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PURCHASE AGREEMENT
BETWEEN
XXXXXXX X. XXXXX and XXXXXXX XXXXX
AS SELLER
AND
BEHRINGER HARVARD MID-TERM VALUE ENHANCEMENT FUND I LP,
a Texas limited partnership
AS PURCHASER
As of __________ _____, 2005
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "AGREEMENT") is made to be effective as of
the Effective Date (as hereinafter defined) by and between XXXXXXX X. XXXXX, an
individual, and XXXXXXX XXXXX, an individual (collectively, "SELLER"), and
BEHRINGER HARVARD MID-TERM VALUE ENHANCEMENT FUND I LP, a Texas limited
partnership ("PURCHASER").
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
1.1 AGREEMENT OF PURCHASE AND SALE. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(a) that certain tract or parcel of land situated in Dallas
County, Texas, more particularly described by metes and bounds on
EXHIBIT A attached hereto and made a part hereof, together with all and
singular the rights and appurtenances pertaining to such property,
including any right, title and interest of Seller in and to adjacent
streets, alleys or rights-of-way (the property described in clause (a)
of this Section 1.1 being herein referred to collectively as the
"LAND");
(b) the buildings and other improvements on the Land,
including specifically, without limitation, that certain office building
and related facilities located thereon (the property described in clause
(b) of this Section 1.1 being herein referred to collectively as the
"IMPROVEMENTS");
(c) the personal property owned by Seller upon the Land or
within the Improvements, including specifically, without limitation,
heating, ventilation and air conditioning systems and equipment,
appliances, furniture, carpeting, draperies and curtains, tools and
supplies, and other items of personal property used in connection with
the operation of the Land and the Improvements (the property described
in clause (c) of this Section 1.1 being herein referred to collectively
as the "PERSONAL PROPERTY");
(d) all of Seller's right, title and interest in all oral or
written agreements pursuant to which any portion of the Land or
Improvements is used or occupied by anyone other than Seller (the
property described in clause (d) of this Section 1.1 being herein
referred to collectively as the "Leases"); and
(e) all of Seller's right, title and interest in and to (i)
all assignable contracts and agreements relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property
which will extend beyond the date of Closing (as such term is defined in
Section 4.1 hereof) (collectively, the "OPERATING AGREEMENTS"); (ii) 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 Estate, Improvements, or Personal Property; (iv) all other
intangible property associated with the use or operation of the Land,
Improvements or Personal Property, including specifically, without
limitation, the use of any and all trade names or logos used by Seller
in the operation of the Real Estate, Improvements or Personal
PURCHASE AGREEMENT - Page 1
Property; and (v) all plans, specifications, drawings, reports, studies,
books, records and other documents pertaining to the Land, Improvements
or Personal Property (the property described in this Section 1.1(e)
being sometimes herein referred to collectively as the "INTANGIBLES").
1.2 PROPERTY DEFINED. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "PROPERTY."
1.3. PERMITTED EXCEPTIONS. The Property shall be conveyed subject to
the matters which are deemed to be Permitted Exceptions pursuant to Section 2.3
hereof (herein referred to collectively as the "PERMITTED EXCEPTIONS").
1.4 PURCHASE PRICE. Seller is to sell and Purchaser is to purchase
the Property for a total of Six Million Three Hundred Fifty Thousand and No/100
Dollars ($6,350.000) (the "PURCHASE PRICE").
1.5 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable
in cash or immediately available funds at Closing.
1.6 INDEPENDENT CONTRACT CONSIDERATION. Upon the Effective Date
hereof, Purchaser shall deliver to Seller a check in the amount of Fifty and
No/100 Dollars ($50.00) ("INDEPENDENT CONTRACT CONSIDERATION"), which amount the
parties hereby acknowledge and agree has been bargained for and agreed to as
consideration for Seller's execution and delivery of this Agreement. The
Independent Contract Consideration is in addition to and independent of any
other consideration or payment provided in this Agreement, and is nonrefundable
in all events.
1.7 XXXXXXX MONEY. Within two (2) business days after the Effective
Date hereof, Purchaser shall deposit with Reunion Title (the "TITLE COMPANY"),
at 0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (Attention: Xxxx
Xxxxxxxx), the sum of Fifty Thousand Dollars ($50,000) (the "FIRST DEPOSIT") to
be held by the Title Company in accordance with the terms of this Agreement.
Within two (2) business days after the expiration of the Inspection Period (as
hereinafter defined), if this Agreement has not then been terminated in
accordance with the terms hereof, Purchaser shall deposit with the Title Company
additional cash in the amount of One Hundred Fifty Thousand ($150,000.00) (the
"SECOND DEPOSIT") as additional xxxxxxx money under this Agreement. The First
Deposit and the Second Deposit, together with all interest earned on such sums,
are herein referred to collectively as the "XXXXXXX MONEY." The Xxxxxxx Money
shall be held by the Title Company in an interest-bearing account in accordance
with the terms of this Agreement. All interest accruing on such sum shall become
a part of the Xxxxxxx Money and shall be distributed as Xxxxxxx Money in
accordance with the terms of this Agreement. At Closing, the Xxxxxxx Money shall
be applied towards payment of the Purchase Price.
ARTICLE II
TITLE AND SURVEY
2.1 COMMITMENT FOR TITLE INSURANCE. Within five (5) days after the
Effective Date, Seller shall deliver to Purchaser and the surveyor described in
Section 2.2 below (a) a current title commitment (the "TITLE COMMITMENT")
covering the Property, showing all matters affecting title to the Property and
binding the Title Company to issue at Closing an Owner's Policy of Title
Insurance on the standard form of policy prescribed by the Texas State Board of
Insurance in the full amount of the Purchase Price pursuant to Section 2.5
hereof, and (b) legible copies of all instruments (the "EXCEPTION INSTRUMENTS")
referenced in Schedule B and Schedule C of the Title Commitment.
PURCHASE AGREEMENT - Page 2
2.2 SURVEY. Within ten (10) days after the Effective Date, Seller
shall, at Seller's expense, furnish to Purchaser a current Survey (the "SURVEY")
of the Property prepared by a reputable surveyor or surveying firm licensed by
the State of Texas. The Survey shall (a) locate all easements of which the
surveyor has knowledge or has been advised (whether of record or apparent from
an inspection of the Property) and rights of way on or adjacent to the Property
(identified by recording data, if applicable); (b) show the Improvements
situated on the Real Estate and the dimensions of all buildings thereon; (c)
show the location and size of all streets (existing or proposed) on or adjacent
to the Property; (d) show any encroachments or protrusions, railroads, rivers,
creeks, or other water courses, fences, visible utilities, and other matters
located on or affecting the Property (and any recording information relating
thereto); (e) set forth the number of square feet comprising the Property,
together with a legal description of the boundaries of the Property by metes and
bounds; (f) certify that the Property does not lie within the 100-year flood
plain as established by the FEMA Flood Insurance Rate MAP; (g) contain a
certification by the surveyor in substantially the form of EXHIBIT B attached
hereto; and (h) in general, comply with the Texas Surveyor's Association
standards for a Category IA, Condition II Survey. Unless otherwise agreed by
Seller and Purchaser, the metes and bounds description contained in the Survey
shall be the legal description employed in the documents of conveyance of the
Property.
