the best of Seller's actual knowledge, all items furnished to
Seller in accordance with Section 5.1 of this Contract are, in all material
respects, accurate, complete and true as of the date furnished and will be as of
the Closing;
(j) Seller has not entered into any other contract to sell or
encumber the Property or any portions thereof, nor will Seller between the
Effective Date and the Closing Date (as hereinafter defined) sign any other
contract or letter of intent related to the sale of the Property (or any portion
thereof) or commence or continue any negotiations regarding the sale of the
Property (or any portion thereof) to any party other than Purchaser;
(k) Seller and the individuals executing this Contract on behalf of
Seller have the legal power, right and authority to enter into this Contract and
the instruments referenced herein and to bind Seller to the terms and conditions
herein;
(l) Seller has taken or will take (prior to the Closing) all
requisite action in connection with the entering into this Contract and the
instruments referenced herein and the consummation of the transactions
contemplated hereby; and
(m) Neither the execution and delivery of this Contract and the
documents referenced herein, nor the incurrence of the obligations set forth
herein, nor the consummation of the
CONTRACT OR PURCHASE AND SALE - Page 5
transactions herein contemplated, nor compliance with the terms of this Contract
and the documents referenced herein conflict with or result in the material
breach of any terms, conditions or provisions of, or constitute a default under
any bond, note, or other evidence of indebtedness or any contract, indenture,
mortgage, deed of trust, loan, partnership agreement, lease or other agreements
or instruments to which Seller is a party.
As used herein, the phrase "to the best of Seller's actual knowledge" or words
of similar import shall mean the current actual knowledge (not constructive or
imputed knowledge) of Xxxxxx X. Xxxxxx, without the duty to conduct any inquiry
or investigation.
SECTION 7.2 EXCEPT AS OTHERWISE SET FORTH HEREIN, SELLER HEREBY
SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY, OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (i) THE NATURE AND
CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, (A) THE WATER, SOIL AND
GEOLOGY THEREIN, (B) THE SUITABILITY THEREOF OR OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES OR USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, AND (C) THE
EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS ON OR IN THE VICINITY OF
THE PROPERTY; (ii) THE NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION,
LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER ENCUMBRANCE; AND
(iii) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES,
RULES OR REGULATIONS OF ANY GOVERNMENTAL OR OTHER BODY. PURCHASER ACKNOWLEDGES
THAT IT WILL INSPECT THE PROPERTY AND EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES EXPRESSLY PROVIDED HEREIN AND SELLER'S WARRANTY OF TITLE CONTAINED IN
THE SPECIAL WARRANTY DEED, PURCHASER WILL RELY SOLELY ON ITS OWN INVESTIGATION
OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER.
THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS," "WHERE
IS" BASIS AND WITH ALL FAULTS, INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL
HAZARDS OR CONDITIONS, AND PURCHASER EXPRESSLY ACKNOWLEDGES THAT, IN
CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE
SPECIFICALLY STATED HEREIN AND SELLER'S WARRANTY OF TITLE CONTAINED IN THE
SPECIAL WARRANTY DEED, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, PROFITABILITY,
TENANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SECTION 7.3 The representations and warranties contained in Section
7.1 hereof shall be true and correct on the date of Closing, and the obligation
of Purchaser to close this transaction is expressly conditioned upon said
representations and warranties being true and correct on the Closing Date. If
Seller receives notice or knowledge or any information regarding any of the
matters set forth in Section 7.1 after the Effective Date and prior to the
Closing Date (as hereinafter defined) that would constitute a breach of any
representation and warranty contained in Section 7.1, Seller shall immediately
notify Purchaser of the same in writing, and Purchaser shall have the option to
either (i) terminate this Contract within ten (10) days after receipt of such
notice, unless such matter is susceptible to cure prior to Closing (as
hereinafter defined), and
CONTRACT OR PURCHASE AND SALE - Page 6
Seller has also notified Purchaser that it is diligently attempting to cure such
matter that would constitute a breach, and cures such matter prior to Closing
(but with Purchaser retaining the right to terminate this Contract if such
breach is not cured prior to Closing), or (ii) waive such matters and proceed to
Closing; provided, Seller agrees to not knowingly or voluntarily take any
actions which would cause any of such representations or warranties to hereafter
become incorrect or misleading. If Purchaser fails to notify Seller of its
election prior to the expiration of such ten (10) day period, Purchaser shall be
deemed to have waived such matters pursuant to (ii) above. If Purchaser elects
to terminate this Contract, the Xxxxxxx Money shall be returned to Purchaser,
