Exhibit 99.1
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PURCHASE AGREEMENT
BETWEEN
ONE LAKE PARK, LLC
a Delaware limited liability company
AS SELLER
AND
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
AS PURCHASER
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made to be effective as of
the Effective Date (as hereinafter defined) by and between ONE LAKE PARK, LLC, a
Delaware limited liability company ("Seller"), and HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company ("Purchaser").
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(a) that certain tract or parcel of land situated in Dallas
County, Texas, more particularly described on Exhibit A attached hereto
and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or
rights-of-way (the property described in clause (a) of this Section 1.1
being herein referred to collectively as the "Land");
(b) the buildings and other improvements on the Land,
including specifically, without limitation, that certain office building
and related facilities located thereon (the property described in clause
(b) of this Section 1.1 being herein referred to collectively as the
"Improvements");
(c) the personal property owned by Seller upon the Land or
within the Improvements (excluding any and all personal property and
furnishings owned by Xxxxxx-Xxxxxxxx Realty, Inc. that is located upon
the Land or within the Improvements), including specifically, without
limitation, heating, ventilation and air conditioning systems and
equipment, appliances, furniture, carpeting, draperies and curtains,
tools and supplies, and other items of personal property used in
connection with the operation of the Land and the Improvements (the
property described in clause (c) of this Section 1.1 being herein
referred to collectively as the "Personal Property");
(d) all of Seller's right, title and interest in all oral or
written agreements pursuant to which any portion of the Land or
Improvements is used or occupied by anyone other than Seller (the
property described in clause (d) of this Section 1.1 being herein
referred to collectively as the "Leases"), including the list of Leases
attached hereto as Exhibit I; and
(e) all of Seller's right, title and interest in and to (i)
all assignable contracts and agreements relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property
which will extend beyond the date of Closing (as such term is defined in
Section 4.1 hereof) (collectively, the "Operating Agreements"); (ii) to
the extent assignable, all warranties and guaranties (express or
implied) issued to Seller in connection with the Improvements or the
Personal Property; (iii) to the extent assignable, all licenses,
permits, certificates of occupancy and other consents or approvals from
governmental authorities or private parties which relate to the Real
Estate, Improvements, or Personal Property; (iv) to the extent
assignable, all other intangible property associated with the use or
operation of the Land, Improvements or Personal Property, including
specifically, without limitation, the use of any and all trade names or
logos used by Seller
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in the operation of the Land, Improvements or Personal Property; and (v)
to the extent assignable, all plans, specifications, drawings, reports,
studies, books, records and other documents pertaining to the Land,
Improvements or Personal Property (the property described in this
Section 1.1(e) being sometimes herein referred to collectively as the
"Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property."
1.3 Permitted Exceptions. The Property shall be conveyed subject to
the matters which are deemed to be Permitted Exceptions pursuant to Section 2.3
hereof (herein referred to collectively as the "Permitted Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase
the Property for a total of Thirty Five Million Eight Hundred Thousand and
No/100 Dollars ($35,800,000.00) (the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price shall be payable
in cash or immediately available funds at Closing.
1.6 Independent Contract Consideration. Upon the Effective Date
hereof, Purchaser shall deliver to Seller a check in the amount of Fifty and
No/100 Dollars ($50.00) ("Independent Contract Consideration"), which amount the
parties hereby acknowledge and agree has been bargained for and agreed to as
consideration for Seller's execution and delivery of this Agreement. The
Independent Contract Consideration is in addition to and independent of any
other consideration or payment provided in this Agreement, and is nonrefundable
in all events.
1.7 Xxxxxxx Money. Within three (3) business days after the
Effective Date hereof, Purchaser shall deposit with Partners Title Company (the
"Title Company") at 000 Xxxx Xxxxxx, Xxxxx 0000X, Xxxxxxx, Xxxxx 00000-0000
(Attention: Xxxx Xxxxxxxx) the sum of Five Hundred Thousand and 00/100 Dollars
($500,000) (the "First Deposit") to be held by the Title Company in accordance
with the terms of this Agreement. Within one (1) business day after the
expiration of the Inspection Period (as hereinafter defined), if this Agreement
has not then been terminated in accordance with the terms hereof, Purchaser
shall deposit with the Title Company additional cash in the amount of Five
Hundred Thousand and 00/100 Dollars ($500,000) (the "Second Deposit") as
additional xxxxxxx money under this Agreement. The First Deposit and the Second
Deposit, together with any additional xxxxxxx money deposited pursuant to
Section 4.6 of this Agreement and all interest earned on such sums, are herein
referred to collectively as the "Xxxxxxx Money." The Xxxxxxx Money shall be held
by the Title Company in an interest-bearing account in accordance with the terms
of this Agreement. All interest accruing on such sum shall become a part of the
Xxxxxxx Money and shall be distributed as Xxxxxxx Money in accordance with the
terms of this Agreement. At Closing, the Xxxxxxx Money shall be applied towards
payment of the Purchase Price.
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ARTICLE II
TITLE AND SURVEY
2.1 Commitment for Title Insurance. Within five (5) days after the
Effective Date, Seller shall deliver to Purchaser and the surveyor described in
Section 2.2 below (a) a current title commitment (the "Title Commitment")
covering the Property, showing all matters affecting title to the Property and
binding the Title Company to issue at Closing an Owner's Policy of Title
Insurance, on the form customarily used in the area in which the Property is
located, in the full amount of the Purchase Price pursuant to Section 2.5
hereof, and (b) legible copies of all instruments (the "Exception Instruments")
referenced in the Title Commitment.
2.2 Survey. Within ten (10) days after the Effective Date, Seller
shall, at Seller's expense, furnish to Purchaser a current Survey (the "Survey")
of the Property prepared by a reputable and duly licensed surveyor or surveying
firm. The Survey shall (a) locate all easements (whether of record or apparent
from an inspection of the Property) and rights of way on or adjacent to the
Property (identified by recording data, if applicable), (b) show the
Improvements situated on the Real Estate and the dimensions of all buildings
thereon, (c) show the location and size of all streets (existing or proposed) on
or adjacent to the Property, (d) show any encroachments or protrusions,
railroads, rivers, creeks, or other water courses, fences, utilities (including
size and location), and other matters located on or affecting the Property (and
any recording information relating thereto), (e) set forth the number of square
feet comprising the Property, together with a legal description of the
boundaries of the Property by metes and bounds; (f) certify that the Property
does not lie within the 100-year flood plain as established by the U.S. Army
Corps of Engineers, (g) contain a certification by the surveyor in the form of
Exhibit B attached hereto, and (h) in general, comply with the standards for an
American Land Title Association survey. Unless otherwise agreed by Seller and
Purchaser, the metes and bounds description contained in the Survey shall be the
legal description employed in the documents of conveyance of the Property.
2.3 Title Review Period. After receipt of the last of the Title
Commitment, legible copies of the Exception Instruments, and the Survey,
Purchaser shall have a period of ten (10) days to review the state of Seller's
title to the Property (the "Title Review Period"). If the Survey, the Title
Commitment or the Exception Instruments reflect or disclose any defect,
exception or other matter affecting the Property ("Title Defects") that is
unacceptable to Purchaser in Purchaser's reasonable discretion, then prior to
the expiration of the Title Review Period, Purchaser may provide Seller with
written notice of its objections, and Seller shall have ten (10) days (the "Cure
Period") from the date of the notice to remove or cure any Title Defects to the
satisfaction of Purchaser. Seller shall use its reasonable, good faith efforts
to remove or cure the Title Defects to Purchaser's reasonable satisfaction, but
shall not be required to incur any costs in excess of One Thousand Dollars
($1,000) in doing so (other than as provided in Section 2.4 below) or to
institute litigation. If Seller does not cure any or all of the Title Defects
within the Cure Period, Seller shall notify Purchaser in writing, prior to the
expiration of the Cure Period, of its failure to cure such Title Defects, and
Purchaser may, prior to the later of (a) five (5) days after receipt of Seller's
notice of its failure to cure, or (b) the expiration of the Inspection Period
(hereinafter defined) either (i) terminate this Agreement by written notice
delivered to Seller, or (ii) elect to waive any uncured Title Defect. If
Purchaser fails to terminate this Agreement by written notice delivered to
Seller prior to the expiration of the time period referenced in the immediately
preceding sentence, then any Title Defects that Seller has not cured shall be
deemed waived by Purchaser. If Purchaser shall fail to notify Seller in writing
of any objections to the state of Seller's title to the Property as shown by the
Title Commitment, the Exception Documents or the Survey, or if Purchaser elects
to waive all or any of the Title Defects, or is deemed to have waived all or any
of the Title Defects, then any exceptions to Seller's title to which Purchaser
has not objected or which have been objected to and
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waived by Purchaser and which are disclosed by the Title Commitment shall be
considered to be "Permitted Exceptions". If Purchaser terminates this Agreement
pursuant to this section, then neither Seller nor Purchaser shall have any
further rights or obligations under this Agreement and the Xxxxxxx Money shall
be returned to Purchaser.
