EXHIBIT 10.12
PURCHASE AND SALE CONTRACT
1. PARTIES.
This Purchase and Sale Contract ("CONTRACT") is made between CRESCENT
REAL ESTATE FUNDING VIII, L.P., a Delaware limited partnership ("SELLER"), and
HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company, dba Behringer
Harvard Funds ("Purchaser").
2. PROPERTY.
On the terms and conditions stated in this Contract, Seller hereby
agrees to sell to Purchaser and Purchaser hereby agrees to purchase from Seller
all of the following described property (collectively, the "PROPERTY"):
2.1 LAND. Fee simple title in and to all of those certain tracts of
land situated in Dallas County, Texas and described more particularly in EXHIBIT
"A" attached hereto and incorporated herein by reference, together with all of
Seller's right, title and interest appurtenant to such land, including, without
limitation, all of Seller's right, title and interest, if any, in and to (i) all
minerals, oil, gas, and other hydrocarbon substances thereon, (ii) all adjacent
strips, streets, roads, alleys and rights-of-way, public or private, open or
proposed pertaining thereto, (iii) all easements, privileges, and hereditaments
pertaining thereto, whether or not of record, and (iv) all access, air, water,
riparian, development, and utility, and solar rights pertaining thereto
(collectively, the "LAND").
2.2 IMPROVEMENTS. The office buildings and all other improvements
and structures constructed on the Land (collectively, the "IMPROVEMENTS"). The
Land and Improvements are referred to herein as the "REAL PROPERTY".
2.3 PERSONAL PROPERTY. All of Seller's right, title and interest in
the following additional property ("PERSONAL PROPERTY"), but specifically
excluding any items of personal property owned by any tenant occupying space in
the Improvements:
2.3.1 TANGIBLE PROPERTY.
(i) mechanical systems, fixtures and equipment
comprising a part of or attached to or located upon the Improvements,
(ii) maintenance equipment and tools owned by Seller,
located on the Land and used exclusively in connection with the Improvements,
(iii) site plans, surveys, plans and specifications,
marketing materials and floor plans in Seller's possession which relate
exclusively to the Real Property,
(iv) pylons and other signs located on the Land, and
(v) other tangible property of every kind and
character owned by Seller and located in or on the Real Property (Items (i)
through (v), collectively, the "TANGIBLE PROPERTY").
2.3.2 LEASE RIGHTS. Leases and rental agreements with tenants
occupying space in the Improvements (the "LEASES"), and any guaranties or other
security applicable thereto and all security deposits, advance rental, or like
payments, if any, held by Seller in connection with the Leases.
2.3.3 OTHER CONTRACT RIGHTS. To the extent assignable or
transferable, all contract rights (collectively, the "CONTRACT RIGHTS") related
to the Real Property, Tangible Property or Leases, including, without
limitation, Seller's interest in the following: employment, maintenance,
construction, commission, architectural, parking, telecommunication, supply or
service contracts, warranties, guarantees and bonds and other agreements related
to the Improvements, Tangible Property, or Leases that will remain in existence
after Closing (collectively, the "OPERATING CONTRACTS").
2.3.4 PERMITS. To the extent assignable or transferable, all
permits, licenses, certificates of occupancy, and governmental approvals which
relate to the Real Property, Tangible Property, Leases, the Contract Rights or
the Operating Contracts (collectively, the "PERMITS").
2.3.5 GOODWILL AND OTHER RIGHTS. Tradenames, trademarks or
internet domain sites and names used exclusively in connection with the Real
Property, and any goodwill related to the Real Property, specifically excluding,
however, any rights to or goodwill related to the name "CRESCENT" or any
derivative or form of such name, or to any xxxx associated with such name or any
derivative or form thereof.
2.3.6 PENDING AWARDS. Any pending or future award made with
respect to condemnation of the Land or Improvements, any award or payment for
damage to the Real Property or claim or cause of action for damage, injury or
loss with respect to the ownership, maintenance and operation of the Real
Property.
2.3.7 OTHER RIGHTS. All other rights owned by Seller necessary
to and used exclusively in connection with the ownership, maintenance or
operation of the items set forth in SECTIONS 2.1 - 2.3.6 above.
3. PURCHASE PRICE.
3.1 PAYMENT. The purchase price (the "PURCHASE PRICE") for the
Property will be the sum of Nine Million One Hundred Thousand and No/100 Dollars
($9,100,000.00). The Purchase Price will be payable in cash, federal funds,
cashier's or certified check, or other funds immediately available in Fort
Worth, Texas at the "CLOSING" (hereinafter defined).
4. CONSIDERATION.
4.1 XXXXXXX MONEY AND TITLE COMPANY.
4.1.1 INITIAL XXXXXXX MONEY. Within two (2) Business Days
after the execution of this Contract by all parties hereto, Purchaser will by
check or wire transfer, deposit with Chicago Title Insurance Company/Southwest
Operations, 0000 Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 (the "TITLE COMPANY"),
as "INITIAL XXXXXXX MONEY" (herein so called), the amount of One
Hundred Thousand and No/100 Dollars ($100,000.00). Notwithstanding anything in
this Contract to the contrary, One Hundred and No/100 Dollars ($100.00) of the
Initial Xxxxxxx Money is delivered to the Title Company for delivery by the
Title Company to Seller as "INDEPENDENT CONTRACT CONSIDERATION" (herein so
called), and the Initial Xxxxxxx Money is reduced by the amount of the
Independent Contract Consideration, which amount has been bargained for and
agreed to as consideration for Seller's execution and delivery of this Contract.
The Independent Contract Consideration is in addition to and independent of all
other consideration provided for in this Contract and is non-refundable in all
events.
4.1.2 ADDITIONAL XXXXXXX MONEY. Unless Purchaser terminates
this Contract as provided in SECTION 6.6, Purchaser shall, by check or wire
transfer, deposit, within 2 Business Days after the Termination Date, an
additional One Hundred Thousand and No/100 Dollars ($100,000.00) with the Title
Company to be held as additional Xxxxxxx Money under this Contract ("ADDITIONAL
XXXXXXX MONEY"). If Purchaser fails to timely deliver or wire the Additional
Xxxxxxx Money to the Title Company, Seller may terminate this Contract by
delivering written notice, prior to the time Purchaser delivers or wires the
Additional Xxxxxxx Money to the Title Company, to Purchaser and Title Company.
Upon delivery of such notice, the Title Company shall deliver the Initial
Xxxxxxx Money to Seller, and Seller and Purchaser will have no further
obligations, one to the other, with respect to the subject matter of this
Contract, except for provisions that survive termination of this Contract by
their terms.
4.1.3 EXTENSION XXXXXXX MONEY. At any time after Purchaser
deposits the Additional Xxxxxxx Money but before the Closing Date (defined in
Section 9.1), Purchaser shall have the option to extend such Closing Date to
occur before 1:00 p.m. on the date that is no later than sixty (60) days
following the Termination Date (the "EXTENSION OPTION"). The Extension Option
shall be exercised by (i) delivering written notice to Seller, and (ii)
depositing, by check or wire transfer, an additional Three Hundred Thousand and
No/100 Dollars ($300,000.00) with the Title Company no later than the date of
Seller's receipt of Purchaser's notice of exercise of the Extension Option to be
held as additional Xxxxxxx Money (the "EXTENSION XXXXXXX MONEY"). If Purchaser
delivers a notice exercising the Extension Option, but fails to timely deliver
or wire the Extension Xxxxxxx Money to the Title Company, Seller may terminate
this Contract by delivering written notice, prior to the time Purchaser delivers
or wires the Extension Xxxxxxx Money to the Title Company, to Purchaser and
Title Company. Upon delivery of such notice by Seller to Purchaser and the Title
Company, the Title Company shall deliver the Xxxxxxx Money to Seller, and Seller
and Purchaser will have no further obligations, one to the other, with respect
to the subject matter of this Contract, except for provisions that survive
termination of this Contract by their terms. The Initial Xxxxxxx Money and when
deposited the Additional Xxxxxxx Money and, if applicable, when deposited the
Extension Xxxxxxx Money, together with all interest thereon, are hereafter
called the "Xxxxxxx Money".