and, in which event, with neither party hereto being thereafter obligated to the
other, except as to Purchaser's indemnification liability pursuant to Section
9.1. Additionally, Seller shall indemnify and hold Purchaser harmless from any
loss, cost, claim, liability or expense, including without limitation,
reasonable attorneys' fees, incurred by Purchaser arising out of any breach of
any of the representations and warranties set forth in Section 7.1 of which
Purchaser gains knowledge after the Closing; and Seller hereby acknowledges and
agrees that the foregoing representations and warranties shall survive for six
(6) months after the Closing.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF PURCHASER
SECTION 8.1 As of the Effective Date, Purchaser represents and
warrants to Seller, both as of the Effective Date and as of the Closing, that:
(a) Purchaser and the individuals executing this Contract have the
legal power, right and authority to enter into this Contract and the instruments
referenced herein and to bind Purchaser to the terms and conditions herein;
(b) Purchaser has taken all requisite action in connection with the
entering into this Contract and the instruments referenced herein and the
consummation of the transactions contemplated hereby; and
(c) Neither the execution and delivery of this Contract and the
documents referenced herein, nor the incurrence of the obligations set forth
herein, nor the consummation of the transactions herein contemplated, nor
compliance with the terms of this Contract and the documents referenced herein
conflict with or result in the material breach of any terms, conditions or
provisions of, or constitute a default under any bond, note, or other evidence
of indebtedness or any contract, indenture, mortgage, deed of trust, loan,
partnership agreement, lease or other agreements or instruments to which
Purchaser is a party.
SECTION 8.2. The representations and warranties contained in Section
8.1 hereof shall be true and correct on the date of Closing and the obligation
of Seller to close this transaction is expressly conditioned upon said
representations and warranties being true and correct on the Closing Date. If
Purchaser receives notice or knowledge or any information regarding any of the
matters set forth in Section 8.1 after the Effective Date and prior to the
Closing Date (as hereinafter defined) that would constitute a breach of any
representation and warranty contained in Section 8.1, Purchaser shall
immediately notify Seller of the same in writing, and Seller shall have the
option to either (i) terminate this Contract within ten (10) days after receipt
of such notice, unless such matter is susceptible to cure prior to Closing (as
hereinafter defined), and
CONTRACT OR PURCHASE AND SALE - Page 7
Purchaser has also notified Seller that it is diligently attempting to cure such
matter that would constitute a breach, and cures such matter prior to Closing
(but with Seller retaining the right to terminate this Contract if such breach
is not cured prior to Closing), or (ii) waive such matters and proceed to
Closing; provided, Purchaser agrees to not knowingly or voluntarily take any
actions which would cause any of such representations or warranties to hereafter
become incorrect or misleading. If Seller fails to notify Purchaser of its
election prior to the expiration of such ten (10) day period, Seller shall be
deemed to have waived such matters pursuant to (ii) above. If Seller elects to
terminate this Contract, the Xxxxxxx Money shall be returned to Purchaser, and,
in which event, with neither party hereto being thereafter obligated to the
other, except as to Purchaser's indemnification liability pursuant to Section
9.1. Additionally, Purchaser shall indemnify and hold Seller harmless from any
loss, cost, claim, liability or expense, including without limitation,
reasonable attorneys' fees, incurred by Seller arising out of any breach of any
of the representations and warranties set forth in Section 8.1 of which Seller
gains knowledge after the Closing; and Purchaser hereby acknowledges and agrees
that the foregoing representations and warranties shall survive for six (6)
months after the Closing.
ARTICLE 9
DUE DILIGENCE PERIOD; CERTAIN CONDITIONS TO CLOSING
SECTION 9.1 Notwithstanding anything to the contrary contained
herein, and in consideration of $100.00 paid by Purchaser to Seller as
independent consideration for this Contract, Purchaser shall have ninety (90)
days after the Effective Date (the "Due Diligence Period") within which to (i)
conduct any and all engineering and economic feasibility studies of the Property
which Purchaser may, in its sole discretion, deem necessary to determine whether
or not the Property is suitable for Purchaser's intended use thereof; and (ii)
to review all items furnished to Purchaser pursuant to Article 5 of this
Contract. Seller hereby grants to Purchaser and Purchaser's employees, agents,
principals and independent contractors the right to enter upon and conduct such
inspections and studies beginning on the Effective Date until Closing or the
earlier termination of this Contract, and Seller shall exercise reasonable
efforts to, at no cost or expense to Seller, cooperate fully with Purchaser
regarding any investigation Purchaser may wish to make of the Property.