2.3 TITLE REVIEW PERIOD. After receipt of the last of the Title
Commitment, legible copies of the Exception Instruments, and the Survey,
Purchaser shall have a period of ten (10) days to review the state of Seller's
title to the Property (the "TITLE REVIEW PERIOD"). If the Survey, the Title
Commitment or the Exception Instruments reflect or disclose any defect,
exception or other matter affecting the Property ("TITLE DEFECTS") that is
unacceptable to Purchaser for any reason whatsoever, then prior to the
expiration of the Title Review Period, Purchaser may provide Seller with written
notice of its objections, and Seller shall have ten (10) days (the "CURE
PERIOD") from the date of the notice to remove or cure any Title Defects to the
satisfaction of Purchaser. Seller shall use its reasonable, good faith efforts
to remove or cure the Title Defects to Purchaser's satisfaction, but shall not
be required to incur any costs in excess of One Thousand Dollars ($1,000) in
doing so (other than as provided in Section 2.4 below) or to institute
litigation. If Seller does not cure any or all of the Title Defects within the
Cure Period, Seller shall notify Purchaser in writing, prior to the expiration
of the Cure Period, of its failure to cure such Title Defects, and Purchaser
may, prior to the later of (a) five (5) days after receipt of Seller's notice of
its failure to cure, or (b) the expiration of the Inspection Period (hereinafter
defined) either (i) terminate this Agreement by written notice delivered to
Seller, or (ii) elect to waive any uncured Title Defect. If Purchaser fails to
terminate the Agreement by written notice delivered to Seller prior to the
expiration of the time period referenced in the immediately preceding sentence,
then any Title Defects that Seller has not cured shall be deemed waived by
Purchaser. If Purchaser shall fail to notify Seller in writing of any objections
to the state of Seller's title to the Property as shown by the Title Commitment,
the Exception Documents or the Survey, or if Purchaser elects to waive all or
any of the Title Defects, or is deemed to have waived all or any of the Title
Defects, then any exceptions to Seller's title to which Purchaser has not
objected or which have been objected to and waived by Purchaser and which are
disclosed by the Title Commitment shall be considered to be "Permitted
Exceptions". If Purchaser terminates this Agreement pursuant to this section,
then neither Seller nor Purchaser shall have any further rights or obligations
under this Agreement and the Xxxxxxx Money shall be returned to Purchaser.
2.4 OBLIGATION TO CURE LIENS. Notwithstanding anything to the
contrary contained in this Article II, if at Closing there are any mechanic's or
materialmen's liens or mortgages, deeds of trust or other instruments creating a
lien for borrowed money against all or any part of the Property (collectively,
"LIENS"), Seller shall discharge the same of record and apply such portions of
the Purchase Price or Seller's funds as may be necessary to accomplish the same.
PURCHASE AGREEMENT - Page 3
2.5 OWNER'S POLICY OF TITLE INSURANCE. At Closing, Seller shall
cause the Title Company to issue to Purchaser an Owner's Policy of Title
Insurance (the "TITLE POLICY") covering the Property, in the full amount of the
Purchase Price, in the form prescribed by the Texas State Board of Insurance,
insuring that Purchaser is the owner of good and indefeasible fee simple title
to the Property, subject only to the Permitted Encumbrances, and with the
standard printed exceptions modified as follows: (a) the exception for
restrictive covenants shall either be deleted or shall list specific
restrictions; (b) the exception for ad valorem taxes shall reflect only taxes
for the current year and subsequent years, and subsequent assessments for prior
years due to changes in land usage or ownership, and shall be endorsed "not yet
due and payable"; (c) there shall be no exception for "visible and apparent
easements," for "public or private roads" or the like; (d) there shall be no
exception for "rights of parties in possession," although there may be an
exception for Leases specifically described in the Title Policy; and (e) any
reference to submitting claims under the Title Policy to arbitration shall be
deleted.
ARTICLE III
INSPECTION PERIOD
3.1 RIGHT OF INSPECTION. During the period beginning upon the
Effective Date and ending at 5 p.m., Dallas, Texas time, on the twentieth (20th)
day following the Effective Date (hereinafter referred to as the "INSPECTION
PERIOD"), Purchaser shall have the right to make a physical inspection of the
Property, to conduct tests thereon (including specifically, without limitation,
environmental tests and soil borings), to review the Due Diligence Materials (as
hereinafter defined) and all other books, records and documents maintained by
Seller relating to the Property, and to make inquiries to governmental
authorities and other appropriate parties, so as to determine, at the sole
discretion of Purchaser, whether the Property is suitable for Purchaser's
purposes. All inspections shall occur at reasonable times and shall be conducted
so as not to unreasonably interfere with use of the Property by Seller or its
tenants. Purchaser has advised Seller that Purchaser must cause to be prepared
up to three (3) years of audited financial statements in respect of the Property
in compliance with the policies of Purchaser and certain laws and regulations,
including, without limitation, Securities and Exchange Commission Regulation
S-X, Rule 3-14. Seller agrees to use reasonable efforts to cooperate with
Purchaser's auditors in the preparation of such audited financial statements (it
being understood and agreed that the foregoing covenant shall survive Closing).
Without limiting the generality of the preceding sentence (i) Seller shall,
during normal business hours, allow Purchaser's auditors reasonable access to
the books and records maintained by Seller (and the Property's property manager)
in respect of the Property; (ii) Seller shall use reasonable efforts to provide
to Purchaser such financial information and supporting documentation as are
necessary for Purchaser's auditors to prepare audited financial statements;
(iii) Seller shall make Seller's property manager and Seller's asset manager in
respect of the Property available for interview in connection with the conduct
of such audit; (iv) Seller will, promptly upon request of Purchaser, provide to
Purchaser's auditors a management representation letter, reasonably satisfactory
to Purchaser's auditors, addressed to Purchaser's auditors; and (v) if Seller
has audited financial statements with respect to the Property, Seller shall
promptly provide Purchaser's auditors with a copy of such audited financial
statements. If after Closing Seller obtains an audited financial statement in
respect of the Property for a fiscal period in 2004 or 2005 that was not
completed at the time of Closing, then Seller shall promptly provide Purchaser
with a copy of such audited financial statement, and the foregoing covenant
shall survive Closing. Purchaser agrees to indemnify and hold Seller harmless of
and from any claim for physical damages or physical injuries arising from
Purchaser's inspection of the Property, and notwithstanding anything to the
contrary in this Agreement, such obligation to indemnify shall survive Closing
or any termination of this Agreement.
3.2 RIGHT OF TERMINATION. Seller agrees that in the event Purchaser
determines, in Purchaser's sole discretion, that the Property is not suitable
for its purposes, or that it is in the interest of Purchaser to
PURCHASE AGREEMENT - Page 4
terminate this Agreement for any other reason, then Purchaser shall have the
right to terminate this Agreement by sending written notice thereof (hereinafter
referred to as the "NOTICE OF TERMINATION") to Seller prior to the expiration of
the Inspection Period. Upon delivery by Purchaser of such Notice of Termination
within the Inspection Period, this Agreement shall terminate and the Xxxxxxx
Money shall be returned to Purchaser. If Purchaser fails to send Seller a Notice
of Termination prior to the expiration of the Inspection Period, Purchaser shall
no longer have any right to terminate this Agreement under this Article III.
ARTICLE IV
CLOSING
4.1 TIME AND PLACE. Closing of the transaction contemplated hereby
("CLOSING") shall be held at the offices of the Title Company on the tenth
(10th) day after the expiration of the Inspection Period (the "CLOSING DATE")
unless otherwise mutually agreed by Seller and Purchaser. At Closing, Seller and
Purchaser shall perform the obligations set forth in, respectively, Section 4.2
and Section 4.3, the performance of which obligations shall be concurrent
conditions.
4.2 SELLER'S OBLIGATIONS AT CLOSING. At Closing, Seller shall:
(a) deliver to Purchaser a Special Warranty Deed (the
"DEED") in the form of EXHIBIT C attached hereto and made a part hereof,
executed and acknowledged by Seller and in recordable form, conveying
the Land and Improvements to Purchaser, subject only to the Permitted
Exceptions;
(b) deliver to Purchaser a Xxxx of Sale and Assignment (the
"XXXX OF SALE") in the form of EXHIBIT D attached hereto and made a part
hereof, executed and acknowledged by Seller and in recordable form;
(c) join with Purchaser in the execution and acknowledgment
of an Assignment and Assumption of Contracts (the "ASSIGNMENT OF
CONTRACTS") in the form of EXHIBIT E attached hereto and made a part
hereof;
(d) join with Purchaser in the execution of a letter to each
tenant of the Property in the form of EXHIBIT F attached hereto and made
a part hereof;
(e) deliver to Purchaser a FIRPTA Affidavit in the form of
EXHIBIT G attached hereto and made a part hereof, duly executed by
Seller;
(f) deliver to Purchaser a current rent roll for the
Property certified by Seller to be true and correct as of the Closing
Date;
(g) deliver to Purchaser a "bills paid affidavit" verifying
that there are no unpaid bills, expenses or claims with respect to the
Property and indemnifying Purchaser from any loss, liability or expense
resulting from or incident to any such matters;
(h) deliver to Purchaser a certificate of compliance with
the architectural barrier provisions of the State Purchase and General
Services Act issued with respect to the Property;
PURCHASE AGREEMENT - Page 5
(i) deliver to Purchaser such evidence as Purchaser's
counsel and/or the Title Company may reasonably require as to the
authority of the person or persons executing documents on behalf of
Seller;
(j) deliver to Purchaser original Leases, original Operating
Agreements and all other documents described in Section 1.1 hereof;
(k) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions;
(l) deliver to Purchaser all available keys or access cards
used with respect to the Property in Seller's possession; and
(m) deliver to Purchaser the Title Policy pursuant to
Section 2.5 hereof.
