Exhibit 10.29
The Crescent
Dallas, Texas
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement"), made to be effective as of
November 10, 2004 (the "Effective Date"), between CRESCENT REAL ESTATE FUNDING
I, L.P., a Delaware limited partnership, having an office at 000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000-0000 ("Seller"); CRESCENT TC INVESTORS,
L.P., a Delaware limited partnership, having an office c/o X.X. Xxxxxx
Investment Management Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Purchaser"); CRESCENT BT I INVESTOR, L.P., a Delaware limited partnership,
having an office at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000-0000
("CBTIILP"); and CRESCENT BIG TEX I, L.P., a Delaware limited partnership,
having an office c/o X.X. Xxxxxx Investment Management Inc., 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Big Tex"); each a "Party" and, collectively, the
"Parties." In addition, Crescent Real Estate Equities Limited Partnership, a
Delaware limited partnership ("Crescent") has executed this Agreement solely for
the purposes of Article 6, Article 7, Article 13, Article 16 and Article 17
hereof.
WHEREAS, Seller owns fee simple title in and to all of that certain tract
or parcel of land situated in Dallas, Dallas County, Texas, being more
particularly described on Exhibit A attached hereto and made a part hereof for
all purposes (the "Land"), together with all improvements, structures (including
the parking garage) and fixtures located on the Land (collectively, the
"Improvements");
WHEREAS, subject to the terms and conditions set forth herein, Seller
desires to convey, and CBTIILP desires to acquire, the Property (as hereinafter
defined, which includes all of the Land and the Improvements, and all other
rights and interests pertaining thereto as more particularly described in
Section 2.1 hereinafter);
WHEREAS, the limited partner of both Seller and CBTIILP is Crescent and
for tax purposes the general partner interest of both Seller and CBTIILP is
owned by Crescent Real Estate Equities Company, a Texas real estate investment
trust;
WHEREAS, for federal income tax purposes such conveyance of the Property
from Seller to CBTIILP shall be treated as a distribution of the Property to the
partners of Seller, followed by a conveyance of the Property by such partners to
CBTIILP;
WHEREAS, following such acquisition by CBTIILP, subject to the terms and
conditions set forth herein, CBTIILP desires to contribute the Property and cash
to Big Tex in exchange for a 39.9% limited partnership interest in Big Tex,
together with a 0.1% general partner interest in Big Tex to be held by Crescent
BT I GP, L.P., a Delaware limited partnership ("GP") wholly owned by CBTIILP;
WHEREAS, following that contribution to Big Tex, subject to the terms and
conditions set forth herein, Big Tex desires to contribute the Property to
Purchaser in exchange for a 99.9%
limited partnership interest in Purchaser, together with a 0.1% general partner
interest in Purchaser to be held by Crescent TCI GP LLC, a Delaware limited
liability company wholly owned by Big Tex.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree to the
following:
ARTICLE 1.
CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
respective meanings set forth below:
"Actions" mean any claims, actions, suits, demands, proceedings or
investigations, whether at law or in equity or before any court, arbitrator,
arbitration panel or Governmental Body.
"Additional Rent" has the meaning ascribed to such term in Section 11.2 of
this Agreement.
"Affiliate" of a party means any Person that, directly or indirectly,
controls, is controlled by or is under common control with, such party. For
purposes of this Agreement the term "control" means the possession, directly or
indirectly, of the power to decide, affirmatively (by direction) or negatively
(by veto), the management and policies of a Person, whether through ownership
and voting securities, by contract or otherwise.
"Agreement" has the meaning ascribed to such term in the Introductory
Paragraph.
"Ancillary Agreement" means each Purchaser Ancillary Agreement and Seller
Ancillary Agreement.
"Base Rents" has the meaning ascribed to such term in Section 11.2 of this
Agreement.
"Adjoining Land" means any land owned by Seller, or in which the Seller
otherwise has an interest, lying in the bed of any street, road, avenue, open or
proposed, public or private, in front of or adjoining the Land or any portion
thereof, and any award to be made in lieu thereof and in and to any unpaid award
for damage to the Land or the Improvements by reasons of change of grade of any
street occurring after the Effective Date.
"CC&Rs" means that certain Declaration of Covenants, Conditions and
Restrictions for The Crescent dated May 5, 1994, recorded at Volume 94087, Page
78, Deed Records Dallas County, Texas, as amended from time to time.
"CC&Rs Estoppel" means that certain Declaration Estoppel Certificate
related to the CC&Rs, the form of which is attached hereto as Exhibit J.
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"Closing" means the closing of the transactions contemplated hereby, which
shall take place at the offices of the Escrow Agent or through escrow pursuant
to an escrow agreement mutually agreeable to the Parties on the Closing Date at
10:00 A.M., or at such other time or place as the parties may agree upon in
writing.
"Closing Date" means November 10, 2004. The Parties acknowledge and agree
that the Closing Date and the Effective Date are the same date; it is the
Parties' intention that the transactions contemplated herein are to be
consummated on a "sign and close" basis on such date. In this Agreement,
reference is generally made to such date as the "Closing Date" in the context of
provisions that address the Closing.
"Code" means the Internal Revenue Code of 1986, as amended and the rules
and regulations promulgated thereunder.
"Commitment" has the meaning ascribed to such term in Section 4.1.1 of
this Agreement.
"Crescent" has the meaning ascribed to such term in the Introductory
Paragraph of this Agreement.
"Damages" mean all actual losses, liabilities, costs, damages, claims and
expenses (including reasonable attorneys' fees and disbursements through
appeal).
"Default" means (i) a breach of or default under any contract, agreement,
covenant, document or other instrument, or (ii) the occurrence of an event which
with the passage of time or the giving of notice, or both, would constitute a
breach of or default under any such contract, agreement, covenant, document or
other instrument, or (iii) the occurrence of an event that with or without the
passage of time or the giving of notice, or both, would give rise to a right of
termination or acceleration under any such contract, agreement, covenant,
document or other instrument.