4.2 FURTHER APPLICATION OF XXXXXXX MONEY. The Title Company will
immediately deposit the Xxxxxxx Money, less the Independent Contract
Consideration, in an interest bearing account at a bank acceptable to both
Purchaser and Seller, the earnings from which will become part of the Xxxxxxx
Money, and will deliver the Independent Contract Consideration to Seller. In the
event that this transaction is consummated, all Xxxxxxx Money and interest
thereon will be applied in partial satisfaction of the Purchase Price. If,
however, this transaction is not consummated, the Xxxxxxx Money
will be delivered to Seller or returned to Purchaser by the Title Company as
elsewhere provided in this Contract.
4.3 DISPUTE AS TO XXXXXXX MONEY. In the event of a dispute with
respect to the right to receive the Xxxxxxx Money, the Title Company may
interplead the Xxxxxxx Money into a court of competent jurisdiction in Tarrant
County, Texas. All attorneys' fees and costs and Title Company's costs and
expenses incurred in connection with such interpleader will be assessed against
the party that is not awarded the Xxxxxxx Money or, if the Xxxxxxx Money is
distributed in part to both parties, then in the inverse proportion of such
distribution.
5. TITLE AND SURVEY.
5.1 TITLE COMMITMENT AND DOCUMENTS. Within ten (10) Business Days of
the Effective Date, Seller, at Seller's sole cost and expense, will cause the
following to be delivered to Purchaser:
(i) a current Commitment for Title Insurance (the
"TITLE COMMITMENT") issued by the Title Company, on behalf of Chicago Title
Insurance Company (the "TITLE UNDERWRITER"), setting forth the matters (the
"TITLE EXCEPTIONS") that the Title Company determines affect title to the Real
Property,
(ii) true, correct, and legible copies of all
instruments that create or evidence Title Exceptions, including those described
in Schedule B and Schedule C of the Title Commitment, and
(iii) an update of the existing survey of the Property
in Seller's possession (the "SURVEY"). Purchaser shall, at its sole cost and
expense, contract directly with the surveyor under the Survey for any changes or
modifications to the Survey deemed necessary or desirable by Purchaser.
The Title Commitment will contain the express commitment of the Title
Company to issue the Title Policy (as hereinafter defined) to Purchaser in the
amount of the Purchase Price, insuring the title to the Real Property as is
specified in the Title Commitment, with the standard printed exceptions.
5.2 UCC SEARCHES. Purchaser may obtain, at its sole cost, a
currently dated search of the Uniform Commercial Code Records of Dallas County,
Texas, and the Secretary of State of Texas under the name of Seller and any
subsidiary of Seller (the "UCC SEARCHES").
5.3 REVIEW OF TITLE COMMITMENT, SURVEY AND EXCEPTION DOCUMENTS.
Purchaser will have a period of ten (10) calendar days (the "TITLE REVIEW
PERIOD") after delivery of all the items specified in SECTION 5.1, in which to
give written notice to Seller specifying Purchaser's objections to the Title
Commitment, Title Exceptions, UCC Searches and Survey ("TITLE OBJECTIONS"), if
any.
5.4 SELLER'S OBLIGATION TO CURE; PURCHASER'S RIGHT TO TERMINATE.
5.4.1 TITLE REVIEW. If Purchaser timely notifies Seller in
writing of Title Objections, Seller will, within five (5) Business Days after
Seller's receipt of Purchaser's notice (the "TITLE CURE PERIOD"), notify
Purchaser in writing that Seller will either satisfy the Title
Objections at Seller's sole cost and expense, or that Seller cannot or will not
satisfy certain Title Objections at Seller's expense. Failure by Seller to
timely respond shall be deemed Seller's decision not to cure any Title
Objections. If Seller elects not to satisfy any of the Title Objections within
the Title Cure Period, Purchaser has the option (as its sole remedy),
exercisable at any time prior to the Termination Date (hereinafter defined), of
either (i) waiving the unsatisfied Title Objections, in which event the
unsatisfied Title Objections will become Permitted Exceptions, or (ii)
terminating this Contract and receiving back the Xxxxxxx Money (less the
Independent Contract Consideration), in which latter event Seller and Purchaser
will have no further obligations, one to the other, with respect to the subject
matter of this Contract, except for return of the Xxxxxxx Money (less the
Independent Contract Consideration) and other provisions that survive
termination of this Contract by their terms. Purchaser's failure to deliver a
notice of termination on or prior to the Termination Date shall constitute
Purchaser's waiver of any Title Objection that Seller has elected not to
satisfy.
5.4.2 LIEN EXCEPTIONS. Except as otherwise provided herein,
Seller shall have no obligation whatsoever to expend or agree to expend any
funds, to undertake or agree to undertake any obligations or otherwise to cure
or agree to cure any title or survey objections, and Seller shall not be deemed
to have any obligation to cure unless Seller expressly undertakes such an
obligation by a written notice to or written agreement with Purchaser given or
entered into on or prior to the Termination Date. Notwithstanding the foregoing,
all exceptions to title shown on the Title Commitment or otherwise arising prior
to the Closing which evidence (a) to the extent assumed or otherwise
acknowledged by Seller, mortgages or deeds of trust encumbering Seller's fee
interest in the Property; (b) judgment liens evidencing judgments rendered
against Seller and encumbering Seller's fee interest in the Property; (c)
mechanic's or materialmen's liens encumbering Seller's fee interest in the
Property and arising from any work performed or materials furnished for or on
behalf of Seller, and (d) contractual liens created by a contract between Seller
and the lienholder and becoming liens through either the contract or by
operation of applicable federal, state or local law (items a, b, c and d above
collectively referred to as "LIEN EXCEPTIONS"), shall, in each instance, be
deemed objected to without any notice by Purchaser and cured by Seller (which,
in the case of a mechanic's or materialmen's lien shall include, at Seller's
option, bonding around the mechanic's or materialmen's lien) at or prior to
Closing. Notwithstanding any provisions of this Contract to the contrary, on or
before the Closing, Seller shall cause all Lien Exceptions to be released of
record and no Lien Exceptions shall be considered a Permitted Encumbrance. (The
requirement of the preceding sentence shall be satisfied as to any Lien
Exception if on the Closing Date the Title Company has wired to the owner of
that Lien Exception the amount said owner has notified the Title Company is
required to release the Lien Exception and said owner has agreed upon receipt of
said amount to execute, acknowledge and deliver to the Title Company a release
of the respective Lien Exception.) Seller will cooperate with Purchaser in
obtaining revisions of the Survey and an update of the certificate thereon at
the expense of Purchaser.
5.5 PERMITTED EXCEPTIONS. For purposes of this Contract the term
"PERMITTED EXCEPTIONS" will mean all Title Exceptions to which Purchaser has not
objected, and all other Title Objections which Purchaser has waived or accepted.
6. DUE DILIGENCE.
6.1 ITEMS TO BE DELIVERED BY SELLER. Within five (5) days of the
Effective Date, Seller, at Seller's sole cost and expense, will deliver to
Purchaser for Purchaser's review the following items:
6.1.1 OPERATING CONTRACTS. Copies of the Operating Contracts
listed on Exhibit "B" attached hereto, including all modifications, supplements
or amendments thereto.
6.1.2 LEASES. Copies of the Leases listed on the "RENT ROLL"
(herein so called) attached hereto as EXHIBIT "C" and all lease guaranties,
estoppels and subordination, nondisturbance and attornment agreements in
Seller's possession affecting such Leases.
6.1.3 TAX STATEMENTS. Copies of the real estate and personal
property tax statements covering the Property for the two (2) previous tax years
and, if received by Seller, the valuation notice issued with respect to the Real
Property for the year of Closing.