4.3 PURCHASER'S OBLIGATIONS AT CLOSING. At Closing, Purchaser shall:
(a) pay to Seller the amount of the Purchase Price in cash
or immediately available wire transferred funds, it being agreed that at
Closing the Xxxxxxx Money shall be delivered to Seller and applied
towards payment of the Purchase Price;
(b) join Seller in execution of the instruments described in
Sections 4.2(c) and 4.2(d) above;
(c) deliver to Seller such evidence as Seller's counsel
and/or the Title Company may reasonably require as to the authority of
the person or persons executing documents on behalf of Purchaser.
4.4 CREDITS AND PRORATIONS. The following provisions shall govern
the apportionment of income and expenses with respect to the Property between
Seller and Purchaser:
(a) Real estate taxes and assessments and personal property
taxes shall not be prorated between Seller and Purchaser at Closing,
since GRS (as hereinafter defined) is responsible for their payment
pursuant to the terms of the GRS Lease (as hereinafter defined).
(b) Expenses under the Operating Agreements shall be
prorated between Seller and Purchaser at Closing.
(c) Basic rents ("BASIC RENT") and additional rent relating
to escalation and pass-throughs of operating and other similar expenses
("ADDITIONAL RENT") shall be prorated between Seller and Purchaser based
upon Basic Rent and Additional Rent actually collected. All prepaid
Basic Rent, Additional Rent and other income from the Property shall be
credited to Purchaser at Closing, to the extent same is attributable to
a period of time after Closing. With respect to Additional Rent which is
paid based upon an estimate, with an end-of-year accounting and
adjustment, after Closing Seller and Purchaser shall make any
adjustments to the proration of such items made at Closing at such time
as the final tax and operating expenses numbers become available and
such end-of-year accountings are completed. Any Additional Rent which
may be due Seller as a result of such re-prorations shall be paid by
Purchaser to Seller if and when such Additional Rent is collected by
Purchaser.
PURCHASE AGREEMENT - Page 6
(d) Basic Rent and Additional Rent which is delinquent and
remains uncollected at Closing shall not be prorated between Seller and
Purchaser at Closing. At Closing, Seller shall furnish to Purchaser a
schedule of delinquent Basic Rent and Additional Rent due under the
Leases. Purchaser shall pay Seller's prorata share of any delinquent
Basic Rent and Additional Rent if and when collected by Purchaser;
provided, however, that Purchaser shall have no obligation to collect or
pursue the collection of same. It is understood and agreed that any
Basic Rent or Additional Rent collected by Purchaser after Closing shall
be applied first to currently due Basic Rent and Additional Rent.
Purchaser shall hold all landlord's liens in the entireties thereof to
enforce the payment of rentals to which Purchaser is entitled, and
Seller shall be deemed to have transferred to Purchaser all of such
landlord's liens.
(e) All security deposits and other deposits payable to
tenants under the Leases shall be credited to Purchaser at Closing.
(f) The prorations described in this Section 4.4 shall be
made as of 12:01 a.m. on the Closing Date, as if Purchaser were vested
with title to the Property during the entire day upon which Closing
occurs. All prorations described in this Section 4.4 shall be effected
by increasing or decreasing, as the case may be, the amount of cash to
be paid by Purchaser to Seller at Closing. Seller and Purchaser agree to
adjust between themselves after Closing any errors or omissions in the
prorations made at Closing; provided, however, that such prorations
shall be deemed final and not subject to further post Closing
adjustments if no such adjustments have been requested within one (1)
year after the Closing Date.
4.5 CLOSING COSTS. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction; (b) the basic premium for
the Title Policy; (d) the cost of the Survey; (e) the fees for recording the
deed conveying the Property to Purchaser; and (f) one-half (1/2) of any escrow
fee which may be charged by the Title Company. Purchaser shall pay (x) the cost
of any endorsement to the Title Policy desired by Purchaser; (y) the fees of any
counsel representing Purchaser in connection with this transaction; and (z)
one-half (1/2) of any escrow fees charged by the Title Company. All other costs
and expenses incident to this transaction and the closing thereof shall be paid
by the party incurring same.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Purchaser as follows:
(a) Seller has the full right, power and authority to enter
into this Agreement and to perform all of its obligations under this
Agreement, and the execution and delivery of this Agreement and the
performance by Seller of its obligations under this Agreement require no
further action or approval of Seller's partners or of any other person
in order to constitute this Agreement as a binding and enforceable
obligation of Seller.
(b) To Seller's knowledge, the heating, ventilation, air
conditioning and other mechanical systems located in the Improvements
have been constructed in a good and workmanlike manner and are free from
defects or damage which would render them unfit for their continued use
in the manner in which they are presently used, subject, however, to
ordinary wear and tear.
PURCHASE AGREEMENT - Page 7
(c) To Seller's knowledge, the foundation, walls and all
structural components of the Improvements are structurally sound and
Seller has no knowledge of any material defects or damage to any of the
foregoing.
(d) To Seller's knowledge, the Property is not in violation
of any governmental order, regulation, statute, code or ordinance
dealing with the use, construction, operation, safety and/or maintenance
thereof, and all existing zoning and building codes and other applicable
laws and governmental regulations permit the operation of the Property
in accordance with its present usage. To Seller's knowledge, all
necessary certificates of occupancy, licenses or permits,
authorizations, consents and approvals required by all governmental or
quasi-governmental authorities having jurisdiction, and the requisite
certificates of the local Board of Fire Underwriters (or other body
exercising similar functions) have been issued for the Improvements,
have been paid for in full, and are in full force and effect.
(e) There has been no written demand made upon Seller by any
mortgagee, insurance underwriter or governmental authority for work to
be done or other action to be taken by Seller which has not been
complied with to the satisfaction of the entity making such demand. To
Seller's knowledge, no defect or condition exists with respect to the
Property which would adversely affect the insurability of the Property.
(f) There is no pending condemnation, expropriation, eminent
domain, litigation, administrative action or other legal proceeding
affecting all or any portion of the Property, and Seller has not
received any written or oral notice of any of the same and has no
knowledge that any such proceeding is contemplated.
(g) Seller has no knowledge of any change contemplated in
any applicable laws or any judicial or administrative action, or any
action by adjacent landowners, or any natural or artificial conditions
upon the Property, which would prevent, limit, impede or render more
costly Purchaser's contemplated use of the Property.
(h) There are no Leases granting any person a right to
occupy the Property other than the Lease (the "GRS LEASE") with
Government Record Services, Inc. ("GRS"), which lease is guaranteed by
Affiliated Computer Services, Inc. and Tyler Technologies, Inc. The GRS
Lease is in full force and effect and no default on the part of Seller
or any tenant thereunder exists or has been alleged to exist. All
repairs, alterations, and other work required to be performed by Seller
under the GRS Lease have been fully performed and paid for in full by
Seller. GRS has not paid rent for more than one month in advance of the
current month. GRS has not asserted any claim or offset which would in
any way affect the collection of rent from GRS, nor has GRS given any
notice to Seller of its intention to terminate its tenancy.
(i) All obligations of Seller arising from the ownership and
operation of the Property and business operated thereon, including but
not limited to salaries, taxes, charges, operating expenses and the like
(but excluding those obligations of GRS under the GRS Lease), have been
paid as they became due or will be paid at or prior to Closing. Except
for obligations for which provisions are herein made for proration or
other adjustment at Closing, there will be no obligations of Seller with
respect to the Property outstanding as of the Closing Date.
(j) No person, firm or entity, other than Purchaser has any
right to acquire the Property or any part thereof.
PURCHASE AGREEMENT - Page 8
(k) This Agreement and the conveyance of the Property will
not cause to be imposed on Purchaser any liability to withhold any
amount pursuant to Section 1445 of the Internal Revenue Code or the
implementing regulations.