2.4 Obligation to Cure Liens. Notwithstanding anything to the
contrary contained in this Article II, if at Closing there are any mechanic's or
materialmen's liens or mortgages, deeds of trust or other instruments creating a
lien for borrowed money against all or any part of the Property, Seller shall
discharge the same of record and apply such portions of the Purchase Price or
Seller's funds as may be necessary to accomplish the same.
2.5 Owner's Policy of Title Insurance. At Closing, Seller shall
cause the Title Company to issue to Purchaser an Owner's Policy of Title
Insurance (the "Title Policy") covering the Property, in the full amount of the
Purchase Price, on the form customarily used in the area in which the Property
is located, insuring that Purchaser is the owner of good and indefeasible fee
simple title to the Property, subject only to the Permitted Exceptions, and with
the standard printed exceptions modified as follows: (a) the exception for
restrictive covenants shall either be deleted or shall list specific
restrictions; (b) the exception for ad valorem taxes shall reflect only taxes
for the current year and subsequent years, and subsequent assessments for prior
years due to changes in land usage or ownership, and shall be endorsed "not yet
due and payable"; (c) there shall be no exception for "visible and apparent
easements," for "public or private roads" or the like; (d) there shall be no
exception for "rights of parties in possession," although there may be an
exception for Leases specifically described in the Title Policy; and (e) any
reference to submitting claims under the Title Policy to arbitration shall be
deleted.
ARTICLE III
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the
Effective Date and ending at 5 p.m., Dallas, Texas time, on the thirtieth (30th)
day following the Effective Date (hereinafter referred to as the "Inspection
Period"), Purchaser shall have the right to make a physical inspection of the
Property, to conduct tests thereon (including specifically, without limitation,
environmental tests and soil borings), to review the Due Diligence Materials (as
hereinafter defined) and all other books, records and documents maintained by
Seller relating to the Property, and to make inquiries to governmental
authorities and other appropriate parties, so as to determine, at the sole
discretion of Purchaser, whether the Property is suitable for Purchaser's
purposes. All inspections shall occur upon at least twenty-four (24) hours prior
notice to Seller at reasonable times and shall be conducted so as not to
unreasonably interfere with use of the Property by Seller or its tenants.
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 Closing).
Without limiting the generality of the preceding sentence, upon at least
twenty-four (24) hours prior notice, (i) Seller shall, during normal business
hours, allow Purchaser's auditors reasonable access to the books and records
maintained by Seller (and the Property's property manager) in respect of the
Property; (ii) 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; and (iii) Seller
shall make Seller's property manager and Seller's asset manager in respect of
the Property available for interview in connection with the conduct of such
audit. Purchaser agrees
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that it will reimburse Seller for any reasonable expenses incurred in connection
with a request for financial information made pursuant to this Section 3.1.
Purchaser agrees to indemnify and hold Seller harmless of and from any claim for
physical damages or physical injuries arising from Purchaser's inspection of the
Property, and notwithstanding anything to the contrary in this Agreement, such
obligation to indemnify shall survive Closing or any termination of this
Agreement. It shall be a condition precedent to the obligations of Purchaser
under this Agreement that Seller shall have complied with the covenants set
forth in this Section 3.1 as of the Closing Date.
3.2 Right of Termination. Seller agrees that in the event Purchaser
determines, in Purchaser's sole discretion, that the Property is not suitable
for its purposes, or that it is in the interest of Purchaser to terminate this
Agreement for any other reason, then Purchaser shall have the right to terminate
this Agreement by sending written notice thereof (hereinafter referred to as the
"Notice of Termination") to Seller prior to the expiration of the Inspection
Period. Upon delivery by Purchaser of such Notice of Termination within the
Inspection Period, this Agreement shall terminate and the Xxxxxxx Money shall be
returned to Purchaser. If Purchaser fails to send Seller a Notice of Termination
prior to the expiration of the Inspection Period, Purchaser shall no longer have
any right to terminate this Agreement under this Article III.
In the event that this Agreement is terminated or the Closing does not occur as
of the Closing Date (or the Closing Date as extended), then promptly, at the
request of Seller, Purchaser shall return to Seller all Due Diligence Materials
delivered by Seller in accordance with this Agreement.
ARTICLE IV
CLOSING
4.1 Time and Place. Subject to the provisions of Section 4.6,
closing of the transaction contemplated hereby ("Closing") shall be held at the
offices of the Title Company on the first monthly payment date of the Mortgage
Loan that follows the thirtieth (30th) day after the expiration of the
Inspection Period (the "Closing Date") unless otherwise mutually agreed by
Seller and Purchaser. At Closing, Seller and Purchaser shall perform the
obligations set forth in, respectively, Section 4.2 and Section 4.3, the
performance of which obligations shall be concurrent conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a Special Warranty Deed (the
"Deed") in the form of Exhibit C attached hereto and made a part hereof,
executed and acknowledged by Seller and in recordable form, conveying
the Land and Improvements to Purchaser, subject only to the Permitted
Exceptions;
(b) deliver to Purchaser a Xxxx of Sale and Assignment (the
"Xxxx of Sale") in the form of Exhibit D attached hereto and made a part
hereof, executed and acknowledged by Seller and in recordable form;
(c) join (or cause to be joined) with Purchaser in the
execution and acknowledgment of an Assignment and Assumption of
Contracts (the "Assignment of Contracts") in the form of Exhibit E
attached hereto and made a part hereof;
(d) join with Purchaser in the execution of a letter to each
tenant of the Property in the form of Exhibit F attached hereto and made
a part hereof;
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(e) deliver to Purchaser a FIRPTA Affidavit in the form of
Exhibit G attached hereto and made a part hereof, duly executed by
Seller;
(f) deliver to Purchaser a current rent roll for the
Property certified by Seller to be true and correct as of the Closing
Date;
(g) deliver to Purchaser a "bills paid affidavit" verifying
that there are no unpaid bills, expenses or claims with respect to the
Property and indemnifying Purchaser from any loss, liability or expense
resulting from or incident to any such matters;
(h) intentionally deleted;
(i) deliver to Purchaser such evidence as Purchaser's
counsel and/or the Title Company may reasonably require as to the
authority of the person or persons executing documents on behalf of
Seller;
(j) deliver to Purchaser original Leases, original Operating
Agreements and all other documents described in Section 1.1 hereof;
(k) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions;
(l) deliver to Purchaser all available keys or access cards
used with respect to the Property in Seller's possession; and
(m) deliver to Purchaser the Title Policy pursuant to
Section 2.5 hereof.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall:
(a) pay to Seller the amount of the Purchase Price in cash
or immediately available wire transferred funds, it being agreed that at
Closing the Xxxxxxx Money shall be delivered to Seller and applied
towards payment of the Purchase Price;
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(b) join Seller in execution of the instruments described in
Sections 4.2(c) and 4.2(d) above; and
(c) deliver to Seller such evidence as Seller's counsel
and/or the Title Company may reasonably require as to the authority of
the person or persons executing documents on behalf of Purchaser.