6.1.4 TESTS AND INSPECTIONS. Copies of soils, structural and
other engineering inspections, environmental reports, reports concerning ADA
compliance, reports measuring rentable area of the Improvements, tests, surveys,
studies and reports (other than appraisals or market studies) in Seller's
possession pertaining to the Real Property.
6.2 ITEMS AVAILABLE TO PURCHASER. Seller shall also make available
to Purchaser promptly after the Effective Date at a location designated by
Seller in either Dallas or Tarrant County, Texas the following items in Seller's
possession, which may be reviewed and copied at Purchaser's sole cost and
expense:
6.2.1 PERMITS. Copies of all Permits.
6.2.2 PLANS AND SPECIFICATIONS. Copies of any surveys, site
plans, subdivision plans, and as-built plans and specifications for the Real
Property.
6.2.3 WARRANTIES. Copies of all unexpired warranties and
guaranties covering the Tangible Property and the roof, elevators, heating and
air conditioning system and any other component of the Improvements and third
party bonds, warranties and guaranties which will be in effect after Closing
with respect to the Property.
6.2.4 UTILITY BILLS. Copies of all utility bills received
during the last year of Seller's ownership of the Property.
6.2.5 INCOME AND EXPENSE STATEMENTS. Copies of income and
expense statements with respect to the Property, including capital expenditures,
for the two (2) most recent calendar years.
6.2.6 OPERATING BUDGETS. An operating budget for the Property,
including projected capital expenditures, for the current year and immediately
preceding year.
6.2.7 FILES. Copies of all correspondence and working files
maintained by the manager of the Property relating to the Property.
The items set forth above in SECTIONS 6.1 AND 6.2 are collectively
referred to herein as the Property Information.
6.3 INSPECTION PERIOD. During the period commencing with the
Effective Date and ending on the Termination Date or the earlier termination of
this Contract, Purchaser will have the option and right to conduct such
investigations, inspections, audits, analyses, surveys, tests, examinations,
studies, and appraisals of the Property and to examine all applicable books and
records relating to the Property and its operation and maintenance, as Purchaser
deems necessary or desirable, at Purchaser's sole cost and expense, to determine
if the Property is suitable for Purchaser's purposes; provided, however,
Purchaser shall cause the Property to be restored to its condition prior to any
of Purchaser's or its agents' or representatives' activities that alter the
condition of the Property. Notwithstanding the foregoing, Purchaser shall not
conduct or allow any physically intrusive testing of, on or under the Land or
Improvements without first obtaining Seller's written consent as to the timing
and scope of work to be performed, which consent may be withheld in Seller's
sole discretion.
6.3.1 AUDITED FINANCIAL STATEMENTS. Purchaser has advised
Seller that Purchaser must cause to be prepared audited financial statements for
the immediately preceding full calendar year and any partial year thereafter 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. Without limiting the generality of the preceding sentence (a) Seller
shall, during normal business hours, allow Purchaser's auditors reasonable
access to the books and records maintained by Seller in respect of the Property;
(b) Seller shall use reasonable efforts to provide to Purchaser such financial
information and supporting documentation as are necessary for Purchaser's
auditors to prepare audited financial statements; and (c) 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 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.
6.4 ACCESS. To facilitate the due diligence contemplated in ARTICLE
6, Seller will provide Purchaser and Purchaser's agents and representatives
access to the Property. Purchaser will conduct any such physical inspections,
tests, examinations, studies, and appraisals only on Business Days and will
minimize interference with Seller's and tenants' operations at the Property.
Purchaser may only enter upon the Property, provided (i) Purchaser notifies
Seller (which notice may be oral or written) of its intent to inspect, test,
survey or study a reasonable period of time prior to Purchaser's entry, (ii) if
requested by Seller, Purchaser is accompanied by a representative of Seller and
(iii) Purchaser furnishes to Seller a certificate of insurance acceptable to
Seller naming Seller as an additional insured and with an insurer and insurance
limits and coverage reasonably satisfactory to Seller. Purchaser and its agents
and representatives shall not, without the prior written consent of Seller,
which shall not be unreasonably withheld, conditioned or delayed, contact any
governmental or quasi-governmental representative concerning the Property,
except (a) for a search of records readily available from any governmental
authority in its usual course of business or (b) as otherwise allowed by the
terms of this Contract.
6.5 INDEMNITY. PURCHASER AGREES TO INDEMNIFY, DEFEND AND HOLD
SELLER, ITS AGENTS, PARTNERS, DIRECTORS, OFFICERS AND REPRESENTATIVES, HARMLESS
FROM AND AGAINST ANY LIENS, CLAIMS, OR DAMAGES INCLUDING, WITHOUT LIMITATION,
ANY AND ALL DEMANDS, ACTIONS OR CAUSES OF ACTION, ASSESSMENTS, LOSSES, COSTS,
LIABILITIES, INTEREST AND PENALTIES, AND REASONABLE ATTORNEYS' FEES SUFFERED OR
INCURRED BY SELLER, ITS AGENTS AND REPRESENTATIVES AS A RESULT OF, ARISING OUT
OF, OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, PURCHASER OR PURCHASER'S
AGENTS OR REPRESENTATIVES EXERCISING THE RIGHTS SET FORTH IN SECTIONS 6.3 AND
6.4 OR ARISING FROM PURCHASER OR ITS AGENTS OR REPRESENTATIVES OTHERWISE
ENTERING UPON THE PROPERTY, WHETHER ARISING WHOLLY OR IN PART FROM THE
NEGLIGENCE OF SELLER OR ITS AGENTS OR REPRESENTATIVES. PURCHASER WILL, AS
DIRECTED BY SELLER, REPAIR OR CAUSE TO BE REPAIRED ANY DAMAGE CAUSED BY
PURCHASER OR PURCHASER'S AGENTS OR REPRESENTATIVES IN THE CONDUCT OF THE REVIEW
AND/OR INSPECTION CONTEMPLATED HEREUNDER. NOTWITHSTANDING ANYTHING SET FORTH
HEREIN TO THE CONTRARY, THE INDEMNIFICATION AND OTHER OBLIGATIONS OF PURCHASER
IN THIS SECTION 6.5 WILL SURVIVE THE TERMINATION OF THIS CONTRACT. THE XXXXXXX
MONEY SHALL SECURE PURCHASER'S OBLIGATIONS TO SELLER PURSUANT TO SECTIONS 6.3,
6.4 AND 6.5. IN THE EVENT A CLAIM FOR INDEMNITY UNDER THIS SECTION 6.5 IS
PENDING AT THE TIME OF TERMINATION OF THIS CONTRACT, THE TITLE COMPANY MAY HOLD
THE XXXXXXX MONEY AS SECURITY FOR SUCH INDEMNITY UNTIL THE CLAIM IS SATISFIED OR
OTHERWISE RESOLVED.
6.6 OPTION TO TERMINATE. If Purchaser is not satisfied, in
Purchaser's sole and absolute discretion, with the condition of the Property, or
if Purchaser deems, in Purchaser's sole and absolute discretion, the Property to
be unsuitable for Purchaser's purposes, or if for any other reason whatsoever in
Purchaser's sole and absolute discretion Purchaser elects not to proceed with
the transaction contemplated by this Contract, then Purchaser may terminate this
Contract by giving written notice to Seller on or before the date that is thirty
(30) days after the Effective Date (the "TERMINATION DATE"). If Purchaser
terminates this Contract pursuant to the preceding sentence, the Xxxxxxx Money
(less the Independent Contract Consideration) will be returned to Purchaser. The
parties will have no further obligations under this Contract, one to the other,
except for return or delivery of the Xxxxxxx Money, as provided above, and any
obligations that specifically survive termination of this Contract. If Purchaser
fails to timely notify Seller in writing before 5:00 P.M. Fort Worth, Texas time
on the Termination Date that Purchaser has elected to terminate this Contract,
then Purchaser will be deemed to have elected not to terminate this Contract
pursuant to this SECTION 6.6.