"XxXxxxx Letters" means, collectively, the XxXxxxx Parking Letter and the
XxXxxxx Loading Space Letter.
"XxXxxxx Loading Space Letter" means a certain letter dated November 3,
2004 from Xxxx XxXxxxx, addressed to Purchaser, pursuant to which Xx. XxXxxxx
attests to (i) the loading space requirements of the Property under the current
City of Dallas Zoning Code, and (ii) the fact that the Property currently
complies with such requirements.
"XxXxxxx Parking Letter" means a certain letter dated November 3, 2004
from Xxxx XxXxxxx, addressed to Purchaser, pursuant to which Xx. XxXxxxx attests
to (i) the parking space requirements of the Property under the current City of
Dallas Zoning Code, and (ii) the fact that the Property currently complies with
such requirements.
"Environmental Laws" mean all federal, state, local and foreign
environmental, health and safety Laws including, without limitation Laws
relating to emissions, discharge, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances into the
environment (including, without limitation, air, surface water, ground water,
land surface or subsurface strata) or otherwise relating to the manufacture,
processing,
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distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals, or industrial, solid, toxic or hazardous
substances. As used in this Agreement, the term "Hazardous Substances" includes,
without limitation, (i) all substances which are designated pursuant to Section
311(b)(2)(A) of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C.
Section 1251 et seq.; (ii) any element, compound, mixture, solution, or
substance which is designated pursuant to Section 102 of the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601 et seq.; (iii) any hazardous waste having the characteristics which
are identified under or listed pursuant to Section 3001 of the Resource
Conservation and Recovery Act ("RCRA"), Section 6901 et seq.; (iv) any toxic
pollutant listed under Section 307(a) of the FWPCA; (v) any hazardous air
pollutant which is listed under Section 112 of the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; (vi) any imminently hazardous chemical substance or
mixture with respect to which action has been taken pursuant to Section 7 of the
Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq.; and (vii)
petroleum, petroleum products, petroleum by-products, petroleum decomposition
by-products, and waste oil; (viii) "hazardous materials" within the meaning of
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1802 et seq.; (ix)
any hazardous substance or material identified or regulated by or under any
applicable provisions of the laws of the state in which any portion of the
Property is located; (x) asbestos or any asbestos containing materials; (xi) any
radioactive material or substance; (xii) all toxic wastes, hazardous wastes and
hazardous substances as defined by, used in, controlled by or subject to all
implementing regulations adopted and publications promulgated pursuant to the
foregoing statutes; and (xiii) any other hazardous or toxic substance or
pollutant identified in or regulated under any other applicable federal, state
or local Laws.
"Governmental Body" means any agency, instrumentality, department,
commission, court, tribunal or board of any government, whether foreign or
domestic and whether national, federal, state, provincial or local.
"Ground Lease" means that certain Ground Lease dated May 5, 1994, by and
between RRCC Limited Partnership, a Texas limited partnership ("RRCC"), as
landlord, and RRCC, as tenant, recorded at Volume 94087, Page 000, Xxxx Xxxxxxx
Xxxxxx Xxxxxx, Xxxxx, as amended from time to time.
"Ground Lease Estoppel" means that certain Ground Lease Estoppel
Certificate related to the Ground Lease, the form of which is attached hereto as
Exhibit K.
"Guarantees" means all guarantees, agreements and undertakings of any
Guarantor in connection with the Tenant Leases (individually, a "Guaranty").
"Guarantor" means any guarantor under any existing Guaranty of any Tenant
Lease.
"Hazardous Discharge" has the meaning ascribed to such term in Section
5.1.2(n) of this Agreement.
"Hotel Site" as defined in the CC&Rs, and means the interests in the Land
that are encumbered by the Ground Lease.
"Houston Center Contract" means that certain Purchase and Sale Agreement
of even date herewith between Crescent, as the seller thereunder, and Crescent
HC Investors, L.P., an
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Affiliate of Purchaser, as the purchaser thereunder, relating to the land and
improvements commonly known as Houston Center in Houston, Xxxxxx County, Texas.
"Intangible Personal Property" shall mean all right, title and interest of
Seller in and to all telephone numbers listed after the name of the Property,
and all other items of intangible personal property owned by Seller and utilized
principally in connection with the operation of the Property (except for items
of intangible personal property that are otherwise the subject of other defined
terms set forth in this Agreement).
"Korshak" shall mean Xxxxxxx Xxxxxxx L.P., a Texas limited partnership.
"Korshak Lease" shall mean that certain Retail Lease dated October 8,
2002, by and between Seller, as Landlord, and Korshak, related to the Property,
as amended from time to time.
"Korshak Participation Agreement" is defined in Section 28.9 of this
Agreement.
"Law" or "Laws" mean laws, statutes, rules, regulations, codes, orders,
ordinances, judgments, injunctions, or decrees.
"Xxxxxx" means Xxxxxx Brothers Holdings, Inc.
"License Agreements" means all agreements (written or oral) in the nature
of licenses to which Seller is a party or is bound affecting any portion of the
Property all which are set forth in Schedule 5.1.2(d) annexed hereto and made a
part hereof.
"Lien" means any security interest, lien, mortgage, claim, charge, pledge,
restriction, equitable interest, restrictive covenant or encumbrance of any
nature.
"Major Lease" means any Tenant Lease with respect to which the Tenant
thereunder is a Major Tenant.
"Major Tenant" means those Tenants identified as such on Schedule 5.1.2(d)
attached hereto.
"MetLife" means Metropolitan Life Insurance Company, the lender under the
MetLife Note.
