SALE, PURCHASE AND ESCROW AGREEMENT
BETWEEN
TOWER FUND LANDMARK LIMITED PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP,
(AS TO LANDMARK CENTER I ("TFLLP"), AND,
METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION,
ON BEHALF OF A COMMINGLED SEPARATE ACCOUNT (AS TO LANDMARK CENTER I) ("MLICSA"),
(COLLECTIVELY, TFLLP AND MLICSA, "SELLER")
AND
HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company
("PURCHASER")
AND
XXXXXXX TITLE GUARANTY COMPANY ("ESCROW AGENT")
TABLE OF CONTENTS
PAGE
ARTICLE I SALE AND PURCHASE OF PROPERTY..............................................................1
1.1 Agreement of Sale and Purchase.................................................................1
1.2 Property Defined...............................................................................2
ARTICLE II PURCHASE PRICE.............................................................................2
2.1 Price..........................................................................................2
2.2 Deposit........................................................................................2
2.3 Balance of Purchase Price......................................................................2
2.4 Investments....................................................................................2
2.5 Interest on the Deposit........................................................................2
ARTICLE III CONDITIONS TO THE PARTIES' OBLIGATIONS.....................................................3
3.1 Conditions to Purchaser's Obligation to Purchase...............................................3
3.2 Performance by Seller..........................................................................3
3.3 Conditions to Seller's Obligation to Sell......................................................4
3.4 ERISA..........................................................................................4
ARTICLE IV PURCHASER'S DELIVERIES AND SELLER'S DELIVERIES TO ESCROW AGENT.............................4
4.1 Purchaser's Deliveries.........................................................................4
4.2 Seller's Deliveries............................................................................5
4.3 Failure to Deliver.............................................................................6
ARTICLE V INSPECTION OF PROPERTY.....................................................................6
5.1 Delivery of Documents..........................................................................6
5.2 Physical Inspection of Property................................................................7
5.3 Title..........................................................................................8
5.4 No Obligation to Cure..........................................................................8
5.5 Copies of Third Party Reports..................................................................9
5.6 Audit by Purchaser.............................................................................9
ARTICLE VI THE CLOSING................................................................................9
6.1 Date and Manner of Closing.....................................................................9
ARTICLE VII PRORATION, FEES, COSTS AND ADJUSTMENTS.....................................................9
7.1 Prorations.....................................................................................9
7.2 Seller's Closing Costs........................................................................12
7.3 Purchaser's Closing Costs.....................................................................12
ARTICLE VIII DISTRIBUTION OF FUNDS AND DOCUMENTS.......................................................12
8.1 Delivery of the Purchase Price................................................................12
8.2 Other Monetary Disbursements..................................................................12
8.3 Recorded Documents............................................................................13
8.4 Documents to Purchaser........................................................................13
8.5 Documents to Seller...........................................................................13
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TABLE OF CONTENTS
(continued)
PAGE
8.6 All Other Documents...........................................................................13
ARTICLE IX RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION............................................13
9.1 Return of Seller's Documents..................................................................14
9.2 Return of Purchaser's Documents...............................................................14
9.3 Deposit.......................................................................................14
9.4 Disbursement of Deposit.......................................................................14
9.5 No Effect on Rights of Parties; Survival......................................................14
ARTICLE X DEFAULT...................................................................................14
10.1 Seller's Remedies.............................................................................14
10.2 Purchaser's Remedies..........................................................................15
ARTICLE XI REPRESENTATIONS AND WARRANTIES............................................................16
11.1 Seller's Warranties and Representations.......................................................16
11.2 Purchaser's Warranties and Representations....................................................18
11.3 No Other Warranties and Representations.......................................................19
ARTICLE XII CASUALTY AND CONDEMNATION.................................................................20
ARTICLE XIII CONDUCT PRIOR TO CLOSING..................................................................20
13.1 Conduct.......................................................................................21
13.2 Actions Prohibited............................................................................21
13.3 Modification of Existing Leases and Contracts.................................................21
13.4 New Leases and Contracts......................................................................21
Confidentiality........................................................................................21
b) ..............................................................................................22
13.5 Right to Cure.................................................................................22
13.6 Management Agreements.........................................................................22
ARTICLE XIV NOTICES...................................................................................22
ARTICLE XV TRANSFER OF POSSESSION....................................................................23
15.1 Transfer of Possession........................................................................23
15.2 Delivery of Documents at Closing..............................................................23
ARTICLE XVI GENERAL PROVISIONS........................................................................23
16.1 Captions......................................................................................24
16.2 Exhibits......................................................................................24
16.3 Entire Agreement..............................................................................24
16.4 Modification..................................................................................24
16.5 Attorneys' Fees...............................................................................24
16.6 Governing Law.................................................................................24
16.7 Time of Essence...............................................................................24
16.8 Survival of Warranties........................................................................24
16.9 Assignment by Purchaser.......................................................................24
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TABLE OF CONTENTS
(continued)
PAGE
16.10 Severability..................................................................................25
16.11 Successors and Assigns........................................................................25
16.12 Interpretation................................................................................25
16.13 Counterparts..................................................................................25
16.14 Recordation...................................................................................25
16.15 Limitation on Liability.......................................................................25
16.16 Possession of Advisor.........................................................................26
16.17 Business Day..................................................................................26
16.18 Waiver of Jury Trial..........................................................................26
16.19 Effective Date................................................................................26
ARTICLE XVII ESCROW AGENT DUTIES AND DISPUTES..........................................................26
17.1 Other Duties of Escrow Agent..................................................................27
17.2 Disputes......................................................................................27
17.3 Reports.......................................................................................27
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EXHIBITS
EXHIBIT A - Description of Land
EXHIBIT B - Personal Property
EXHIBIT C - Leases
EXHIBIT D - Contracts
EXHIBIT E - Estoppel Certificate
EXHIBIT F - Assignment and Assumption of Leases, Contracts and Other Property
Interests
EXHIBIT G - Form of Xxxx of Sale
EXHIBIT H - Form of Deed
EXHIBIT I - Additional Permitted Encumbrances
EXHIBIT J - Form of Notice to Tenants
EXHIBIT K - FIRPTA Affidavit
EXHIBIT L - Due Diligence Items
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INDEX OF DEFINED TERMS
Term Section
---- -------
Advisor.......................................................................................................5.2.3
Assignment of Leases and Contracts............................................................................4.1.2
Xxxx of Sale..................................................................................................4.1.3
Broker.......................................................................................................11.1.1
Closing.........................................................................................................6.1
Closing Statement.............................................................................................4.1.4
Code.........................................................................................................11.2.5
Contracts.....................................................................................................4.2.2
Deed..........................................................................................................4.2.1
Deposit.......................................................................................................2.1.1
Effective Date................................................................................................16.19
ERISA........................................................................................................11.2.5
Escrow Agent...........................................................................................Introduction
Estoppel Return Date..........................................................................................3.1.5
Final Closing Date..............................................................................................6.1
Improvements....................................................................................................1.1
Indemnified Parties...........................................................................................5.2.5
Intangible Property..........................................................................................1.1(4)
Land............................................................................................................1.1
Leases........................................................................................................4.2.1
Limitation Period..............................................................................................10.2
Maximum Liability Cap.........................................................................................16.15
Permitted Encumbrances........................................................................................4.2.1
Personal Property...............................................................................................1.2
Property........................................................................................................1.2
Property Manager(s)............................................................................................11.1
Proprietary Information........................................................................................13.5
Purchaser's Action.............................................................................................10.1
Purchase Price..................................................................................................2.1
Purchaser..............................................................................................Introduction
Real Property...................................................................................................1.1
Seller.................................................................................................Introduction
Seller Parties................................................................................................16.15
Separate Account...............................................................................................16.5
Survey........................................................................................................5.1.2
Tenant Estoppel Condition.....................................................................................3.1.5
Tenant Estoppel...............................................................................................3.1.5
Tenant Payments...............................................................................................7.1.1
Title Company.................................................................................................3.1.3
Title Policy..................................................................................................3.1.3
Title Report..................................................................................................5.1.1
Tower Fund.....................................................................................................16.5
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SALE, PURCHASE AND ESCROW AGREEMENT
This Sale, Purchase and Escrow Agreement is made to be effective as of
the Effective Date (as hereinafter defined) by and between TOWER FUND LANDMARK
LIMITED PARTNERSHIP, a Texas limited partnership ("TFLLP"), and METROPOLITAN
LIFE INSURANCE COMPANY, a New York corporation, on behalf of a commingled
separate account ("MLICSA") , (TFLLP and MLICSA individually referred also to as
"Seller"), and HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company
("PURCHASER") and constitutes (I) a contract of sale and purchase between the
parties and (II) an escrow agreement among Seller, Purchaser and Xxxxxxx Title
Guaranty Company ("ESCROW Agent"), the consent of which appears at the end
hereof.
ARTICLE I
SALE AND PURCHASE OF PROPERTY
1.1 AGREEMENT OF SALE AND PURCHASE. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(1) that certain tract or parcel of land described in
EXHIBIT A as "LANDMARK CENTER I", located at 00000 Xxxxxx Xxxxx Xxxxxxx,
Xxxxxx, Xxxxx, and owned by TFLLP, and that certain tract or parcel of
land described in EXHIBIT A, as "LANDMARK CENTER II", located at 00000
Xxxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxx, and owned by MLICSA (collectively,
the "LAND") together with all improvements (the "IMPROVEMENTS") located
thereon (collectively said Land and Improvements are herein referred to
as the "REAL PROPERTY");
(2) the tangible personal property listed on EXHIBIT B
attached hereto owned by Seller and located upon or within the Real
Property or used in connection with the operation of the Real Property
(collectively, the "PERSONAL PROPERTY");
(3) all of Seller's right, title and interest in all oral or
written leases or other agreements conferring the right to occupy the
Real Property, as listed on EXHIBIT C attached hereto (collectively, the
"LEASES"); and
(4) 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 Real Property or Personal Property which
will extend beyond the date of Closing (as defined in SECTION 6.1), as
listed on EXHIBIT D attached hereto (collectively, the "CONTRACTS");
(ii) all warranties and guaranties (express or implied) issued to Seller
in connection with the Improvements or the Personal Property; (iii) all
licenses, permits, certificates of occupancy and other consents or
approvals from governmental authorities or private parties which relate
to the Real Property or Personal Property; (iv) all other intangible
property associated with the use or operation of the Real Property or
Personal Property, including specifically, without limitation, the use
of the name "Landmark Center" and any and all other trade names or logos
used by Seller in the operation of the Real Property or Personal
Property; and (v) all plans,
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specifications, drawings, reports, studies, books, records and other
documents used in the operation of the Real Property or Personal
Property to the extent located on-site at the Property or in the
possession of Seller's property manager (collectively, the "INTANGIBLE
PROPERTY").
1.2 PROPERTY DEFINED. The Land, the Improvements, the Personal
Property, the Leases and the Intangible Property are hereinafter sometimes
referred to collectively as the "PROPERTY".
ARTICLE II
PURCHASE PRICE
2.1 PRICE. In consideration of the covenants herein contained,
Seller hereby agrees to sell and Purchaser hereby agrees to purchase the
Property for an aggregate total purchase price for all of the Property of
$33,250,000.00 (the "PURCHASE PRICE"). Seller and Purchaser agree that the
Purchase Price shall be allocated with $15,790,000 allocated to Landmark Center
I and $17,460,00 allocated to Landmark Center II, and shall be paid by Purchaser
as follows:
2.2 DEPOSIT. Within three (3) business days after the Effective Date
of this Agreement, Purchaser will deliver to Escrow Agent by bank wire of
immediately available funds the sum of $1,250,000.00 (the "DEPOSIT"), which
Deposit shall be fully earned by Seller and non-refundable except only as
expressly provided in SECTION 5.4 or SECTION 10.2, Article XII and for failure
of a condition under SECTION 3.1 or SECTION 3.3. Seller and Purchaser stipulate
that Purchaser's delivery of the Deposit is sufficient consideration to support
this Agreement.
2.3 BALANCE OF PURCHASE PRICE. Purchaser shall, not later than 3:00
p.m. Eastern Time on the date of Closing, deliver to Escrow Agent, by bank wire
transfer of immediately available funds, a sum equal to the balance of the
Purchase Price. The balance of the Purchase Price received by Seller at Closing
shall be adjusted to reflect prorations and other adjustments pursuant to
SECTION 7.1 and SECTION 2.3.
2.4 INVESTMENTS. Following the collection of the Deposit, Escrow
Agent shall, at the direction of Purchaser, invest the Deposit in:
(1) obligations of the United States government, its
agencies or independent departments;
(2) certificates of deposit issued by a banking institution
whose principal office is in New York, N.Y. with assets in excess of $1
billion; or
(3) an interest-bearing account of a banking institution
whose principal office is in New York, N.Y. with assets in excess of $1
billion.
No investment of the Deposit shall have a maturity date beyond the Final Closing
Date (as defined in SECTION 6.1).
2.5 INTEREST ON THE DEPOSIT. Any interest earned on the Deposit
shall be credited and delivered to the party receiving the Deposit, PROVIDED,
HOWEVER, that if the transaction closes, at
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Closing any interest earned on the Deposit shall be credited to Purchaser by
applying the same against the Purchase Price.
ARTICLE III
CONDITIONS TO THE PARTIES' OBLIGATIONS
3.1 CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE. Purchaser's
obligation to purchase is expressly conditioned upon each of the following:
3.2 PERFORMANCE BY SELLER. Performance in all material respects of
the obligations and covenants of, and deliveries required of, Seller hereunder.
3.2.1 DELIVERY OF TITLE AND POSSESSION. Delivery at the
Closing of (I) the Deed (as defined in SECTION 4.2.1) and (II)
possession as provided in SECTION 15.1.
3.2.2 TITLE INSURANCE. Delivery at the Closing of the standard
current form of Texas owner's policy of title insurance (the "TITLE
POLICY"), or an irrevocable commitment to issue the same, with liability
in the amount of the Purchase Price issued by Xxxxxxx Title Guaranty
Company (the "TITLE COMPANY"), insuring that fee title to the Real
Property vests in Purchaser subject to the Permitted Encumbrances (as
defined in SECTION 4.2.1). (At its option, Purchaser may direct the
Title Company to issue additional title insurance endorsements if
Purchaser pays for the extra cost of such additional endorsements,
provided that the Title Company's failure to issue any such additional
endorsements shall not affect Purchaser's obligations under this
Agreement).
3.2.3 SELLER'S REPRESENTATIONS. The representations and
warranties by Seller set forth in SECTION 11.1 being true and correct in
all material respects as of the Closing except as modified by notice (in
accordance with SECTION 11.1) to which Purchaser does not object in
writing within three (3) business days after receipt thereof (it being
agreed that the foregoing condition shall be deemed to have failed if
Seller delivers a notice in accordance with SECTION 11.1 and Purchaser
sends written objection thereto within such three (3) business day
period).