(l) Seller has not disposed of or otherwise released or
allowed to be released any hazardous or toxic substances, petroleum
products, chemicals, or wastes of any kind on, in, or under the
Property, including any surface waters or groundwater located on such
Property, nor has Seller caused or allowed to be released or discharged
any hazardous or toxic substances, petroleum products, chemicals, or
wastes of any kind on, in, or under any tracts in proximity to the
Property, including the surface or groundwaters thereof. To Seller's
knowledge, there are no hazardous or toxic substances, petroleum
products, chemicals, or wastes on, in, or under the Property, including
surface or groundwaters, regardless of source or cause, and there are no
underground storage tanks on the Property.
5.2 COVENANTS OF SELLER. Seller hereby covenants with Purchaser as
follows:
(a) Within five (5) days after the Effective Date, Seller
shall deliver to Purchaser the documents and other items (the "DUE
DILIGENCE MATERIALS") listed on EXHIBIT I attached hereto and made a
part hereof.
(b) So long as this Agreement remains in effect, Purchaser
will be allowed access to the Property and the books and records related
to the Property under the terms and conditions set forth in Section 3.1
hereof.
(c) Seller shall not negotiate, execute or commit to enter
into (i) any Lease; or (ii) any modification, amendment, restatement or
renewal of any Lease, without Purchaser's prior written consent in each
instance.
(d) Seller shall not enter into any other contract (or an
extension or modification of any other contract) with respect to the
Property which will survive the Closing or otherwise affect the use,
operation or enjoyment of the Property after the Closing, without first
obtaining Purchaser's prior written consent thereof.
(e) After the date hereof and prior to Closing, no part of
the Property, nor any interest therein, will be alienated, liened,
encumbered or otherwise transferred.,
(f) Except to the extent required to be performed by GRS
under the GRS Lease, pending Closing, Seller shall operate and manage
the Property in a normal businesslike manner, maintaining present
services and insurance policies, and shall maintain the Property in good
repair and working order, shall keep on hand sufficient materials,
supplies, equipment, inventory and other personal property for the
efficient operation and management of the Property in a first-class
manner, and shall perform when due, all of Seller's obligations under
the Leases and other contracts affecting the Property and otherwise in
accordance with applicable laws, ordinances, rules and regulations
affecting the Property. Except to the extent required to be performed by
GRS under the GRS Lease, Seller shall remedy any violation of any law,
ordinance, order or other requirement of any governmental authority
having jurisdiction over or affecting all or any part of the Property.
Seller shall deliver the Property at Closing in substantially the same
condition as it was on the Effective Date, reasonable wear and tear
excepted. None of the Personal Property shall be removed from the
Property, unless replaced by personal property of equal or greater
utility and value.
PURCHASE AGREEMENT - Page 9
(g) Except to the extent required to be performed by GRS
under the GRS Lease, Seller has paid or will pay in full, prior to
Closing, all bills and invoices for labor, goods, materials and services
of any kind with respect to the Property and utility charges relating to
the period prior to Closing. Without limiting the foregoing, any and all
leasing commissions and Tenant Inducement Costs (as hereinafter defined)
due or to become due with respect to Leases in existence on the
Effective Date or Leases obtained prior to Closing will be paid in full
by Seller on or before the Closing Date. As used herein, the term
"Tenant Inducement Costs" means any payment required under a Lease to be
paid by the landlord thereunder to or for the benefit of the tenant
thereunder which is in the nature of a tenant inducement, including
specifically without limitation, tenant improvement costs, lease buyouts
and moving allowances.
(h) Seller shall, at the sole expense of Seller, cause any
management and leasing agreement existing in respect of the Property to
be terminated effective as of the Closing Date.
(i) Seller shall promptly notify Purchaser of any change in
any condition with respect to the Property or of any event or
circumstance which makes any representation or warranty of Seller to
Purchaser under this Agreement untrue or misleading, or any covenant of
Seller under this Agreement incapable or less likely of being performed,
it being understood that Seller's obligation to provide notice to
Purchaser under this Section 5.2 shall in no way relieve Seller of any
liability for a breach by Seller of any of its representations,
warranties or covenants in this Agreement.
5.3 REPRESENTATIONS AND WARRANTY OF PURCHASER. Purchaser hereby
represents and warrants to Seller:
(a) Purchaser has the full right, power and authority to
enter into this Agreement and to carry out Purchaser's obligations
hereunder, and to perform all of its obligations under this Agreement,
and the execution and delivery of this Agreement and the performance by
Purchaser of its obligations under this Agreement requires no further
action or approval of Purchaser's partners or of any other person in
order to constitute this Agreement as a binding and enforceable
obligation of Purchaser.
5.4 SURVIVAL OF OBLIGATIONS. Seller and Purchaser agree as follows:
(a) The representations and warranties made by Seller herein
shall be continuing and shall be deemed to be made by Seller as of the
Closing Date with the same force and effect as if made at and as of that
time. All representations, warranties and covenants made by Seller
herein shall survive Closing for a period of one (1) year, unless a
longer survival period is expressly provided herein. Seller shall
indemnify and hold Purchaser free and harmless from and against all
losses, costs, damages and expenses of every kind and nature whatsoever
(including reasonable attorneys' fees and costs) sustained by Purchaser
as a result of any breach of any representation, warranty or covenant
made by Seller in this Agreement.
(b) The representations and warranties made by Purchaser
herein shall be continuing and shall be deemed to be made by Purchaser
as of the Closing Date with the same force and effect as if made at and
as of that time. All representations and warranties of Purchaser shall
survive Closing for a period of one (1) year. Purchaser shall indemnify
and hold Seller free and harmless from and against all losses, costs,
damages, and expenses of every kind and nature whatsoever (including
reasonable attorneys' fees and costs) sustained by Seller as a result of
any breach of any representation or warranty made by Purchaser.
PURCHASE AGREEMENT - Page 10
ARTICLE VI
CONDITIONS PRECEDENT TO THE CLOSING
6.1. CONDITIONS PRECEDENT OF PURCHASER. In addition to all other
conditions set forth in this Agreement, Purchaser's obligation to consummate the
Closing is subject to the satisfaction of each and every one of the conditions
precedent set forth in this section 6.1 (all of which are for the sole benefit
of Purchaser):
(a) Prior to or on the Closing Date, Purchaser shall have
received an Estoppel Certificate in the form of EXHIBIT H attached
hereto, dated no earlier than five (5) days before the Closing Date,
executed by GRS and any guarantor of the GRS Lease. Seller shall use
reasonable efforts to obtain such executed tenant estoppel letter in
such form prior to Closing. Seller shall deliver such tenant estoppel
letter (whether or not in compliance herewith) to Purchaser promptly
following Seller's receipt thereof. If Seller does not timely obtain the
required tenant estoppel letter, then Purchaser may elect, in lieu of
terminating this Agreement as provided below, to adjourn the Closing
Date up to twenty (20) days in order to allow more time to obtain the
required tenant estoppel letter;
(b) As of the Closing Date, (i) the GRS Lease shall be in
full force and effect, (ii) GRS shall not be in default under its lease
of the Property, (iii) GRS shall not have given notice of any default by
Seller under the GRS Lease or any intention to terminate the GRS Lease,
and (iv) neither GRS nor any guarantor of the GRS Lease shall be the
subject of any bankruptcy or other insolvency proceeding.
(c) All representations of Seller set forth in Section 5.1
shall be true, correct and complete in all material respects as of the
Effective Date and shall be true, correct and complete in all material
respects as of the Closing Date.
(d) Seller shall have performed in all material respects all
material obligations required to be performed by Seller hereunder prior
to or in connection with the Closing.
6.2. CONDITIONS PRECEDENT OF SELLER. In addition to all other
conditions set forth in this Agreement, Seller's obligation to consummate the
Closing is subject to the satisfaction of each and every one of the conditions
precedent set forth in this Section 6.2 (all of which are for the sole benefit
of Seller):
(a) All representations of Purchaser set forth in Section
5.3 shall be true, correct and complete in all material respects as of
the Effective Date and shall be true, correct and complete in all
material respects as of the Closing Date; and
(b) Purchaser shall have performed in all material respects
all material obligations required to be performed by Purchaser hereunder
prior to or in connection with the Closing.