7. WARRANTIES, REPRESENTATIONS AND COVENANTS.
7.1 EXPRESS WARRANTIES. Seller makes the following warranties and
representations to Purchaser:
7.1.1 ORGANIZATION AND AUTHORITY. Seller has been duly
organized and is validly existing under the laws of the State of Delaware.
Seller has the full right and authority to enter into this Agreement and to
transfer all of the Property and to consummate or cause to be consummated the
transaction contemplated by this Agreement. The person signing this Contract on
behalf of Seller is authorized to do so.
7.1.2 PENDING ACTIONS. Seller has not received written notice
of any action, suit, arbitration, unsatisfied order or judgment, government
investigation or proceeding pending
against Seller which, if adversely determined, could individually or in the
aggregate materially interfere with the consummation of the transaction
contemplated by this Contract.
7.1.3 OPERATING AGREEMENTS. The Operating Contracts listed on
EXHIBIT "B" are all of the service agreements entered into by Seller, which are
currently existing and affecting the Property.
7.1.4 CONDEMNATION. Seller has received no written notice of
any condemnation proceedings relating to the Property.
7.1.5 LITIGATION. Except as set forth on EXHIBIT "D" attached
hereto, Seller has not received written notice of any litigation which has been
filed against Seller that arises out of the ownership of the Property and would
materially affect the Property or use thereof, or Seller's ability to perform
hereunder.
7.1.6 LEASES. To Seller's knowledge, (i) the list of leases
shown on the Rent Roll reflects all of the leases of office space currently
affecting the Property; provided, however, that the foregoing is not intended
(and shall not be construed) as a representation by Seller as to subleases,
assignments or licenses entered into between tenants identified on the Rent Roll
and third parties, since there may be subleases, licenses or assignments of
which Seller is not aware, (ii) Seller has not previously assigned its interest
in the Leases, (iii) no default on the part of Seller exists under the Leases,
and (iv) no tenant has paid to Seller rent for more than one month in advance of
the current month.
7.1.7 ENVIRONMENTAL. To Seller's knowledge, the environmental
reports provided to Purchaser pursuant to Section 6.1 and related matters made
available to Purchaser pursuant to Section 6.2 are all of the environmental
reports obtained by Seller with respect to the Property, and to Seller's
knowledge, it has not received any written notice that the Property is in
violation of any law regulating hazardous waste, hazardous material, chemical
waste or other toxic substances ("HAZARDOUS MATERIALS").
7.1.8 TERMINATION OF MANAGEMENT AGREEMENTS. Any and all
property management contracts 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.
7.1.9 CONTRACTS. As of the date of this Contract, Seller has
not entered into any contracts, subcontracts or agreements affecting the
Property which will be binding upon the Purchaser after the Closing other than
(a) the Operating Contracts to be delivered to Purchaser pursuant to ARTICLE 6,
(b) the Leases and (c) the Permitted Encumbrances.
7.1.10 BOOKS AND RECORDS. All income and expense statements
relating to operating income and expenses of the Property furnished or made
available to Purchaser by Seller were and shall be those prepared by Seller in
regard to the Property in the normal course of business and are those upon which
Seller relies in the preparation of its financial statements and reports.
7.1.11 COMMISSIONS. Prior to the Closing, Seller shall have
paid all leasing commissions, whether or not then due, with respect to the
current term of existing Leases of the Property; provided however, to the extent
commissions become due and payable after the Closing as a result of the
extension or renewal of the current term of existing Leases or the addition or
expansion of space currently leased by a tenant under the Leases, such
commissions shall be the responsibility of the Purchaser.
Except as expressly set forth in this Contract, Seller makes no
representation or warranty regarding any of matter or items provided to or
delivered to the Purchaser.
7.2 KNOWLEDGE DEFINED. References to the "KNOWLEDGE" of Seller shall
refer only to the current actual knowledge of the Designated Employees (as
hereinafter defined) of Seller, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to
any property manager, or to any other officer, agent, manager, representative or
employee of Seller or any affiliate thereof or to impose upon such Designated
Employees any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains. As used herein, the term "DESIGNATED EMPLOYEES"
shall refer to the following person: Xxxxx Xxxxxxx, who is the property manager
responsible for the day-to-day operations of the Property.
7.3 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller set forth in SECTION 7.1 hereof shall
survive Closing for a period of twelve (12) months. No claim for a breach of any
representation or warranty of Seller shall be actionable or payable if the
breach in question results from or is based on a condition, state of facts or
other matter which was known to Purchaser prior to Closing. Seller shall have no
liability to Purchaser for a breach of any representation or warranty unless (a)
the valid claims for all such breaches collectively aggregate more than Fifty
Thousand Dollars ($50,000.00), in which event the full amount of such valid
claims shall be actionable, up to the Cap (as defined in this Section), and (b)
written notice containing a description of the specific nature of such breach
shall have been given by Purchaser to Seller prior to the expiration of said
twelve (12) month period. Purchaser agrees to first seek recovery under any
insurance policies, Operating Contracts and Leases prior to seeking recovery
from Seller, and Seller shall not be liable to Purchaser if Purchaser's claim is
satisfied from such insurance policies, Operating Contracts or Leases. As used
herein, the term "CAP" shall mean the total aggregate amount of $750,000.00.
This SECTION 7.3 shall survive Closing.
7.4 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
to Seller that, as of the date hereof:
7.4.1 ORGANIZATION. Purchaser is a duly formed and validly
existing limited liability company under the laws of the State of Delaware and
is in good standing under the laws of the State of Delaware, and is or will be
by the Closing Date duly qualified to transact business in the state in which
the Property is situated.
7.4.2 AUTHORITY. Purchaser has all the requisite power and
authority, has taken all actions required by its organizational documents and
applicable law, and has obtained all necessary consents, to execute and deliver
this Contract and to consummate the transactions contemplated in this Contract.
Each individual executing this Contract on behalf of Purchaser represents and
warrants to Seller that he is duly authorized to do so.
7.5 SELLER'S COVENANTS. Seller agrees that during the period from
the Effective Date through the Closing Date, or earlier termination of this
Contract, Seller will perform the following covenants:
7.5.1 Seller shall use reasonable efforts to operate and
maintain the Property in a manner generally consistent with the manner in which
Seller has operated and maintained the Property prior to the date hereof. None
of the Personal Property shall be removed from the Property, unless replaced by
personal property of equal or greater utility or value.
7.5.2 A copy of any amendment, renewal or expansion of an
existing Lease or of any new lease which Seller wishes to execute between the
Effective Date and the date of Closing will be submitted to Purchaser prior to
execution by Seller. Purchaser agrees to notify Seller in writing within five
(5) Business Days after its receipt thereof of either its approval or
disapproval thereof, including all tenant inducement costs and leasing
commissions to be incurred in connection therewith. In the event Purchaser
informs Seller within such five (5) Business Day period that Purchaser does not
approve the amendment, renewal or expansion of the existing Lease or the new
lease, which approval shall not be unreasonably withheld, Seller shall
nonetheless have the right to enter into said lease document unless at the
expiration of such five (5) Business Day period the Termination Date has passed,
in which event Purchaser's consent shall be required. In the event Purchaser
fails to notify Seller in writing of its approval or disapproval within the five
(5) Business Day period set forth above, Purchaser shall be deemed to have
approved such new lease, amendment, renewal or expansion. At Closing, Purchaser
shall reimburse Seller for any tenant inducement costs, leasing commissions or
other expenses, including legal fees, incurred by Seller in connection with or
pursuant to any amendment, renewal, expansion or new lease entered into on or
after the Effective Date.
7.5.3 Seller shall promptly advise Purchaser of any written
notice of litigation received by Seller that will materially and negatively
affect the ownership or operation of the Property.
7.5.4 Seller shall not affirmatively encumber the Property,
except as required by court order or as required by law.