Purchaser agrees to exercise due care and reasonable prudence in performing such
investigations. If Purchaser does not desire to consummate the transaction
contemplated by this Contract, Purchaser shall deliver written notice of
termination to Seller on or before the expiration of the Due Diligence Period,
in which case this Contract shall automatically terminate without further action
of either party, the Xxxxxxx Money shall be immediately returned to Purchaser by
the Title Company, and the parties hereto shall have no further obligations one
to the other hereunder, except as to Purchaser's indemnification liability
pursuant to this Section 9.1. If Purchaser fails to deliver written notice of
termination to Seller on or before the last day of the Due Diligence Period,
then Purchaser shall be deemed to have waived its right to terminate this
Contract pursuant to this Section 9.1 and the Xxxxxxx Money shall be
non-refundable (and shall be applied as provided in this Contract), subject only
to a Purchaser termination pursuant to Article 6, or a Seller Default (as
hereinafter defined) in which event, and unless Purchaser sues for specific
performance pursuant to Section 12.1 hereof, the Xxxxxxx Money shall be refunded
to Purchaser, and the parties hereto shall have no further obligations one to
the other hereunder, except as to Purchaser's indemnification liability pursuant
to this Section 9.1. Notwithstanding anything to the contrary contained herein,
Purchaser's obligation to acquire the Property pursuant to this Contract is
expressly conditioned upon
CONTRACT OR PURCHASE AND SALE - Page 8
Purchaser satisfying, in its sole discretion, and on or before the expiration of
the Due Diligence Period, the conditions set forth in this Section 9.1. Seller
agrees to assist Purchaser, at no cost or expense to Seller, in satisfying the
conditions set forth in this Sections 9.1. Purchaser hereby indemnifies, holds
harmless, and agrees to defend Seller from and against any loss, cost, or
expense resulting from any entry by Purchaser, or any employee, agent, principal
of, or independent contractor with, Purchaser, upon the Property in connection
with any test conducted by Purchaser during the Due Diligence Period, or
otherwise, or any lien asserted by any third party as a result thereof. This
provision shall survive the termination of this Contract and Closing.
ARTICLE 10
CLOSING
SECTION 10.1 The consummation of the purchase and sale of the
Property in accordance with this Contract ("Closing") hereunder shall be on
March 1, 2005 (the "Closing Date"), and shall take place at the offices of the
Title Company, or on such other date, or at such other place, as the parties may
agree in writing. Notwithstanding the foregoing, Purchaser may extend the
Closing Date for a maximum of one (1) additional thirty (30) day period upon the
payment to the Title Company of a $25,000.00 extension fee (the "Closing
Extension Fee") for the thirty (30) day period; provided, the Closing Extension
Fee shall be non-refundable (but applicable to the Purchase Price), subject only
to a Purchaser termination pursuant to Article 6, or a Seller Default (as
hereinafter defined) in which event, and unless Purchaser sues for specific
performance pursuant to Section 12.1 hereof, the Closing Extension Fee shall be
refunded to Purchaser, and the parties hereto shall have no further obligations
one to the other hereunder, except as to Purchaser's indemnification liability
pursuant to Section 9.1 hereof.
SECTION 10.2 At Closing, as a condition to Purchaser's obligations
hereunder, Seller shall deliver or cause to be delivered to Purchaser each of
the following items:
(a) A special warranty deed in a form reasonably acceptable to
Purchaser and Seller, duly executed and acknowledged by Seller, and in form for
recording, conveying good, indefeasible fee simple title in the Property to
Purchaser, subject only to the Permitted Exceptions;
(b) The Title Policy in the form specified in Section 4.4;
(c) A closing or settlement statement for the Property;
(d) Such evidence or documents as may be reasonably required by the
Purchaser or the Title Company evidencing the status and capacity of Seller and
the authority of the person or persons who are executing the various documents
on behalf of Seller in connection with the sale of the Property;
(e) A certification in a form to be provided or approved by
Purchaser, signed by Seller under penalties of perjury, containing the
following: (i) Seller's U.S. Taxpayer Identification Number; (ii) the address of
Seller; and a statement that Seller is not a foreign person within the meaning
of Sections 1445 and 7701 of the IRC (i.e., Seller is not a nonresident
CONTRACT OR PURCHASE AND SALE - Page 9
alien, foreign corporation, foreign partnership, foreign trust or foreign estate
[as those terms are defined in Internal Revenue Code of 1986 and applicable
regulations]);
(f) A closing certificate for the Property, in form and substance
reasonably acceptable to Purchaser, duly executed by Seller and reflecting
therein that the representations and warranties of Seller set forth in Section
7.1 hereof remain, as of the Closing Date, true and correct in all material
respects (and/or reflecting therein any changes to same occurring between the
Effective Date and the Closing Date);
(g) Possession of the Property, subject only to the Permitted
Exceptions; and
(h) Such other documents as are reasonably required to consummate
the transaction contemplated hereby.