6.3 FAILURE OF CONDITION PRECEDENT. Upon the failure of any of the
conditions precedent set forth in Section 6.1, Purchaser shall have the option
to (a) waive such condition precedent and proceed to Closing, or (b) terminate
this Agreement by sending written notice to Seller on or before the date of
Closing, in which event the Xxxxxxx Money shall be returned to Purchaser. Upon
the failure of any of the conditions precedent set forth in Section 6.2, Seller
shall have the option to (a) waive such condition precedent and proceed to
Closing, or (b) terminate this Agreement by sending written notice to Purchaser
on or before the date of Closing, in which event the Xxxxxxx Money shall be paid
over to Seller. If the failure of any of the foregoing
PURCHASE AGREEMENT - Page 11
conditions precedent results from a default by either party hereto, the
non-defaulting party shall also have the right to pursue its remedies for such
default as set forth in Article VII.
ARTICLE VII
DEFAULT
7.1 DEFAULT BY PURCHASER. In the event that Purchaser fails to
consummate this Agreement in breach of its obligations under this Agreement,
Seller shall be entitled, as its sole remedy, to terminate this Agreement and
receive the Xxxxxxx Money as liquidated damages for the breach of this
Agreement, it being agreed between the parties hereto that the actual damages to
Seller in the event of such breach are impractical to ascertain and the amount
of the Xxxxxxx Money is a reasonable estimate thereof. In the event that
Purchaser closes under this Agreement and then fails to fully and timely perform
any of its other obligations under this Agreement that survive or are
performable after the Closing, Seller may seek all remedies available at law or
in equity.
7.2 DEFAULT BY SELLER. In the event that Seller fails to consummate
his Agreement in breach of its obligations under this Agreement, Purchaser
shall be entitled, as its exclusive remedies, either (i) to terminate this
Agreement by giving written notice thereof to Seller, whereupon neither party
shall have any further rights or obligations under this Agreement and the
Xxxxxxx Money shall be returned to Purchaser, or (ii) to enforce specific
performance of Seller's obligations under this Agreement; provided, however, if
Seller's default is such that specific performance cannot be granted as a
judicial remedy, then Purchaser may seek any and all other remedies available at
law or in equity. In the event Purchaser closes under this Agreement and then
Seller fails to fully perform any of its other obligations under this Agreement
that survive or are performable after the Closing, Purchaser may seek all
remedies available at law or in equity.
ARTICLE VIII
RISK OF LOSS
8.1 MINOR DAMAGE. In the event of loss or damage to the Property or
any portion thereof (the "premises in question") which is not "major" (as
hereinafter defined), this Agreement shall remain in full force and effect
provided Seller performs any necessary repairs or, at Seller's option, reduces
the cash portion of the Purchase Price in an amount equal to the cost of such
repairs, Seller thereby retaining all of Seller's right, title and interest to
any claims and proceeds Seller may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question. In the
event that Seller elects to perform repairs upon the Property, Seller shall use
reasonable efforts to complete such repairs promptly and the date of Closing
shall be extended a reasonable time (but in no event more than thirty (30) days)
in order to allow for the completion of such repairs.
8.2 MAJOR DAMAGE. In the event of a "major" loss or damage,
Purchaser may terminate this Agreement by written notice to Seller, in which
event the Xxxxxxx Money shall be returned to Purchaser. If Purchaser does not
send written notice to Seller that Purchaser has elected to proceed with Closing
within ten (10) days after Seller sends Purchaser written notice of the
occurrence of major loss or damage, then Purchaser shall be deemed to have
elected to terminate this Agreement and the Xxxxxxx Money shall be returned to
Purchaser. If Purchaser sends notice to Seller within such ten (10) day period
that Purchaser desires to proceed with Closing, this Agreement shall remain in
effect, provided that the Purchase Price shall be reduced by an amount equal to
the cost of repairing the Property to its condition prior to the occurrence of
PURCHASE AGREEMENT - Page 12
the major loss or damage. Upon Closing, full risk of loss with respect to the
Property shall pass to Purchaser. For purposes of Sections 8.1 and 8.2, "major"
loss or damage refers to the following: (i) loss or damage to the Property or
any portion thereof such that the cost of repairing or restoring the premises in
question to a condition substantially identical to that of the premises in
question prior to the event of damage would be, in the certified opinion of a
mutually acceptable architect, equal to or greater than One Hundred Thousand and
No/100 Dollars ($100,000.00), and (ii) any loss due to a condemnation.
ARTICLE IX
COMMISSIONS
9.1 BROKERAGE COMMISSIONS. In the event the transaction contemplated
by this Agreement is consummated, but not otherwise, Seller agrees to pay to
Stream Dallas Industrial LLP (the "BROKER") a brokerage commission pursuant to a
separate written agreement between Seller and Broker. Each party agrees that
should any claim be made for brokerage commissions or finder's fees by any
broker or finder other than the Broker by, through or on account of any acts of
said party or its representatives, said party will hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense
in connection therewith. In the event the transaction envisioned hereby fails to
close for any reason, including without limitation Seller's or Purchaser's
default, Seller shall have no obligation for the payment of any commission or
similar type fee hereunder. The provisions of this paragraph shall survive
Closing.
ARTICLE X
MISCELLANEOUS
10.1 DISCLAIMERS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT
PURCHASER IS PURCHASING THE PROPERTY "AS IS" AND "WHERE IS," AND WITH ALL FAULTS
AND THAT SELLER IS MAKING NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE
PROPERTY, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
10.2 ASSIGNMENT. Purchaser shall have the right to assign its rights
under this Agreement without the consent of Seller.
10.3 TITLE POLICY OR ABSTRACT. The Texas Real Estate License Act
requires written notice to Purchaser that it should have an attorney examine an
abstract of title to the property being purchased or obtain a title insurance
policy. Notice to that effect is, therefore, hereby given to Purchaser.
10.4 NOTICES. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) expedited delivery service with proof
of delivery, or (c) United States Mail, postage prepaid, registered or certified
mail, return receipt requested, or (d) prepaid telegram, telex or telecopy
(provided that such telegram, telex or telecopy is confirmed by expedited
delivery service or by mail in the manner previously described), sent to the
intended addressee at the address set forth below, or to such other address or
to the attention of such other person as the addressee shall have designated by
written notice sent in accordance herewith, and shall be deemed to have been
given either at the time of personal delivery, or, in the case of expedited
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telegram, telex or
telecopy upon receipt. Unless changed in accordance with the preceding sentence,
the addresses for notices given pursuant to this Agreement shall be as follows:
PURCHASE AGREEMENT - Page 13
IF TO SELLER: Xxxxxxx X. Xxxxx and Xxxxxxx Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
with a copy to: Xxxxx X. Xxxxxx
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
IF TO PURCHASER: Behringer Harvard Mid-Term Value
Enhancement Fund I LP
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Fax No. (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax No. (000) 000-0000
10.5 CALCULATION OF TIME PERIODS. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday under the laws of the State
of Texas, in which event the period shall run until the end of the next day
which is neither a Saturday, Sunday or legal holiday.
10.6 TIME OF ESSENCE. Seller and Purchaser agree that time is of the
essence of this Agreement.
10.7 SUCCESSORS AND ASSIGNS. The terms and provisions of this
Agreement are to apply to and bind the permitted successors and assigns of the
parties hereto.
10.8 ENTIRE AGREEMENT. This Agreement, including the Exhibits,
contains the entire agreement between the parties pertaining to the subject
matter hereof and fully supersedes all prior agreements and understandings
between the parties pertaining to such subject matter.
10.9 FURTHER ASSURANCES. Each party agrees that it will without
further consideration execute and deliver such other documents and take such
other action, whether prior or subsequent to Closing, as may be reasonably
requested by the other party to consummate more effectively the purposes or
subject matter of this Agreement.
10.10 ATTORNEYS' FEES. In the event of any controversy, claim or
dispute between the parties affecting or relating to the subject matter or
performance of this Agreement, the prevailing party shall be entitled to recover
from the nonprevailing party all of its reasonable expenses, including
reasonable attorneys' fees.
PURCHASE AGREEMENT - Page 14
10.11 COUNTERPARTS. This Agreement may be executed in several
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
10.12 SEVERABILITY. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect.
10.13 APPLICABLE LAW. THIS AGREEMENT IS PERFORMABLE IN DALLAS COUNTY,
TEXAS, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE
STATE OF TEXAS. SELLER AND PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN DALLAS COUNTY, TEXAS, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL
BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT SITTING IN DALLAS COUNTY,
TEXAS. SELLER AND PURCHASER AGREE THAT THE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
10.14 NO THIRD PARTY BENEFICIARY. Except as expressly provided in
Section 6.1(b), the provisions of this Agreement and of the documents to be
executed and delivered at Closing are and will be for the benefit of Seller and
Purchaser only and are not for the benefit of any third party, and accordingly,
no third party shall have the right to enforce the provisions of this Agreement
or of the documents to be executed and delivered at Closing.