"MetLife Note" means that certain Promissory Note in the original
principal amount of $25,000,000 executed by RRCC (as defined hereinafter) in
favor of MetLife, secured by a Deed of Trust, Security Agreement and Fixture
Filing granting a lien encumbering RRCC's leasehold estate in the Hotel Site.
"MetLife Estoppel" means that certain Lender Estoppel Certificate, the
form of which is attached hereto as Exhibit L, related to the MetLife Note, and
to matters contained in that certain estoppel certificate dated November 13,
2002, by and among MetLife, RRCC and Seller.
"Ordinance 19890" means that certain City of Dallas Ordinance No. 19890,
recorded at Volume 98190, Page 0000, Xxxx Xxxxxxx Xxxxxx Xxxxxx Texas.
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"Ordinance 19890 Assignment" means written approval by the City of Dallas
Property Management Director of the assignment of Seller's rights under
Ordinance 19890 to Purchaser and any assignment documentation required by the
City of Dallas, Texas to effect such assignment from Seller to Purchaser.
"Overage Rent" has the meaning ascribed to such term in Section 11.1 of
this Agreement.
"Permits" has the meaning ascribed to such term in Section 2.1.6 of this
Agreement.
"Person" means any natural person, corporation, business trust, joint
venture, association, company, limited liability entity, firm, partnership, or
other entity or Governmental Body.
"Post Oak Contract" means that certain Purchase and Sale Agreement of even
date herewith between Crescent Real Estate Funding X, L.P., a Delaware limited
partnership, as the seller thereunder, and Crescent POC Investors, L.P., an
Affiliate of Purchaser, as the purchaser thereunder, relating to the land and
improvements commonly known as Post Oak Central in Houston, Xxxxxx County,
Texas.
"Project Name License" means that certain License Agreement in the form
attached hereto as Exhibit N, between Crescent and Purchaser, granting to
Purchaser the right to use the name "The Crescent" with respect to the Project.
"Property" has the meaning given to it in the recitals above.
"Purchaser Ancillary Agreement" means each agreement or other instrument
executed or to be executed in connection with this Agreement by Purchaser or an
Affiliate of Purchaser, including the Houston Center Contract, the Post Oak
Contract and all Closing documentation executed by Purchaser or an Affiliate of
Purchaser in connection therewith.
"Xxxxxx Letter" means a certain letter dated November 3, 2004 from Xxxxxx
Xxxxxx, addressed to Purchaser, pursuant to which Xx. Xxxxxx attests to the fact
that the Land and the Improvements are in compliance with all applicable Federal
Aviation Administration ("FAA") height regulations and limitations.
"Rents" has the meaning ascribed to such term in Section 11.1 of this
Agreement.
"Reports" means the environmental reports and other written materials
listed in Exhibit H attached hereto and made a part hereof.
"Security Deposits" means all security deposits and other deposits (in the
form of cash, letters of credit or otherwise) required to be deposited with
Seller pursuant to the Tenant Leases.
"Seller Ancillary Agreement" means each agreement or other instrument
executed or to be executed in connection with this Agreement by Seller or an
Affiliate of Seller, including the Houston Center Contract, the Post Oak
Contract and all Closing documentation executed by Seller or an Affiliate of
Seller in connection therewith.
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"SPF" means JPMorgan Chase Bank, as Trustee under Amended and Restated
Declaration of Trust, dated November 13, 2001, as amended, for its Commingled
Pension Trust Fund (Strategic Property).
"Subleases" means all leases executed by the Tenants or their
predecessors-in-interest to a third party for all or a portion of the space
demised under such Tenants' Lease, all of which are set forth in Schedule
5.1.2(d) attached hereto and made a part hereof.
"Tenants" (or singularly, a "Tenant") means the tenants under the Tenant
Leases.
"Tenant Leases" means all agreements (written or oral) in the nature of
space leases, lettings, concessions or occupancy agreements, and all amendments,
modifications, supplements, additions, extensions, renewals and side letters
thereof or thereto, affecting the Land or the Improvements.
"Title Estoppels" means, collectively, the CC&Rs Estoppel, the MetLife
Estoppel and the Ground Lease Estoppel.
"UCC Releases" means release of each of the liens found per the UCC
Searches, as defined in Section 4.1.3 hereinafter, as set forth in Exhibit M.
ARTICLE 2.
TRANSFER OF THE PROPERTY.
Section 2.1. Property. For the consideration and upon and subject to the
terms, provisions and conditions of this Agreement, (a) Seller agrees to convey
to CBTIILP, (b) CBTIILP agrees to contribute to Big Tex, and (c) Big Tex agrees
to contribute to Purchaser, all of the respective transferors' right, title and
interest in and to all of the following described property (collectively, the
"Property") set forth hereinafter. For the purposes hereof, the Parties
acknowledge and agree that references to "Seller's" rights, titles and interests
in and to the Property is intended in each instance to refer also to the rights,
titles and interests therein received and transferred hereunder by CBTIILP and
Big Tex.