3.2.4 TENANT ESTOPPELS. Seller shall have obtained and
delivered to Purchaser, at least five (5) business days prior to the
Final Closing Date (the "ESTOPPEL RETURN DATE"), a tenant estoppel
certificate with respect to each Lease executed by each tenant (and, if
applicable, each guarantor) under such Lease, which estoppel certificate
shall (i) be in the form of EXHIBIT E attached hereto, provided,
however, that the form of tenant estoppel certificate shall reflect
appropriate changes thereto for any tenant that has specific
requirements in its Lease regarding the form or content of the tenant
estoppel certificate; and (ii) disclose no matter that might materially
and adversely affect the value of the Property and shall confirm the
rents payable by such tenant and the other matters set forth in EXHIBIT
E (the foregoing condition being herein referred to as the "TENANT
ESTOPPEL CONDITION"). The term "materially and adversely affect the
value of the Property" shall be deemed to be a condition that affects
the value in an amount that exceeds $75,000.00, provided, however, that
if Seller elects in its sole discretion, to provide Purchaser at Closing
with a credit against the Purchase Price or with other
3
security that is reasonably acceptable to Purchaser for such condition
then such estoppel certificate shall be accepted by Purchaser
notwithstanding such condition. An executed tenant estoppel certificate
that meets the requirements set forth in the preceding sentence is
herein referred to as a "TENANT ESTOPPEL". Seller shall use commercially
reasonable efforts to obtain a Tenant Estoppel with respect to each
Lease. Seller shall deliver each Tenant Estoppel to Purchaser
(regardless of whether it complies with this Agreement) promptly
following Seller's receipt thereof. 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 (a) waive the Tenant Estoppel Condition, (b) extend
the Final Closing Date for up to fourteen (14) days to allow Seller more
time to obtain additional Tenant Estoppels; or (c) terminate this
Agreement, in which event the Deposit shall be returned to Purchaser. If
Purchaser elects to extend the Final Closing Date pursuant to clause (b)
of the preceding sentence and the Tenant Estoppel Condition is still not
fulfilled on or before the expiration of the fourteen (14) day extension
period, then Purchaser may elect one of the options set forth in clauses
(a) and (c) of the preceding sentence.
3.3 CONDITIONS TO SELLER'S OBLIGATION TO SELL. Seller's obligation
to sell is expressly conditioned upon each of the following:
3.3.1 PERFORMANCE BY PURCHASER. Performance in all material
respects of the obligations and covenants of, and deliveries required
of, Purchaser hereunder.
3.3.2 RECEIPT OF PURCHASE PRICE. Receipt of the Purchase Price
and any adjustments due Seller under ARTICLE VII at the Closing in the
manner herein provided.
3.4 ERISA. Seller and Purchaser hereby agree that if the
transactions contemplated hereby are or may be prohibited transactions under
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
and supplemented ("ERISA"), Seller shall not be obligated to sell, and Purchaser
shall not be obligated to purchase, the Property pursuant to this Agreement.
Within five (5) business days after the Effective Date, the parties shall agree
in writing to the form of representations as is necessary in order for each
party to determine whether the transaction contemplated hereby may be prohibited
under ERISA and related rules, which agreed upon representations without
amendment to the Agreement shall be deemed to be added to this Agreement If
either party determines, in its reasonable discretion, that the transaction
contemplated hereby may be prohibited under ERISA and related rules, then either
party may terminate this Agreement by written notice thereof to the other party
no later seven (7) business days after the Effective Date, and upon such
termination the Deposit shall be returned to Purchaser and neither party shall
thereafter have any further liability or obligations hereunder, except for those
obligations stated herein to survive such termination.
ARTICLE IV
PURCHASER'S DELIVERIES AND SELLER'S DELIVERIES TO ESCROW AGENT
4.1 PURCHASER'S DELIVERIES. Purchaser shall, at or before the
Closing, deliver to Escrow Agent each of the following for each of Landmark
Center I and Landmark Center II:
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4.1.1 PURCHASE PRICE. The Purchase Price as set forth in
ARTICLE II.
4.1.2 ASSIGNMENT OF LEASES AND CONTRACTS. Four (4) executed
counterparts of the Assignment and Assumption of Leases, Contracts and
Other Property Interests (the "ASSIGNMENT OF LEASES AND CONTRACTS") in
the form of EXHIBIT F.
4.1.3 XXXX OF SALE. Four (4) executed counterparts of a xxxx
of sale (the "XXXX OF SALE") in the form of EXHIBIT G.
4.1.4 CLOSING STATEMENT. An executed settlement statement
reflecting the prorations and adjustments required under ARTICLE VII
(the "CLOSING STATEMENT"). Purchaser and Seller agree to commence
preparation of the Closing Statement five (5) business days prior to
Closing and to endeavor to have a final executable copy of the Closing
Statement approved by both parties one (1) business day prior to
Closing.
4.1.5 CASH - PRORATIONS. The amount, if any, required of
Purchaser under ARTICLE VII.
4.2 SELLER'S DELIVERIES. Seller shall, at or before the Closing,
deliver to Escrow Agent each of the following for each of Landmark Center I and
Landmark Center II:
4.2.1 SPECIAL WARRANTY DEED. A Special Warranty Deed (the
"DEED") in the form of EXHIBIT H with respect to the Real Property,
executed and acknowledged by Seller, pursuant to which Seller shall
convey title to the Real Property subject to only to the following
(collectively, the "PERMITTED ENCUMBRANCES"):
(a) Non-delinquent real property taxes and all
assessments and unpaid installments thereof which are not
delinquent.
(b) The Leases enumerated in EXHIBIT C and any
leases executed in accordance with this Agreement after the date
hereof and the rights of the tenants thereunder.
(c) Any other lien, encumbrance, easement or other
exception or matter voluntarily imposed or consented to by
Purchaser prior to or as of the Closing.
(d) The printed exceptions to title contained in the
Title Report (as defined in SECTION 5.1.1) that are required to
be included as exceptions under state regulations and the
exceptions listed on EXHIBIT I attached hereto.
(e) All matters, rights and interests that would be
disclosed by a survey of the Property.
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4.2.2 ASSIGNMENT OF LEASES AND CONTRACTS. Four (4) executed
counterparts of the Assignment of Leases and Contracts, and (whether
through the closing escrow or through such other method of delivery as
the parties may establish) original executed Leases (or copies if
originals are not in Seller's possession) and the Contracts assigned
thereby.
4.2.3 XXXX OF SALE. Four (4) executed counterparts of the Xxxx
of Sale.
4.2.4 NOTICES TO TENANTS. A notice signed by Seller (or
Seller's manager for the Improvements) addressed to the tenants under
the Leases in the form of EXHIBIT J. 4.2.5 FIRPTA AFFIDAVIT. Four (4)
executed copies of an affidavit in the form of EXHIBIT K with respect to
the Foreign Investment in Real Property Tax Act.
4.2.6 CLOSING STATEMENT. An executed Closing Statement.
4.2.7 CASH - PRORATIONS. The amount, if any, required of
Seller under ARTICLE VII.
4.2.8 BROKER'S LIEN WAIVER. Two (2) executed copies of a
Broker's Lien Waiver from Broker acknowledging payment of all
commissions and waiving any lien rights Broker may have.
4.3 FAILURE TO DELIVER. The failure of Purchaser or Seller to make
any delivery required above by and in accordance with this ARTICLE IV which is
not waived by the other party shall constitute a default hereunder by Purchaser
or Seller, as applicable.
ARTICLE V
INSPECTION OF PROPERTY
5.1 DELIVERY OF DOCUMENTS. Seller has delivered or made available to
Purchaser the following:
5.1.1 PRELIMINARY TITLE REPORT. A current preliminary title
report covering the Real Property issued by the Title Company, together
with copies of all documents referred to as exceptions therein
(collectively, the "TITLE REPORT").
5.1.2 SURVEY. To the extent in Seller's possession, the most
recent survey of the Real Property prepared by a licensed surveyor (the
"SURVEY").
5.1.3 LEASES AND CONTRACTS. Copies of the Leases and the
Contracts.
5.1.4 PLANS AND SPECIFICATIONS. To the extent in Seller's
possession, copies of all plans and specifications for the Improvements.
5.1.5 REPORTS. To the extent in Seller's possession, copies of
all environmental reports prepared by third parties.
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5.1.6 PERMITS. To the extent in Seller's possession, copies of
all governmental permits, certificates of occupancy and approvals, in
each case regarding the Property.
5.1.7 OTHER ITEMS. Operating statements in respect of the
Property for the past three (3) years, financial reports, current rent
roll, accounts receivable report, insurance loss histories, a list of
pending litigation (if any) affecting the Property and those items
listed on Exhibit L, to the extent they are available, will be provided
to Purchaser to the extent not previously delivered to Purchaser.
If requested by Seller, Purchaser shall provide written verification of its
receipt of those items listed in this SECTION 5.1.
5.2 PHYSICAL INSPECTION OF PROPERTY.
5.2.1 Seller shall allow Purchaser and Purchaser's engineers,
architects or other employees and agents reasonable access to the
Property during normal business hours for the limited purposes provided
herein.
5.2.2 Purchaser and its engineers, architects and other
employees and agents may exercise such access solely for the purposes of
(i) reviewing contracts, books and records relating to the Property
(other than any privileged, proprietary or confidential records), soil
reports, environmental studies and reports, surveys, and building and
systems plans; (ii) reviewing records relating to operating expenses and
other instruments and correspondence relating to the Property; and (iii)
inspecting the physical condition of the Property and conducting
non-intrusive physical and environmental tests and inspections thereof.
PURCHASER SHALL NOT CONDUCT OR ALLOW ANY PHYSICALLY INTRUSIVE TESTING
OF, ON OR UNDER THE PROPERTY WITHOUT FIRST OBTAINING SELLER'S WRITTEN
CONSENT (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD) AS TO THE
TIMING AND SCOPE OF THE WORK TO BE PERFORMED AND THE PARTIES ENTERING
INTO AN AMENDMENT HERETO MEMORIALIZING SUCH SCOPE OF WORK AND ANY
ADDITIONAL AGREEMENTS OF THE PARTIES WITH RESPECT TO SUCH TESTING.
5.2.3 Purchaser agrees that it will cause it and any person
accessing the Property hereunder to be covered by not less than
$1,000,000 commercial general liability insurance (with, in the case of
Purchaser's coverage, a contractual liability endorsement, insuring its
indemnity obligation under this Agreement), insuring all activity and
conduct of such person while exercising such right of access and naming
Seller and BlackRock Realty Advisors, Inc. ("ADVISOR") as insureds,
issued by a licensed insurance company qualified to do business in the
State of Texas and otherwise reasonably acceptable to Seller.
5.2.4 Purchaser agrees that, in the exercise of the right of
access granted hereby, it will not unreasonably interfere with or permit
unreasonable interference with any person occupying or providing service
at the Property. Purchaser agrees that it or its agents will not
communicate with any tenants without providing one day's prior written
7
notice to Seller, in the case of written communication, to allow Seller
the opportunity to review such communication before it is delivered to
tenants, or, in the case of communication by telephone or interview, to
allow Seller the opportunity to monitor such communication.
5.2.5 Purchaser agrees to indemnify, reimburse, defend and
hold harmless Seller, Advisor and their pension fund clients,
affiliates, members, partners, subsidiaries, shareholders, officers,
directors, employees and agents (collectively, the "INDEMNIFIED
PARTIES") from any loss, injury, damage, cause of action, liability,
claim, lien, cost or expense, including reasonable attorneys' fees and
costs, arising from the exercise by Purchaser or its employees,
consultants, agents or representatives of the right of access under this
Agreement or out of any of the foregoing. The indemnity in this SECTION
5.2.5 shall survive the Closing or any termination of this Agreement.
5.2.6 Purchaser agrees to give Seller reasonable prior written
notice of its intent to conduct any inspections or tests so that Seller
will have the opportunity to have a representative present during any
such inspection or test, the right to do which Seller expressly
reserves. Purchaser agrees to cooperate with any reasonable request by
Seller in connection with the timing of any such inspection or test.
Purchaser agrees to provide Seller upon Seller's written request with a
copy of any written inspection or test report or summary prepared by any
third party.
5.2.7 Purchaser agrees that any inspection, test or other
study or analysis of the Property shall be performed at Purchaser's
expense and in strict accordance with applicable law.
5.2.8 Purchaser agrees at its own expense to promptly repair
or restore the Property, or, at Seller's option, to reimburse Seller for
any repair or restoration costs, if any inspection or test requires or
results in any damage to or alteration of the condition of the Property.
The obligations set forth in this SECTION 5.2.8 shall survive the
Closing or any termination of this Agreement.
5.3 TITLE5.3.1 . Purchaser fully and completely approves the Title
Report (but only to the extent that there are no additional exceptions to title
other than the Permitted Encumbrances) and the Survey, as applicable, and any
matter disclosed therein.
5.4 NO OBLIGATION TO CURE. Nothing contained in this Agreement or
otherwise shall require Seller to render its title marketable or to remove or
correct any exception or matter disapproved by Purchaser or to spend any money
or incur any expense in order to do so; provided, however, Seller shall be
obligated to remove from record the lien of any mortgage or deed of trust
("MORTGAGE"). To the extent at Closing, there are additional encumbrances not
included within the Permitted Encumbrances, Purchaser shall have the right to
terminate this Agreement and receive a return of the Deposit, unless Seller a)
shall remove or correct any such encumbrance or b), subject to Purchaser's
reasonable approval, shall bond over such encumbrance.
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5.5 COPIES OF THIRD PARTY REPORTS. If Seller requests in writing,
Purchaser, within three (3) business days after such written request, shall
provide Seller with copies of all third party reports received by Purchaser with
respect to the Property.
5.6 AUDIT BY PURCHASER. 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. Prior to Closing and for a period
of ninety (90) days after Closing, Seller agrees to use reasonable efforts to
cooperate with Purchaser's auditors in the preparation of such audited financial
statements. Without limiting the generality of the preceding sentence (i) Seller
shall, during normal business hours, allow Purchaser's auditors reasonable
access to such books and records maintained on-site by Seller and in the
possession of Seller's manager of the Property in respect of the Property as
necessary to prepare such audited financial statements; (ii) Seller shall use
reasonable efforts to provide to Purchaser such financial information and
supporting documentation as are commercially reasonably necessary for
Purchaser's auditors to prepare audited financial statements; (iii) Seller will
make available for interview by Purchaser and Purchaser's auditors the manager
of the Property or other agents or representatives of Seller responsible for the
day-to-day operation of the Property and the keeping of the books and records in
respect of the operation of the Property; and (iv) if Seller has audited
financial statements with respect to the Property, Seller shall promptly provide
Purchaser's auditors with a copy of such audited financial statements. Seller
shall have no obligations under this Section 5.6 beyond ninety days after
Closing, but if Seller shall, at its sole election, elect to prepare audited
financials with respect to the Property for its term of ownership of the
Property during 2005, Seller shall provide Purchaser with a copy of such audited
financial statement.