4.4 Credits and Prorations. The following provisions shall govern
the apportionment of income and expenses with respect to the Property between
Seller and Purchaser:
(a) Real estate taxes and assessments and personal property
taxes shall be prorated between Seller and Purchaser at Closing. If the
Closing shall occur before the amount of taxes is fixed, the
apportionment of taxes shall be made based upon one hundred percent
(100%) of the tax rate for the preceding year, applied to the latest
assessed valuation of the Property. Upon receipt of the actual tax xxxx
for the Property, the proration of taxes made at Closing shall be
subject to adjustment pursuant to Section 4.4(h) below.
(b) Expenses under the Operating Agreements shall be
prorated between Seller and Purchaser at Closing.
(c) Seller shall arrange for final meter readings on all
utilities at the Property to be taken on the day preceding Closing.
Seller shall be responsible for the payment of utilities used through
the day preceding the Closing Date and Seller shall be responsible for
the payment of utilities used on or after the Closing Date. With respect
to any utility for which there is no meter, the expenses for such
utility shall be prorated between Seller and Purchaser at Closing based
upon the most current xxxx for such utility. Any deposits for utilities
shall inure to the benefit of and be deemed assigned to Purchaser.
Seller and Purchaser shall cooperate to cause the transfer of utility
company accounts from Seller to Purchaser.
(d) Basic rents ("Basic Rent") and additional rent relating
to escalation and pass-throughs of operating and other similar expenses
("Additional Rent") shall be prorated between Seller and Purchaser based
upon Basic Rent and Additional Rent actually collected. All prepaid
Basic Rent, Additional Rent and other income from the Property shall be
credited to Purchaser at Closing, to the extent same is attributable to
a period of time after Closing. With respect to Additional Rent which is
paid based upon an estimate, with an end-of-year accounting and
adjustment, after Closing Seller and Purchaser shall make any
adjustments to the proration of such items made at Closing at such time
as the final tax and operating expenses numbers become available and
such end-of-year accountings are completed. Any Additional Rent which
may be due Seller as a result of such re-prorations shall be paid by
Purchaser to Seller if and when such Additional Rent is collected by
Purchaser.
(e) Basic Rent and Additional Rent which is delinquent and
remains uncollected at Closing shall not be prorated between Seller and
Purchaser at Closing. At Closing, Seller shall furnish to Purchaser a
schedule of delinquent Basic Rent and Additional Rent due under the
Leases. Purchaser shall pay Seller's prorata share of any delinquent
Basic Rent and Additional Rent if and when collected by Purchaser;
provided, however, that Purchaser shall have no obligation to collect or
pursue the collection of same. It is understood and agreed that any
Basic Rent or Additional Rent collected by Purchaser after Closing shall
be applied first to currently due Basic Rent and Additional Rent.
Purchaser shall hold all landlord's liens in the entireties thereof to
enforce the payment of rentals to which Purchaser is entitled, and
Seller shall be deemed to have transferred to Purchaser all of such
landlord's liens.
(f) All security deposits and other deposits payable to
tenants under the Leases shall be credited to Purchaser at Closing.
(g) Leasing commissions and Tenant Inducement Costs (as
hereinafter defined) with respect to the Leases entered into after the
Effective Date and prior to the Closing Date (the "Prorated Leases")
shall be prorated between Seller and Purchaser at Closing.
(h) The prorations described in this Section 4.4 shall be
made as of 12:01 a.m. on the Closing Date, as if Purchaser were vested
with title to the Property during the entire day upon which Closing
occurs. All prorations described in this Section 4.4 shall be effected
by increasing or decreasing, as the case may be, the amount of cash to
be paid by Purchaser to Seller at Closing.
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Seller and Purchaser agree to adjust between themselves after Closing
any errors or omissions in the prorations made at Closing; provided,
however, that such prorations shall be deemed final and not subject to
further post Closing adjustments if no such adjustments have been
requested within one (1) year after the Closing Date.
4.5 Closing Costs. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction; (b) the basic premium for
the Title Policy; (d) the cost of the Survey; (e) the fees for recording the
deed conveying the Property to Purchaser; and (f) one-half (1/2) of any escrow
fee which may be charged by the Title Company. Purchaser shall pay (x) the cost
of any endorsement to the Title Policy desired by Purchaser; (y) the fees of any
counsel representing Purchaser in connection with this transaction; and (z)
one-half (1/2) of any escrow fees charged by the Title Company. All other costs
and expenses incident to this transaction and the closing thereof shall be paid
by the party incurring same.
4.6 Defeasance of Mortgage Loan. Reference is made to the existing
loan secured by the Property (the "Mortgage Loan") held or serviced by Bank of
America ("Lender"). 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 and Purchaser
shall cause the Mortgage Loan to be defeased at or prior to Closing, such that
the Property will be conveyed to Purchaser free and clear of the Mortgage Loan.
In connection with defeasance of the Mortgage Loan, the parties agree as
follows:
(a) One (1) business day following the execution of this
Agreement, Seller shall give notice to Lender that Seller intends to
defease the Mortgage Loan. Thereafter, Seller and Purchaser shall use
diligent, good faith efforts to cooperate with Chatham Financial
Corporation ("Chatham") in arranging for defeasance of the Mortgage Loan
at or prior to Closing. Seller and Purchaser agree that Purchaser shall
be primarily responsible for working with Chatham and Lender during the
defeasance process.
Seller and Purchaser agree to each send the other party
copies of any correspondence and other written communications
(including, without limitation, emails) concerning the defeasance of the
Mortgage Loan. Seller hereby authorizes Lender to discuss such
defeasance of the Mortgage Loan with Purchaser and agrees that Lender
may, without any liability to Seller, disclose to Purchaser any
information concerning such defeasance of the Mortgage Loan. Seller
agrees that Lender shall be a third party beneficiary of the foregoing
authorization. If Lender will not disclose information concerning the
defeasance to Purchaser, then Purchaser shall have the right to make
inquiries of Seller with respect to the status of the defeasance of the
Mortgage Loan, and Seller shall immediately respond in good faith to
such inquiries.
(b) If the defeasance of the Mortgage Loan is not completed
as of the scheduled Closing Date, the date of Closing shall
automatically be extended to a date not later than the date of the first
monthly payment date of the Mortgage Loan that follows the thirtieth
(30th) day after the original Closing Date in order to allow Seller and
Purchaser additional time to arrange for defeasance of the Mortgage Loan
so long as the Purchaser shall deposit with the Title Company additional
Xxxxxxx Money in the amount of One Million Dollars ($1,000,000) not
later than the original Closing Date.
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(c) Purchaser shall pay all costs incurred in connection
with the defeasance of the Mortgage Loan. In addition, if Purchaser
terminates this Agreement during the Inspection Period, Purchaser shall
be responsible for all costs incurred for the defeasance of the Mortgage
Loan. The costs to be paid by the Purchaser shall include, without
limitation, the portion of the total cost of the securities required to
defease the Mortgage Loan (the "Securities Cost") that are attributable
to the Defeasance Premium (as defined below), rating agency fees, third
party legal fees, accountant fees, intermediary fees, fees associated
with the creation of the successor borrower, servicer fees and trustee
fees. The portion of the Securities Cost attributable to the outstanding
balance of the Mortgage Loan as of the date of Closing (the "Outstanding
Balance") shall be paid by the Seller from the proceeds of the Purchase
Price.
The term "Defeasance Premium" means the difference
between the Securities Cost and the Outstanding Balance.
(d) Upon defeasance of the Mortgage Loan, Seller shall be
entitled to received from Lender any remaining deposits for taxes and
insurance previously deposited by Seller with Lender.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby
represents and warrants to Purchaser as follows:
(a) Seller has the full right, power and authority to enter
into this Agreement and to perform all of its obligations under this
Agreement, and the execution and delivery of this Agreement and the
performance by Seller of its obligations under this Agreement require no
further action or approval of Seller's partners or of any other person
in order to constitute this Agreement as a binding and enforceable
obligation of Seller.
(b) To Seller's actual knowledge there are no defects in the
Property.
(c) To Seller's actual knowledge, the Property is not in
violation of any governmental order, regulation, statute, code or
ordinance dealing with the use, construction, operation, safety and/or
maintenance thereof, and all existing zoning and building codes and
other applicable laws and governmental regulations permit the operation
of the Property in accordance with its present usage.