2.1.1 Seller's fee simple title in and to all of the Property (and,
if applicable, any Adjoining Land), including all rights, titles and interests
of Seller appurtenant to the Land and Improvements, including, without
limitation, (i) all minerals, oil, gas and other hydrocarbon substances thereon
or thereunder, (ii) all easements, privileges and hereditaments, whether or not
of record, (iii) all gaps, gores, adjacent strips, adjacent roads, streets,
highways, alleys and rights-of-way (both public or private, open or proposed),
(iv) any awards for damage to the Property by reason of a change of grade of any
road, street, highway, alley, or right-of-way, (v) any condemnation awards made
or to be made in lieu thereof, and (vi) all access, air, water, riparian,
development, utility (including sanitary and storm sewer capacity or
reservations or rights under utility agreements) and solar rights and all income
therefrom;
2.1.2 All fixtures, furnishings, furniture, equipment, machinery,
inventory, appliances and other personal property owned by Seller, located at or
used in connection with the Land and Improvements, including, without
limitation, (1) all mechanical systems, fixtures and equipment comprising a part
of or attached to or located upon the Land and Improvements,
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(2) all maintenance equipment and tools owned by Seller and used in connection
with the Land and Improvements, (3) all site plans, surveys, plans and
specifications, marketing materials and floor plans in Seller's possession which
relate solely to the Improvements and no other premises, (4) all pylons and
other signs, and (5) all other personal property of every kind and character
owned by Seller and located in or on or used in connection with the Land and
Improvements or the operations thereon, (collectively, the "Personalty"), which
items are listed on Schedule 5.1.2(aa) attached hereto. Notwithstanding anything
to the contrary contained herein, it is expressly agreed by the Parties that any
fixtures, furniture, furnishings, equipment or other personal property owned or
leased (from a party other than Seller) by any tenant, managing agent, leasing
agent, contractor, or employee, shall not be included in the Property to be sold
to Purchaser hereunder;
2.1.3 The Tenant Leases and Security Deposits, the License
Agreements and the Guaranties,
2.1.4 All of Seller's rights, titles and interests as lessee under
any leases;
2.1.5 All service, management and maintenance contracts and other
contracts, reciprocal easement agreements, development agreements, concession
agreements and operating agreements all as listed on Schedule 5.1.2(q) relating
to the ownership and operation of the Property (collectively, the "Operating
Agreements"), and warranties, guaranties and bonds in effect at Closing and
listed on Schedule 5.1.2(v) attached hereto and by this reference made a part
hereof (the "Warranties") relating to the Land, the Improvements or the
Personalty, to the extent the same are assignable;
2.1.6 All permits, licenses, certificates of occupancy and
governmental approvals, if any, which relate to the Land, Improvements,
Personalty, Operating Agreements or Tenant Leases (the "Permits");
2.1.7 The Intellectual Property (hereinafter defined) used solely in
connection with the operation of the Property; excluding any Intellectual
Property to which Seller is restricted from granting such a license or for which
consent is required and not obtained (provided, that Seller agrees to use
commercially reasonable efforts to obtain any such required consent). For the
purposes hereof, "Intellectual Property" means any of the following which are
used by Seller in connection with the Property: (i) trademarks, service marks,
trade dress, logo name, trade names, domain name, registrations, designations
but excluding any Crescent or Crescent-derivative trademark, service xxxx, trade
dress or logo except to the extent otherwise expressly set forth in the Project
Name License, (ii) copyrights, (iii) trade secrets and confidential business
information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, methods,
schematics, technology, technical data, designs, drawings, flowcharts, block
diagrams, specifications, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals), (iv) computer
software (including data and related documentation), (v) patents, and (vi)
licenses, sublicenses, agreements, or permissions related to any of the
foregoing;
2.1.8 The Intangible Personal Property; and
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2.1.9 To the extent transferable, all other rights owned by Seller
and necessary to or used exclusively in connection with the ownership,
maintenance or operation of the items set forth in subsections 2.1.1 through
2.1.8 above.
Section 2.2. The Parties acknowledge and agree that the value of the
Personalty is de minimis and that no part of the Purchase Price (hereinafter
defined) is allocable thereto. Although it is not anticipated that any sales tax
shall be due and payable, Purchaser agrees that Purchaser shall pay to the
applicable Governmental Body any and all sales and/or compensating use taxes
imposed upon or due solely by reason of the transactions contemplated hereunder
under any applicable Law. Purchaser shall file all necessary tax returns with
respect to all such taxes and, to the extent required by applicable Law, Seller
will join in the execution of any such tax returns. The provisions of this
Section 2.2 shall survive the Closing.
ARTICLE 3.
PAYMENT OF PURCHASE PRICE.
Section 3.1. CBTIILP will contribute the Property and cash to Big Tex in
exchange for a 39.9% limited partnership interest in Big Tex and a 0.1% general
partner interest to be held by GP. The Parties agree that the fair market value
of the Property is $324,000,000 and that the Property is being contributed to
Big Tex subject to debt of $214,770,000.
ARTICLE 4.