ARTICLE VI
THE CLOSING
6.1 DATE AND MANNER OF CLOSING. Escrow Agent shall close the escrow
(the "CLOSING") as soon as all conditions to closing contained in this Agreement
have been satisfied (or deemed satisfied) or waived in writing, which shall in
any event be not later than 4:00 P.M. Eastern Time on July 6, 2005 (the "FINAL
CLOSING DATE"), time being of the essence, by recording and delivering all
documents and funds as set forth in ARTICLE VIII.
ARTICLE VII
PRORATION, FEES, COSTS AND ADJUSTMENTS
7.1 PRORATIONS. Prior to the Closing, Seller shall determine the
amounts of the prorations in accordance with this Agreement and notify Purchaser
thereof. Purchaser shall review and approve such determination promptly and
prior to the Closing, such approval not to be unreasonably withheld or delayed.
Thereafter, Purchaser and Seller shall each inform Escrow Agent of such amounts.
7.1.1 CERTAIN ITEMS PRORATED. In accordance with the
notifications, Escrow Agent shall prorate between the parties (and the
parties shall deposit funds therefor with Escrow Agent or shall instruct
Escrow Agent to debit against sums held by Escrow Agent owing to such
party), either a) as of 11:59 p.m. on the day of Closing if the balance
of the Purchase Price is received by Escrow Agent on the date of Closing
or b) as of 11:59 p.m. on the day prior to the Closing if the balance of
the Purchase Price is received by Escrow Agent on the day prior to the
date of Closing, all income and expenses with respect to the Property
and payable to or by the owner of the Property, including, without
limitation: (I) all real property taxes and assessments on the basis of
the fiscal period for which assessed (if the Closing shall occur before
the tax rate is fixed, the apportionment of taxes shall be based on the
tax rate for the preceding period applied to the latest assessed
valuation and after the Closing, when the actual real property taxes are
finally fixed, Seller and Purchaser shall promptly make a recalculation
of such proration, and the appropriate party shall make the applicable
payment reflecting the recalculation to the other party); (II) rents and
other tenant payments and tenant reimbursements (collectively, "TENANT
PAYMENTS") if any, received under the Leases; (III) Tenant Payments,
whether collected or not, for any tenant which is not delinquent on all
Tenant Payments through the month prior to the month of the Closing;
(IV) charges for water, sewer, electricity, gas, fuel and other utility
charges, all of which shall be read promptly before Closing, unless
Seller elects to close its own applicable account, in which event
Purchaser shall open its own account and the respective charges shall
not be prorated; (v) amounts prepaid and amounts accrued but unpaid on
Contracts which are to be assumed by Purchaser; and (vi) periodic fees
for licenses, permits or other authorizations with respect to the
Property. The adjustment obligation in item (i) above shall survive the
Closing pursuant to SECTION 7.1.5(2).
7.1.2 LEASING COMMISSIONS. At the Closing Purchaser shall pay
or reimburse Seller for all leasing commissions, tenant improvement
costs and other charges payable by reason of or in connection with any
Lease entered into after the Effective Date, any renewal or extension of
an existing Lease after such date, and any new lease referred to in
SECTION 13.4, provided that Purchaser has previously approved same
pursuant to SECTION 13.3 or SECTION 13.4, as applicable. Purchaser shall
be and remain responsible for any leasing commissions becoming payable
after Closing for any renewal, extension or other option under any
existing or future lease.
7.1.3 TAXES.
(1) Real property tax refunds and credits received
after the Closing which are attributable to a fiscal tax year
prior to the Closing shall belong to Seller. Any such refunds
and credits attributable to the fiscal tax year during which the
Closing occurs shall be apportioned between Seller and Purchaser
after deducting the reasonable out-of-pocket expenses of
collection thereof. This apportionment obligation shall survive
the Closing.
(2) If any tax appeal or certiorari proceedings
shall not have been finally resolved or settled prior to the
Closing and shall relate to any tax period a
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portion or all of which precedes the Closing, Seller shall be
entitled to control the disposition of any such tax appeal or
certiorari proceeding and any refunds received therefrom, net of
any expenses incurred by Seller in connection therewith, shall
be prorated between the parties on the basis of the portions
accruing to periods before and after the Closing.
7.1.4 SECURITY AND OTHER DEPOSITS. At the Closing, Seller
shall deliver to Purchaser all unapplied refundable security deposits
(plus interest accrued thereon to the extent required to be paid by the
applicable Lease or applicable law) required to be held by Seller under
the Leases and Purchaser shall pay Seller an amount equal to all utility
and contract deposits then held by third parties with respect to the
Property and transferred to Purchaser hereunder. If any security
deposits shall be held by Seller in the form of letters of credit or
surety bonds, Seller shall assign its rights thereunder to Purchaser and
shall cooperate reasonably with Purchaser in respect of the reissuance
of any such letters of credit or bonds in the name of Purchaser.
7.1.5 ADJUSTMENTS.
(1) Delinquent Tenant Payments other than such
amounts prorated pursuant to SECTION 7.1.1 (III), if any, shall
not be prorated and all rights thereto shall be retained by
Seller, who reserves the right to collect and retain such
delinquent Tenant Payments, and Purchaser agrees to cooperate
with Seller in Seller's efforts to collect such Tenant Payments;
PROVIDED, HOWEVER, that Seller shall not be entitled to commence
any disposition or eviction proceeding against the delinquent
tenant. If at any time after the Closing Purchaser shall receive
any such delinquent Tenant Payments (all of which Purchaser
shall use reasonable efforts to obtain), Purchaser shall
immediately remit such Tenant Payments to Seller, provided that
any monies received by Purchaser from a delinquent tenant shall
be applied first to current rents then due and payable and then
to delinquent rents in the inverse order in which they became
due and payable. The previous sentence shall survive the
Closing. If the Tenant Payments required to be made by any
tenants include percentage rent, additional rent or escalation
charges or reimbursements for real property taxes, operating
expenses or other charges, Seller and Purchaser shall at the
Closing reasonably estimate the unpaid amount thereof
attributable to any period prior to the Closing and Purchaser
shall pay such amount to Seller at the Closing.
(2) If real property taxes are apportioned at
Closing based on the tax rate for the preceding period applied
to the latest assessed valuation (or based on such other
estimate as the parties may agree) and if prior to December 1,
2005, actual or better estimates of tax rates and assessed
valuation become available, the parties agree to reapportion
such real property taxes based on such updated information. If
neither Seller nor Purchaser has received written request from
the other prior to such date, to reapportion such real property
taxes, then Purchaser and Seller shall each be deemed to have
waived any right to seek such reapportionment.
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(3) 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 nine (9) months after the Closing.
7.1.6 INSURANCE. Seller's existing liability and property
insurance pertaining to the Property shall be canceled as of the
Closing, and Seller shall receive any premium refund due thereon.
7.1.7 CARPET REIMBURSEMENT. At Closing, Seller shall be
credited the sum of $24,676.79 against any sums owed by Seller under
this Agreement in reimbursement of the new lobby carpet in Landmark
Center II so long as the tenant estoppel received by Purchaser at
Closing confirms tenant's obligation to pay such sum in the future to
Purchaser as the successor landlord. If such tenant shall not so confirm
such payment obligation in the estoppel certificate, Seller shall have
the continuing right after Closing to pursue such tenant for such
reimbursement directly, provided that Seller shall not have the right to
assert that tenant's failure to pay such amount can result in a loss of
possession of the premises by tenant.
7.1.8 TRANSFER OF WARRANTIES. Seller agrees to complete any
documentation that may be required by a warrantor in order to consummate
an assignment to Purchaser of any warranties included in the Property
and to pay the cost of any fee required to transfer any such warranty.
7.2 SELLER'S CLOSING COSTS. Seller shall pay (i)) one-half of Escrow
Agent's escrow fee or escrow termination charge, (ii) the cost of the Title
Report and the basic premium for the Title Policy, (iii) the cost of the Survey,
and (IV) Seller's own attorneys' fees.
7.3 PURCHASER'S CLOSING COSTS. Purchaser shall pay (I) any
documentary stamp or transfer tax, (II) one-half of Escrow Agent's escrow fee or
escrow termination charge, (III) the cost of any title insurance endorsements
ordered by Purchaser in respect of the Title Policy, (IV) the cost of any new
survey of the Property or any update of the Survey, (V) any costs incurred in
recording the Deeds or any other instruments, (VI) any costs incurred in
connection with Purchaser's investigation of the Property pursuant to ARTICLE V,
including the cost of any environmental assessment commissioned by Seller, and
(VII) Purchaser's own attorneys' fees.
ARTICLE VIII
DISTRIBUTION OF FUNDS AND DOCUMENTS
8.1 DELIVERY OF THE PURCHASE PRICE. At the Closing, Escrow Agent
shall deliver the Purchase Price to Seller, and the transaction shall not be
considered closed until such delivery occurs.
8.2 OTHER MONETARY DISBURSEMENTS. Escrow Agent shall, at the Closing
arrange for wire transfer, (I) to Seller, or order, as instructed by Seller, all
sums and any proration or other credits to which Seller is entitled and less any
appropriate proration or other charges and (II) to Purchaser, or order, any
excess funds therefore delivered to Escrow Agent by Purchaser and all
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sums and any proration or other credits to which Purchaser is entitled and less
any appropriate proration or other charges.
8.3 RECORDED DOCUMENTS. Escrow Agent shall cause the Deed and any
other documents that Seller or Purchaser desires to record to be recorded with
the appropriate county recorder and, after recording, returned to the grantee,
beneficiary or person acquiring rights under said document or for whose benefit
said document was required.
8.4 DOCUMENTS TO PURCHASER. Escrow Agent shall at the Closing
deliver by overnight express delivery to Purchaser the following:
(a) one conformed copy of the Deeds showing all recording
data;
(b) two originals of the Assignment of Leases and Contracts;
(c) two originals of the Xxxx of Sale;
(d) one original of the Notice to Tenants;
(e) two originals of the FIRPTA Affidavit;
(f) one original of a Broker's Lien Waiver from the Broker;
(g) one original of the Closing Statement; and (h) one
original of the Title Policy.
8.5 DOCUMENTS TO SELLER. Escrow Agent shall at the Closing deliver
by overnight express delivery to Seller, the following:
(a) one conformed copy of the Deed showing all recording
data;
(b) two originals of the Assignment of Leases and Contracts;
(c) two originals of the Xxxx of Sale;
(d) one copy of the Notice to Tenants;
(e) two originals of the FIRPTA Affidavit;
(f) one original of a Broker's Lien Waiver from the Broker;
(g) one original of the Closing Statement; and
(h) one copy of the Title Policy.
8.6 ALL OTHER DOCUMENTS. Escrow Agent shall at the Closing deliver
by overnight express delivery, each other document received hereunder by Escrow
Agent to the person acquiring rights under said document or for whose benefit
said document was required.
ARTICLE IX
RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
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9.1 RETURN OF SELLER'S DOCUMENTS. If escrow or this Agreement is
terminated for any reason, Purchaser shall, within five days following such
termination, deliver to Seller all documents and materials relating to the
Property previously delivered to Purchaser by Seller. Escrow Agent shall deliver
all documents and materials deposited by Seller and then in Escrow Agent's
possession to Seller and shall destroy any documents executed by both Purchaser
and Seller. Upon delivery by Escrow Agent to Seller (or such destruction, as
applicable) of such documents and materials, Escrow Agent's obligations with
regard to such documents and materials under this Agreement shall be deemed
fulfilled and Escrow Agent shall have no further liability with regard to such
documents and materials to either Seller or Purchaser.
9.2 RETURN OF PURCHASER'S DOCUMENTS. If escrow or this Agreement is
terminated for any reason, Escrow Agent shall deliver all documents and
materials deposited by Purchaser and then in Escrow Agent's possession to
Purchaser and shall destroy any documents executed by both Purchaser and Seller.
Upon delivery by Escrow Agent to Purchaser (or such destruction, as applicable)
of such documents and materials, Escrow Agent's obligations with regard to such
documents and materials under this Agreement shall be deemed fulfilled and
Escrow Agent shall have no further liability with regard to such documents and
materials to either Seller or Purchaser.
9.3 DEPOSIT. If escrow or this Agreement is terminated (I) pursuant
to SECTION 10.2 or ARTICLE XII or (II) due to the failure of a condition set
forth in SECTION 3.1 or SECTION 3.3, then, subject to SECTION 5.2, Purchaser
shall be entitled to obtain the return of the Deposit pursuant to SECTION 9.4
below. If the Closing does not take place and escrow or this Agreement is
terminated for any other reason, Seller shall be entitled to the Deposit by
retaining or causing Escrow Agent to deliver the Deposit to Seller pursuant to
SECTION 9.4 below.
9.4 DISBURSEMENT OF DEPOSIT. If Escrow Agent receives a notice from
either party instructing Escrow Agent to deliver the Deposit to such party,
Escrow Agent shall deliver a copy of the notice to the other party within three
(3) business days after receipt of the notice. If the other party does not
object to the delivery of the Deposit as set forth in the notice within three
(3) business days after receipt of the copy of the notice, Escrow Agent shall,
and is hereby authorized to, deliver the Deposit to the party requesting it
pursuant to the notice. Any objection hereunder shall be by notice setting forth
the nature and grounds for the objection and shall be sent to Escrow Agent and
to the party requesting the Deposit.
9.5 NO EFFECT ON RIGHTS OF PARTIES; SURVIVAL. The return of
documents and monies as set forth above shall not affect the right of either
party to seek such legal or equitable remedies as such party may have under
ARTICLE X with respect to the enforcement of this Agreement. The obligations
under this ARTICLE IX shall survive termination of this Agreement.