7.5.5 Seller will perform when due all material obligations of
Seller under the Leases and Operating Contracts to the extent they are obligated
to be performed, accrue or are due prior to the Closing Date.
7.5.6 So long as this Agreement remains in effect, Purchaser
will be allowed access to the Property and the property level income and expense
and property management records related to the Property under the terms and
conditions set forth in Section 6.
7.5.7 After the Termination Date, Seller will not enter into
any contract (or an extension or modification of any contract) with respect to
the Property which will survive the Closing or otherwise affect the use,
operation or enjoyment of the Property after the Closing, without first
obtaining Purchaser's prior written consent thereto.
7.5.8 Seller shall circulate to each tenant of the Premises
for execution an estoppel certificate ("TENANT ESTOPPELS") in the form attached
hereto as EXHIBIT "E" and a
Subordination, Non-Disturbance and Attornment Agreement ("SNDA") in the form
requested by the lender of Purchaser. In the event that as of Closing either (a)
Purchaser has not received executed Tenant Estoppels from tenants occupying at
least eighty percent (80%) of the occupied rentable space in the Improvements
determined as of the Effective Date, or (b) Purchaser's lender has not received
executed SNDA's from tenants occupying at least eighty percent (80%) of the
occupied rentable space in the Improvements determined as of the Effective Date,
then Purchaser may either delay Closing for up to thirty (30) days or terminate
this Agreement and the Xxxxxxx Money shall thereupon be returned to Purchaser.
8. "AS IS" SALE.
(a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
PURCHASER AGREES TO ACCEPT TITLE TO THE PROPERTY ON AN "AS-IS-WHERE-IS AND WITH
ALL FAULTS" BASIS.
(b) EXCEPT AS PROVIDED HEREIN, SELLER HEREBY SPECIFICALLY DISCLAIMS
ANY EXPRESS OR IMPLIED WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, OR, CONCERNING (i) THE NATURE AND CONDITION
OF THE PROPERTY AND THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND USES
WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, (ii) THE NATURE AND EXTENT OF ANY
RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION,
CONDITION OR ANY OTHER MATTER RELATING IN ANY WAY TO THE PROPERTY, (iii) THE
COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES OR
REGULATIONS OF ANY GOVERNMENT OR OTHER AUTHORITY OR BODY, OR (iv) THE EXISTENCE
OF ANY TOXIC OR HAZARDOUS SUBSTANCE OR WASTE IN, ON, UNDER THE SURFACE OF OR
ABOUT THE PROPERTY. EXCEPT FOR THE WRITTEN REPRESENTATIONS AND WRITTEN
WARRANTIES SPECIFICALLY SET FORTH IN ss. 7.1 OF THIS CONTRACT, PURCHASER
ACKNOWLEDGES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND
THE PROPERTY INFORMATION, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION
OF THE PROPERTY AND THE PROPERTY INFORMATION AND NOT ON ANY INFORMATION PROVIDED
OR TO BE PROVIDED BY SELLER AND ACCEPTS THE PROPERTY IN ITS PRESENT CONDITION.
PURCHASER FURTHER ACKNOWLEDGES THAT THE INFORMATION PROVIDED AND TO BE PROVIDED
WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND SELLER
(A) HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND (B) HAS NOT MADE ANY EXPRESS OR IMPLIED, ORAL OR WRITTEN,
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT
AS SPECIFICALLY SET FORTH HEREIN. THE SALE OF THE REAL PROPERTY AND THE PROPERTY
IS BEING SOLD AND CONVEYED HEREUNDER ON AN "AS IS WHERE IS WITH ALL FAULTS"
BASIS, AND PURCHASER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE
AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED HEREIN, SELLER HAS
NOT MADE AND DOES NOT HEREBY MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, WHATSOEVER WITH RESPECT TO
THE CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION
OR WARRANTY REGARDING CONDITION, HABITABILITY, SUITABILITY, QUALITY OF
CONSTRUCTION, WORKMANSHIP, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE, AND PURCHASER ACKNOWLEDGES THAT IT IS ENTERING INTO THIS CONTRACT
WITHOUT RELYING UPON ANY ORAL STATEMENT OR REPRESENTATION MADE BY SELLER, ANY
BROKER OR BY ANY OTHER PERSON.
(c) Purchaser acknowledges that neither Seller, nor any of Seller's
disclosed or undisclosed officers, directors, employees, trustees, shareholders,
partners, members, principals, parents, subsidiaries or other affiliates of
Seller nor any of their agents or representatives, has made any representations
or held out any inducements to Purchaser except as set forth herein; and Seller
hereby specifically disclaims any representation, oral or written, past, present
or future, other than those specifically set forth in SECTION 7.
(d) Purchaser acknowledges that this Contract affords Purchaser the
opportunity for investigations, examinations and inspections of the Property and
all Property Information.
(e) The provisions of this SECTION 8 shall survive the termination
of this Contract and the Closing.
9. CLOSING.
9.1 CLOSING DATE. The consummation of this transaction (the
"CLOSING") will take place at the offices of the Title Company, or at such other
location upon which Seller and Purchaser mutually agree, before 1:00 p.m. on the
date that is thirty (30) days following the Termination Date (the "CLOSING
DATE"), unless (i) Seller and Purchaser mutually agree to an earlier date, or
(ii) Purchaser extends the Closing Date pursuant to SECTION 4.1.3.
9.2 SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller will
do, or cause to be done, the following:
9.2.1 DOCUMENTS. Seller will execute, acknowledge (if
necessary), and deliver the following documents:
9.2.1.1 Special Warranty Deed in the form and substance
of EXHIBIT "F";
9.2.1.2 Assignment of Landlord's Interest in Leases in
the form and substance of EXHIBIT "G";
9.2.1.3 Blanket Conveyance, Xxxx of Sale, and Assignment
in the form and substance of EXHIBIT "H";
9.2.1.4 Certificate of Non-Foreign Status in the form
and substance of EXHIBIT "I";
9.2.1.5 Notification of change of ownership in the form
and substance of EXHIBIT "J";
9.2.1.6 If agreed to by the parties pursuant to Section
21, the Property Management Agreement (hereafter defined in Section 21); and
9.2.1.7 Certificate of Seller confirming the accuracy of
Seller's representations and warranties set forth in SECTION 7.1 as of the
Closing Date with such modifications to the representations and warranties as
may be required by the facts.
9.2.2 TITLE POLICY. Seller will cause the Title Company to be
irrevocably committed to issue to Purchaser a Texas Owners Policy of Owner's
Title Insurance on the form specified in the Title Commitment, (the "TITLE
POLICY"), in the amount of the Purchase Price, and insuring that Purchaser has
good and indefeasible fee simple title to the Property, subject only to the
Permitted Exceptions and the standard printed exceptions modified as follows:
(a) the exception as to the lien for taxes will be limited to the year in which
the Closing occurs; and (b) any exception for "parties in possession" will be
limited to the rights of lessees or tenants under the Leases, which shall be
specifically listed in the Title Policy.
9.2.3 ORIGINAL DOCUMENTS. Seller will deliver to Purchaser
originals within Seller's possession of all items enumerated in SECTION 6.1 AND
6.2 (other than the income and expense statements) of this Contract.
9.2.4 POSSESSION. Seller will deliver possession of the
Property, subject to the Leases and Permitted Exceptions.
9.2.5 ADDITIONAL DOCUMENTS. Seller will execute and deliver or
obtain for delivery to Title Company any other instruments reasonably necessary
to consummate the sale of the Property pursuant to this Contract, including, by
way of example, closing statements and evidence of the authority of the party
executing instruments on behalf of Seller.
9.2.6 COSTS. Seller will pay all costs allocated to Seller
pursuant to SECTION 9.4 of this Contract. No later than five (5) days prior to
the Closing Date, Seller will deliver to Purchaser a draft closing statement
setting forth the prorations, credits and debits to be made between the parties.