(d) To Seller's actual knowledge, there is no pending
condemnation, expropriation, eminent domain, litigation, administrative
action or other legal proceeding affecting all or any portion of the
Property, and Seller has not received any written or oral notice of any
of the same and has no actual knowledge that any such proceeding is
contemplated.
(e) To the Seller's actual knowledge, there is no default of
Seller under any of the Leases and no tenant under the Leases has
asserted any claim or offset which would in any way affect the
collection of rent from such tenant, nor has any tenant given any notice
to Seller of its intention to terminate its tenancy.
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(f) This Agreement and the conveyance of the Property will
not cause to be imposed on Purchaser any liability to withhold any
amount pursuant to Section 1445 of the Internal Revenue Code or the
implementing regulations.
5.2 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) Within five (5) days after the Effective Date, Seller
shall deliver to Purchaser the documents and other items (the "Due
Diligence Materials") listed on Exhibit J attached hereto and made a
part hereof, if applicable.
(b) So long as this Agreement remains in effect, Purchaser
will be allowed access to the Property and the books and records related
to the Property under the terms and conditions set forth in Section 3.1
hereof.
(c) Seller shall not negotiate, execute or commit to enter
into (i) any Lease; or (ii) any modification, amendment, restatement or
renewal of any Lease, without Purchaser's prior written consent in each
instance not to be unreasonably withheld, conditioned or delayed.
(d) Seller shall not enter into any other contract (or an
extension or modification of any 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 thereof not to be
unreasonably withheld, conditioned or delayed.
(e) 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.
(f) Pending Closing, Seller shall operate and manage the
Property in a normal businesslike manner, maintaining present services
and insurance policies, and shall maintain the Property in good repair
and working order, shall keep on hand sufficient materials, supplies,
equipment, inventory and other personal property for the efficient
operation and management of the Property in a first-class manner, 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 remedy any violation of any law, ordinance, order
or other requirement of any governmental authority having jurisdiction
over or affecting all or any part of the Property. Seller shall deliver
the Property at Closing in substantially the same condition as it was on
the Effective Date, reasonable wear and tear excepted. None of the
Personal Property shall be removed from the Property, unless replaced by
personal property of equal or greater utility and value.
(g) Seller has paid or will pay in full, prior to Closing,
all bills and invoices for labor, goods, materials and services of any
kind with respect to the Property and utility charges relating to the
period prior to Closing. Without limiting the foregoing, any and all
leasing commissions and Tenant Inducement Costs (as hereinafter defined)
due or to become due with respect to Leases in existence on the
Effective Date or Leases obtained prior to Closing (excluding the
Prorated Leases) will be paid in full by Seller on or before the Closing
Date. Leasing commissions and Tenant Inducement Costs for the Prorated
Leases shall be prorated as provided in Section 4.4(g). As used herein,
the term "Tenant Inducement Costs" means any payment required under a
Lease to be paid by the landlord thereunder to or for the benefit of the
tenant thereunder which is in the nature of a
11
tenant inducement, including specifically without limitation, tenant
improvement costs, lease buyouts and moving allowances.
(h) Seller shall, at the sole expense of Seller, cause any
management and leasing agreement existing in respect of the Property to
be terminated effective as of the Closing Date.
(i) Seller shall promptly notify Purchaser of any change in
any condition with respect to the Property or of any event or
circumstance which makes any representation or warranty of Seller to
Purchaser under this Agreement untrue or misleading, or any covenant of
Seller under this Agreement incapable or less likely of being performed,
it being understood that Seller's obligation to provide notice to
Purchaser under this Section 5.2 shall in no way relieve Seller of any
liability for a breach by Seller of any of its representations,
warranties or covenants in this Agreement.
5.3 Tenant Estoppels Seller shall make commercially reasonable
efforts to obtain and deliver to Purchaser upon receipt, but no later than five
(5) business days prior to the Closing Date (the "Estoppel Return Date"), a
tenant estoppel certificate in substantially the form of Exhibit H 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 that has specific requirements in its Lease regarding the form of the
tenant estoppel certificate. An executed tenant estoppel certificate in the form
of Exhibit H (as such form may be changed for any tenant that has specific
requirements in its Lease regarding the form of the tenant estoppel certificate)
is herein referred to as a "Tenant Estoppel". Seller shall deliver each Tenant
Estoppel 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 tenants occupying, in the aggregate, at least ninety
percent (90%) of the leased square footage 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, or (ii) terminate this Agreement, in
which event all of the Xxxxxxx Money shall be returned to Purchaser.
5.4 Representations and Warranty of Purchaser. Purchaser hereby
represents and warrants to Seller that Purchaser has the full right, power and
authority to enter into this Agreement and to carry out Purchaser's obligations
hereunder, and to perform all of its obligations under this Agreement, and the
execution and delivery of this Agreement and the performance by Purchaser of its
obligations under this Agreement requires no further action or approval of
Purchaser's members or managers or of any other person in order to constitute
this Agreement as a binding and enforceable obligation of Purchaser.
12
5.5 Survival of Obligations. Seller and Purchaser agree as follows:
(a) The representations and warranties made by Seller herein
shall be continuing and shall be deemed to be made by Seller as of the
Closing Date with the same force and effect as if made at and as of that
time. All representations, warranties and covenants made by Seller
herein shall survive Closing for a period of two (2) years, unless a
longer survival period is expressly provided herein. Seller shall
indemnify and hold Purchaser free and harmless from and against all
losses, costs, damages and expenses of every kind and nature whatsoever
(including reasonable attorneys' fees and costs) sustained by Purchaser
as a result of any breach of any representation, warranty or covenant
made by Seller in this Agreement.
(b) The representations and warranties made by Purchaser
herein shall be continuing and shall be deemed to be made by Purchaser
as of the Closing Date with the same force and effect as if made at and
as of that time. All representations and warranties of Purchaser shall
survive Closing for a period of two (2) years, unless a longer survival
period is expressly provided herein. Purchaser shall indemnify and hold
Seller free and harmless from and against all losses, costs, damages,
and expenses of every kind and nature whatsoever (including reasonable
attorneys' fees and costs) sustained by Seller as a result of any breach
of any representation or warranty made by Purchaser.
ARTICLE VI
Conditions Precedent to the Closing
6.1. Conditions Precedent of Purchaser. In addition to all other
conditions set forth in this Agreement, Purchaser's obligation to consummate the
Closing is subject to the satisfaction of each and every one of the conditions
precedent set forth in this Section 6.1 (all of which are for the sole benefit
of Purchaser):
(a) All representations of Seller set forth in Section 5.1
shall be true, correct and complete in all material respects as of the
Effective Date and shall be true, correct and complete in all material
respects as of the Closing Date.
(b) Seller shall have performed in all material respects all
obligations required to be performed by Seller hereunder prior to or in
connection with the Closing.
6.2. Conditions Precedent of Seller. In addition to all other
conditions set forth in this Agreement, Seller's obligation to consummate the
Closing is subject to the satisfaction of each and every one of the conditions
precedent set forth in this Section 6.2 (all of which are for the sole benefit
of Seller):
(a) All representations of Purchaser set forth in Section
5.4 shall be true, correct and complete in all material respects as of
the Effective Date and shall be true, correct and complete in all
material respects as of the Closing Date; and
(b) Purchaser shall have performed in all material respects
all obligations required to be performed by Purchaser hereunder prior to
or in connection with the Closing.
6.3 Failure of Condition Precedent. Upon the failure of any of the
foregoing conditions precedent, the party benefited by such failed condition
shall have the option to (a) waive such condition
13
precedent and proceed to Closing, or (b) terminate this Agreement by sending
written notice to the other party on or before the date of Closing, in which
event the Xxxxxxx Money shall be returned to the non-defaulting party.