ARTICLE X
DEFAULT
10.1 SELLER'S REMEDIES. If, for any reason whatsoever (other than the
failure of a condition set forth in SECTION 3.1 or SECTION 3.3 and other than a
termination of this Agreement pursuant to, SECTION 10.2 or ARTICLE XII),
Purchaser fails to complete the acquisition as herein provided, Purchaser shall
be in breach of its obligations hereunder, and Seller shall be entitled, as
14
its sole and exclusive remedy, to retain the Deposit and Seller shall be
released from any further obligations hereunder. BY INITIALING BELOW, PURCHASER
AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT SELLER'S ACTUAL DAMAGES IN THE
EVENT OF SUCH A BREACH OF THIS AGREEMENT BY PURCHASER WOULD BE EXTREMELY
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT IS THE
PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER IN
THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE, AND
THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF
THIS AGREEMENT. PURCHASER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE
DEPOSIT SHALL BE THE SOLE REMEDY OF SELLER AT LAW IN THE EVENT OF SUCH A BREACH
OF THIS AGREEMENT BY PURCHASER. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS SECTION 10.1, IF PURCHASER BRINGS AN ACTION AGAINST SELLER FOR
AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT,
RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER'S ABILITY TO SELL
AND TRANSFER THE PROPERTY OR REFUSES TO CONSENT TO OR INSTRUCT RELEASE OF THE
DEPOSIT TO SELLER IF REQUIRED BY ESCROW AGENT (EACH A "PURCHASER'S ACTION"),
SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION 10.1 FROM
BRINGING AN ACTION AGAINST PURCHASER SEEKING EXPUNGEMENT OR RELIEF FROM ANY
IMPROPERLY FILED LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING
FEES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) WHICH SELLER MAY SUFFER OR
INCUR AS A RESULT OF ANY PURCHASER'S ACTION BUT ONLY TO THE EXTENT THAT SELLER
IS THE PREVAILING PARTY; AND THE AMOUNT OF ANY SUCH FEES, COSTS AND EXPENSES
AWARDED TO SELLER SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH
HEREIN. NOTHING IN THIS AGREEMENT SHALL, HOWEVER, BE DEEMED TO LIMIT PURCHASER'S
LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF PURCHASER'S
INDEMNITY OBLIGATIONS UNDER SECTION 5.2.5 ABOVE OR FOR ATTORNEYS' FEES AND COSTS
AS PROVIDED IN SECTION 16.5 BELOW.
ACCEPTED AND AGREED TO:
---------------------- ----------------------
Seller Purchaser
10.2 PURCHASER'S REMEDIES. If the sale is not completed as herein
provided solely by reason of a default of Seller, Purchaser shall be entitled,
as its sole and exclusive remedy, to either (i) (a) terminate this Agreement (by
delivering notice to Seller which includes a waiver of any right, title or
interest of Purchaser in the Property) and (b) if Purchaser so elects, pursue an
action at law for recovery of Purchaser's actual out-of-pocket third-party costs
incurred as part of Purchaser's due diligence efforts hereunder, subject to a
cap of $25,000, which action must be
15
commenced, if at all, within the thirty (30) day period following the occurrence
of such material default of Seller (the "LIMITATION PERIOD"); or (ii) treat this
Agreement as being in full force and effect and pursue only the specific
performance of this Agreement, provided that Purchaser must commence any action
for specific performance within thirty (30) days after the scheduled Final
Closing Date. Purchaser waives any right to pursue any other remedy at law or
equity for such default of Seller, including, without limitation, any right to
seek, claim or obtain damages (other than for costs under (i) (b) above),
punitive damages or consequential damages. In no case shall Seller ever be
liable to Purchaser under any statutory, common law, equitable or other theory
of law, either prior to or following the Closing, for any lost rents, profits,
"benefit of the bargain," business opportunities or any form of consequential
damage in connection with any claim, liability, demand or cause of action in any
way or manner relating to the Property, the condition of the Property, this
Agreement, or any transaction or matter between the parties contemplated
hereunder. Purchaser's remedies hereunder are in addition to the right to
receive the return of the Deposit, subject to Section 9.4, to the extent it is
not applied to the Purchase Price in connection with Purchaser's action for
specific performance.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 SELLER'S WARRANTIES AND REPRESENTATIONS. The matters set forth
in this SECTION 11.1 constitute representations and warranties by Seller which
are now and (subject to matters contained in any notice given pursuant to the
next succeeding sentence) shall, in all material respects, at the Closing be
true and correct. If Seller has actual knowledge that any of the representations
and warranties contained in this ARTICLE XI may cease to be true, Seller shall
give prompt notice to Purchaser (which notice shall include copies of the
instrument, correspondence, or document, if any, upon which Seller's notice is
based). As used in this SECTION 11.1, the phrase "to the extent of Seller's
actual knowledge" shall mean, in this Agreement and any other instruments
executed by Seller, the actual knowledge of Xxxxx Xxxxxx, the asset manager of
Advisor responsible for the Property (the "PROPERTY Manager(s)"). There shall be
no duty imposed or implied to investigate, inquire, inspect, or audit any such
matters, and there shall be no personal liability on the part of such Property
Manager(s). To the extent Purchaser has or acquires actual knowledge or is
deemed to know prior to the date of this Agreement that these representations
and warranties are inaccurate, untrue or incorrect in any way, such
representations and warranties shall be deemed modified to reflect Purchaser's
knowledge or deemed knowledge. Purchaser shall be deemed to know a
representation or warranty is untrue, inaccurate or incorrect if this Agreement
or any files, documents, materials, analyses, studies, tests, or reports
disclosed or made available to Purchaser prior to the date of this Agreement
contains information which is inconsistent with such representation or warranty.
11.1.1 BROKER. Seller represents and warrants to Purchaser that
it has not dealt with any broker or finder in connection with this sale
other than Xxxxxxx and Wakefield of Texas, Inc. (the "BROKER"). Seller
shall pay the brokerage commission due to Broker pursuant to a separate
agreement and Seller hereby agrees to indemnify, reimburse, defend and
hold harmless Purchaser from and against any and all costs, expenses,
liabilities, claims, demands, suits, judgments and interest, including,
without being limited to, reasonable attorneys' fees and disbursements,
arising out of or in connection with any claim by any other broker or
agent with respect to this Agreement, the
16
negotiation of this Agreement or the transaction contemplated herein
based on the acts of Seller. The provisions of this SECTION 11.1.1 shall
survive Closing or any termination of this Agreement.
11.1.2 ORGANIZATION. Seller has been duly formed, validly
exists and is in good standing in the jurisdiction of its formation and
in the state in which the Property is located.
11.1.3 POWER AND AUTHORITY. Seller has the legal power, right
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
11.1.4 PROCEEDINGS. Seller has not received any written notice
of any pending or threatened condemnation or similar proceeding
affecting any part of the Property.
11.1.5 CONTRAVENTION. Seller is not prohibited from
consummating the transactions contemplated by this Agreement by any law,
regulation, agreement, instrument, restriction, order or judgment.
11.1.6 LEASES AND CONTRACTS. The Leases and Contracts comprise
all of the leases and material contracts that will affect the Property
on and after the Closing.
11.1.7 COMPLIANCE. Seller has not received written notice from
any governmental authority that the Property is not in material
compliance with all applicable laws, except for such failures to comply,
if any, which have been remedied.
11.1.8 EMPLOYEES. Seller has no employees on-site at the
Property providing on-site services to the Property and all such
services are performed by Seller's manager of the Property.
11.1.9 LITIGATION. To the extent of Seller's actual knowledge,
there is no material litigation affecting the Property which litigation
is not covered by insurance.
11.1.10 NO CLAIMED OFFSETS. No tenant under the Leases has
asserted in writing any claim or offset which would in any way affect
the collection of rent from such tenant, nor has any tenant given any
written notice to Seller of its intention to terminate its tenancy.
11.1.11 LEASING COMMISSIONS. All leasing commissions which are
attributable solely to the execution of Leases existing as of the
Effective Date or the move-in of tenants occupying the Property as of
the Effective Date have been paid in full.
11.1.12 PATRIOT ACT. Seller is not a person and/or entity with
whom Purchaser, a U.S. company or person, is restricted from doing
business under the International Emergency Economic Powers Act, 50
U.S.C. ss. 1701 et seq.; the Trading with the Enemy Act, 50 U.S.C. App.
ss. 5; any executive orders promulgated thereunder; any implementing
regulations promulgated thereunder by the U.S. Department of Treasury
Office of Foreign Assets Control ("OFAC") (including those persons
and/or
17
entities named on OFAC's List of Specially Designated Nationals and
Blocked Persons (the "SDN List")); or any other applicable law of the
United States.
11.1.13 PATRIOT ACT NOTICE. Seller hereby covenants and agrees
that if Seller obtains knowledge that Seller or Tower Fund Landmark LLC
or Metropolitan Life Insurance Company becomes listed on the SDN List or
is indicted, arraigned, or custodially detained on charges involving
money laundering or predicate crimes to money laundering, Seller shall
immediately notify Purchaser in writing, and in such event, Purchaser
shall have the right to terminate this Agreement without penalty or
liability to Purchaser immediately upon delivery of written notice
thereof to Seller.
11.2 PURCHASER'S WARRANTIES AND REPRESENTATIONS. The matters set
forth in this SECTION 11.2 constitute representations, warranties and covenants
by Purchaser which are now and shall, at the Closing, be true and correct.
11.2.1 BROKER. Purchaser represents and warrants to Seller that
it has not dealt with any broker or finder in connection with this sale,
other than Broker. Purchaser hereby agrees to indemnify, reimburse,
defend and hold harmless the Indemnified Parties from and against any
and all costs, expenses, liabilities, claims, demands, suits, judgments
and interest, including, without being limited to, reasonable attorneys'
fees and disbursements, arising out of or in connection with any claim
by any other broker or agent with respect to this Agreement, the
negotiation of this Agreement or the transaction contemplated herein
based on the acts of Purchaser. The provisions of this SECTION 11.2.1
shall survive Closing or any termination of this Agreement.
11.2.2 POWER AND AUTHORITY. Purchaser has the legal power,
right and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
11.2.3 INDEPENDENT INVESTIGATION. The consummation of this
transaction shall constitute Purchaser's acknowledgment that it has
independently inspected and investigated the Property and has made and
entered into this Agreement based upon such inspection and investigation
and its own examination of the condition of the Property.
11.2.4 PURCHASER RELIANCE. Purchaser is experienced in and
knowledgeable about the ownership and management of real estate, and it
has relied and will rely exclusively on its own consultants, advisors,
counsel, employees, agents, principals and/or studies, investigations
and/or inspections with respect to the Property, its condition, value
and potential. Purchaser agrees that, notwithstanding the fact that it
has received certain information from Seller or its agents or
consultants, Purchaser has relied solely upon and will continue to rely
solely upon its own analysis and will not rely on any information
provided by Seller or its agents or consultants, except as expressly set
forth in SECTION 11.1.
11.2.5 PATRIOT ACT. Purchaser is not a person and/or entity
with whom Seller, a U.S. company or person, is restricted from doing
business under the International Emergency Economic Powers Act, 50
U.S.C. ss. 1701 et seq.; the Trading with the Enemy Act, 50 U.S.C. App.
ss. 5; any executive orders promulgated thereunder; any
18
implementing regulations promulgated thereunder by the U.S. Department
of Treasury Office of Foreign Assets Control ("OFAC") (including those
persons and/or entities named the SDN List); or any other applicable law
of the United States.
11.2.6 PATRIOT ACT NOTICE. Purchaser hereby covenants and
agrees that if Purchaser obtains knowledge that Purchaser or any of its
beneficial owners becomes listed on the SDN List or is indicted,
arraigned, or custodially detained on charges involving money laundering
or predicate crimes to money laundering, Purchaser shall immediately
notify Seller in writing, and in such event, Seller shall have the right
to terminate this Agreement without penalty or liability to Purchaser
immediately upon delivery of written notice thereof to Purchaser.
11.3 NO OTHER WARRANTIES AND REPRESENTATIONS. Except as specifically
set forth in this ARTICLE XI, neither Seller nor Advisor has made, make or have
authorized anyone to make, any warranty or representation as to the Leases, the
Contracts, any written materials delivered to Purchaser, the persons preparing
such materials, the truth, accuracy or completeness of such materials, the
present or future physical condition, development potential, zoning, building or
land use law or compliance therewith, the operation, income generated by, or any
other matter or thing affecting or relating to the Property or any matter or
thing pertaining to this Agreement. Purchaser expressly acknowledges that no
such warranty or representation has been made and that Purchaser is not relying
on any warranty or representation whatsoever other than as is expressly set
forth in this ARTICLE XI. Purchaser shall accept the Property "as is" and in its
condition on the date of Closing subject only to the express provisions of this
Agreement and hereby acknowledges and agrees that SELLER HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE, OF, AS TO, CONCERNING OR WITH
RESPECT TO, THE PROPERTY.
11.3.1 ENVIRONMENTAL REPRESENTATIONS. Seller makes no
representations or warranties as to whether the Property contains
asbestos, radon or any hazardous materials or harmful or toxic
substances, or pertaining to the extent, location or nature of same, if
any. Further, to the extent that Seller has provided to Purchaser
information from any inspection, engineering or environmental reports
concerning asbestos, radon or any hazardous materials or harmful or
toxic substances, Seller makes no representations or warranties with
respect to the accuracy or completeness, methodology of preparation or
otherwise concerning the contents of such reports.
11.3.2 RELEASE OF CLAIMS. Subject to the express provisions
hereof, Purchaser acknowledges and agrees that Seller makes no
representation or warranty as to, and Purchaser, for itself, its
successors and assigns, hereby waives and releases the Indemnified
Parties from any present or future claims, at law or in equity, whether
known or unknown, foreseeable or otherwise, arising from or relating to,
the Property, this Agreement or the transactions contemplated hereby,
including without limitation the presence or alleged presence of
asbestos, radon or any hazardous materials or harmful or toxic
substances in, on, under or about the Property, including without
limitation any
19
claims under or on account of (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as the same may have
been or may be amended from time to time, and similar state statutes,
and any regulations promulgated thereunder, (ii) any other federal,
state or local law, ordinance, rule or regulation, now or hereafter in
effect, that deals with or otherwise in any manner relates to,
environmental matters of any kind, (iii) this Agreement, or (iv) the
common law. Purchaser hereby specifically acknowledges that Purchaser
has carefully reviewed this SECTION 11.3.2 and has discussed its import
with legal counsel and that the provisions of this SECTION 11.3.2 are a
material part of this Agreement.
This SECTION 11.3.2 shall survive the Closing forever.