9.3 PURCHASER'S OBLIGATIONS AT THE CLOSING. At the Closing,
Purchaser will do, or cause to be done, the following:
9.3.1 PAYMENT OF CONSIDERATION. Purchaser will timely pay to
Seller the Purchase Price, as adjusted in accordance with the provisions of this
Contract via wire transfer to the Title Company on or before 1:00 p.m. (Fort
Worth, Texas time) on the Closing Date.
9.3.2 DOCUMENTS. Purchaser will execute, acknowledge (if
necessary), and deliver the following documents:
9.3.2.1 Assignment of Landlord's Interest in Leases in
the form and substance of EXHIBIT "G";
9.3.2.2 Blanket Conveyance, Xxxx of Sale, and Assignment
in the form and substance of EXHIBIT "H";
9.3.2.3 Notification of change of ownership in the form
and substance of EXHIBIT "J"; and
9.3.2.4 If agreed to by the parties pursuant to Section
21, the Property Management Agreement.
9.3.3 ADDITIONAL DOCUMENTS. Purchaser will execute and deliver
or obtain for delivery to the Title Company any instruments reasonably necessary
to consummate the sale of the Property pursuant to this Contract, including, by
way of example, closing statements and evidence of the authority of the party
executing instruments on behalf of Purchaser.
9.3.4 COSTS. Purchaser will pay all costs allocated to
Purchaser pursuant to SECTION 9.4 of this Contract.
9.3.5 PURCHASER'S CONDITIONS TO CLOSING. The following are
conditions precedent to the obligation of Purchaser to close the transactions
contemplated by this Contract: (a) each of the representations and warranties
made by Seller shall be true and complete in all material respects on the
Closing Date as if made on and as of such date; and (b) Seller shall have
performed Seller's covenants in accordance with the terms of the Agreement.
9.4 COSTS AND ADJUSTMENTS AT CLOSING.
9.4.1 EXPENSES. Seller will pay for the title examination fees
and the basic Title Policy premium, and one-half of the escrow fees charged by
the Title Company. Seller shall pay for the costs of providing the Survey
pursuant to SECTION 5.1(III) and Purchaser shall pay for any costs incurred to
revise or modify the Survey after such delivery and for revisions requested by
Purchaser or its lender. Purchaser shall pay for the recording fees, all
transfer taxes, the cost of the UCC Searches, premiums for all amendments or
endorsements to the Title Policy and one-half of the escrow fees charged by the
Title Company. Seller and Purchaser will be responsible for the fees and
expenses of their respective attorneys.
9.4.2 REAL ESTATE TAXES. Real estate taxes and general and
special assessments on the Property for the calendar year of the Closing will be
prorated between Seller and Purchaser as of 11:59 p.m. on the day preceding the
Closing Date. If the amount of such taxes is not known at Closing, the proration
of such real estate taxes and assessments will be based on the amount of such
taxes and assessments for the previous real estate tax fiscal period. As soon as
the actual amount of real estate taxes on the Property for the year of Closing
is known, Seller and Purchaser will, if necessary, readjust the amount of such
taxes to be paid by each party with the result that Seller will pay for those
taxes applicable to the Property up to but not including the Closing Date, and
Purchaser will pay for those taxes and assessments applicable to the Property on
and after the date of Closing. Seller reserves the right to pursue any existing
challenge to ad valorem taxes or assessments and shall be entitled to any refund
or reduction of taxes attributable to any time period prior to Closing. The
provisions of this SECTION 9.4.2 will survive the Closing.
9.4.3 RENTS. All rents, additional rents and other sums
payable under the Leases will be prorated as of 11:59 p.m. on the day preceding
the Closing Date. All rents, percentage rents, operating expenses, common area
charges, real estate taxes and other costs or charges paid by tenants under the
Leases after the Closing will be applied to such charges in their order of
accrual until applied in full. Any amounts that are to be applied to periods
prior to Closing will be delivered by Purchaser to Seller within thirty (30)
days after receipt, net of any reasonable costs incurred by Purchaser in
collecting such amounts (including, without limitation, attorneys' fees).
Purchaser will have no obligation to institute any litigation to collect
delinquent rents or other amounts owed to Seller, except that Purchaser shall
use commercially reasonable efforts to obtain same. Seller will not exercise any
right to collect such amounts until, in Seller's reasonable judgment, Seller has
determined that Purchaser's efforts will not result in collection thereof, in
which event Seller may institute suit for collection. The provisions of this
SECTION 9.4.3 will survive Closing.
9.4.4 SECURITY DEPOSITS AND UTILITY DEPOSITS. Seller will pay
to Purchaser, in cash at Closing or as a credit against the Purchase Price, the
amount of any security deposits held by Seller pursuant to the Leases. Seller
shall be entitled to retain all utility deposits to the extent all payments to
such utilities are current. Seller shall cooperate with Purchaser, at
Purchaser's cost, with respect to the transfer of utilities.
9.4.5 OTHER INCOME AND EXPENSES. Except as otherwise expressly
stated herein, all other income and ordinary operating expenses for or
pertaining to the Property, including, but not limited to, public utility
charges, maintenance and service charges, will be prorated as of 11:59 p.m. on
the day preceding the Closing Date.
9.5 ADJUSTMENT. To the extent that errors are discovered in, or
additional information becomes available with respect to, the prorations and
allocations made at Closing, Seller and Purchaser agree to make such
post-Closing adjustments as may be necessary to correct any inaccuracy; however,
all prorations (except for prorations and allocations of ad valorem taxes and
tenant reimbursables and for prorations or allocations that have been
specifically identified as disputed and are then currently in dispute) will be
final within one hundred eighty (180) days after Closing; provided however, to
the extent such prorations or allocations are items passed through to tenants as
additional rent under the Leases with respect to which tenants have adjustment
rights subsequent to the end of the 2004 calendar year, such amounts shall be
subject to adjustment hereunder through April 30, 2005.
10. REMEDIES.
10.1 DEFAULT BY SELLER. Except as specifically provided elsewhere in
the Contract, in the event that Seller fails to consummate this Contract or if
Seller fails to perform any of Seller's other material obligations hereunder
either prior to or at the Closing and such failure or refusal results from any
reason other than the termination of this Contract by Purchaser pursuant to a
right to terminate expressly set forth in this Contract or Purchaser's failure
to perform Purchaser's obligations under this Contract, Purchaser may as its
only remedies (i) terminate this Contract by giving written notice thereof to
Seller prior to or at the Closing, in which event Purchaser will be entitled to
a return of the Xxxxxxx Money (less the Independent Contract Consideration) and
interest thereon free and clear of any claims by the Seller or any other party
or (ii) enforce specific performance of Seller's duties and obligations under
this Contract, provided that the right to enforce specific performance shall not
require Seller to remove any title encumbrances not affirmatively placed on the
Property by Seller or require Seller to perform any covenant beyond the then
current ability of Seller. In the event the Purchaser fails to provide notice to
Seller within thirty (30) days of the scheduled Closing Date of Purchaser's
election to seek specific performance of this Contract, Purchaser shall be
deemed to have elected to proceed under
clause (i) above and shall be deemed to have waived its right to enforce
specific performance of this Contract. Purchaser's remedies after Closing are
limited solely to the remedies provided and to the extent set forth in SECTIONS
7 AND 8 above.
10.2 DEFAULT BY PURCHASER. In the event that Purchaser fails or
refuses to consummate the purchase of the Property pursuant to this Contract and
if such failure to consummate results from any reason other than termination of
this Contract by Purchaser pursuant to a right to terminate expressly set forth
in this Contract or Seller's failure to perform Seller's material obligations
under this Contract, then Seller, as Seller's sole and exclusive remedy, will
have the right to terminate this Contract by giving written notice thereof to
Purchaser prior to or at the Closing, whereupon neither party thereto will have
any further rights or obligations hereunder, except (i) that Title Company shall
pay to Seller as liquidated damages the Xxxxxxx Money and Title Company will
deliver the Xxxxxxx Money to Seller free of any claims by Purchaser or any other
person with respect thereto and (ii) for provisions which survive Closing by
their terms. It is agreed that the amount to which the Seller is entitled under
this SECTION 10.2 is a reasonable forecast of just compensation for the harm
that would be caused by Purchaser's breach and that the harm that would be
caused by such breach is one that is incapable or very difficult of accurate
estimation. The indemnifications and other specific obligations of Purchaser
elsewhere contained in this Contract shall not be limited by this SECTION 10.2.