ARTICLE VII
DEFAULT
7.1 Default by Purchaser. In the event that Purchaser fails to
consummate this Agreement for any reason, except Seller's default or the
permitted termination of this Agreement by either Seller or Purchaser as herein
expressly provided, Seller shall be entitled to either (i) terminate this
Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of
this Agreement, it being agreed between the parties hereto that the actual
damages to Seller in the event of such breach are impractical to ascertain and
the amount of the Xxxxxxx Money is a reasonable estimate thereof, or (ii)
terminate this Agreement and seek any and all remedies available to Seller at
law or in equity except for specific performance. In the event that Purchaser
closes under this Agreement and then fails to fully and timely perform any of
its other obligations under this Agreement that survive or are performable after
the Closing, Seller may seek all remedies available at law or in equity.
7.2 Default by Seller. In the event that Seller fails fail to
consummate this Agreement for any reason, except Purchaser's default or the
permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its exclusive remedies,
either (i) to terminate this Agreement by giving written notice thereof to
Seller, whereupon neither party shall have any further rights or obligations
under this Agreement and the Xxxxxxx Money shall be returned to Purchaser, or
(ii) to enforce specific performance of Seller's obligations under this
Agreement; provided, however, if Seller's default is such that specific
performance cannot be granted as a judicial remedy, then Purchaser may seek any
and all other remedies available at law or in equity. In the event Purchaser
closes under this Agreement and then Seller fails to fully perform any of its
other obligations under this Agreement that survive or are performable after the
Closing, Purchaser may seek all remedies available at law or in equity.
ARTICLE VIII
RISK OF LOSS
8.1 Minor Damage. In the event of loss or damage to the Property or
any portion thereof (the "premises in question") which is not "major" (as
hereinafter defined), this Agreement shall remain in full force and effect
provided Seller performs any necessary repairs or, at Seller's option, reduces
the cash portion of the Purchase Price in an amount equal to the cost of such
repairs, Seller thereby retaining all of Seller's right, title and interest to
any claims and proceeds Seller may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question. In the
event that Seller elects to perform repairs upon the Property, Seller shall use
reasonable efforts to complete such repairs promptly and the date of Closing
shall be extended a reasonable time (but in no event more than forty-five (45)
days) in order to allow for the completion of such repairs.
14
8.2 Major Damage. In the event of a "major" loss or damage,
Purchaser may terminate this Agreement by written notice to Seller, in which
event the Xxxxxxx Money shall be returned to Purchaser. If Purchaser does not
send written notice to Seller that Purchaser has elected to proceed with Closing
within ten (10) days after Seller sends Purchaser written notice of the
occurrence of major loss or damage, then Purchaser shall be deemed to have
elected to terminate this Agreement and the Xxxxxxx Money shall be returned to
Purchaser. If Purchaser sends notice to Seller within such ten (10) day period
that Purchaser desires to proceed with Closing, this Agreement shall remain in
effect, provided that the Purchase Price shall be reduced by an amount equal to
the cost of repairing the Property to its condition prior to the occurrence of
the major loss or damage and Seller shall receive the proceeds of all insurance
claims with respect to such major loss or damage. Upon Closing, full risk of
loss with respect to the Property shall pass to Purchaser. For purposes of
Sections 8.1 and 8.2, "major" loss or damage refers to the following: (i) loss
or damage to the Property or any portion thereof such that the cost of repairing
or restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
certified opinion of a mutually acceptable architect, equal to or greater than
Three Hundred Fifty-Eight Thousand and No/100 Dollars ($358,000.00), and (ii)
any loss due to a condemnation.
ARTICLE IX
COMMISSIONS
9.1 Brokerage Commissions. In the event the transaction contemplated
by this Agreement is consummated, but not otherwise, Seller agrees to pay to
Xxxxxxxxxx Realty Group, L.L.C. (the "Broker") a brokerage commission pursuant
to a separate written agreement between Seller and Broker. Each party agrees
that should any claim be made for brokerage commissions or finder's fees by any
broker or finder other than the Broker by, through or on account of any acts of
said party or its representatives, said party will hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense
in connection therewith. In the event the transaction envisioned hereby fails to
close for any reason, including without limitation Seller's or Purchaser's
default, Seller shall have no obligation for the payment of any commission or
similar type fee hereunder. The provisions of this paragraph shall survive
Closing.
ARTICLE X
MISCELLANEOUS
10.1 Disclaimers. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT
PURCHASER IS PURCHASING THE PROPERTY "AS IS" AND "WHERE IS," AND WITH ALL FAULTS
AND THAT SELLER IS MAKING NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE
PROPERTY, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
10.2 Assignment. Purchaser's rights and obligations hereunder shall
not be assignable to any party other than an Affiliate (as hereinafter defined)
without the prior written consent of Seller. Purchaser may assign its rights
under this Agreement to an Affiliate without the prior written consent of Seller
by notice to Seller given prior to the Closing. For purposes hereof, the term
"Affiliate" shall mean: (a) an entity that controls, is controlled by, or is
under common control with Purchaser; (b) any partnership in which Purchaser or
Purchaser's controlling member is the general partner; or (c) any fund or entity
sponsored by Purchaser. Subject to the provisions of this Section, this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.
15
10.3 Title Policy or Abstract. The Texas Real Estate License Act
requires written notice to Purchaser that it should have an attorney examine an
abstract of title to the property being purchased or obtain a title insurance
policy. Notice to that effect is, therefore, hereby given to Purchaser.
10.4 Notices. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) expedited delivery service with proof
of delivery, or (c) United States Mail, postage prepaid, registered or certified
mail, return receipt requested, or (d) prepaid telegram, telex or telecopy
(provided that such telegram, telex or telecopy is confirmed by expedited
delivery service or by mail in the manner previously described), sent to the
intended addressee at the address set forth below, or to such other address or
to the attention of such other person as the addressee shall have designated by
written notice sent in accordance herewith, and shall be deemed to have been
given either at the time of personal delivery, or, in the case of expedited
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telegram, telex or
telecopy upon receipt. Unless changed in accordance with the preceding sentence,
the addresses for notices given pursuant to this Agreement shall be as follows:
If to Seller: One Lake Park, LLC
c/o Xxxxxx-Xxxxxxxx Realty, Inc.
0000 Xxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: E. Xxxxx Xxxxxx
Fax No. (000) 000-0000
with a copy to: Hall, Estill, Hardwick, Gable, Golden &
Xxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Atttention: Xxxxxxx Xxx
Fax No. (000) 000-0000
If to Purchaser: Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Fax No. (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax No. (000) 000-0000
16
10.5 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
of Texas, in which event the period shall run until the end of the next day
which is neither a Saturday, Sunday or legal holiday.
10.6 Time of Essence. Seller and Purchaser agree that time is of the
essence of this Agreement.
10.7 Successors and Assigns. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.8 Entire Agreement. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior agreements and understandings
between the parties pertaining to such subject matter.
10.9 Further Assurances. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement.
10.10 Attorneys' Fees. In the event of any controversy, claim or
dispute between the parties affecting or relating to the subject matter or
performance of this Agreement, the prevailing party shall be entitled to recover
from the nonprevailing party all of its reasonable expenses, including
reasonable attorneys' fees.
10.11 Counterparts. This Agreement may be executed in several
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
10.12 Severability. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect.
10.13 Applicable Law. THIS AGREEMENT IS PERFORMABLE IN DALLAS COUNTY,
TEXAS, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE
STATE OF TEXAS. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN DALLAS COUNTY, TEXAS, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL
BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT SITTING IN DALLAS COUNTY,
TEXAS. SELLER AND PURCHASER AGREE THAT THE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
10.14 No Third Party Beneficiary. Except as expressly provided in
Section 4.6(a) relating to the Lender's right to rely on the Seller's
authorization to discuss the defeasance of the Mortgage Loan with the Purchaser,
the provisions of this Agreement and of the documents to be executed and
delivered at Closing are and will be for the benefit of Seller and Purchaser
only and are not for the benefit of any third party, and
17
accordingly, no third party shall have the right to enforce the provisions of
this Agreement or of the documents to be executed and delivered at Closing.