TITLE; DUE DILIGENCE REVIEW
Section 4.1. The Parties acknowledge and agree that prior to the Effective
Date, Purchaser has received, and has had an opportunity to review, the
following:
4.1.1 (i) from Fidelity National Title Insurance Company, Attention:
Xxx Xxxxx, 000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Telephone:
(000) 000-0000, Fax: (000) 000-0000 (the "Escrow Agent"), as authorized agent
for Fidelity National Title Insurance Company ("Fidelity"), G.F. No. 04-01-5204
dated effective September 26, 2004, issued on November 1, 2004 (Revision #10);
(ii) from Xxxxxxx Title Guaranty Company, Attention: Xxx Xxxxxx, 0000 Xxxx Xxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Telephone: (000) 000-0000, Fax:
(000) 000-0000, as authorized agent for Xxxxxxx Title Guaranty Company
("Xxxxxxx"), G.F. No. 04600130; (iii) from Chicago Title Insurance Company,
Attention: Xxx Xxxxxxx, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Telephone: (000) 000-0000, Fax: (000) 000-0000, as authorized agent for Chicago
Title Insurance Company ("Chicago"), G.F. No. 653195; and (iv) from Republic
Title of Texas, Inc., Attention: C. Xxxxxxx Xxxxx, 0000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxx 00000, Telephone: (000) 000-0000, Fax: (000) 000-0000, as
authorized agent for First American Title Insurance Company ("First American"),
G.F. No. 04R16333 SJ3 (the foregoing, collectively, the "Title Company") four
(4) title insurance commitments (collectively, the "Commitment") pertaining to
the Land, and binding Fidelity to issue to Purchaser at Closing on a
co-insurance basis an Owner's Policy of Title Insurance (the "Fidelity Owner
Title Policy") in the amount of $162,000,000 (the "Fidelity Owner Title Policy
Amount"); binding Xxxxxxx to issue to Purchaser at Closing on a co-insurance
basis an Owner's Policy of Title Insurance (the "Xxxxxxx Owner Title Policy") in
the amount of $64,800,000 (the "Xxxxxxx Owner Title Policy Amount"); binding
First American to issue to Purchaser at Closing
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on a co-insurance basis an Owner's Policy of Title Insurance (the "First
American Owner Title Policy") in the amount of $64,800,000 (the "First American
Owner Title Policy Amount"); and binding Chicago to issue to Purchaser at
Closing on a co-insurance basis an Owner's Policy of Title Insurance (the
"Chicago Owner Title Policy" and, together with the Fidelity Owner Title Policy,
the Xxxxxxx Owner Title Policy and the First American Owner Title Policy,
collectively, the "Owner Title Policy") in the amount of $21,477,000 (the
"Chicago Owner Title Policy Amount" and, together with the Fidelity Owner Title
Policy Amount, the Xxxxxxx Owner Title Policy Amount and the First American
Owner Title Policy Amount, collectively, the "Owner Title Policy Amount");
together with copies of instruments or documents (the "Exception Documents")
creating or evidencing conditions or exceptions to title affecting the portion
of the Land that is the subject thereof, as described in the Commitment;
4.1.2 A copy of the most current on the ground survey for the Land
in Seller's possession, dated September 30, 2004 (last revised November 4,
2004), Project No. 20100-173A, prepared by G. Xxxxxxx Xxxxx, R.P.L.S. No. 4111,
a surveyor licensed by the State of Texas (the "Survey");
4.1.3 Searches of the Uniform Commercial Code Records of Dallas
County, Texas, as well as a search of the Secretary of State of the State of
Texas, with respect to Seller (and the Secretary of State of the State of
Delaware with respect to the formation of Seller) under the name of Seller (the
"UCC Searches") dated within 60 days of the Effective Date hereof;
4.1.4 Litigation searches of Seller from county courts in Dallas
County, Texas, the state district courts of Dallas County, Texas and federal
courts in the Northern District of Texas, Dallas Division (the "Litigation
Searches"); and
4.1.5 Searches of the Real Property Records of Dallas County, Texas
under the name of Seller with respect to federal and state tax liens and
judgment liens (the "Lien Searches").
The costs associated with the Survey, the UCC Searches, the Litigation
Searches and the Lien Searches shall be paid by Seller. Subject to the terms and
conditions set forth in this Agreement, Purchaser hereby approves the Commitment
(including the Exception Documents pertaining thereto), the Survey, the UCC
Searches, the Litigation Searches and the Lien Searches.
Section 4.2. At Closing, the Title Company shall issue to Purchaser the
Owner Title Policy for the Land as specified in the Commitment, with such
endorsements as the Parties may direct, dated no earlier than the date of the
filing of the Deed described in Section 9.1.1 hereof, insuring Purchaser's title
to the Land in the amount of the Owner Title Policy Amount, subject to the
Permitted Exceptions (hereinafter defined). For the purposes hereof, the term
"Permitted Exceptions" shall mean and refer to (i) the title encumbrances,
exceptions or other matters set forth in Exhibit G attached hereto, which are
reflected in the Commitment (but excluding those matters which are expressly
identified below as Non-Permitted Exceptions to Title); (ii) the rights of the
Tenants under Tenant Leases listed in Exhibit G as Tenants only without any
option or right of first offer or refusal to purchase; and (iii) taxes and
assessments for the year in which Closing occurs and subsequent years.
Notwithstanding anything to the contrary herein, Seller
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agrees that there shall be no Liens affecting the Land or Improvements at the
time of Closing, and Seller shall satisfy any and all such Liens prior to or
concurrently with the Closing (the "Non-Permitted Exceptions to Title"). With
respect to the costs associated with the Commitment, the Owner Title Policy to
be issued in connection therewith, and any mortgagee title insurance policy (a
"Mortgagee Policy") relating to a New Loan (hereinafter defined), including in
each instance, without limitation, the cost of reinsurance and endorsements, the
Parties agree that the payment of such costs, together with the title insurance
costs under the Houston Center Contract and the Post Oak Contract shall be
allocated among Purchaser and its Affiliates and Seller and its Affiliates as
follows: Seller, 41.9%; Purchaser, 58.1%.
Section 4.3.
4.3.1 The parties acknowledge and agree that, during the period
between July 22, 2004 and the Effective Date (the "Due Diligence Period"),
Purchaser had an opportunity to perform its due diligence review of the
Property. Purchaser acknowledges that certain written information has been made
available by Seller to Purchaser in the disclosure schedules attached hereto or
posted on the "Client Connect" website maintained by Xxxxxx and Xxxxx, LLP under
the heading "The Crescent - Due Diligence," on behalf of Seller and its
Affiliates, at least three (3) business days prior to the Closing Date
(collectively, the "Due Diligence Information"). Subject to the terms and
conditions set forth in this Agreement, Purchaser has determined that the
Property is satisfactory and feasible for its intended use.
4.3.2 The Parties acknowledge that the Due Diligence Information
which Seller has made available to Purchaser includes certain documents and
other information pertaining to the Property prepared by third parties other
than Seller or an Affiliate of Seller (the "Third Party Property Information").