Notwithstanding any provision of this Contract to the contrary, nothing in this
Section 10.2 shall limit Seller's remedies if Purchaser or anyone acting on
behalf of the Purchaser shall take any action which wrongfully encumbers the
Property.
10.3 FEES. In the event either party to this Contract commences legal
action of any kind to enforce the terms and conditions of this Contract, the
prevailing party in such litigation will be entitled to collect from the other
party all costs, expenses and attorneys' fees incurred in connection with such
action. This SECTION 10 shall survive Closing or earlier termination of this
Contract.
11. RISK OF LOSS, DESTRUCTION, AND CONDEMNATION.
11.1 RISK OF LOSS. Risk of loss for damage to the Property, or any
part thereof, by fire or other casualty from the Effective Date of this Contract
through the Closing Date will be on Seller. Upon Closing, full risk of loss with
respect to the Property will pass to Purchaser.
11.2 CASUALTY.
11.2.1 MAJOR DAMAGE. If, prior to Closing, the Property, or any
portion thereof, is damaged by fire, or any other cause of whatsoever nature,
Seller will promptly give Purchaser written notice of such damage. If the cost
for repairing such damage, in the reasonable judgment of Seller, exceeds Three
Hundred Thousand and No/100 Dollars ($300,000.00), Purchaser will have the
option, exercisable by written notice delivered to Seller within ten (10) days
of Seller's notice of damage to Purchaser, either (i) to require Seller to
convey the Property to Purchaser, in its damaged condition and to assign to
Purchaser all of Seller's right, title and interest in and to any claims Seller
may have under the property insurance policies covering the Property (other than
rental loss proceeds), in which event Seller will have no further liability or
obligation to repair or replace the Property, or (ii) to terminate this
Contract. If Purchaser elects to terminate this Contract, the Xxxxxxx Money less
the Independent Contract Consideration shall be returned
to Purchaser, and thereafter neither party hereto will have any further duties
or obligations hereunder except under provisions which survive Closing by their
terms.
11.2.2 MINOR DAMAGE. If the cost for repairing such damage
will, in the reasonable judgment of Seller, not exceed Three Hundred Thousand
and No/100 Dollars ($300,000.00), Purchaser will have the option, exercisable by
written notice delivered to Seller within ten (10) days of Seller's notice of
damage to Purchaser, either (i) to require Seller to repair and restore the
Property to substantially the same condition it was in prior to such casualty,
in which event the Closing Date shall be postponed for a reasonable period of
time to allow Seller to accomplish such repair and restoration, or (ii) to
require Seller to convey the Property to Purchaser on the Closing Date in its
damaged condition and assign to Purchaser all of Seller's right, title and
interest in and to any claims Seller may have under the property insurance
policies covering the Property (other than rental loss proceeds), in which event
Seller will have no further liability or obligation to repair or replace the
Property except under provisions which survive Closing by their terms.
11.3 CONDEMNATION. If during the pendency of this Contract and prior
to Closing, condemnation proceedings are commenced with respect to all or any
portion of the Property, Purchaser may, at Purchaser's election, terminate this
Contract by written notice to Seller within five (5) days after Purchaser has
been notified of the commencement of condemnation proceedings. In the event of
such termination, the Xxxxxxx Money less the Independent Contract Consideration
will be promptly refunded to Purchaser and, thereafter, neither party will have
any further duties or obligations hereunder except under provisions which
survive Closing by their terms. If Purchaser does not exercise such right to
terminate within the period prescribed, then Seller shall transfer to Purchaser
its right to appear and to defend Seller's interests in the Property in such
condemnation proceedings, and any award in condemnation will become the property
of Purchaser; provided, however, the Closing shall not be delayed by reason of
any such proceedings.
12. REAL ESTATE COMMISSIONS AND FEES.
Seller represents and warrants to Purchaser that Seller has not
contacted or entered into any written agreement with any real estate broker,
agent, finder, or any party in connection with this transaction except for
Xxxxxxxx Xxxx Brokerage Services, Ltd. ("BROKER"). Seller will be solely
responsible for the payment of Broker's commission in accordance with the
provisions of a separate agreement. Purchaser hereby represents and warrants to
Seller that Purchaser has not contracted or entered into any agreement with any
real estate broker, agent, finder, or any party in connection with this
transaction. Each party hereby indemnifies and agrees to hold the other party
harmless from any loss, liability, damage, cost, or expense (including, without
limitation, reasonable attorneys' fees) paid or incurred by the other party by
reason of a breach of the representation and warranty made by such party under
this SECTION 12. Notwithstanding anything to the contrary contained herein, the
indemnities set forth in this SECTION 12 will survive the Closing.
13. NOTICES.
13.1 WRITTEN NOTICE. All notices, demands and requests which may be
given or which are required to be given by either party to the other party under
this Contract must be in writing.
13.2 METHOD OF TRANSMITTAL. All notices, demands and requests
required to be in writing must be sent by United States certified or registered
mail, postage fully prepaid, return receipt requested, or by Federal Express or
a similar nationally recognized overnight courier service, or by facsimile with
a confirmation copy delivered by a nationally recognized overnight courier
service. Notice will be considered effective on the earlier to occur of actual
receipt or twenty-four (24) hours after depositing same with the overnight
courier service.
13.3 ADDRESSES. The addresses for proper notice under this Contract
are as follows:
Seller Purchaser
Crescent Real Estate Funding VIII, L.P. Harvard Property Trust, LLC
000 Xxxx Xxxxxx, Xxxxx 0000 0000 X. Xxxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxx 00000 Suite 200
Attn: Xx. Xxxxx Xxxxxxx and Xxxxxx, Xxxxx 00000
Xxxxxx X. Xxxxx, Esq. Attn: Xxx Xxxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
WITH A COPY TO: WITH A COPY TO:
Crescent Real Estate Funding VIII, L.P. Xxxxxxx X. Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx & Xxxxxxx, L.L.P.
Xxxx Xxxxx, Xxxxx 00000 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxx: Xx. Xxx Xxxxxxxxx Suite 1380
Facsimile: (000) 000-0000 Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Xxxxx XxXxxxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Either party may from time to time by written notice designate a
different address to the other party.
14. ASSIGNMENT.
Purchaser shall not assign any or all of its rights and obligations pursuant to
this Agreement (whether by direct or indirect transfer or assignment) without
Seller's prior written consent. Notwithstanding the foregoing, Purchaser shall
have the right to assign this Agreement to an Affiliate, provided that (a) such
Affiliate has no relationship to Seller (other than through this Contract), (b)
the Affiliate affirmatively assumes and agrees to perform all of the obligations
of Purchaser pursuant to this Agreement, including the representations and
warranties of Purchaser, and (c) Purchaser delivers to Seller a written
assignment and assumption of this Agreement
within seven (7) days of the effective date of the assignment, which shall be no
later than five (5) Business Days prior to Closing, and provided further that
Purchaser shall not be permitted to assign this Agreement to any Affiliate in
the event that (i) Seller or any of its affiliates derives any income from the
Affiliate or (ii) the Affiliate has provided or currently provides goods or
services to Seller or any affiliate of Seller. No such assignment shall relieve
the Purchaser hereunder of its rights, duties, and obligations. The term
"AFFILIATE" means (a) any entity that controls, is controlled by, or is under
common control with Purchaser; (b) any partnership in which Purchaser or any
Affiliate of Purchaser is a general partner; (c) any fund or entity sponsored by
Purchaser or any Affiliate of Purchaser; or (d) any fund or entity that retains
Purchaser or any Affiliate of Purchaser to manage the Property.