10.15 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) Exhibit A - Legal description of the Land
(b) Exhibit B - Form of Surveyor Certification
(c) Exhibit C - Form of Special Warranty Deed
(d) Exhibit D - Form of Xxxx of Sale and Assignment
(e) Exhibit E - Form of Assignment and Assumption of Contracts
(f) Exhibit F - Form of Tenant Notification Letter
(g) Exhibit G - FIRPTA Affidavit
(h) Exhibit H - Form of Tenant Estoppel
(i) Exhibit I - List of Leases
(j) Exhibit J - Due Diligence Materials
10.16 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.17 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
10.18 Exclusive. Until this Agreement is terminated, Seller will cease
its marketing efforts and will not solicit, negotiate or enter into any backup
letters of intent, proposals, options or contracts with regard to the purchase
and sale of the Property.
10.19 Tax Free Exchange. In the event that either Seller or Purchaser
elect to purchase or sell the Property as part of a like kind exchange pursuant
to Section 1031 of the Internal Revenue Code, the other party agrees to
cooperate with such party in connection therewith and to execute and deliver all
documents which reasonably may be required to effectuate such exchange as a
qualified transaction pursuant to Section 1031 of the Code; provided that: (a)
the Closing shall not be delayed; (b) the other party incurs no additional cost
or liability in connection with the like-kind exchange; (c) such party pays all
costs associated with the like-kind exchange; and (d) the other party is not
obligated to take title to any other property.
10.20 Effective Date. Upon execution of this Agreement by Purchaser
and delivery of same to Seller, this Agreement shall constitute an offer by
Purchaser. The offer by Purchaser herein contained shall automatically be
withdrawn and become of no force or effect unless this Agreement is executed by
Seller and delivered to the Title Company on or before 5 p.m., Dallas, Texas
time, on November 7, 2005. The date of delivery to the Title Company of a fully
executed counterpart of this Agreement, as evidenced by the Title Company's
notation in the space set forth below, shall be deemed the effective date of
this Agreement (the "Effective Date").
18
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
to be effective as of the Effective Date.
SELLER:
Executed by Seller ONE LAKE PARK, LLC,
this __ day of a Delaware limited liability company
__________, 2005
By: 2140, Inc., a Delaware corporation
Its: Managing Member
By:_______________________________
Name:_____________________________
Title:____________________________
19
Executed by Purchaser HARVARD PROPERTY TRUST, LLC,
this __ day of a Delaware limited liability company
______, 2005
By:_______________________________
Name:_____________________________
Title:____________________________
20
ACKNOWLEDGMENT BY TITLE COMPANY
(Receipt of Executed Agreement)
The Title Company hereby agrees to perform its obligations under this
Agreement and acknowledges receipt of a fully executed counterpart of this
Agreement on the __ day of ________, 2005, which date shall be deemed the
"Effective Date" of this Agreement.
PARTNERS TITLE COMPANY
By:_______________________________
Name:_____________________________
Title:____________________________
21
ACKNOWLEDGMENT BY TITLE COMPANY
(Receipt of First Deposit)
The Title Company hereby agrees to perform its obligations under this
Agreement and acknowledges receipt of the First Deposit of Xxxxxxx Money from
Purchaser in the amount of Five Hundred Thousand and No/100 Dollars
($500,000.00) on the __ day of ______, 2005.
PARTNERS TITLE COMPANY
By:_______________________________
Name:_____________________________
Title:____________________________
22
Exhibit A
LEGAL DESCRIPTION OF ONE LAKE PARK
Being a tract of land situated in the X.X. Xxxxxx Survey, Abstract No. 345,
Dallas County, Texas, and being located in the City of Richardson, Texas, and
being more particularly described as follows:
COMMENCING at the intersection of the west line of Waterview Parkway (a variable
width R.O.W.); and the north line of Xxxxx Street (80' R.O.W.); THENCE North 89
degrees 57 minutes 00 seconds West along said north line, 694.89 feet; THENCE in
a westerly direction continuing along said north line with a curve to the right,
Chord Bearing North 79 degrees 04 minutes 23 seconds West, said curve having a
central angle of 21 degrees 45 minutes 14 seconds and a radius of 465.06 feet,
an arc distance of 176.57 feet to the PLACE OF BEGINNING;
THENCE from the PLACE OF BEGINNING in a westerly direction continuing along said
north line with a curve to the right, Chord Bearing North 64 degrees 04 minutes
23 seconds West, said curve having a central angle of 08 degrees 14 minutes 46
seconds and a radius of 465.06 feet, an arc distance of 66.93 feet to a 1/2"
iron pin with red FD cap for the corner;
THENCE North 59 degrees 57 minutes 00 seconds West along said north line, 244.96
feet to a 1/2" iron pin found for corner;
THENCE in a westerly direction continuing along the north line of Xxxxx Street
with a curve to the left, Chord Bearing North 74 degrees 57 minutes 00 seconds
West, said curve having a central angle of 30 degrees 00 minutes 00 seconds and
a radius of 413.21 feet, an arc distance of 216.36 feet to a 1/2" iron pin found
for corner;
THENCE North 89 degrees 57 minutes 00 seconds West continuing along said north
line, 12.63 feet to a 1/2" iron pin with red FD cap set for corner;
THENCE North 00 degrees 03 minutes 00 seconds East, 367.13 feet to a 1/2" iron
pin with red FD cap set for corner in the north line of Xxxxxx Street (60'
R.O.W.);
THENCE South 89 degrees 57 minutes 00 seconds East along said north line, 698.54
feet to a 1/2" iron pin found for corner;
THENCE South 00 degrees 03 minutes 00 seconds East, 474.28 feet to a 1/2'" iron
pin with red FD cap set for corner;
THENCE North 89 degrees 57 minutes 00 seconds West, 58.12 feet to a 1/2" iron
pin with red FD cap set for corner;
THENCE South 45 degrees 03 minutes 00 seconds West, 141.26 feet to a 1/2" iron
pin with red FD cap set for corner;
THENCE North 89 degrees 57 minutes 00 seconds West, 49.00 feet to a 1/2" iron
pin with red FD cap set for corner and the PLACE OF BEGINNING and containing
7.543 acres (328,590 square feet) of land.
23
Exhibit B
FORM OF
SURVEYOR CERTIFICATION
I hereby certify to ______________, a ______________, and ______________
Title Insurance Company, that this is a true and correct survey map made on the
ground per the field notes indicated on this survey map of (Land lot, etc. and
street address of the Property) and correctly shows the true and correct
location of the boundary lines and area of the land indicated, the location and
dimensions of all buildings and the locations of all other visible improvements
on said land, including but not limited to structures, fences, walls and
barriers, all parking lots or areas (together with a count of all parking spaces
in said lots), out buildings, water courses or ditches, and walkways, situated
on such land and all easements, utilities, rights-of-way, setback lines, and
similar or other restrictions (visible or of record). The buildings and
improvements do not overhang or encroach upon any easement or right-of-way of
others, and there are no encroachments either way across the property lines. The
property surveyed contains __________________ acres and is not located within a
flood plain or mudslide area as defined by the United States Department of
Housing and Urban Development under the Flood Disaster Protection Act of 1973 as
amended or as indicated by the Federal Emergency Management Agency, FEMA Maps or
the National Flood Insurance Administration. The survey correctly shows the
location and dimensions of all adjoining alleys, streets, roads and
rights-of-way and distance of the subject property from the nearest major street
intersection. There are no visible (a) improvements, (b) party walls (c)
violations of set backs, (d) ditches, (e) water courses, (f) easements, (g)
roads, streets or alleys, (h) rights of way, (i) encroachments, (j)
discrepancies, or (k) overlapping or conflicts on the subject property except as
shown on this survey map and the subject property does not visibly serve any
adjoining property for drainage, ingress, egress or other similar purposes.
I hereby certify that this survey map and the survey on which it is
based were made in accordance with the most current Minimum Detail Requirements
for ALTA/ACSM Land Title Surveys, jointly established and adopted by ALTA and
ACSM (as currently adopted by the Texas Surveyors Association), and meets the
accuracy requirements for a Class A Survey, as defined therein, and includes
items 1 through 15 of Table 3 of the Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys except for item 6 ("Contours") and item 14
("Governmental Agency Requirements") which have been excluded. I further certify
that this survey map was prepared by the undersigned and that the survey was
performed on the ground by the undersigned or by qualified persons under the
direct supervision and employment of the undersigned.