SECTION 10.3 At Closing, Purchaser shall deliver to Seller each of
the following items:
(a) The Purchase Price in cash or other immediately available funds
(and with the Xxxxxxx Money, including any Closing Extension Fee, being applied
to same);
(b) A closing certificate, in form and substance reasonably
acceptable to Seller, duly executed by Purchaser and reflecting therein that the
representations and warranties of Purchaser set forth in Section 8.1 hereof
remain, as of the Closing Date, true and correct in all material respects
(and/or reflecting therein any changes to same occurring between the Effective
Date and the Closing Date); and
(c) A closing or settlement statement for the Property.
SECTION 10.4 At Closing, the following items shall be adjusted or
prorated between Seller and Purchaser:
(a) Ad valorem property taxes for the year in which the Closing
occurs shall be adjusted or prorated between Seller and Purchaser effective as
of the Closing Date. If current tax bills or statements are not available, then
the ad valorem property taxes shall be prorated on the basis of one hundred
percent (100%) of the most recent available tax bills or statements for the
Property. If the Property is not covered by a separate tax xxxx or statement on
the Closing Date, then the appropriate share of the applicable tax bills or
statements attributable to the Property shall be determined by the total number
of square feet contained in the Property compared to the total number of square
feet contained in such other larger tract of real property covered by said tax
bills or statements. The amount of any such pro-ration shall, if necessary, be
adjusted in cash after Closing.
(b) All other income and ordinary operating expenses for or
pertaining to the Property, including, but not limited to, public utility
charges, maintenance, service charges, and all other normal operating charges of
the Property, shall be prorated at Closing effective as of the Closing Date.
(c) In the event any adjustments pursuant to this Section 10.4 are,
subsequent to Closing, found to be erroneous or otherwise necessary of further
adjustments, then either party
CONTRACT OR PURCHASE AND SALE - Page 10
hereto who is entitled to additional monies shall invoice the other party for
such additional amounts as may be owing, and such amount shall be paid within
ten (10) days from receipt of the invoice. The obligations set forth in this
Section 10.4 shall survive the Closing.
SECTION 10.5 Seller shall be responsible for the payment of all items
herein agreed to be paid by Seller, including, without limitation, the payment
of (i) the basic title insurance premium with regard to the Title Policy, (ii)
the cost of the Survey, and (iii) fifty percent (50%) of all escrow fees.
Additionally, the fees and expenses of Seller's designated representatives,
accountants and attorneys shall be borne by Seller.
SECTION 10.6 Purchaser shall be responsible for the payment of all
items herein agreed to be paid by Purchaser, including, without limitation, the
payment of (i) all costs and expenses related to Purchaser's due diligence
inspections and investigations pursuant hereto, (ii) all recording fees, (iii)
the additional title insurance premiums for the modification of the survey
exception and any endorsements requested by Purchaser, and (iv) fifty percent
(50%) of all escrow fees. Additionally, the fees and expenses of Purchaser's
designated representatives, accountants and attorneys shall be borne by
Purchaser.
SECTION 10.7 All other costs and expenses not otherwise required to
be paid by a particular party hereto as set forth herein shall be borne by
Seller and Purchaser in the manner in which such costs and expenses are
customarily allocated between the parties at closings of real property similar
to the Property in the Dallas, Texas metropolitan area.