Except as otherwise expressly provided herein, Seller expressly disclaims any
and all liability for representations or warranties, express or implied,
statements of fact and other matters contained in the Third Party Property
Information, or in any other written or oral communications transmitted or made
available to Purchaser, which has been prepared by third parties other than
Seller or an Affiliate of Seller. With respect to the Property, Purchaser shall
rely solely upon (a) Purchaser's due diligence review of the Property, and (b)
the express warranties and representations of Seller set forth in this Agreement
pertaining to the Property, including, without limitation, the Property's
physical, environmental or economic condition, compliance or lack of compliance
with any Law or Permit or any other attribute or matter relating thereto.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES.
Section 5.1. As of the Effective Date hereof, Seller represents and
warrants to Purchaser the following:
5.1.1 Seller Representations.
(a) Seller is a limited partnership duly organized and validly
existing and in good standing under the laws of the State of Delaware, and
is qualified to do business in the State of Texas. Seller has the full
power and authority to own, lease and operate its
11
assets and properties and to conduct its business as now conducted.
Neither Seller, nor any entity controlling, or controlled by, Seller owns
a five percent (5%) or greater interest (within the meaning of Prohibited
Transaction Class Exemption 84-14) in XX Xxxxxx Chase Bank.
(b) This Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms. Seller has taken all necessary action to authorize and approve the
execution and delivery of this Agreement and the Seller Ancillary
Agreements and its performance hereof and thereof.
(c) The execution and delivery of this Agreement and the Seller
Ancillary Agreements and the performance by Seller of its obligations
hereunder and thereunder do not and will not conflict with or violate any
current Laws of any Governmental Body with jurisdiction over Seller or the
Property, including, without limitation, the United States of America, the
State of Delaware, the State of Texas, or any political subdivision of any
of the foregoing, or any decision or ruling of any arbitrator to which
Seller is a party or by which Seller or the Property is bound or affected.
(d) Annexed hereto as Schedule 5.1.1(d) and made a part hereof are
the financial statements prepared by Seller relating to the Property for
the three years ended December 31, 2001, 2002 and 2003 (collectively, the
"Financial Statements"). The Financial Statements in each case are true
and complete with respect to all material items contained therein and
fairly present in all material respects the financial position and results
of operations of Seller with respect to the Property as at, or for the
periods ended on, such dates. Also annexed as part of such Schedule are
certain operating statements prepared by Seller relating to the Property
covering periods subsequent to December 31, 2003, as shown therein. Such
statements and budgets were prepared in the ordinary course of managing
the Property.
5.1.2 Property Representations.
(a) To Seller's knowledge, no Governmental Body plans to change the
highway or road system in the vicinity of the Land in a manner which would
adversely affect the Land and/or the business operations conducted thereon
or would restrict or change access from any such highway or road to the
Land.
(b) There are no pending or, to Seller's knowledge, threatened
condemnation or eminent domain proceedings relating to or affecting the
Land and/or the Improvements.
(c) No Person has any (i) conditional or unconditional right and/or
option to purchase the Property or any portion thereof, and/or (ii) right
of first refusal or offer to purchase the Property or any portion thereof.
(d) Schedule 5.1.2(d) attached hereto, which includes a rent roll
and other information pertaining to the Tenant Leases, is true, correct
and complete, and lists all Tenant Leases with respect to the Land or any
portion thereof or interest therein that Seller leases, subleases or
licenses as the ground lessor, lessor, sublessor or licensor.
12
Seller has made available to Purchaser true and materially complete and
correct copies of the Tenant Leases and currently outstanding letters of
intent relating to occupancy of space within the Property. Except as
otherwise shown in Schedule 5.1.2(d), no Person other than Seller has the
right to possess or occupy the Land (or any portion thereof). All of the
Tenant Leases are in full force and effect and have not been modified
except as set forth in Schedule 5.1.2(d). To Seller's knowledge, there are
no parties in possession of the Land (or any portion thereof) except the
Tenants and any subtenants under subleases that are disclosed in Schedule
5.1.2(d); except as set forth in Schedule 5.1.2(d), there are no
unsatisfied "Take-Over" space obligations or "Take-Back" space obligations
(for the purposes hereof, "Take-Over" space obligations means rent
obligations of the Tenant in other buildings assumed by the landlord and
"Take-Back" space obligations means obligations imposed upon the landlord
to sublet or otherwise be responsible for the obligations of a Tenant
under a Tenant Lease). Except as set forth in Schedule 5.1.2(d), there are
no disputes with Tenants as to the amount of their rent or other charges
(including, without limitation, charges for common area maintenance) under
any Tenant Lease; except as set forth in the Tenant Leases, no Tenant has
any option to cancel its Tenant Lease; except as set forth in Schedule
5.1.2(d), there is no Default beyond applicable notice and cure periods by
the landlord under any Tenant Leases. Seller has not received from any
Tenant any written notice claiming any Default by the landlord under its
Tenant Lease; except as set forth in Schedule 5.1.2(d), Seller has not
delivered to any Tenant any written notice claiming a Default by Tenant
under its Tenant Lease which Default has not been cured; except as set
forth in Schedule 5.1.2(d), to Seller's knowledge, there are no
circumstances which, after notice and the expiration of any applicable
grace period, would constitute a Default by either landlord or any Tenant
under any of the Tenant Leases; except as set forth in Schedule 5.1.2(d),
Seller has not received written notice from any Tenant of any defense to,
or offsets or claims against rental payable or obligations under any
Tenant Lease; and to Seller's knowledge, no Tenant has asserted, or has
any defense to, offsets or claims against rental payable or obligations
under any Tenant Lease.
Except for any Subleases specified in Schedule 5.1.2(d), to Seller's
knowledge, (i) Seller has not consented to any Subleases, (ii) there are no
Subleases encumbering or affecting the Land or Improvements (or any portion
thereof), and (iii) true, correct and complete copies of any such Subleases have
been delivered to Purchaser and/or its consultants, accountants, auditors,
attorneys, agents and/or other representatives ("Purchaser's Representatives").