By:_____________________________________
Registration No.:_______________________
Date:___________________________________
(Seal)
24
Exhibit C
FORM OF 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 Dallas 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.
25
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
________________________________________
Printed/Typed Name of Notary
My commission expires:
________________________________________
26
Exhibit A
to
Special Warranty Deed
LEGAL DESCRIPTION OF ONE LAKE PARK
27
Exhibit D
FORM OF XXXX OF SALE AND ASSIGNMENT
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________ ss.
THAT this XXXX OF SALE AND ASSIGNMENT (this "Xxxx of Sale") is made
from, a _________________ ("Assignor") to _________________ , a
_________________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Xxxx of
Sale, Assignor is conveying to Assignee, by Special Warranty Deed (the "Deed")
that certain tract of land (the "Land") more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain the Assigned Properties (as hereafter defined),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the receipt of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER, and
DELIVER to Assignee the following (collectively, the "Assigned Properties"):
(a) The personal property owned by Assignor upon the Land or
within the Improvements, including specifically, without limitation, the
personal property described on Exhibit B attached hereto and made a part
hereof and all heating, ventilation and air conditioning systems and
equipment, appliances, furniture, carpeting, draperies and curtains,
tools and supplies, and other items of personal property used in
connection with the operation of the Land and the Improvements
(collectively, the "Personal Property"); and
(b) To the extent assignable, all of Assignor's right, title
and interest in and to (i) all warranties and guaranties (express or
implied) issued to Assignor in connection with the Land, Improvements or
the Personal Property; (ii) all licenses, permits, certificates of
occupancy and other consents or approvals from governmental authorities
or private parties which relate to the Land, Improvements, or Personal
Property; (iv) all other intangible property associated with the use or
operation of the Land, Improvements or Personal Property, including
specifically, without limitation, any and all other trade names or logos
used by Assignor in the operation of the Land, Improvements or Personal
Property; and (v) all plans, specifications, drawings, reports, studies,
books, records and other documents pertaining to the Land, Improvements
or Personal Property.
TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its
successors and assigns, forever, and Assignor does hereby bind itself and its
successors to WARRANT AND FOREVER DEFEND,
28
all and singular, title to the Assigned Properties unto Assignee, its successors
and assigns, against every person whomsoever lawfully claiming or to claim the
same, or any part thereof by, through or under Assignor, but not otherwise.
EXECUTED to be effective as of the __ day of __________ , 20__. ----
ASSIGNOR:
By:_____________________________________
Name:___________________________________
Title:__________________________________
THE STATE OF TEXAS ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on ________, 20__, by
_______________, _______________ of _______________, a _______________, on
behalf of said corporation.
________________________________________
Notary Public
________________________________________
Printed/Typed Name of Notary
My commission expires:
________________________________________
29
Exhibit A
to
Xxxx of Sale and Assignment
LEGAL DESCRIPTION OF ONE LAKE PARK
30
Exhibit B
to
Xxxx of Sale and Assignment
Description of Personal Property
31
Exhibit E
FORM OF ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THE STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________ ss.
THAT this ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is
made by and between __________________, a ____________________________________,
("Assignor"), and __________________ , a __________________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Assignment,
Assignor is conveying to Assignee by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more specifically described in Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements") and the personal property
owned by Assignor upon the Land or within the Improvements (the "Personal
Property").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively, the "Contracts").
(a) all oral or written agreements pursuant to which any
portion of the Land or Improvements is used or occupied by anyone other
than Assignor (collectively, the "Leases"), such Leases being more
particularly described in Exhibit B attached hereto and made a part
hereof; and
(b) the contracts relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property
that are listed on Exhibit C attached hereto and made a part hereof.
Assignor represents to Assignee that (i) there are no Contracts
affecting the Property other than those listed on Exhibit B and Exhibit C
attached hereto; (ii) Assignor is not in default under any of the Contracts, nor
does any default exist on the part of the other party thereto; and (iii)
Assignor has full right, power and authority to assign the Contracts to
Assignee.
32
By execution of this Assignment, Assignee assumes and agrees to perform
all of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"Contractual Obligations"), as such Contractual Obligations shall arise or
accrue from and after the date of this Assignment. Assignee hereby agrees to
indemnify, hold harmless and defend Assignor from and against any and all third
party obligations, liabilities, costs and claims (including reasonable
attorney's fees) arising as a result of or with respect to any of the
Contractual Obligations that are attributable to the period of time from and
after the date of this Assignment.
Assignor agrees to indemnify, hold harmless and defend Assignee from and
against any and all third party obligations, liabilities, costs and claims
(including reasonable attorney's fees) arising as a result of or with respect to
any of the Contractual Obligations that are attributable to the period of time
prior to the date of this Assignment.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise.
EXECUTED to be effective as of the __ day of ________, 20__.
ASSIGNOR:
________________________________________
a ______________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
ASSIGNEE:
________________________________________
a ______________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
00
XXX XXXXX XX XXXXX ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on the __ day of
____________, 20__, by ____________, as ____________of ____________, a
____________, on behalf of said ________.
________________________________________
Notary Public
________________________________________
Printed/Typed Name of Notary
My commission expires:
________________________________________
THE STATE OF TEXAS ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on the __ day of
____________, 20__, by ____________, as ____________of ____________, a
____________, on behalf of said ________.
________________________________________
Notary Public
________________________________________
Printed/Typed Name of Notary
My commission expires:
________________________________________
34
Exhibit A
to
Assignment and Assumption of Contracts
LEGAL DESCRIPTION OF ONE LAKE PARK
35
Exhibit B
to
Assignment and Assumption of Contracts
Description of Leases
36
Exhibit C
to
Assignment and Assumption of Contracts
Description of Contracts
37
Exhibit F
FORM OF TENANT NOTIFICATION LETTER
____________, 2005
[Name and Address of Tenant]
Re: Sale of
Gentlemen:
Please be advised that ____________ ("Purchaser") has purchased the
captioned property, in which you occupy space as a tenant pursuant to a lease
dated ________ __ , 20__ (the "Lease"), ____________ (" "), the previous owner
thereof. In connection with such purchase, ____________ has assigned its
interest as landlord in the Lease to Purchaser and has transferred your security
deposit in the amount of $_______ (the "Security Deposit") to Purchaser.
Purchaser specifically acknowledges the receipt of and responsibility for the
Security Deposit.
All rental and other payments that become due subsequent to the date
hereof should be payable to ____________ and should be addressed as follows:
In addition, all notices from you to the landlord concerning any matter
relating to your tenancy should be sent to the address above.
Very truly yours,
By:_____________________________________
Name:___________________________________
Title:__________________________________
________________________________________
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
38
Exhibit G
FIRPTA AFFIDAVIT
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________ ss.
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform ______________________, a ("Transferee"), that withholding of
tax is not required upon the disposition of a U.S. real property interest by
______________________ ("Transferor"), the undersigned hereby certifies as
follows:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in
the Internal Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is:
#_________________ ;
3. Transferor's office address is ____________, ________________.
Transferor understands that this certification may be disclosed
to the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned, in the capacity set
forth below, hereby declares that he has examined this certification and to the
best of his knowledge and belief it is true, correct, and complete, and the
undersigned further declares that he has authority to sign this document in such
capacity.
EXECUTED effective as of the __ day of _________ , 20__.
________________________________________
a ______________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
SWORN TO AND SUBSCRIBED BEFORE ME this __ day of __________, 20__.
________________________________________
Notary Public
My Commission Expires: ________________________________________
Printed or Typed Name of Notary
_______________________________
39
Exhibit H
FORM OF TENANT ESTOPPEL
_________________, 2005
[Address of Buyer]
[Address of Lender]
RE: [Name and Address of Property]
Gentlemen:
Reference is made to that certain [Lease Agreement] dated as of
____________ __, ____ between ____________________________, a ____________, 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 all amendments thereto listed in Schedule
1 attached hereto, is herein referred to as 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. Attached hereto as Schedule 1 is a list of all amendments to the
Lease and any other agreements setting forth the terms and conditions under
which Tenant occupies or uses the Premises or other facilities in or relating to
the Building. Attached hereto as Schedule 2 is a true, correct and complete copy
of the Lease (including all amendments) and each document listed on Schedule 1.