ARTICLE 11
REAL ESTATE COMMISSION
SECTION 11.1 Seller shall pay a real estate commission at Closing in
an amount equal to six percent (6%) of the first $500,000 of the purchase price
and three percent (3%) of the balance of purchase price above $500,000. The
commission shall be divided equally between Xxx Xxxxx of Xxxxxxxx Xxxx Company
and Xxxxx XxXxxxxx. There are no other brokers in this transaction. Seller's
obligation to pay such real estate commission is subject to the closing of the
transaction contemplated by this Contract, and in no event shall Seller be
obligated to pay any commission or other compensation to the brokers if this
Contract does not close for any reason.
Each party hereto represents to the other that it has not authorized any broker
or finder other than the above referenced brokers to act on its behalf in
connection with the sale and purchase transaction contemplated hereby and that
it has not dealt with any broker or finder purporting to act for any other
party. Each party hereto agrees to indemnify and hold harmless the other party
from and against any and all liabilities, costs, damages and expenses of any
kind or character arising from any claims for brokerage or finder's fees,
commissions or other similar fees in connection with the transactions covered by
this Contract) insofar as such claims shall be based upon alleged arrangements
or agreements made by such party or on its behalf, which indemnity shall
(notwithstanding anything to the contrary contained or implied elsewhere in this
Contract) expressly survive any termination or Closing of this Contract.
CONTRACT OR PURCHASE AND SALE - Page 11
ARTICLE 12
REMEDIES ON DEFAULT
SECTION 12.1 If Seller fails in the performance of any of its
material obligations hereunder ("Seller Default"), then Purchaser shall either
(i) terminate this Contract and accept the return of the Xxxxxxx Money and,
except as to Purchaser's indemnification liability pursuant to Section 9.1
hereof, neither party shall thereafter have any further obligations hereunder,
or (ii) xxx for specific performance; provided, and notwithstanding the
foregoing, Purchaser in no way or manner waives any right to bring suit for
damages or for any other remedies available at law or in equity to Purchaser in
the event of a breach of any of the representations and warranties of Seller set
forth in Section 7.1 hereof of which Purchaser gains knowledge after the
Closing.
SECTION 12.2 If Purchaser fails in the performance of any of its
material obligations hereunder ("Purchaser Default"), then the Xxxxxxx Money
shall be paid to Seller by the Title Company as liquidated damages for such
Purchaser Default as Seller's sole and exclusive remedy, and, except as set
forth in Section 9.1 hereof, neither party shall thereafter have any further
obligations hereunder. The parties agree that the amount of liquidated damages
described in the preceding sentences is a reasonable sum considering all of the
circumstances existing as of the date hereof, including the relationship of such
sum to the amount of harm to Seller that reasonably could be anticipated,
Seller's anticipated use of the proceeds of sale and the fact that actual
damages would be impossible to determine.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 All notices, demands, or other communications of any
type (herein collectively referred to as "Notices") given by the Seller to the
Purchaser or by the Purchaser to the Seller, whether required by this Contract
or in any way related to the transaction contracted for herein, shall be void
and of no effect unless given in accordance with the provisions of this Section
13.1. All Notices shall be in writing and delivered to the person to whom the
notice is directed, either (a) by telephonic facsimile communication, (b) by
United States Mail, as a registered or certified item, return receipt requested
or (c) nationally recognized overnight or local courier service. Any of the
Notices may be delivered by the parties hereto or by their respective attorneys.
Any notice delivered by telephonic facsimile communication shall be deemed
effective after being transmitted to the applicable telephone facsimile numbers
set forth below. Notices delivered by overnight or local courier shall be
effective upon receipt. Notices delivered by registered or certified mail shall
be deemed effective two (2) days after being deposited in a post office or other
depository under the care or custody of the United States Postal Service,
enclosed in a wrapper with proper postage affixed, with return receipt
requested, or on the date of refusal to accept delivery of the notice, and, if
to Seller, addressed as follows:
Behringer Harvard Xxxxxxx Xxxxxxx X.X.
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile Number: 000-000-0000
Email: xxxxxxx@xxxxxxx.xxx
CONTRACT OR PURCHASE AND SALE - Page 12
and, if to Purchaser, addressed as follows:
Texas Land & Realty, LLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: W. Xxxx Xxxxxx
Telephone: 000-000-0000
Facsimile Number: 000-000-0000
Email: XXXX@XXXXXXXXX.XXX
Either party hereto may change the address for notice specified above by giving
the other party five (5) days advance written notice of such change of address.
SECTION 13.2 For purposes of determining the time for performance of
various obligations under this Contract, the "Effective Date" of this Contract
shall be the date the Title Company acknowledges hereon the receipt of one (1)
fully executed Contract hereof.