Except for the License Agreements specified in Schedule 5.1.2(d), there
are no License Agreements encumbering or affecting the Land or Improvements (or
any portion thereof). True, correct and complete copies of any such License
Agreements have been delivered to Purchaser and/or Purchaser's Representatives.
All of such License Agreements are in full force and effect and have not been
modified except as set forth in Schedule 5.1.2(d). Except as set forth in
Schedule 5.1.2(d), there are no disputes with any licensee as to the amount of
its rent or other charges (including, without limitation, charges for common
area maintenance) under any License Agreement; except as set forth in such
License Agreements, no licensee has any option to cancel its License Agreement;
except as set forth in Schedule 5.1.2(d), there is no Default beyond applicable
notice and cure periods by any licensee under such License Agreements. Seller
has not received from any licensee any written notice claiming any Default by
Seller as licensor
13
under its License Agreement; except as set forth in Schedule 5.1.2(d), Seller
has not delivered to any licensee written notice claiming a Default by such
licensee under its License Agreement which Default has not been cured; except as
set forth in Schedule 5.1.2(d), to Seller's knowledge there are no circumstances
which, after notice and the expiration of any applicable grace period, would
constitute a Default by either any licensee or Seller, as licensor under any of
the License Agreements; except as set forth in Schedule 5.1.2(d), Seller has not
received written notice from any licensee of any defense to, or offsets or
claims against rental payable or obligations under any License Agreement; and to
Seller's knowledge, no licensee has asserted, or has any defense to, offsets or
claims against rental payable or obligations under any License Agreement.
Schedule 5.1.2(d) specifies any Guarantees relating to the Tenant Leases.
All of such Guarantees are in full force and effect and have not been modified
except as set forth in Schedule 5.1.2(d). Except as set forth in Schedule
5.1.2(d), no Guarantor of any Tenant Lease has been released or discharged,
voluntarily (or to Seller's knowledge, involuntarily, or by operation of law)
from any obligation related to such Tenant Lease and covered by its Guaranty.
With respect to the rent roll that is a part of Schedule 5.1.2(d) attached
hereto: (i) such rent roll reflects all Tenant Leases dated as of November 5,
2004, prepared by or for Seller; the information in the rent roll was used to
invoice Tenants for their monthly payments for November, 2004; (ii) the rent
roll sets forth all of the Security Deposits being held by Seller and required
to be delivered by the Tenants under their Tenant Leases; there are no other
Security Deposits; and all Security Deposits are held by or on behalf of Seller;
and (iii) the information shown on the rent roll is true, correct and complete
in all material respects.
(e) Schedule 5.1.2(e) specifies all unpaid leasing costs and
expenses arising out of Tenant Leases entered into prior to the Effective
Date (including, without limitation, all tenant improvement costs, all
outstanding tenant improvement allowances and all outstanding leasing
commissions). Except for those unpaid leasing costs and expenses
(including, without limitation, tenant improvement costs, outstanding
tenant improvement allowances and outstanding leasing commissions) listed
in Schedule 5.1.2(e), there are no other such costs or expenses due now,
or that will hereafter become due or owing with respect to the Land or
Improvements, other than in connection with leases that may be entered
into by Purchaser after the Effective Date. Except as otherwise shown in
Schedule 5.1.2(e), there are no unpaid leasing costs or expenses
(including, without limitation, tenant improvement costs, outstanding
tenant improvement allowances or outstanding leasing commissions) due or
payable to Seller or any of its Affiliates in connection with the Tenant
Leases entered into as of the Effective Date.
(f) Except as set forth in Schedule 5.1.2(f), all tenant
improvements required under the Tenant Leases to be completed by the
Effective Date hereof by the landlord thereunder have been completed and
all tenant allowances and other tenant inducement costs required under the
Tenant Leases to be paid prior to the Effective Date have been paid in
full.
(g) Except as set forth in Schedule 5.1.2(g), to Seller's knowledge
after due and diligent inquiry, the Land and Improvements and the current
use, occupation and
14
condition thereof are in compliance with and do not violate any applicable
deed restrictions or other covenants, restrictions or agreements
(including, without limitation, any of the Permitted Exceptions) in any
material respect. Except as set forth in Schedule 5.1.2(g), to Seller's
knowledge, the Land and Improvements and the current use, occupation and
condition thereof are in compliance with and do not violate any applicable
site plan approvals, zoning or subdivision regulations or urban
redevelopment plans applicable to the Land and Improvements in any
material manner. Except as set forth in Schedule 5.1.2(g), neither Seller
nor, to Seller's knowledge, any Affiliate of Seller, has received any
written notice of noncompliance with or violation of any applicable deed
restriction or other covenants, restrictions, or agreements (including,
without limitation, any of the Permitted Exceptions), site plan,
approvals, zoning or subdivision regulations or urban redevelopment plans
applicable to the Land and Improvements. Seller is not in material Default
under any Permitted Exception. Except as set forth in Schedule 5.1.2(g),
to Seller's knowledge, Seller is in compliance with the covenants,
conditions, obligations, restrictions and requirements set forth in the
Permitted Exceptions. Except as set forth in Schedule 5.1.2(g), to
Seller's knowledge, all work, development, construction and improvements
performed or required pursuant thereto, whether by Seller or any
predecessor in interest, have been completed and paid for in conformity
therewith. Except as set forth in Schedule 5.1.2(g), all current
assessments, dues, charges and other payments required under any of the
Permitted Exceptions have been paid in full and Seller is not in arrears
with respect to any such payments.
(h) Except as set forth in the current tax bills, copies of which
are annexed hereto and made a part hereof as Schedule 5.1.2(h), which
copies are true and complete copies of such tax bills, there are no
special assessments or charges which have been levied against, and remain
an obligation of, the Land and/or the Improvements. There are no pending
or, to Seller's knowledge, threatened, special assessments affecting the
Land and/or the Improvements or any contemplated improvements affecting
the Land and/or the Improvements that may result in any such special
assessments.