ARTICLE XII
CASUALTY AND CONDEMNATION
Promptly upon learning thereof, Seller shall give Purchaser written
notice of any condemnation, damage or destruction of the Property occurring
prior to the Closing. If prior to the Closing all or a material portion of the
Property is condemned, damaged or destroyed by an insured casualty, Purchaser
shall have the option of either (I) applying the proceeds of any condemnation
award or payment under any insurance policies (other than business interruption
or rental loss insurance) toward the payment of the Purchase Price to the extent
such condemnation awards or insurance payments have been received by Seller,
receiving from Seller an amount equal to any applicable deductible under any
such insurance policy and receiving an assignment from Seller of Seller's right,
title and interest in any such awards or payments not theretofore received by
Seller, or (II) terminating this Agreement by delivering written notice of such
termination to Seller within ten (10) days after Purchaser has received written
notice from Seller of such material condemnation, damage or destruction in which
case the Deposit shall be refunded to Purchaser, subject to Section 5.2. If,
prior to the Closing, a portion of the Property is condemned, damaged or
destroyed and such portion is not a material portion of the Property, the
proceeds of any condemnation award or insurance payment and any applicable
deductible under any insurance policies shall be applied toward the payment of
the Purchase Price to the extent such condemnation awards or insurance payments
have been received by Seller and Seller shall assign to Purchaser all of
Seller's right, title and interest in any unpaid awards or payments. For
purposes of this ARTICLE XII, the term "material portion" shall mean greater
than ten percent (10%) of the improvements on the Property or an absence of
reasonable access to or parking upon the Property. If the damage or destruction
arises out of an uninsured risk, Seller shall elect, by written notice within
ten (10) days of the occurrence of such damage or destruction either to
terminate this Agreement or to close the transaction contemplated hereby with a
reduction of the Purchase Price equal to the costs of repairing the Property, as
reasonably estimated by an engineer engaged by Seller and reasonably acceptable
to Purchaser. Seller and Purchase acknowledge that the provisions of Article XII
are intended to supercede ss.5.007 of the Texas Property Code.
ARTICLE XIII
CONDUCT PRIOR TO CLOSING
20
13.1 CONDUCT. From and after the date hereof, Seller shall operate
the Property in accordance with its standard business procedures.
13.2 ACTIONS PROHIBITED. Seller shall not, without the prior written
approval of Purchaser, which approval will not be unreasonably withheld or
delayed:
(1) make any material structural alterations or additions to
the Property except as (a) in the ordinary course of operating the
Property, (b) required for maintenance and repair, (c) required by any
of the Leases or the Contracts or (d) required by this Agreement;
(2) sell, transfer, encumber or change the status of title
of all or any portion of the Property;
(3) change or attempt to change, directly or indirectly, the
current zoning of the Real Property in a manner materially adverse to
it; or
(4) cancel, amend or modify, in a manner materially adverse
to the Property, any license or permit held by Seller with respect to
the Property or any part thereof which would be binding upon Purchaser
after the Closing.
13.3 MODIFICATION OF EXISTING LEASES AND CONTRACTS. Seller may not,
without the prior written consent of Purchaser (which consent shall not be
unreasonably withheld or delayed), cancel, amend, or modify any Contracts or
Leases, in a manner binding upon Purchaser after the Closing. If Seller shall
request Purchaser's approval of any of the foregoing matters, Purchaser shall
have five (5) business days from its receipt of such request to give Seller
notice of its approval or disapproval of such matter. If Purchaser does not give
such notice within such five (5) business day period, such matter shall be
deemed approved by Purchaser.
13.4 NEW LEASES AND CONTRACTS. Seller may not enter into any new
lease or contract without Purchaser's consent, which consent will not be
unreasonably withheld or delayed Notwithstanding the preceding sentence, Seller
may enter into any new contracts without Purchaser's consent if doing so is in
the ordinary course of operating the Property and the contract (i) will not be
binding on Purchaser or (ii) is cancelable on thirty (30) days or less notice
without penalty or premium. If Seller shall request Purchaser's approval to any
of the foregoing matters, Purchaser shall have five (5) business days from its
receipt of such request to give Seller notice of its approval or disapproval of
such matter. If Purchaser does not give such notice within such five (5)
business day period, such matter shall be deemed approved by Purchaser.
CONFIDENTIALITY. a) Seller and Purchaser shall, prior to the Closing, maintain
the confidentiality of this sale and purchase and shall not, except as required
by law or governmental regulation applicable to Seller or Purchaser, disclose
the terms of this Agreement or of such sale and purchase to any third parties
whomsoever other than investors or prospective investors in Seller or Purchaser
or the principals of Broker, Escrow Agent, the Title Company and such other
persons whose assistance is required in carrying out the terms of this
Agreement. Purchaser agrees that all documents and information regarding the
Property of whatsoever nature made available to it by Seller or Seller's agents
and the results of all tests and studies of the Property (collectively, the
"PROPRIETARY INFORMATION") are confidential and Purchaser shall not disclose
21
any Proprietary Information to any other person. Notwithstanding the foregoing
provisions, however (i) Purchaser and Seller may disclose information (including
Proprietary Information) to its consultants, attorneys, accountants, prospective
investors and lenders, and others who need to know the information for the
purpose of assisting in connection with the transaction that is the subject of
this Agreement; (ii) the foregoing covenant of confidentiality shall not be
applicable to any information published as public knowledge or otherwise
available in the public domain; and (iii) Purchaser and Seller shall be
permitted to disclose such information as may be recommended by Purchaser's or
Seller's legal counsel in order to comply with all financial reporting,
securities laws and other legal requirements applicable to Purchaser or Seller,
including any required disclosures to the Securities and Exchange Commission.
The provisions of this SECTION 13.5 shall not survive the Closing.
b). Neither Seller nor Purchaser shall at any time issue a press release or
otherwise communicate with media representatives regarding this sale and
purchase unless such release or communication has received the prior written
approval of the other party, provided, however, either party shall have the
right after Closing to issue a press release or private communication announcing
the sale and acquisition of the Property and the resulting ownership and control
of the Property, without prior written approval of the other so long as the
other party is not identified in such release and the release does not disclose
the economic terms thereof. The provisions of this SECTION 13.5 shall survive
the Closing.
13.5 RIGHT TO CURE. If any title defect or other matter which would
entitle Purchaser to terminate this Agreement or if Seller shall have breached
any representation or warranty hereunder, Seller may elect, by written notice to
Purchaser, to cure such title defect or other matter by causing it to be
removed, insured over or bonded to cure such breach and Seller may adjourn the
Closing for up to thirty days to do so. Nothing contained in this SECTION 13.6
shall require Seller to cure any such title defect or other matter or to incur
any liability or expense to do so.
13.6 MANAGEMENT AGREEMENTS. Any and all property management contracts
and leasing agreements with respect to the Property shall be terminated by
Seller as of the Closing, with Seller having fully paid and discharged any and
all obligations accruing thereunder (other than with respect to leasing
commissions as to future renewals, expansions and the like).
ARTICLE XIV
NOTICES
All notices, demands or other communications given hereunder shall be in
writing and shall be deemed to have been duly delivered (i) upon the delivery
(or refusal to accept delivery) by messenger or overnight express delivery
service (or, if such date is not on a business day, on the business day next
following such date), or (ii) on the third (3rd) business day next following the
date of its mailing by certified mail, postage prepaid, at a post office
maintained by the United States Postal Service, or (iii) upon the receipt by
facsimile transmission as evidenced by a receipt transmission report (followed
by delivery by one of the other means identified in (i)-(ii)), addressed as
follows:
22
If to Purchaser, to: Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Facsimile: 000-000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to Seller, to: c/o BlackRock Realty Advisors, Inc.
00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxx Xxxx, Director of Investment Analysis
Facsimile: 000-000-0000
and c/o BlackRock Realty Advisors, Inc.
00 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxx, Esq.
Facsimile: 000 000-0000
If to Escrow Agent, to: Xxxx Xxxxxxxxx
Xxxxxxx Title Guaranty Company
National Commercial Closing Specialist
National Title Division
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
Either party may, by notice given as aforesaid, change the address or addresses,
or designate an additional address or additional addresses, for its notices,
provided, however, that no notice of a change of address shall be effective
until actual receipt of such notice.
ARTICLE XV
TRANSFER OF POSSESSION
15.1 TRANSFER OF POSSESSION. Possession of the Property shall be
transferred to Purchaser at the time of Closing subject to the Permitted
Encumbrances.
15.2 DELIVERY OF DOCUMENTS AT CLOSING. At the time of Closing, Seller
shall deliver to Purchaser originals or copies of any additional documents,
instruments or records in the possession of Seller or its agents which are
necessary for the ownership and operation of the Property.
ARTICLE XVI
GENERAL PROVISIONS
23
16.1 CAPTIONS. Captions in this Agreement are inserted for
convenience of reference only and do not define, describe or limit the scope or
the intent of this Agreement or any of the terms hereof.
16.2 EXHIBITS. All exhibits referred to herein and attached hereto
are a part hereof.
16.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the transaction contemplated hereby and all
prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein.
16.4 MODIFICATION. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is in writing and signed
by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought.
16.5 ATTORNEYS' FEES. Should any party hereto employ an attorney for
the purpose of enforcing or construing this Agreement, or any judgment based on
this Agreement, in any legal proceeding whatsoever, including insolvency,
bankruptcy, arbitration, declaratory relief or other litigation, the prevailing
party shall be entitled to receive from the other party or parties thereto
reimbursement for all reasonable attorneys' fees and all costs, whether incurred
at the trial or appellate level, including but not limited to service of
process, filing fees, court and court reporter costs, investigative costs,
expert witness fees and the cost of any bonds, whether taxable or not, and such
reimbursement shall be included in any judgment, decree or final order issued in
that proceeding. The "prevailing party" means the party in whose favor a
judgment, decree, or final order is rendered.
16.6 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas.
16.7 TIME OF ESSENCE. Time is of the essence to this Agreement and to
all dates and time periods set forth herein.
16.8 SURVIVAL OF WARRANTIES16.8.1 . Unless otherwise expressly herein
stated to survive, all representations, covenants, indemnities, conditions and
agreements contained herein shall merge into and be superseded by the various
documents executed and delivered at Closing and shall not survive the Closing.
It is specifically agreed that the representations, warranties and covenants
made by Seller in SECTION 11.1 and ARTICLE 13 shall survive Closing for a period
of six (6) months.
16.9 ASSIGNMENT BY PURCHASER. Purchaser may not assign its rights
under this Agreement 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 so long as reasonably acceptable ERISA representations from such
Affiliate are made to Seller. For purposes of this SECTION 16.9, the term
"AFFILIATE" shall mean: (i) an entity that controls, is controlled by, or is
under common control with Purchaser; (ii) any partnership in which Purchaser or
Purchaser's controlling member is the general partner; (iii) any fund or entity
sponsored by Purchaser; or (iv) any entity that retains Purchaser or a company
affiliated with Purchaser to manage the Property.
24
16.10 SEVERABILITY. If any term, covenant, condition, provision or
agreement herein contained is held to be invalid, void or otherwise
unenforceable by any court of competent jurisdiction, the fact that such term,
covenant, condition, provision or agreement is invalid, void or otherwise
unenforceable shall in no way affect the validity or enforceability of any other
term, covenant, condition, provision or agreement herein contained.
16.11 SUCCESSORS AND ASSIGNS. All terms of this Agreement shall be
binding upon, inure to the benefit of and be enforceable by, the parties hereto
and their respective legal representatives, successors and assigns (subject to
SECTION 16.9).
16.12 INTERPRETATION. Seller and Purchaser acknowledge each to the
other that both they and their counsel have reviewed and revised this Agreement
and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.
16.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
16.14 RECORDATION. This Agreement may not be recorded and any attempt
to do so shall be of no effect whatsoever.
16.15 LIMITATION ON LIABILITY. In any action brought to enforce the
obligations of Seller under this Agreement or any other document delivered in
connection herewith, the judgment or decree shall be subject to the provisions
of SECTION 16.8. In no event shall Seller have any liability to Purchaser unless
and until the damages suffered by Purchaser as a result thereof shall equal or
exceed $25,000.00 and otherwise in any event, the liability of TFLLP and MILICSA
in the aggregate shall be enforceable against Seller only up to a maximum of
$500,000.00 ("MAXIMUM LIABILITY CAP"). In connection with this Agreement,
Advisor is acting as the investment adviser to Seller, and Advisor shall not
have any individual liability hereunder. As of the date of this Agreement, a
commingled separate account of Metropolitan Life Insurance Company ("METLIFE")
referred to as the "TOWER FUND" (the "SEPARATE ACCOUNT") is the sole member of
Tower Fund Landmark LLC, the general partner of TFLLP and the sole limited
partner of TFLLP, and MetLife on behalf of the Separate Account owns fee title
to Landmark Center II. Purchaser acknowledges and agrees that Purchaser shall
have no recourse against any other property or assets of MetLife, the general
account of MetLife, any separate account of MetLife, any assets of the Advisor,
or to any of the past, present or future, direct or indirect, shareholders,
partners, members, managers, principals, directors, officers, agents,
incorporators, affiliates or representatives of Seller or the Advisor
(collectively, "SELLER PARTIES") except for the Real Property (and the proceeds
from the sale thereof), but only up to the Maximum Liability Cap, or of any of
the assets or property of any of the Seller Parties for the payment or
collection of any amount, judgment, judicial process, arbitral award, fee or
cost or for any other obligation or claim arising out of or based upon this
Agreement and requiring the payment of money by Seller except for the Real
Property (and the proceeds from the sale thereof) but only up to the Maximum
Liability Cap. The Seller Parties shall not be subject to levy, lien, execution,
attachment or other enforcement procedure for the satisfaction of any of
Purchaser's rights or remedies under or with respect to this Agreement, at law,
in equity or
25
otherwise, provided the foregoing shall not limit the rights of Purchaser to
pursue claims against the Real Property (and the proceeds from the sale thereof)
but only up to the Maximum Liability Cap. Purchaser shall not seek enforcement
of any judgment, award, right or remedy against any property or asset of any of
the Seller Parties, other than the Real Property (and the proceeds from the sale
thereof) but only up to the Maximum Liability Cap. Nothing contained in this
Agreement shall be deemed or construed to be an acknowledgment or agreement by
Seller, MetLife or any other Seller Party that they do no have and maintain,
respectively, separate existences, identities and integrity from the others, or
that their separate existences, identities and integrity are impaired or should
be disregarded in any manner whatsoever or that MetLife is a party to this
Agreement. The provisions of this Section are intended and shall be construed to
be a limitation on liability only and shall not be deemed or be construed to
create any liability or obligation of the Seller or any of the Seller Parties.
The provisions of this Section shall survive the termination of this Agreement.
16.16 POSSESSION OF ADVISOR. As used in this Agreement, the
"possession" or "receipt" of a document, notice or similar writing by Seller
shall be deemed to be only the possession, receipt or notice of such document by
Advisor.
16.17 BUSINESS DAY. As used in this Agreement, "business day" shall be
deemed to be any day other than a day on which banks in the state of Texas shall
be permitted or required to close. If any day upon which action is to be taken
hereunder is not a business day, then the deadline for taking such action shall
be extended until the next business day.