SECTION 13.3 This Contract may not be assigned by Purchaser without
Seller's written consent; provided, Purchaser may, without Seller's written
consent, assign this Contract in whole or in part to another entity which is
owned in whole or part, related to, managed or affiliated with Purchaser or to
Xxxxx Xxxx. This Contract may not be assigned by Seller without Purchaser's
written consent, such consent not to be unreasonably withheld or delayed. Any
such permitted assignments will be effective only upon assignee's written
assumption of all of Seller's or Purchaser's obligations and duties hereunder,
as applicable.
SECTION 13.4 This Contract shall be construed and interpreted in
accordance with the laws of the State of Texas and the obligations of the
parties hereto are and shall be performable in Dallas County, Texas.
SECTION 13.5 This Contract may not be modified or amended, except by
an agreement in writing signed by the Seller and the Purchaser. The parties may
waive any of the conditions contained herein or any of the obligations of the
other party hereunder, but any such waiver shall be effective only if in writing
and signed by the party waiving such conditions or obligations.
SECTION 13.6 Time is of the essence of this Contract.
SECTION 13.7 In the event it becomes necessary for either party
hereto to file a suit to enforce this Contract or any provisions contained
herein, the party prevailing in such action shall be entitled to recover, in
addition to all other remedies or damages, reasonable attorneys' fees incurred
in such suit.
SECTION 13.8 The descriptive headings of the several Articles,
Sections and Paragraphs contained in this Contract are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 13.9 This Contract, including the Exhibits hereto,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior and
CONTRACT OR PURCHASE AND SALE - Page 13
contemporaneous agreements and understandings of the parties in connection
therewith. No representation, warranty, covenant, agreement or condition not
expressed in this Contract shall be binding upon the parties hereto or shall
affect or be effective to interpret, change or restrict the provisions of this
Contract.
SECTION 13.10 Numerous counterparts of this Contract may have been
executed by the parties hereto. Each such executed counterpart shall have the
full force and effect of an original executed instrument.
SECTION 13.11 In the event that any date for performance by either
party of any obligation hereunder required to be performed by such party falls
on a Saturday, Sunday or nationally established holiday, the time for
performance of such obligation shall be deemed extended until the next business
day following such date.
SECTION 13.12 Notwithstanding anything contained in this Contract to
the contrary, Seller acknowledges that, at all times during the existence of
this Contract, Purchaser may place signs on the Property advertising and/or
marketing the Property for Purchaser's intended use thereof.
SECTION 13.13 This Contract is being presented to Seller and
constitutes an offer by Purchaser to purchase the Property from Seller upon the
terms and conditions stated herein, which offer must be accepted by Seller's
execution of at least three (3) counterparts hereof and returning said
counterparts to Purchaser on or before 5:00 p.m. on September 2, 2004. If Seller
fails to deliver three (3) fully-executed counterpart originals of this Contract
to Purchaser by the above date, this Contract shall be of no force or effect and
neither party shall have any obligation one to the other. Upon Purchaser's
receipt of the three (3) signed counterparts hereof, Purchaser shall promptly
deliver said counterparts to the Title Company for its execution.
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CONTRACT OR PURCHASE AND SALE - Page 14
SELLER:
BEHRINGER HARVARD XXXXXXX XXXXXXX XX
BY: BEHRINGER HARVARD XXXXXXX XXXXXXX XX, LLC,
General Partner
By:
-------------------------------------------------
Xxxxxx X. Xxxxxx, Vice President
PURCHASER:
TEXAS LAND & REALTY, LLC
By:
-------------------------------------------------
W. Xxxx Xxxxxx, Manager
TITLE COMPANY:
-------------
PARTNERS TITLE COMPANY
By:
--------------------------------
Xxxxxxxxx Xxxxxxx
Assistant Vice President
Address: 000 Xxxx
Xxxxx 0000X
Xxxxxxx, Xxxxx 00000
CONTRACT OR PURCHASE AND SALE - Page 15
EXHIBIT A
Being a tract of land containing approximately 69,913 square feet 0f land
together with any and all improvements thereon, out of Block 524, City of
Dallas, Dallas County, Texas, more commonly known as 2118, 2120 and 2124 St.
Xxxx, 1900 and 0000 XxXxxxxx Xxxxxx and 0000 Xxxxxxx Xxxxxx.
CONTRACT OR PURCHASE AND SALE - Page 16