10.15 EXHIBITS AND SCHEDULES. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) EXHIBIT A - Legal description of the Land
(b) EXHIBIT B - Form of Surveyor's Certificate
(c) EXHIBIT C - Form of Special Warranty Deed
(d) EXHIBIT D - Form of Xxxx of Sale and Assignment
(e) EXHIBIT E - Form of Assignment and Assumption of Contract
(f) EXHIBIT F - Form of Tenant Notice Letter
(g) EXHIBIT G - FIRPTA Affidavit
(h) EXHIBIT H - Form of Tenant Estoppel
(i) EXHIBIT I - Due Diligence Materials
10.16 CAPTIONS. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.17 CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
PURCHASE AGREEMENT - Page 15
10.18 EXCLUSIVE. Until this Agreement is terminated, Seller will cease
its marketing efforts and will not solicit, negotiate or enter into any backup
letters of intent, proposals, options or contracts with regard to the purchase
and sale of the Property.
10.19 ACCESS TO RECORDS. For purposes of the fourth sentence of
Section 3.1 of this Agreement, the representations and warranties of Seller
contained in Section 5.1 of this Agreement, and Exhibit I to this Agreement,
Purchaser understands and recognizes that the Lease with GRS is a "triple net"
lease pursuant to which CRG has undertaken the responsibility to pay taxes and
assessments, maintain and pay for certain types and limits of insurance
coverages, and provide ordinary and routine maintenance with respect to the
Property and Improvements. Accordingly, Purchaser understands and recognizes
that GRS, not Seller, has possession of many of the records and information
relating to the Property and the Improvements that are covered by the
aforementioned Sections 3.1 and 5.1 of, and Exhibit I to, this Agreement, that
Seller does not have a "property manager" or prepare audited financial
statements for the Property as discussed in Section 3.1 hereof, and that Seller
does not have available to it any records relating to the Property that are in
the possession of GRS except information required to be furnished to Seller
pursuant to the Lease.
10.20 TAX FREE EXCHANGE. In the event that either Seller or Purchaser
elect to purchase or sell the Property as part of a like kind exchange pursuant
to Section 1031 of the Internal Revenue Code, the other party agrees to
cooperate with such party in connection therewith and to execute and deliver all
documents which reasonably may be required to effectuate such exchange as a
qualified transaction pursuant to Section 1031 of the Code; provided that: (a)
the Closing shall not be delayed; (b) the other party incurs no additional cost
or liability in connection with the like-kind exchange; (c) such party pays all
costs associated with the like-kind exchange; and (d) the other party is not
obligated to take title to any other property.
10.21 EFFECTIVE DATE. Upon execution of this Agreement by Purchaser
and delivery of same to Seller, this Agreement shall constitute an offer by
Purchaser. The offer by Purchaser herein contained shall automatically be
withdrawn and become of no force or effect unless this Agreement is executed by
Seller and delivered to the Title Company on or before 5 p.m., Dallas, Texas
time, on February 4, 2005. The date of delivery to the Title Company of a fully
executed counterpart of this Agreement, as evidenced by the Title Company's
notation in the space set forth below, shall be deemed the effective date of
this Agreement (the "EFFECTIVE DATE").
PURCHASE AGREEMENT - Page 16
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
to be effective as of the Effective Date.
SELLER:
Executed by Seller XXXXXXX X. XXXXX,
this ____ day of an individual
__________, 2005
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
XXXXXXX XXXXX,
an individual
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
PURCHASE AGREEMENT - Page 17
Executed by Purchaser BEHRINGER HARVARD MID-TERM VALUE
this ____ day of ENHANCEMENT FUND I LP, a Texas limited
__________, 2005 partnership
By: Behringer Harvard Advisors I LP,
a Texas limited partnership
Its General Partner
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
PURCHASE AGREEMENT - Page 18
ACKNOWLEDGMENT BY TITLE COMPANY
The Title Company hereby agrees to perform its obligations under this
Agreement and acknowledges receipt of the First Deposit of Xxxxxxx Money from
Purchaser in the amount of Fifty Thousand and No/100 Dollars ($50,000) on the
_____ day of ___________ , 2005, and of a fully executed counterpart of this
Agreement on the _____ day of ___________ , 2005, which date shall be deemed the
"Effective Date" of this Agreement.
REUNION TITLE
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
PURCHASE AGREEMENT - Page 19
EXHIBIT A
LEGAL DESCRIPTION
[See attached legal description]
PURCHASE AGREEMENT - Page 20
EXHIBIT B
FORM OF
SURVEY CERTIFICATION
I hereby certify to __________________ , a __________________ , and
__________________ Title Insurance Company, that this is a true and correct
survey map made on the ground per the field notes indicated on this survey map
of (Land lot, etc. and street address of the Property) and correctly shows the
true and correct location of the boundary lines and area of the land indicated,
the location and dimensions of all buildings and the locations of all other
visible improvements on said land, including but not limited to structures,
fences, walls and barriers, all parking lots or areas (together with a count of
all parking spaces in said lots), out buildings, water courses, and walkways,
situated on such land and all easements, utilities, and rights-of-way (visible
or of record) of which the undersigned has knowledge or has been advised of. The
buildings and improvements do not overhang or encroach upon any easement or
right-of-way of others, and there are no encroachments either way across the
property lines, except as shown. The property surveyed contains
__________________ acres and is not located within a flood plain or mudslide
area as defined by the United States Department of Housing and Urban Development
under the Flood Disaster Protection Act of 1973 as amended or as scaled on FEMA
Flood Insurance Rate MAP No. ________ , dated __________________. The survey
correctly shows the location and dimensions of all adjoining alleys, streets,
roads and rights-of-way and distance of the subject property from the nearest
major street intersection. There are no visible (a) improvements, (b) party
walls (c) violations of set backs, (d) water courses, (e) easements, (f) roads,
streets or alleys, (g) rights of way, (h) encroachments, (i) discrepancies, or
(j) overlapping or conflicts on the subject property except as shown on this
survey map and the subject property does not visibly serve any adjoining
property for drainage, ingress, egress or other similar purposes.
I hereby certify that this survey map and the survey on which it is
based were made in accordance with the most current Minimum Detail Requirements
for ALTA/ACSM Land Title Surveys, jointly established and adopted by ALTA, ACSM
and NSPS 1999, and includes Items 1, 3, 4, 7(a), 8, 9, 10, 11(a), 14 and 15 of
Table A. Pursuant to the accuracy standards as adopted by ALTA, ACSM and NSPS
and in effect on the date of this certification, the undersigned further
certifies that the positional uncertainties resulting from the survey
measurements made on the survey do not exceed the allowable positional
tolerance. I further certify that this survey map was prepared by the
undersigned and that the survey was performed on the ground by the undersigned
or by qualified persons under the direct supervision and employment of the
undersigned.
By:
---------------------------------------------
Registration No.:
-------------------------------
Date:
-------------------------------------------
(Seal)
PURCHASE AGREEMENT - Page 21
EXHIBIT C
SPECIAL WARRANTY DEED
STATE OF TEXAS ss.
ss. KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF ______ ss.
THAT ___________________ , a ___________________ (herein referred to as
"Grantor"), for and in consideration of the sum of Ten Dollars ($10.00) in hand
paid to Grantor by ___________________ , a ____________ (herein referred to as
"Grantee"), whose mailing address is ___________________ , and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED unto Grantee that
certain tract of real property located in _____ County, Texas, more particularly
described on EXHIBIT A attached hereto and made a part hereof for all purposes,
together with (a) any and all appurtenances belonging or appertaining thereto;
(b) any and all improvements located thereon; (c) any and all appurtenant
easements or rights of way affecting said real property and any of Grantor's
rights to use same; (d) any and all rights of ingress and egress to and from
said real property and any of Grantor's rights to use same; (e) any and all
mineral rights and interests of Grantor relating to said real property (present
or reversionary); (f) any and all rights to the present or future use of
wastewater, wastewater capacity, drainage, water or other utility facilities to
the extent same pertain to or benefit said real property or the improvements
located thereon, including without limitation, all reservations of or
commitments or letters covering any such use in the future, whether now owned or
hereafter acquired; and (g) all right, title and interest of Grantor, if any, in
and to (i) any and all roads, streets, alleys and ways (open or proposed)
affecting, crossing, fronting or bounding said real property, including any
awards made or to be made relating thereto including, without limitation, any
unpaid awards or damages payable by reason of damages thereto or by reason of a
widening of or changing of the grade with respect to same, (ii) any and all
strips, gores or pieces of property abutting, bounding or which are adjacent or
contiguous to said real property (whether owned or claimed by deed, limitations
or otherwise), (iii) any and all air rights relating to said real property, and
(iv) any and all reversionary interests in and to said real property (said real
property together with any and all of the related improvements, appurtenances,
rights and interests referenced in clauses (a) through (g) above being herein
collectively referred to as the "Property").