16.18 WAIVER OF JURY TRIAL. PURCHASER AND SELLER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER
WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS AGREEMENT OR ANY CLAIMS OR DEFENSES ASSERTING THAT THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO AND ACCEPT THIS
AGREEMENT AND THE DOCUMENTS TO BE DELIVERED BY PURCHASER AT CLOSING, AND SHALL
SURVIVE THE CLOSING OR TERMINATION OF THIS AGREEMENT. Each party hereby
authorizes and empowers the other to file this SECTION 16.18 and this Agreement
with the clerk or judge of any court of competent jurisdiction as a written
consent to waiver of jury trial.
16.19 EFFECTIVE DATE. 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").
ARTICLE XVII
ESCROW AGENT DUTIES AND DISPUTES
26
17.1 OTHER DUTIES OF ESCROW AGENT. Escrow Agent shall not be bound in
any way by any other agreement or contract between Seller and Purchaser, whether
or not Escrow Agent has knowledge thereof. Escrow Agent's only duties and
responsibilities with respect to the Deposit shall be to hold the Deposit and
other documents delivered to it as agent and to dispose of the Deposit and such
documents in accordance with the terms of this Agreement. Without limiting the
generality of the foregoing, Escrow Agent shall have no responsibility to
protect the Deposit and shall not be responsible for any failure to demand,
collect or enforce any obligation with respect to the Deposit or for any
diminution in value of the Deposit from any cause, other than Escrow Agent's
gross negligence or willful misconduct. Escrow Agent may, at the expense of
Seller and Purchaser, consult with counsel and accountants in connection with
its duties under this Agreement. Escrow Agent shall not be liable to the parties
hereto for any act taken, suffered or permitted by it in good faith in
accordance with the advice of counsel and accountants. Escrow Agent shall not be
obligated to take any action hereunder that may, in its reasonable judgment,
result in any liability to it unless Escrow Agent shall have been furnished with
reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.
17.2 DISPUTES. Escrow Agent is acting as a stakeholder only with
respect to the Deposit. If there is any dispute as to whether Escrow Agent is
obligated to deliver the Deposit or as to whom the Deposit is to be delivered,
Escrow Agent shall not make any delivery, but shall hold the Deposit until
receipt by Escrow Agent of an authorization in writing, signed by all the
parties having an interest in the dispute, directing the disposition of the
Deposit, or, in the absence of authorization, Escrow Agent shall hold the
Deposit until the final determination of the rights of the parties in an
appropriate proceeding. Escrow Agent shall have no responsibility to determine
the authenticity or validity of any notice, instruction, instrument, document or
other item delivered to it, and it shall be fully protected in acting in
accordance with any written notice, direction or instruction given to it under
this Agreement and believed by it to be authentic. If written authorization is
not given, or proceedings for a determination are not begun, within thirty (30)
days after the date scheduled for the closing of title and diligently continued,
Escrow Agent may, but is not required to, bring an appropriate action or
proceeding for leave to deposit the Deposit with a court of the State of Texas
pending a determination. Escrow Agent shall be reimbursed for all costs and
expenses of any action or proceeding, including, without limitation, attorneys'
fees and disbursements incurred in its capacity as Escrow Agent, by the party
determined not to be entitled to the Deposit. Upon making delivery of the
Deposit in the manner provided in this Agreement, Escrow Agent shall have no
further liability hereunder. In no event shall Escrow Agent be under any duty to
institute, defend or participate in any proceeding that may arise between Seller
and Purchaser in connection with the Deposit.
17.3 REPORTS. Escrow Agent shall be responsible for the timely filing
of any reports or returns required pursuant to the provisions of Section 6045(e)
of the Internal Revenue Code of 1986 (and any similar reports or returns
required under any state or local laws) in connection with the closing of the
transaction contemplated by this Agreement.
27
IN WITNESS WHEREOF, this Agreement has been executed as of the Effective
Date.
SELLER:
For Landmark Center I
TFLLP:
TOWER FUND LANDMARK LIMITED
PARTNERSHIP, a Texas limited partnership
By: Tower Fund Landmark LLC,
a Delaware limited liability company
Its: General Partner
By: BlackRock Realty Advisors, Inc.,
a Delaware corporation,
Its: Manager
By:______________________________
Name:____________________________
Title:___________________________
For Landmark II
MLICSA:
Metropolitan Life Insurance Company, on behalf
of a commingled separate account
By: BlackRock Realty Advisors, Inc., a Delaware
corporation, its investment advisor
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
28
PURCHASER:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
1
CONSENT AND AGREEMENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (I) accept the foregoing
Agreement, (II) be escrow agent under said Agreement, and (iii) be bound by said
Agreement in the performance of its duties as escrow agent. Escrow Agent
acknowledges receipt of a counterpart of this Agreement executed by Seller and
Purchaser on the _____ day of May, 2005, which date shall be deemed the
"Effective Date" of this Agreement.
XXXXXXX TITLE GUARANTY COMPANY
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
A-1
EXHIBIT A
DESCRIPTION OF LAND
LANDMARK CENTER I
TRACT I: Lots 4 in Block N/8763, of LANDMARK CENTER ADDITION, an addition to the
City of Dallas, Dallas County, Texas, according to the Map or Plat thereof
recorded in Volume J, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT II: Non-exclusive easement estates as created and defined by that certain
Easement and Maintenance Agreement dated October 28, 1996, filed November 11,
1996, recorded in Clerk's File No. 96-0097230, Real Property Records of Collin
County, Texas, Clarification Agreement recorded in Clerk's File No. 96-0107158,
and by that certain Declaration of Easements dated November 11, 1996, filed
November 21, 1996, recorded in Clerk's File No. 96-0100329, Real Property
Agreements, Collin County, Texas, as amended by First Amendment to Declarations
of Easements recorded in Clerk's File No. 96-0107156, Real Property Records of
Collin County, Texas.
LANDMARK CENTER II
TRACT I: Lots 3 in Block N/8763, of LANDMARK CENTER ADDITION, an addition to the
City of Dallas, Dallas County, Texas, according to the Map or Plat thereof
recorded in Volume J, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT II: Non-exclusive easement estates as created and defined by that certain
Easement and Maintenance Agreement dated October 28, 1996, filed November 11,
1996, recorded in Clerk's File No. 96-0097230, Real Property Records of Collin
County, Texas, Clarification Agreement recorded in Clerk's File No. 96-0107158,
and by that certain Declaration of Easements dated November 11, 1996, filed
November 21, 1996, recorded in Clerk's File No. 96-0100329, Real Property
Agreements, Collin County, Texas, as amended by First Amendment to Declarations
of Easements recorded in Clerk's File No. 96-0107156, Real Property Records of
Collin County, Texas.
A-1
EXHIBIT B
PERSONAL PROPERTY
LANDMARK CENTER I
INVENTORY LIST
QTY. ITEM
1 Computer (Runs EMS)
Monitor Daytek Mod #DT-14630
CPU Twix
Keyboard Mod# KPQE4ZA
1 Computer (Security System)
Monitor ViewSonic A70+ Serial #VCOTS23103-4R
CPU Custom Built by CompUSA Serial #701281
Keyboard Mod#KB-21
1 Window glass vacuum cup
LANDMARK CENTER II
INVENTORY LIST
QTY. ITEM
1 Pressure Washer 3000 PSI II HP
1 Xxxx Wooden Desk
3 Rolling Desk Chairs
1 2 Drawer Hanging File Cabinet
1 Rolling Three Drawer Cabinet
2 4 Foot Tall Book Shelves
3 6 Foot Tall Open Shelving Xxxxx
0 0 Xxxx Xxxx Xxxxxxx Storage Cabinets
1 Gateway Computer and Monitor (Runs EMS)
Monitor EV 700 Serial #M1A8J205576Z
CPU E3200 Serial # 0000000000
Keyboard Serial #Q9051A0061
1 Compaq Presario (Office Programs & Internet)
Monitor HP Pavilion Serial #CNC427GRO
CPU SR1250NX Serial #MXK4402H9J
Keyboard Serial #CH43104368
1 Printer HP LaserJet 6L Serial #USHB906197
1 Fax Sharp UX510
1 5 Foot Long Work Bench
1 Vise
1 Toilet Dolly
(con't. on next page)
B-1
LANDMARK CENTER II, INVENTORY LIST (CON'T.)
QTY. ITEM
1 Fluke 65 Infrared Thermometer
1 Ideal Circuit Identifier
1 Milwaukee Variable Speed 1-1/2 Hammer Drill
1 MK 7" Tile Saw
1 Shipping Container Used for Storage
1 Six Gallon Wet Vac
1 Leaf Blower
1 Window glass vacuum cup
B-2
EXHIBIT C
LEASES
Landmark Center I:
Lease dated: 10/31/1997 between Champion/Landmark I, Ltd and CompUSA Inc.
Office sublease dated: 2/6/04 between CompUSA Management Company and BMC
Software, Inc.
Landmark Center II:
Lease dated 8/28/97 between Champion-Boston I Limited Partnership as Landlord
and CompUSA as Tenant covering Landmark Center II.
First Amendment to Lease dated 10/31/97 between Champion-Boston I Limited
Partnership and CompUSA.
Letter from dated 6/30/98 acknowledging assignment from CompUSA , Inc. to
CompUSA Management Company.
C-1
EXHIBIT D
CONTRACTS
LANDMARK CENTER I
VENDOR CONTRACTS
SERVICE VENDOR
--------------------------------------------------------------------------------
Elevator ThyssenKrupp
Energy Management System Controls
Fire Alarm Monitoring DSS Fire, Inc.
HVAC Maintenance Xxxxxxx Controls
Interior Plant Maintenance Horticall
Janitorial By Xxxxxx It's Clean
Landscape Maintenance Xxxxxxxx & Associates
Pest Control Dallas Pest
Trash Removal Community Waste Disposal
LANDMARK CENTER II
VENDOR CONTRACTS
Elevator ThyssenKrupp
Energy Management System Controls
Fire Alarm Monitoring DSS Fire, Inc.
HVAC Maintenance Xxxxxxx Controls
Interior Plant
Maintenance Horticall
Landscape Maintenance Xxxxxxxx & Associates
Pest Control Dallas Pest
Trash Removal Xxxxx Disposal
D-1
EXHIBIT E
ESTOPPEL CERTIFICATE
[ADDRESS OF PURCHASER]
[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 included 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. A true, correct and complete copy of the Lease (including all
amendments) is attached hereto as SCHEDULE 1. The undersigned is the Tenant
under the Lease for space at the Premises covering ___________ rentable square
feet.
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 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 _________________.
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 does any state of facts or condition
exist which, with the giving of
E-1
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.
For the estoppel from the tenant of Landmark Center II:
12. Tenant acknowledges and agrees that Tenant is obligated to pay to
Landlord the sum of $24,676.79 as a reimbursement of the new lobby carpet in
Landmark Center II
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,
E-2
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:__________________________________
E-3
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:__________________________________
E-4
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASES,
CONTRACTS AND OTHER PROPERTY INTERESTS
For good and valuable consideration, the receipt of which is hereby
acknowledged, Tower Fund Landmark Limited Partnership, a Texas limited
partnership and Metropolitan Life Insurance Company, a New York corporation, on
behalf of a commingled separate account ("ASSIGNOR") hereby irrevocably assigns,
transfers and sets over to ______________, a _____________ ("ASSIGNEE") all of
Assignor's right, title and interest in and to (I) the lease agreements (the
"LEASES") enumerated on SCHEDULE A attached hereto and made a part hereof,
together with tenant security deposits held by Assignor under the Leases, (II)
to the extent assignable, the contracts (the "CONTRACTS") enumerated in SCHEDULE
B attached hereto and made a part hereof, (III) to the extent assignable, any
governmental permits and approvals (the "PERMITS AND APPROVALS") related to the
improvements (the "IMPROVEMENTS") located on the land (the "LAND") being
conveyed by Assignor to Assignee by Deed, dated the date hereof, and (IV) to the
extent assignable, all contract rights (including, without limitation, all
existing third-party warranties, if any, on materials and equipment constituting
a part of or used in the operation and maintenance of the Improvements),
licenses, permits, plans and specifications, surveys, soils reports, insurance
proceeds by reason of damage to the Improvements, condemnation awards and all
other rights, privileges or entitlements necessary to continue the use and
operation of the Land and the Improvements (the "OTHER PROPERTY INTERESTS"). All
Leases, Contracts, Permits and Approvals and Other Property Interests are
referred to hereinafter, collectively, as the "ASSIGNED ITEMS."
Assignee hereby assumes all obligations in connection with the Assigned
Items, arising or first becoming due and payable after the date hereof.
Assignor shall remain liable for all of Assignor's obligations under or
with respect to the Leases and Contracts accruing prior to the date hereof, to
the extent and only to the extent such obligations accrued during Assignor's
ownership of the Property.
Assignor hereby reserves the right to collect and retain delinquent
rentals as described on SCHEDULE A.
Assignor hereby represents and warrants only that it has not previously
assigned the Assigned Items. Assignor makes no other representation or warranty
in connection with this Assignment and, except for the foregoing, this
Assignment is made without recourse to Assignor.
All terms of this Assignment shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their respective legal
representatives, successors and assigns.
No modification, waiver, amendment, discharge or change of this
Assignment shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment, discharge
or change is or may be sought.
F-1
This Assignment shall be construed and enforced in accordance with the
laws of the State of Texas.
In any action brought to enforce the obligations of Assignor under this
Assignment, the judgment or decree shall be subject to SECTIONS 16.8 and 16.15
of that certain Sale, Purchase and Escrow Agreement, dated as of
_______________, between Assignor, Assignee and National Title Services.
This Assignment may be executed in any number of counterparts, each of
which so executed shall be deemed an original; such counterparts shall together
constitute but one agreement.
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment of this ______ day of ____________, 2005.
ASSIGNOR:
For Landmark Center II
TOWER FUND LANDMARK LIMITED
PARTNERSHIP, a Texas limited partnership
By: Tower Fund Landmark LLC,
a Delaware limited liability company
Its: General Partner
By: BlackRock Realty Advisors, Inc.,
a Delaware corporation,
Its: Manager
By:____________________________________
Name:__________________________________
Title:_________________________________
For Landmark Center II
MLICSA:
Metropolitan Life Insurance Company, on behalf
of a commingled separate account
By: BlackRock Realty Advisors, Inc., a Delaware
corporation, its investment advisor
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
F-2
ASSIGNEE:
By:____________________________________
Name:__________________________________
Title:_________________________________
F-3
EXHIBIT G
FORM OF XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Tower Fund Landmark Limited
Partnership, a Texas limited partnership and Metropolitan Life Insurance
Company, a New York corporation, on behalf of a commingled separate account
("SELLER"), for good and valuable consideration paid by_____________, a
_______________ ("PURCHASER"), hereby sells to Purchaser, its successors and
assigns, the personal property ("PERSONAL PROPERTY") more particularly referred
to in SCHEDULE A attached hereto.