15. INTERPRETATIVE.
15.1 ENTIRE AGREEMENT. This Contract embodies the entire agreement
between the parties and cannot be varied except by the written agreement of the
parties.
15.2 GENDER AND NUMBER. Words of any gender used in this Contract
will be construed to include any other gender and words in the singular number
will be construed to include the plural, and vice versa, unless the context
requires otherwise.
15.3 CAPTIONS. The captions used in connection with the Articles,
Sections and Subsections of this Contract are for convenience only and will not
be deemed to expand or limit the meaning of the language of this Contract.
15.4 SUCCESSORS AND ASSIGNS. This Contract will be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns.
15.5 MULTIPLE COUNTERPARTS. This Contract may be executed in several
counterparts, each of which will be deemed an original, and all of which will
constitute but one and the same instrument.
15.6 CONTROLLING LAW. This Contract will be construed under, governed
by and enforced in accordance with the laws of the state where the Real Property
is located.
15.7 EXHIBITS. All exhibits, attachments, annexed instruments and
addenda referred to herein will be considered a part hereof for all purposes
with the same force and effect as if copied verbatim herein.
15.8 NO RULE OF CONSTRUCTION. Seller and Purchaser have each been
represented by counsel in the negotiations and preparation of this Contract;
therefore, this Contract will be deemed to be drafted by both Seller and
Purchaser, and no rule of construction will be invoked respecting the authorship
of this Contract.
15.9 SEVERABILITY. All agreements and covenants contained in this
Contract are severable. In the event any agreement or covenant is held to be
invalid by any court, this Contract will be interpreted as if such invalid
agreement or covenant were not contained herein.
15.10 CONSTRUCTION OF CERTAIN WORDS. "Any" will be construed as "any
and all." "Including" will be construed as "including but not limited to."
15.11 TIME OF ESSENCE. Time is important to both Seller and Purchaser
in the performance of this Contract, and both parties have agreed that strict
compliance is required as to any date set out in this Contract.
15.12 BUSINESS DAYS. "BUSINESS DAY" means any day on which business is
generally transacted by banks in Dallas County, Texas. If the final date of any
period which is set out in any paragraph of this Contract falls upon a day which
is not a Business Day, then, and in such event, the time of such period will be
extended to the next Business Day.
16. CONFIDENTIALITY.
Purchaser and Seller agree not to record this Contract and to hold all
information related to this transaction in strict confidence, and will not
disclose same to any person other than directors, officers, employees and agents
of each, as well as to consultants, banks or other third parties working with
Seller or Purchaser in connection with the transaction ("RELATED PARTIES") who
need to know such information for the purpose of consummating this transaction.
This prohibition will not be applicable to disclosure of information that, in
the opinion of counsel to the disclosing party, would be required by applicable
law, rule or regulation and will not survive the Closing; provided however, the
provisions of this SECTION 16 shall survive any termination of the Agreement but
shall not survive Closing. Except as provided in this SECTION 16, prior to
Closing, any release to the public of information with respect to the matters
set forth in this Contract will be made only in the form approved by Purchaser
and Seller and their respective counsel. Notwithstanding anything set forth in
this Agreement to the contrary or in any other agreement to which a party hereto
is bound, each such party is (and any employee, representative or other agent of
such party are) hereby expressly authorized to disclose the "tax treatment" or
"tax structure" (as those terms are defined in Treas. Reg. ss.ss.1.6011-4(c)(8)
and (9), respectively) of the transactions the subject of this Agreement and all
materials of any kind (including tax opinions or other tax analyses) that are
provided to any such party relating to such "tax treatment" or "tax structure"
of the transactions the subject of this agreement, except that "tax treatment"
or "tax structure" shall not include the identity of any existing or future
party or its affiliates.
17. IRS REPORTING REQUIREMENTS.
For the purpose of complying with any information reporting requirements
or other rules and regulations of the Internal Revenue Service ("IRS") that are
or may become applicable as a result of or in connection with the transaction
contemplated by this Contract, including, but not limited to, any requirements
set forth in proposed Income Tax Regulation Section 1.6045-4 and any final or
successor version thereof (collectively the "IRS REPORTING REQUIREMENTS"),
Seller and Purchaser hereby designate and appoint the Title Company to act as
the "REPORTING PERSON" (as that term is defined in the IRS Reporting
Requirements) to be responsible for complying with any IRS Reporting
Requirements. The Title Company hereby acknowledges and accepts such designation
and appointment and agrees to fully comply with any IRS Reporting Requirements
that are or may become applicable as a result of or in connection with the
transaction contemplated by this Contract. Without limiting the responsibility
and obligations of the Title Company as the Reporting Person, Seller and
Purchaser hereby agree to comply with any provisions of the IRS Reporting
Requirements that are not identified therein as the responsibility
of the Reporting Person, including, but not limited to, the requirement that
Seller and Purchaser each retain an original counterpart of this Contract for at
least four (4) years following the calendar year of the Closing.
18. OFFER.
This Contract will constitute an offer from the first party to sign the
Contract to the other party, which offer must be accepted, if at all, within
five (5) Business Days after receipt of same. If Seller is the first party to
sign the Contract, such offer may only be accepted by Purchaser depositing three
(3) fully executed copies of the Contract with Title Company.
19. EFFECTIVE DATE.
This Contract will be deemed executed as of the date of the last
signature but effective as of the date of delivery in fully executed form to the
Title Company, as evidenced by the Title Company's written receipt thereof (the
"EFFECTIVE DATE").
20. SECTION 1031 EXCHANGE.
In the event Purchaser purchases the Property in connection with a
transaction pursuant to Section 1031 of the Internal Revenue Code, Seller will
cooperate with Purchaser in that regard; provided however, such cooperation
shall not require Seller to expend any funds or incur any obligation beyond
those created by this Contract, and this Section shall not modify any of the
other rights or obligations of the parties under this Contract nor provide any
basis for the extension of the Closing Date.
21. PROPERTY MANAGEMENT AGREEMENT.
Promptly after the Effective Date, the parties agree to negotiate, in
good faith, a form of agreement ("Property Management Agreement") to be executed
at Closing pursuant to which Crescent Property Services, Inc., an affiliate of
Seller would be engaged by Purchaser, or by an affiliate of Purchaser, to
operate, maintain, lease and manage the Property; provided, however, that such
an agreement on a form of Property Management Agreement shall not be a condition
to the obligations of Purchaser and Seller to close the transactions
contemplated by the Contract, and neither party will have a right to terminate
this Contract if, despite negotiation in good faith, the parties fail to agree
on a form of Property Management Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Purchase and
Sale Contract.
SELLER:
CRESCENT REAL ESTATE FUNDING VIII, L.P.,
a Delaware limited partnership
By: CRE Management VIII, LLC, a Delaware
corporation, its general partner
Date: __________________________ By:__________________________________
Name:________________________________
Printed Name:________________________
PURCHASER:
HARVARD PROPERTY TRUST, LLC, a Delaware
limited liability company
Date: __________________________ By:__________________________________
Name:________________________________
Printed Name:________________________
JOINDER BY TITLE COMPANY
The undersigned, _______________________, as agent for Chicago Title
Insurance Company/Southwest Operations (referred to in this Contract as the
"TITLE COMPANY"), hereby acknowledges that it received this Contract executed by
Seller and Purchaser on the _____ day of ___________________, 2004, and accepts
the obligations of Title Company as set forth herein. Title Company acknowledges
that it received the Xxxxxxx Money on the ____ day of ________________, 2004,
and further that it will hold the Xxxxxxx Money in accordance with this
Contract.
CHICAGO TITLE INSURANCE COMPANY /
SOUTHWEST OPERATIONS
By:__________________________________
Name:________________________________
Printed Name:________________________