This Special Warranty Deed and the conveyance hereinabove set forth is
executed by Grantor and accepted by Grantee subject to the matters described in
EXHIBIT B attached hereto and incorporated herein by this reference, to the
extent the same are validly existing and applicable to the Property (hereinafter
referred to collectively as the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging, unto Grantee, its
successors and assigns forever, subject to the matters herein stated; and
Grantor does hereby bind itself and its successors and assigns to WARRANT AND
FOREVER DEFEND all and singular the Property unto Grantee, its successors and
assigns, against every person whomsoever lawfully claiming or to claim the same
or any part thereof, by, through or under Grantor, but not otherwise, subject to
the Permitted Exceptions.
Grantor warrants and represents that all ad valorem taxes and
assessments on the Property for the year 2004 and all prior years have been
fully paid.
PURCHASE AGREEMENT - Page 22
EXECUTED to be effective as of the ____ day of ________, 20__.
GRANTOR:
[Name of Seller],
a
---------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PURCHASE AGREEMENT - Page 23
THE STATE OF __________ ss.
ss.
COUNTY OF __________ ss.
BEFORE ME, the undersigned authority, on this day personally appeared
_________________, of __________, a ____________, known to me to be the person
and whose name is subscribed to the foregoing instrument, who acknowledged to me
that, being duly authorized so to do, he executed the same for the purposes and
consideration therein expressed and in the capacity therein stated for and on
behalf of said ___________ .
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____ day of _________,
20__.
------------------------------------------------
Notary Public in and for
the State of
-----------------------------------
------------------------------------------------
Printed/Typed Name of Notary
My commission expires:
------------------------------------------------
PURCHASE AGREEMENT - Page 24
EXHIBIT D
XXXX OF SALE AND ASSIGNMENT
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _____ ss.
THAT this XXXX OF SALE AND ASSIGNMENT (this "Xxxx of Sale") is made
from, a ____________________ ("Assignor") to ____________________ , a _________
("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Xxxx of
Sale, Assignor is conveying to Assignee, by Special Warranty Deed (the "Deed")
that certain tract of land (the "Land") more particularly described on EXHIBIT A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain the Assigned Properties (as hereafter defined),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the receipt of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER, and
DELIVER to Assignee the following (collectively, the "Assigned Properties"):
(a) The personal property owned by Assignor upon the Land or
within the Improvements, including specifically, without limitation, the
personal property described on EXHIBIT B attached hereto and made a part
hereof and all heating, ventilation and air conditioning systems and
equipment, appliances, furniture, carpeting, draperies and curtains,
tools and supplies, and other items of personal property used in
connection with the operation of the Land and the Improvements
(collectively, the "Personal Property"); and
(b) All of Assignor's right, title and interest in and to
(i) all warranties and guaranties (express or implied) issued to
Assignor in connection with the Land, Improvements or the Personal
Property; (ii) all licenses, permits, certificates of occupancy and
other consents or approvals from governmental authorities or private
parties which relate to the Land, Improvements, or Personal Property;
(iv) all other intangible property associated with the use or operation
of the Land, Improvements or Personal Property, including specifically,
without limitation, any and all other trade names or logos used by
Assignor in the operation of the Land, Improvements or Personal
Property; and (v) all plans, specifications, drawings, reports, studies,
books, records and other documents pertaining to the Land, Improvements
or Personal Property.
TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its
successors and assigns, forever, and Assignor does hereby bind itself and its
successors to WARRANT AND FOREVER DEFEND, all and singular, title to the
Assigned Properties unto Assignee, its successors and assigns, against every
PURCHASE AGREEMENT - Page 25
person whomsoever lawfully claiming or to claim the same, or any part thereof
by, through or under Assignor, but not otherwise, subject to the Permitted
Exceptions described in the Deed.
EXECUTED to be effective as of the ____ day of __________ , 20__.
ASSIGNOR:
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE STATE OF TEXAS ss.
ss.
COUNTY OF _____ ss.
This instrument was acknowledged before me on ______, 20__, by
___________ , _________ of ______________ , a ______________________ , on behalf
of said corporation.
------------------------------------------------
Notary Public in and for the
State of Texas
------------------------------------------------
Printed/Typed Name of Notary
My Commission Expires:
--------------------------
PURCHASE AGREEMENT - Page 26
Exhibit E
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THE STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _____ ss.
THAT this ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is
made by and between ________________ , a ______________________________________,
("Assignor"), and _______________ , a _______________ ("Assignee").
RECITALS
A. Concurrently with the execution and delivery of this Assignment,
Assignor is conveying to Assignee by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more specifically described in EXHIBIT A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements") and the personal property
owned by Assignor upon the Land or within the Improvements (the "Personal
Property").
B. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively, the "Contracts").
(a) all oral or written agreements pursuant to which any
portion of the Land or Improvements is used or occupied by anyone other
than Assignor (collectively, the "Leases"), such Leases being more
particularly described in EXHIBIT B attached hereto and made a part
hereof; and
(b) the contracts relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property
that are listed on EXHIBIT C attached hereto and made a part hereof.
This Assignment is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Contracts. Assignor represents to Assignee that
(i) there are no Contracts affecting the Property other than those listed on
EXHIBIT B and EXHIBIT C attached hereto; (ii) Assignor is not in default under
any of the Contracts, nor does any default exist on the part of the other party
thereto; and (iii) Assignor has full right, power and authority to assign the
Contracts to Assignee.
PURCHASE AGREEMENT - Page 27
By execution of this Assignment, Assignee assumes and agrees to perform
all of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"Contractual Obligations"), as such Contractual Obligations shall arise or
accrue from and after the date of this Assignment. Assignee hereby agrees to
indemnify, hold harmless and defend Assignor from and against any and all third
party obligations, liabilities, costs and claims (including reasonable
attorney's fees) arising as a result of or with respect to any of the
Contractual Obligations that are attributable to the period of time from and
after the date of this Assignment.
Assignor agrees to indemnify, hold harmless and defend Assignee from and
against any and all third party obligations, liabilities, costs and claims
(including reasonable attorney's fees) arising as a result of or with respect to
any of the Contractual Obligations that are attributable to the period of time
prior to the date of this Assignment.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
EXECUTED to be effective as of the __ day of _______ , 20__.
ASSIGNOR:
----------------------------------------
a
---------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ASSIGNEE:
----------------------------------------
a
---------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PURCHASE AGREEMENT - Page 00
XXX XXXXX XX XXXXX ss.
ss.
COUNTY OF _____ ss.
This instrument was acknowledged before me on the __ day of ___________,
20__ , by ___________ , as ________ of _______________ , a ________________ , on
behalf of said _________ .
------------------------------------------------
Notary Public in and for the
State of Texas
------------------------------------------------
(Printed Name of Notary)
My Commission Expires:
--------------------------
THE STATE OF TEXAS ss.
ss.
COUNTY OF ______ ss.
This instrument was acknowledged before me on the __ day of ___________,
20__ , by ___________ , as ________ of _______________ , a ________________ , on
behalf of said _________ .
------------------------------------------------
Notary Public in and for the
State of Texas
------------------------------------------------
(Printed Name of Notary)
My Commission Expires:
--------------------------
PURCHASE AGREEMENT - Page 29
EXHIBIT F
TENANT NOTIFICATION LETTER
, 2005
[Name and Address of Tenant]
Re: Sale of
Gentlemen:
Please be advised that ________________ ("Purchaser") has purchased the
captioned property, in which you occupy space as a tenant pursuant to a lease
dated _______ ___, 19__ (the "Lease"), ______________ (" "), the previous owner
thereof. In connection with such purchase, _____________ has assigned its
interest as landlord in the Lease to Purchaser and has transferred your security
deposit in the amount of $ (the "Security Deposit") to Purchaser. Purchaser
specifically acknowledges the receipt of and responsibility for the Security
Deposit.