TO HAVE AND TO HOLD the same unto Purchaser, its successors and assigns
to and for its own use and behalf forever.
Purchaser agrees to pay all sales taxes payable by reason of the
transfer to Purchaser of said Personal Property.
This Xxxx of Sale shall be without representation or warranty by, and
without recourse to, Seller.
This Xxxx of Sale may be executed in any number of counterparts, each
of which so executed shall be deemed an original; such counterparts shall
together constitute but one agreement.
IN WITNESS WHEREOF, Seller and Purchaser have caused these presents to
be signed by their duly authorized officers as of ___________________, 2005.
SELLER
For Landmark Center I
TOWER FUND LANDMARK LIMITED
PARTNERSHIP, a Texas limited partnership
By: Tower Fund Landmark LLC,
a Delaware limited liability company
Its: General Partner
By: BlackRock Realty Advisors, Inc.,
a Delaware corporation,
Its: Manager
By:____________________________________
Name:__________________________________
Title:_________________________________
G-1
For Landmark Center II
MLICSA:
Metropolitan Life Insurance Company, on behalf
of a commingled separate account
By: BlackRock Realty Advisors, Inc., a Delaware
corporation, its investment advisor
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
G-2
PURCHASER
_______________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
G-3
EXHIBIT H
FORM OF DEED
SPECIAL WARRANTY DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR
STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED
FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S
LICENSE NUMBER.
SPECIAL WARRANTY DEED
STATE OF TEXAS ss.
ss. KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF _____ ss.
THAT TOWER FUND LANDMARK LIMITED PARTNERSHIP, a Texas limited
partnership, and METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation (on
behalf of a commingled separate account) (herein referred to collectively 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 _______ 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").
H-1
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").
GRANTOR HAS NOT MADE, AND HAS NOT AUTHORIZED ANYONE TO MAKE,
ANY WARRANTY OR REPRESENTATION AS TO, THE PRESENT OR FUTURE, PHYSICAL CONDITION,
DEVELOPMENT POTENTIAL, ZONING, BUILDING OR LAND USE LAW OR COMPLIANCE THEREWITH,
THE OPERATION, ANY FAULT LINES, ANY SPECIAL FLOOD HAZARD CLASSIFICATION OR ANY
HYDROLOGICAL CHARACTERISTICS OF THE PROPERTY OR IN CONNECTION WITH ANY WRITTEN
MATERIALS DELIVERED TO THE GRANTEE, OR ANY OTHER MATTER OR THING AFFECTING OR
RELATING TO THE PROPERTY OR PERTAINING TO THIS DEED, EXCEPT AS EXPRESSLY SET
FORTH IN THIS DEED OR AS MAY BE EXPRESSLY SET FORTH IN A SEPARATE DOCUMENT (A
"SEPARATE AGREEMENT") EXECUTED BY GRANTOR AND GRANTEE CONCERNING THE PROPERTY
(INCLUDING THE DOCUMENTS DELIVERED AT CLOSING). NOTWITHSTANDING ANYTHING HEREIN
TO THE CONTRARY IN THIS DEED (EXCEPT AS MAY BE EXPRESSLY SET FORTH IN A SEPARATE
AGREEMENT), IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT GRANTEE IS PURCHASING THE
PROPERTY "AS IS" AND GRANTOR IS MAKING NO REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE
PROPERTY (INCLUDING, WITHOUT LIMITATION, ITS QUALITY, PHYSICAL CONDITION OR
VALUE, THE INCOME OR EXPENSES FROM OR OF THE PROPERTY, ITS HABITABILITY,
SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN ANY CONVEYANCE DOCUMENTS TO BE DELIVERED AT THE
CLOSING BY THE GRANTOR OR AS EXPRESSLY SET FORTH IN A SEPARATE AGREEMENT,
GRANTOR SPECIFICALLY MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED,
WITH RESPECT TO TITLE TO THE PROPERTY OR ANY INTEREST THEREIN.
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.
[See next page for signature]
H-2
For Landmark Center I
TOWER FUND LANDMARK LIMITED
PARTNERSHIP, a Texas limited partnership
By: Tower Fund Landmark LLC,
a Delaware limited liability company
Its: General Partner
By: BlackRock Realty Advisors, Inc.,
a Delaware corporation,
Its: Manager
By:_____________________________________
Name:___________________________________
Title:__________________________________
THE STATE OF ______________________
COUNTY OF ________________________
Before me, a notary public, on this day personally appeared
__________________________________, _____________________ of BlackRock Realty
Advisors, Inc., a Delaware corporation and manager of Tower Fund Landmark LLC, a
Delaware limited liability company, general partner of Tower Fund Landmark
Limited Partnership, a Texas limited partnership, known to me/proved to me
through ___________________________ [description of identity card or other
document] to be the person whose name is subscribed to the foregoing instrument
and acknowledged to me that he/she executed the same on behalf of the
corporation for the purposes and consideration therein expressed.
(Seal)
________________________________________
Notary Public, State of_________________
My commission expires:__________________
H-3
For Landmark Center II
MLICSA:
Metropolitan Life Insurance Company, on behalf
of a commingled separate account
By: BlackRock Realty Advisors, Inc., a Delaware
corporation, its investment advisor
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
THE STATE OF ______________________
COUNTY OF _________________________
Before me, a notary public, on this day personally appeared
__________________________________, _____________________ of BlackRock Realty
Advisors, Inc., a Delaware corporation investment advisor to Metropolitan Life
Insurance Company, on behalf of a commingled separate account, known to
me/proved to me through ___________________________ [description of identity
card or other document] to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he/she executed the same on
behalf of the corporation for the purposes and consideration therein expressed.
(Seal)
________________________________________
Notary Public, State of_________________
My commission expires:__________________
H-4
EXHIBIT "A"
TO SPECIAL WARRANTY DEED
PROPERTY
LANDMARK CENTER I
TRACT I: Lots 4 in Block N/8763, of LANDMARK CENTER ADDITION, an addition to the
City of Dallas, Dallas County, Texas, according to the Map or Plat thereof
recorded in Volume J, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT II: Non-exclusive easement estates as created and defined by that certain
Easement and Maintenance Agreement dated October 28, 1996, filed November 11,
1996, recorded in Clerk's File No. 96-0097230, Real Property Records of Collin
County, Texas, Clarification Agreement recorded in Clerk's File No. 96-0107158,
and by that certain Declaration of Easements dated November 11, 1996, filed
November 21, 1996, recorded in Clerk's File No. 96-0100329, Real Property
Agreements, Collin County, Texas, as amended by First Amendment to Declarations
of Easements recorded in Clerk's File No. 96-0107156, Real Property Records of
Collin County, Texas.
LANDMARK CENTER II
TRACT I: Lots 3 in Block N/8763, of LANDMARK CENTER ADDITION, an addition to the
City of Dallas, Dallas County, Texas, according to the Map or Plat thereof
recorded in Volume J, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT II: Non-exclusive easement estates as created and defined by that certain
Easement and Maintenance Agreement dated October 28, 1996, filed November 11,
1996, recorded in Clerk's File No. 96-0097230, Real Property Records of Collin
County, Texas, Clarification Agreement recorded in Clerk's File No. 96-0107158,
and by that certain Declaration of Easements dated November 11, 1996, filed
November 21, 1996, recorded in Clerk's File No. 96-0100329, Real Property
Agreements, Collin County, Texas, as amended by First Amendment to Declarations
of Easements recorded in Clerk's File No. 96-0107156, Real Property Records of
Collin County, Texas.
Exhibit A - to Special Warranty Deed - Page 1
EXHIBIT "B"
TO SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
1. Restrictive covenants of record recorded in Clerk's File Nos. 00-0000000,
amended in Volume 3960, Page 2005; Clerk's File No. 00-0000000, Real
Property Records, Collin County, Texas. (affects Lot 3) [Volume, page and
file number to be confirmed]
2. Restrictive covenants of record recorded in Clerk's File Nos. 00-0000000,
97-0059389, 00-0000000, and 96-0100329, Real Property Records, Collin
County, Texas. (affects Lot 4)
3. Standby fees, taxes and assessments by any taxing authority for the year
2005 not yet due and payable (affects Lots 3 and 4)
4. Water easement granted by Pacific United Development Corporation to the
City of Dallas, filed 10/29/1996, cc# 96-0093013, Real Property Records of
Collin County, Texas. (affects Lot 3) [Surveyor to be requested to locate
on survey in location that does not materially and adversely affect the
improvements or to certify that this easement does not apply to the
Property.]
5. Underground Electric and Communications easement granted by Champion-Boston
I Limited Partnership to Texas Utilities Electric Company, filed
11/10/1997, cc# 97-0096235, Real Property Records of Collin County, Texas.
(affects Lot 3) [Surveyor to be requested to locate on survey in location
that does not materially and adversely affect the improvements or to
certify that this easement does not apply to the Property.]
6. Drainage Easement granted by Pacific United Development Corporation to the
City of Dallas by instrument dated September 24, 1996, filed October 22,
1996, recorded in Clerk's File No. 96-0091112, Real Property Records of
Collin County, Texas. (affects Lot 4)
7. Easement and Right of Way from Champion/Landmark I, Ltd. to Texas Utilities
Electric Company dated October 14, 1997, filed November 10, 1997, recorded
in Volume 4037, Page 1873 (Clerk's File No. 97-0096236), Real Property
Records of Collin County, Texas. (affects Lot 4)
8. Telecommunications Easement Agreement created by instrument dated September
7, 2000, filed September 25, 2000, recorded in Volume 4759, Page 308
(Clerk's File No. 00-0103815), Real Property Records of Collin County,
Texas. (affects Lot 4)
9. Easements and building lines as shown on plat recorded in Volume J, Page
000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx. (affects Lot 3)
10. The following easements as shown on plat recorded in Volume J, Page 500,
Plat Records of Collin County, Texas (affects Lot 4):
Exhibit B - to Special Warranty Deed - Page 1
a. 15' by 15' water easement located on the East property line.
b. 15' electric easement along a portion of the West property line, and
near the northwest corner.
c. 20' by 20' drainage easement located in the northwest corner.
d. 15' waste water easement located on the South property line.
e. 30' access easement crossing the subject property.
11. Terms, conditions, provisions, easements, restrictions and stipulations
contained in that certain Declaration of Easements dated November 11, 1996,
filed November 21, 1996, recorded in Clerk's File No. 96-0100329, as
amended by First Amendment to Declaration of Easements filed December 18,
1996, recorded in Clerk's File No. 96-0107156, Real Property Records of
Collin County, Texas. (affects Lots 3 and 4)
12. Terms, conditions, provisions, easements, restrictions and stipulations
contained in that certain Easement and Maintenance Agreement dated October
28, 1996, filed November 11, 1996, recorded in Clerk's File No. 96-0097230,
as affected by Clarification Agreement filed December 18, 1996, recorded in
Clerk's File No. 96-0107158, Real Property Records of Collin County, Texas.
(affects Lots 3 and 4)
13. Restriction with respect to access to Dallas North Tollway, service road
and ramps, as set forth in deed to the Texas Turnpike Authority, filed
10/30/92, under County Clerk's File No. 00-0000000 of the Real Property
Records of Collin County, Texas. (affects Lot 3)
14. Terms, provisions, conditions, easements, restrictions and obligations
contained in instrument dated 9/7/2000, filed 9/25/2000, Volume 4759, Page
308, cc# 00-0003219, Real Property Records of Collin County, Texas.
(affects Lot 3) [cc# to be confirmed as correct on copy of instrument.]
15. Terms, provisions and conditions of lease dated 8/27/1997 and amended by
instrument dated 10/31/1997, between Champion-Boston I Limited Partnership,
a Delaware limited partnership, Landlord, and CompUSA Inc., a Delaware
corporation, Tenant, as evidenced by instrument filed 9/8/1997, cc#
97-0074440, Real Property Records of Collin County, Texas and by instrument
filed 12/1/97 in cc# 97-0101671, Real Property Records of Collin County,
Texas. (affects Lot 3) [Volume, page and file no. to be confirmed as
correct on copy of instrument.]
16. Lease Agreement dated October 31, 1997, executed by and between
Champion/Landmark I, Ltd., a Texas limited partnership, as Landlord, and
CompUSA, Inc., a Delaware corporation, as Tenant, as evidenced by
instrument recorded in Volume 4156, Page 2939 (Clerk's File No.
00-0000000), Real Property Records of Collin County, Texas. (affects Lot 4)
[Volume, page and file no. to be confirmed as correct on copy of
instrument.]
Exhibit B - to Special Warranty Deed - Page 2
17. Subordination, Nondisturbance and Attornment Agreement dated May 1, 1998 ,
filed May 1, 1998, recorded in Volume 4156, Page 2939 (Clerk's File No.
00-0000000), Real Property Records of Collin County, Texas. (affects Lot 4)
[To the extent this Subordination relates to a Mortgage, such Subordination
shall be removed from title when the Mortgage is released from record.]
18. Terms, conditions, provisions and stipulations of that certain Detached
Sign Unity Agreement dated August 2, 1999, filed January 11, 2000, recorded
in Volume 4580, Page 462 (Clerk's File No. 00-0003219), Real Property
Records of Collin County, Texas.
(affects Lots 3 and 4)
19. All matters shown on the survey of each lot prepared by Xxxxxx Associates,
Inc. dated May__, 2005, under File Number 2417-1000.
Exhibit B - to Special Warranty Deed - Page 3
EXHIBIT I
ADDITIONAL PERMITTED ENCUMBRANCES
1. Restrictive covenants of record recorded in Clerk's File Nos. 00-0000000,
amended in Volume 3960, Page 2005; Clerk's File No. 00-0000000, Real
Property Records, Collin County, Texas. (affects Lot 3) [Volume, page and
file number to be confirmed]
2. Restrictive covenants of record recorded in Clerk's File Nos. 00-0000000,
97-0059389, 00-0000000, and 96-0100329, Real Property Records, Collin
County, Texas. (affects Lot 4)
3. Standby fees, taxes and assessments by any taxing authority for the year
2005 not yet due and payable. (affects Lots 3 and 4)
4. Water easement granted by Pacific United Development Corporation to the
City of Dallas, filed 10/29/1996, cc# 96-0093013, Real Property Records of
Collin County, Texas. (affects Lot 3) [Surveyor to be requested to locate
on survey in location that does not materially and adversely affect the
improvements or to certify that this easement does not apply to the
Property.]