2. The Lease is in full force and effect and has not been amended,
modified, supplemented or superseded except as indicated in Schedule 1. There
are no understandings, contracts, agreement or commitments of any kind
whatsoever with respect to the Premises, except as expressly provided in the
Lease.
3. The undersigned is the Tenant under the Lease for space at the
Premises covering ___________ rentable square feet. The term of the Lease
commenced on ________________, and expires on _________________, subject to any
rights of Tenant to extend the term as provided therein. The base rent presently
being charged is $__________. All rentals, charges, additional rent and other
obligations on the part of the undersigned have been paid to and including
____________, 200_. No rental, other than for the current month, has been paid
in advance. The undersigned has accepted possession and now occupies the
Premises and is currently open for business. In addition to the fixed minimum
Base Rent, the Tenant pays its pro-rata share of real estate taxes and operating
expenses in excess of a base stop of _________________.
40
4. Tenant has paid to Landlord a security deposit in the amount of
$____________________. Tenant has no claim against Landlord for any other
security, rental, cleaning access card, key or other deposits or any prepaid
rentals.
5. Landlord is not in any respect in default in the performance of
the terms and provisions of the Lease, nor, to Tenant's actual knowledge, does
any state of facts or condition exist which, with the giving of notice or the
passage of time, or both, would result in such a default. All conditions under
the Lease to be performed by Landlord have been satisfied. Without limiting the
generality of the foregoing, 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. Tenant has no claim against Landlord by
reason of any restriction, encumbrance or defect in title of the Premises of
which Tenant has actual knowledge.
6. There currently is no defense, offset, lien, claim or
counterclaim by or in favor of Tenant against Landlord under the Lease or
against the obligations of Tenant under the Lease (including, without
limitation, any rentals or other charges due or to become due under the Lease)
and Tenant is not contesting any such obligations, rentals or charges. To
Tenant's knowledge, all leasing commissions due in respect of the current term
of the Lease have been paid.
7. Tenant has no renewal, extension or expansion option, no right
of first offer or right of first refusal and no other similar right to renew or
extend the term of the Lease or expand the property demised thereunder except as
may be expressly set forth in the Lease. Tenant has no right to lease or occupy
any parking spaces within the Property except as set forth in the Lease. Tenant
is entitled to no free rent nor any credit, offsets or deductions in rent, nor
other leasing concessions other than those specified in the Lease.
8. Tenant is not in any respect in default in the performance of
the terms and provisions of the Lease nor does any state of facts or condition
exist which, with the giving of notice or the passage of time, or both, would
result in such a default. Without limiting the generality of the foregoing,
Tenant is current in its rental obligation under the Lease.
9. The undersigned has not received notice of a prior transfer,
assignment, hypothecation or pledge by Landlord of any of Landlord's interest in
the Lease other than to the holder of any first mortgage on the captioned
property.
10. There are no liens recorded against the Premises with respect to
work performed by or on behalf of Tenant or materials supplied to the demised
property.
11. Tenant has not assigned the Lease nor sublet all or any part of
the Premises, except as shown on Schedule 1 attached hereto and made a part
hereof for all purposes.
41
The above certifications are made to the Benefited Parties knowing that
the Benefited Parties will rely thereon in making an investment in the Premises.
For purposes hereof, the term "Benefited Parties" means the addressees of this
letter and all of the following: (a) Harvard Property Trust, LLC, a Delaware
limited liability company and its successors, assigns, and designees (including,
without limitation, any tenant in common purchasers); and (b) any lender to
which any party described in the foregoing clause (a) grants a deed of trust,
mortgage or other lien upon the Premises.
Very truly yours,
________________________________________
a ______________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
42
JOINDER OF GUARANTOR
The undersigned joins in the execution of this Estoppel Certificate for
the purpose of confirming to and for the benefit of the Benefited Parties (a)
that the guaranty of Tenant's obligations under the Lease executed by the
undersigned remain in full force and effect, and (b) that the undersigned has no
defenses or offsets to its obligations under the guaranty of the Lease executed
by the undersigned. The undersigned understands that the Benefited Parties will
rely upon the foregoing confirmations.
________________________________________
a ______________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
43
Schedule 1
to
Tenant Estoppel Letter
List of Amendments to Lease and Related Agreements
44
Schedule 2
to
Tenant Estoppel Letter
See Attached Copies of Lease, Amendments and Related Agreements
45
Exhibit I
LIST OF LEASES
Axes Technologies, Inc. Lease
Datatrac Information Services, Inc. Lease
Forum Financial Services, Inc. Lease
Lennox Industries Inc. Lease
Lennox Industries Inc. Amendment One to Lease
Lennox Industries Inc. Amendment Two to Lease
Lennox Industries Inc. Garage Storage Lease
Philips Semiconductors, Inc. Lease
Philips Semiconductors, Inc. Amendment One to Lease
Xxxxxx Xxxxxx IBG, L.P. Lease
46
Exhibit J
DUE DILIGENCE MATERIALS
ADA Compliance, studies/reports
Aerial Photos
Appraisal, Existing
Building Measurement Surveys by Registered Architect
Building Permits
Building Plans, Specifications,
Paper
Capital Improvements, historical, 3 years
Certificates of Occupancy:
Building
Tenants
Covenants, Conditions & Restriction's (Owner association, condo, etc)
Easement Information
Emergency/Life Safety Systems, Operating Manual
Environmental Site Assessment, Existing
Financial Items:
Aging Reports, Current and past 6 months
Balance Sheet, to date
Budget, Current Year
Excess Operating Expenses Calculations - Current Year
Invoices, as requested, copies only
Operating Expense Reconciliations (3 previous years)
Operating Statements for property, including a general ledger for each
year - 3 yrs
Rent Roll, Current
Security Deposit Listing, Current, LOC's/Guaranty's to be transferred
Floor Plans, as leased
Geotechnical Report, if any
Insurance Certificate, Current, of Seller and Tenants
Insurance Claims, Pending (or confirmation that there are none)
Insurance Claims History
Leases and all amendments
Lease Commission Schedule, 3 previous years
Litigation - Pending (or confirmation of no pending litigation)
Management & Leasing Agreement - Existing
Occupancy/Vacancy History, 3 previous years
O & M Reports (Asbestos, Mold, etc.) (or confirmation that there are none)
Parking Garage Lease/Operating Agreement
Parking Space Configuration (Surface and Garage if applicable)
Permits & Licenses - Alarm
Permits & Licenses - Construction
Permits & License - Elevator
Personal Property Inventory including Office Equipment to remain on site
Photos of the Building
Property Taxes land/improvements current year
Property Tax Statements, Personal, Current & Prior 3 yrs
47
Roof Reports (or confirmation that there are none)
Security Incident Reports, for prior 24 months
Service Contracts
Site Plans
Standard Form of Lease
Survey, existing
Tenant Contact Information
Tenant Financial Statements, if available
Tenant Improvement projects, currently under construction (copy of contract(s))
Tenant Improvement Schedule, 3 previous years
Title commitment policy of Seller, existing
Title Work - Preliminary
Title Work - Final
Utility Agreements
Utilities, prior 2 years/invoices/summary
Utility Security Deposits
Warranty, Elevator
Warranty, HVAC Equipment
Warranty, Mechanical
Warranty, Roof
Work Order Systems & Operating Manuals
Zoning Report
*Additional material/reports required for the completion of the 3-14 Audit
Detailed accrued expense listing for each quarter ended during the
current year and the prior two years
Detailed rent straight-line schedule for each quarter ended during the
current year and the prior two years
Detailed listing of all tenants with termination options.
Detail of the cash receipts and disbursements journal (downloaded in
Excel if possible) for the full prior year and to date for the current
year
Detailed general ledger report of revenues and expenses for each quarter
during the current calendar year and the prior two years
Detailed income statements by month year-to-date and the prior two years
48