All rental and other payments that become due subsequent to the date
hereof should be payable to ____________ and should be addressed as follows:
In addition, all notices from you to the landlord concerning any matter
relating to your tenancy should be sent to the address above.
Very truly yours,
---------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PURCHASE AGREEMENT - Page 30
EXHIBIT G
FIRPTA AFFIDAVIT
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ______ ss.
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform ______________________ , a ("Transferee"), that withholding of
tax is not required upon the disposition of a U.S. real property interest by
_________________ ("Transferor"), the undersigned hereby certifies as follows:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in
the Internal Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is: # ;
3. Transferor's office address is , .
Transferor understands that this certification may be disclosed
to the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned, in the capacity set
forth below, hereby declares that he has examined this certification and to the
best of his knowledge and belief it is true, correct, and complete, and the
undersigned further declares that he has authority to sign this document in such
capacity.
EXECUTED effective as of the ____ day of ____________ , 20__.
----------------------------------------
a
---------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PURCHASE AGREEMENT - Page 31
SWORN TO AND SUBSCRIBED BEFORE ME this ____ day of __________ , 20__.
------------------------------------------------
Notary Public in and for the
State of Texas
------------------------------------------------
Printed/Typed Name of Notary
My Commission Expires:
------------------------------------------------
PURCHASE AGREEMENT - Page 32
EXHIBIT H
TENANT ESTOPPEL
[TENANT'S LETTERHEAD]
__________, 2005
Behringer Harvard Mid-Term Value Enhancement Fund I LP
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
[PURCHASER]
Re: Lease Agreement dated September 24, 2000 (the "LEASE") executed
between Xxxxxxx X. Xxxxx and Xxxxxxx Xxxxx, as landlord
(collectively, "LANDLORD") and Government Record Services, Inc.,
a Texas corporation, as tenant ("TENANT"), demising certain
premises ("PREMISES") in the building having a street address of
0000 Xxxxxxxxxxx, Xxxxxx, Xxxxx
------------------------------------------------------
Gentlemen:
The undersigned is the Tenant under the captioned Lease. It is our
understanding that Behringer Harvard Mid-Term Value Enhancement Fund I LP, or
its affiliate or assignee ("Purchaser"), is purchasing the interest of Landlord
in certain property ("Property") which includes the Premises and that Purchaser
will be relying upon each of the statements contained herein in connection with
such purchase. Accordingly, the undersigned hereby ratifies the Lease and
certifies to Purchaser as follows:
1. Attached to this letter as EXHIBIT A (and made a part hereof by
this reference) is a true, correct and complete copy of the Lease (including all
addendums, riders, amendments, modifications and supplements thereto). The Lease
has not been assigned, sublet, modified, changed, altered or amended in any
respect except as reflected in EXHIBIT A hereto, and no other instrument or
agreement, whether oral or written, affects Tenant's right to use or occupy
Tenant's space. The Lease contains the entire agreement between Tenant and
Landlord as to the leasing of the Premises, including specifically, without
limitation, all agreements concerning any free rent, partial rent, rebate of
rental payments or any other type of rental or other economic inducement.
2. The Lease is for a total term of one hundred twenty (120)
calendar months, beginning on the commencement date of October 1, 2000, and
ending on the expiration date of September 31, 2010, unless sooner terminated or
extended pursuant to the provisions of the Lease. Tenant accepted possession of
the Premises on October 1, 2000. The obligations of Tenant under the Lease are
guaranteed by (a) Affiliated
PURCHASE AGREEMENT - Page 33
Computer Services, Inc., a Delaware corporation, pursuant to that certain
Guaranty dated as of December 29, 2000, and (b) Tyler Technologies, Inc., a
Delaware corporation, pursuant to that certain Guaranty dated as of September
29, 2000.
4. The Premises is presently comprised of square feet and Tenant is
currently paying $ per month as fixed rental to Landlord under the Lease. In
addition to fixed rental, Tenant is currently obligated to pay a proportionate
share of real property taxes and operating expenses as set forth in the Lease.
5. Tenant has no right to lease or occupy any parking spaces within
the Property except as set forth in the Lease.
6. Tenant does not have any right to renew or extend the term of
the Lease except as may be expressly set forth in the Lease, nor does Tenant
have (a) any option or preferential right to purchase all or any part of the
Premises or all or any part of the Property, or (b) any right, title or interest
with respect to the Premises other than as Tenant under the Lease. There are no
understandings, contracts, agreement or commitments of any kind whatsoever with
respect to the Premises, except as expressly provided in the Lease.
7. Tenant has not assigned, transferred, or hypothecated its
interest under the Lease, and, to the best knowledge of Tenant, Landlord is the
current landlord under the Lease.
8. 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 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.
9. Tenant has no defenses against the enforcement of the Lease by
Landlord and Tenant knows of no present controversy, dispute, quarrel or
disagreement which exists between Landlord and Tenant with respect to Tenant's
tenancy. Without limiting the generality of the foregoing, Tenant is not
currently entitled to any offsets or credits against rentals payable under the
Lease.
10. 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.
11. 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,
except as follows:________________________.
12. The undersigned will attorn to and recognize Purchaser
(including, as aforesaid, in such term any assignee or affiliate of Behringer
Harvard Mid-Term Value Enhancement Fund I LP) as the Landlord under the Lease
and will pay all rents and other amounts due thereunder to Purchaser upon notice
to Tenant that Purchaser has become the owner of Landlord's interest in the
Premises under the Lease.
13. The individual executing this letter on behalf of Tenant has
full authority to make the certifications set forth herein and to bind Tenant
hereto.
PURCHASE AGREEMENT - Page 34
Tenant makes the above certifications and representations for the
benefit and protection of Purchaser and to induce Purchaser to purchase the
interest of Landlord in the Property, and with the intent and understanding that
they will be relied upon by Purchaser in the closing of such purchase.
Very truly yours,
GOVERNMENT RECORD SERVICES, INC.
a Texas corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PURCHASE AGREEMENT - Page 35
JOINDER OF GUARANTORS
Each of the undersigned joins in the execution of this Tenant Estoppel
for the purpose of confirming to and for the benefit of Purchaser (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 Purchaser will rely upon the
foregoing confirmations.
AFFILIATED COMPUTER SERVICES, INC.
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
TYLER TECHNOLOGIES, INC.
a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PURCHASE AGREEMENT - Page 36
EXHIBIT I
DUE DILIGENCE MATERIALS
1. Copies of all records, instruments, contracts, licenses,
permits, plans, specifications, reports, studies and agreements in Seller's
possession or reasonably available to Seller which affect the ownership or
operation of the Property.
2. Copies of any and all Leases and lease files, service contracts,
construction contracts, warranties and guaranties relating to the Property.
3. An inventory of the Personal Property.
4. A rent roll for the Property as of or subsequent to the date
hereof and showing for each unit of space the tenant name, unit name, unit
number, monthly rental, security deposit held, any defaults in any Lease and the
expiration date of each Lease.
5. Insurance information for the Property in the possession of or
reasonably available to Seller, including the type and limits of coverage
currently in place, the premiums paid by Seller therefor, and the loss history
in respect of the Property.
6. Architectural drawings and plans and specifications for the
Improvements which are in the possession of Seller or reasonably available to
Seller.
7. Financial information for the Property in the possession of
Seller or reasonably available to Seller (including, without limitation, monthly
and annual operating statements and reconciliation statements in the possession
of Seller or reasonably available to Seller) for the previous three (3) full
calendar years and for 2005 (broken down by months for 2005) through the date
hereof.
8. A list of all pending or threatened litigation or arbitration
proceedings wherein Seller is a defendant or which affect the operation of the
Property or which involve both Seller and any current tenant of the Property.
9. A summary of all capital expenditures made by Seller during its
ownership of the Property, to the extent such expenditures are reflected in the
books and records maintained by Seller.
10. A list of all claims made under insurance policies covering the
Property.
11. Evidence from the Secretary of State of Texas or Information
America showing any UCC-1 financing statements relating to Seller or the
Property.
12. Such other documents and information in the possession of Seller
or reasonably available to Seller as Purchaser may reasonably request in
connection with its inspection of the Property and the documents relating
thereto.
PURCHASE AGREEMENT - Page 37