5. Underground Electric and Communications easement granted by Champion-Boston
I Limited Partnership to Texas Utilities Electric Company, filed
11/10/1997, cc# 97-0096235, Real Property Records of Collin County, Texas.
(affects Lot 3) [Surveyor to be requested to locate on survey in location
that does not materially and adversely affect the improvements or to
certify that this easement does not apply to the Property.]
6. Drainage Easement granted by Pacific United Development Corporation to the
City of Dallas by instrument dated September 24, 1996, filed October 22,
1996, recorded in Clerk's File No. 96-0091112, Real Property Records of
Collin County, Texas. (affects Lot 4)
7. Easement and Right of Way from Champion/Landmark I, Ltd. to Texas Utilities
Electric Company dated October 14, 1997, filed November 10, 1997, recorded
in Volume 4037, Page 1873 (Clerk's File No. 97-0096236), Real Property
Records of Collin County, Texas. (affects Lot 4)
8. Telecommunications Easement Agreement created by instrument dated September
7, 2000, filed September 25, 2000, recorded in Volume 4759, Page 308
(Clerk's File No. 00-0103815), Real Property Records of Collin County,
Texas. (affects Lot 4)
9. Easements and building lines as shown on plat recorded in Volume J, Page
000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx. (affects Lot 3)
10. The following easements as shown on plat recorded in Volume J, Page 500,
Plat Records of Collin County, Texas (affects Lot 4):
a. 15' by 15' water easement located on the East property line.
I-1
b. 15' electric easement along a portion of the West property line, and
near the northwest corner.
c. 20' by 20' drainage easement located in the northwest corner.
d. 15' waste water easement located on the South property line.
e. 30' access easement crossing the subject property.
11. Terms, conditions, provisions, easements, restrictions and stipulations
contained in that certain Declaration of Easements dated November 11, 1996,
filed November 21, 1996, recorded in Clerk's File No. 96-0100329, as
amended by First Amendment to Declaration of Easements filed December 18,
1996, recorded in Clerk's File No. 96-0107156, Real Property Records of
Collin County, Texas. (affects Lots 3 and 4)
12. Terms, conditions, provisions, easements, restrictions and stipulations
contained in that certain Easement and Maintenance Agreement dated October
28, 1996, filed November 11, 1996, recorded in Clerk's File No. 96-0097230,
as affected by Clarification Agreement filed December 18, 1996, recorded in
Clerk's File No. 96-0107158, Real Property Records of Collin County, Texas.
(affects Lots 3 and 4)
13. Restriction with respect to access to Dallas North Tollway, service road
and ramps, as set forth in deed to the Texas Turnpike Authority, filed
10/30/92, under County Clerk's File No. 00-0000000 of the Real Property
Records of Collin County, Texas. (affects Lot 3)
14. Terms, provisions, conditions, easements, restrictions and obligations
contained in instrument dated 9/7/2000, filed 9/25/2000, Volume 4759, Page
308, cc# 00-0003219, Real Property Records of Collin County, Texas.
(affects Lot 3) [cc# to be confirmed as correct on copy of instrument.]
15. Terms, provisions and conditions of lease dated 8/28/1997 and amended by
instrument dated 10/31/1997 and June 30, 1998, between Champion-Boston I
Limited Partnership, a Delaware limited partnership, Landlord, and CompUSA
Inc., a Delaware corporation, Tenant, as evidenced by instrument filed
9/8/1997, cc# 97-0074440, Real Property Records of Collin County, Texas and
by instrument filed 12/1/97 in cc# 97-0101671, Real Property Records of
Collin County, Texas. (affects Lot 3) [Volume, page and file no. to be
confirmed as correct on copy of instrument.]
16. Lease Agreement dated October 31, 1997, executed by and between
Champion/Landmark I, Ltd., a Texas limited partnership, as Landlord, and
CompUSA, Inc., a Delaware corporation, as Tenant, as evidenced by
instrument recorded in Volume 4156, Page 2939 (Clerk's File No.
00-0000000), Real Property Records of Collin County, Texas. (affects Lot 4)
[Volume, page and file no. to be confirmed as correct on copy of
instrument.]
17. Subordination, Nondisturbance and Attornment Agreement dated May 1, 1998,
filed May 1, 1998, recorded in Volume 4156, Page 2939 (Clerk's File No.
00-0000000), Real Property Records of Collin County, Texas. (affects Lot 4)
[To the extent this Subordination relates to a Mortgage, such Subordination
shall be removed from title when the Mortgage is released from record.]
I-2
18. Terms, conditions, provisions and stipulations of that certain Detached
Sign Unity Agreement dated August 2, 1999, filed January 11, 2000, recorded
in Volume 4580, Page 462 (Clerk's File No. 00-0003219), Real Property
Records of Collin County, Texas.
(affects Lots 3 and 4)
19. All matters shown on the survey of each lot prepared by Xxxxxx Associates,
Inc. dated May__, 2005, under File Number 2417-1000.
I-3
EXHIBIT J
FORM OF NOTICE TO TENANTS
____________, 2005
____________________________________
____________________________________
Re: ____________________________
____________________________
Dear Tenant:
Please be advised that effective _______________, 2005, Tower Fund Landmark
Limited Partnership, a Texas limited partnership, has sold the above-referenced
property to ________________________________. Your security deposit has been
transferred to such entity and such entity shall be responsible for holding the
same in accordance with the terms of your lease. Effective ___________, 2005,
all future rental payments should be sent to the following address:
____________________________
____________________________
____________________________
Any questions regarding maintenance and management of the property should be
addressed to:
____________________________
____________________________
____________________________
J-1
Very truly yours,
For Landmark Center I
TOWER FUND LANDMARK LIMITED
PARTNERSHIP, a Texas limited partnership
By: Tower Fund Landmark LLC,
a Delaware limited liability company
Its: General Partner
By: BlackRock Realty Advisors, Inc.,
a Delaware corporation,
Its: Manager
By:_____________________________________
Name:___________________________________
Title:__________________________________
For Landmark Center II
MLICSA:
Metropolitan Life Insurance Company, on behalf
of a commingled separate account
By: BlackRock Realty Advisors, Inc., a Delaware
corporation, its investment advisor
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
J-2
EXHIBIT K
FIRPTA AFFIDAVIT
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform [INSERT NAME OF PURCHASER ENTITY], a __________________
("TRANSFEREE"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "CODE"), will not be required upon the
transfer of certain real property to Transferee by Metropolitan Life Insurance
Company, a New York corporation, on behalf of a commingled separate account
("TRANSFEROR"), the undersigned hereby certifies the following on behalf of
Transferor:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined in the Code and the Income Tax Regulations promulgated
thereunder);
2. Seller is not a disregarded entity as defined in
ss.1.1445-2(b)(2)(iii);
3. Transferor's U.S. employer identification number is
00-0000000; and
4. Transferor's office address is c/o BlackRock Realty
Advisors, Inc., [10 Park Avenue, Morristown, New Jersey 07962-2346,
Attention: Xxxxxx Xxxx, Esq.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferor.
For Landmark Center I
TOWER FUND LANDMARK LIMITED
PARTNERSHIP, a Texas limited partnership
By: Tower Fund Landmark LLC,
a Delaware limited liability company
Its: General Partner
By: BlackRock Realty Advisors, Inc.,
a Delaware corporation,
Its: Manager
By:___________________________________
Name:_________________________________
Title:________________________________
Date:___________________________________________
For Landmark Center II
K-1
Metropolitan Life Insurance Company, on behalf
of a commingled separate account
By: BlackRock Realty Advisors, Inc., a Delaware
corporation, its investment advisor
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
Date:___________________________________________
K-2
EXHIBIT K - CONTINUED
FIRPTA AFFIDAVIT
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform [INSERT NAME OF PURCHASER ENTITY], a __________________
("TRANSFEREE"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "CODE"), will not be required upon the
transfer of certain real property to Transferee by Tower Fund Landmark Limited
Partnership, a Texas limited partnership ("TRANSFEROR"), the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined in the Code and the Income Tax Regulations promulgated
thereunder);
2. Seller is not a disregarded entity as defined in
ss.1.1445-2(b)(2)(iii);
3. Transferor's U.S. employer identification number is
00-0000000; and
4. Transferor's office address is c/o BlackRock Realty
Advisors, Inc., [10 Park Avenue, Morristown, New Jersey 07962-2346,
Attention: Xxxxxx Xxxx, Esq.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferor.
Dated: _________________
K-3
For Landmark Center I
TOWER FUND LANDMARK LIMITED
PARTNERSHIP, a Texas limited partnership
By: Tower Fund Landmark LLC,
a Delaware limited liability company
Its: General Partner
By: BlackRock Realty Advisors, Inc.,
a Delaware corporation,
Its: Manager
By:____________________________________
Name:__________________________________
Title:_________________________________
For Landmark Center II
MLICSA:
Metropolitan Life Insurance Company, on behalf
of a commingled separate account
By: BlackRock Realty Advisors, Inc., a Delaware
corporation, its investment advisor
By:_____________________________________________
Printed Name:___________________________________
Title:__________________________________________
K-4
EXHIBIT L
DUE DILIGENCE ITEMS
-------------------------------------------------------------------------
CATEGORY/ITEMS
-------------------------------------------------------------------------
Advertising Agreements
-------------------------------------------------------------------------
Aerial Photos
-------------------------------------------------------------------------
Brokerage Commission Agreements
-------------------------------------------------------------------------
Building/Capital Improvement Projects, Current
-------------------------------------------------------------------------
Building Measurement Surveys by Registered Architect
-------------------------------------------------------------------------
Building Permits
-------------------------------------------------------------------------
Building Plans, Specifications, Paper
CADD Disk
-------------------------------------------------------------------------
Business Licenses
-------------------------------------------------------------------------
CAM - Current Year Estimates
-------------------------------------------------------------------------
CAM - Prior Year Reconciliation
-------------------------------------------------------------------------
Capital Expenditure History (Three Previous Years)
-------------------------------------------------------------------------
Capital Improvements (3 yrs) (Historical/Projected)
-------------------------------------------------------------------------
Certificates of Occupancy:
For Building
For Individual Tenants
-------------------------------------------------------------------------
CC&R's
-------------------------------------------------------------------------
Documents related to Intellectual Property
-------------------------------------------------------------------------
Easement information
-------------------------------------------------------------------------
Emergency/Life Safety Systems, Operating Manual
-------------------------------------------------------------------------
Environmental Site Assessment, Existing
-------------------------------------------------------------------------
FINANCIAL ITEMS:
Balance Sheet, To date
Budget and Narrative, Current Year
Excess Operating Expenses (Estimate for 2005)
Operating Expense Reconciliations (three previous years)
Operating Statements for property (three previous years - including a year end
general ledger for each year) Rent Roll, Current Security Deposit Listing,
Current and to be transferred LOC/Guarantee Tenant Aging Report, To date
-------------------------------------------------------------------------
Floor Plans, as Leased
-------------------------------------------------------------------------
Geotechnical Report, if any
-------------------------------------------------------------------------
Ground Lease, if any
-------------------------------------------------------------------------
Historical Leasing Agent Reports/Comps
-------------------------------------------------------------------------
Insurance Certificate, Current of Seller and Tenants
-------------------------------------------------------------------------
Insurance Claims, Pending
-------------------------------------------------------------------------
Insurance Claims, History
-------------------------------------------------------------------------
L-1
-------------------------------------------------------------------------
Leases, including amendments, exhibits and side letters for each
building tenant
-------------------------------------------------------------------------
Lease Commission Schedule three previous years
-------------------------------------------------------------------------
Litigation - Pending
-------------------------------------------------------------------------
Management/Leasing Agreement, existing
-------------------------------------------------------------------------
Marketing/Promotional Brochures
-------------------------------------------------------------------------
Move-in Procedures
-------------------------------------------------------------------------
Occupancy Statistics, three previous years
-------------------------------------------------------------------------
Office Equipment List to Remain On-Site
-------------------------------------------------------------------------
O & M Reports (Asbestos Information)
-------------------------------------------------------------------------
Parking Garage Lease/Operating Agreement
-------------------------------------------------------------------------
Parking Space Configuration (Surface and Garage, if applicable)
-------------------------------------------------------------------------
Permits and Licenses - Alarm
-------------------------------------------------------------------------
Permits and Licenses - Construction
-------------------------------------------------------------------------
Permits and Licenses - Elevator
-------------------------------------------------------------------------
Permits and Licenses - Engineering
-------------------------------------------------------------------------
Personal Property Inventory
-------------------------------------------------------------------------
Photos of Building
-------------------------------------------------------------------------
Property Taxes land/improvements, current year
-------------------------------------------------------------------------
Property Taxes, all parcels, three previous years
-------------------------------------------------------------------------
Property Tax Statements, Personal, current and prior three years
-------------------------------------------------------------------------
Retail tenants, sales data and percentage rent xxxxxxxx (current and
prior 3 years)
-------------------------------------------------------------------------
Roof Reports & Warranties
-------------------------------------------------------------------------
Security Incident Reports (for prior 24 months)
-------------------------------------------------------------------------
Service Contracts and equipment leases
-------------------------------------------------------------------------
Site Plan
-------------------------------------------------------------------------
Stacking Plans
-------------------------------------------------------------------------
Staffing/Payroll Schedule
-------------------------------------------------------------------------
Standard Form of Lease
-------------------------------------------------------------------------
Survey, existing
-------------------------------------------------------------------------
Tenant Contact Information
-------------------------------------------------------------------------
Tenant Financial Statements, if available
-------------------------------------------------------------------------
Tenant Improvement jobs currently ongoing/building & contract
-------------------------------------------------------------------------
Tenant Improvement Schedule, three previous years
-------------------------------------------------------------------------
Tenant Parking Agreements
-------------------------------------------------------------------------
Tenant Storage Agreements
-------------------------------------------------------------------------
Title Commitment Policy of Seller, existing
-------------------------------------------------------------------------
Title Work - Preliminary
-------------------------------------------------------------------------
Title Work - Final
-------------------------------------------------------------------------
Utility Agreements, Electricity
-------------------------------------------------------------------------
L-2
-------------------------------------------------------------------------
Utility Invoices, two previous years
-------------------------------------------------------------------------
Utility Security Deposits
-------------------------------------------------------------------------
Vacancy History
-------------------------------------------------------------------------
Warranty, Elevator, if applicable
-------------------------------------------------------------------------
Warranty, HVAC equipment, if applicable
-------------------------------------------------------------------------
Warranty, Mechanical, if applicable
-------------------------------------------------------------------------
Warranty, Roof, if applicable
-------------------------------------------------------------------------
Website/Domain Name Transfer information, if applicable
-------------------------------------------------------------------------
Work Order Systems and operating manuals
-------------------------------------------------------------------------
Zoning Report, if available
-------------------------------------------------------------------------
L-3