(i) Except for the Leasing and Management Agreement (herein so
called) to be executed on the Closing Date, there is no contract or
agreement with any third party for the management of the Property or any
portion thereof, which will be binding on the Land and Improvements or on
Seller as of the Closing Date.
(j) Except as set forth in the Reports and in Schedule 5.1.2(j),
Seller and the Property have complied in all material respects with all
Environmental Laws. Seller has obtained all material Permits which are
required with respect to the operation of the Land and Improvements under
any Environmental Laws.
(k) Seller and the Land and Improvements are in possession of (and
in compliance in all material respects with the requirements of), all
Permits required by any Environmental Laws, and are also in compliance in
all material respects with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules
and timetables contained in any Environmental Laws or contained in any
plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder applicable to Seller or the
Land or Improvements. Seller has
15
delivered or made readily available to Purchaser or the Purchaser
Representatives true and complete copies of all final environmental
studies prepared by outside consultants relating to the Land and
Improvements that were prepared for or requested by Seller or Crescent.
(l) Except as set forth in the Reports, there is no pending, or, to
Seller's knowledge, threatened Action, demand, claim, hearing, notice of
violation, notice or demand letter that affects or applies to Seller or
the Land or Improvements implicating Environmental Laws or any order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder.
(m) Except as set forth in the Reports and in Schedule 5.1.2(m),
there are no past or present events, conditions, circumstances,
activities, practices, incidents, actions or plans known to Seller which
may reasonably be expected to interfere with or prevent the compliance or
continued compliance by Seller with any Environmental Laws or with any
regulation, code, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved thereunder, or
which is reasonably likely to give rise to any common law or legal
liability, or otherwise form the basis of any Action, hearing, notice of
violation or study, based on or related to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling, or
the emission, discharge, release or threatened release into the
environment, by Seller or the Land or Improvements of any pollutant,
contaminant, chemical, or industrial, toxic or Hazardous Substances.
(n) Except as set forth in the Reports and in Schedule 5.1.2(n), to
Seller's knowledge there has been no material emission, spill, release or
discharge from the Land or Improvements or by Seller at any other location
or disposal site, into or upon (i) the air, (ii) soils or improvements,
(iii) surface water or ground water, or (iv) the sewer, septic system or
waste treatment, storage or disposal system servicing the Land and/or the
Improvements of any toxic or Hazardous Substances regulated by the
Environmental Laws and used, stored, generated, treated or disposed at or
from the Land and/or the Improvements (any of which events is hereinafter
referred to as "Hazardous Discharge"). To Seller's knowledge, the Land and
Improvements are free of material amounts of all Hazardous Substances
except for paints, cleaning materials, fertilizer, pesticides, fuels and
lubricants or similar materials in amounts customarily used by prudent
owners and tenants in the construction, ownership, management and
maintenance of their properties, which are, to Seller's knowledge, being
used, stored, handled, transported, generated and disposed of in
compliance with applicable Environmental Laws.
(o) Except as set forth in the Reports and in Schedule 5.1.2(o),
Seller has not received any written notice of and has no knowledge of any
complaints, orders, directives, claims, citations or notices with respect
to (i) air emissions, (ii) spills, releases or discharges to soils or any
improvements located thereon, surface water, ground water or the sewer,
septic system or waste treatment, storage or disposal systems servicing
the Land and/or the Improvements, (iii) noise emissions, (iv) solid or
liquid waste disposal, (v) the use, generation, storage, transportation or
disposal of toxic or Hazardous
16
Substances or (vi) other environmental, health or safety matters affecting
Seller or the Property.
(p) Neither the Land nor any portion thereof is now or has ever been
a "Super-Fund Site". Except as set forth in the Reports and in Schedule
5.1.2(p), to Seller's knowledge there are no underground storage tanks
located on the Land.
(q) There are no Operating Agreements affecting the Property, oral
or written, other than those listed in Schedule 5.1.2(q) attached hereto.
Except as set forth in Schedule 5.1.2(q), each of the Operating Agreements
is in full force and effect. Seller has performed all material obligations
required to be performed by it, and is not in material Default, under any
Operating Agreement to which it is a party, by assumption or otherwise. To
Seller's knowledge, no other party is in material Default under any such
Operating Agreement. Seller has delivered to Purchaser or to Purchaser's
Representatives true, correct and complete copies of the Operating
Agreements. Except as set forth in Schedule 5.1.2(q), Seller is not a
party to any material lease, contract, agreement or other obligation other
than the Tenant Leases and the Operating Agreements. Except as set forth
in Schedule 5.1.2(q), none of the Operating Agreements (other than the
Leasing and Management Agreement) are between Seller and any Affiliate of
Seller.
(r) (i) Except as set forth in Schedule 5.1.2(r), Seller has not
received any written notice of any violation of any Law (including,
without limitation, building code, health and safety or zoning violations)
issued by any Governmental Body affecting the Land or Improvements that
remains uncured as of the Effective Date (collectively, "Violations") and
(ii) Seller has not received any written notice that an investigation has
been commenced respecting any such possible Violations.
(s) Schedule 5.1.2(s) attached hereto sets forth the material
Permits held by Seller with respect to the Property. Except as set forth
in Schedule 5.1.2(s), to Seller's knowledge, all Permits necessary to be
maintained in connection with ownership, use, operation, leasing and
maintenance of the Property have been obtained and are in full force and
effect. Seller has not received written notice, nor does Seller have
knowledge, (i) of any pending or threatened modification or cancellation
of any of the Permits, (ii) that Seller lacks any Permit required in
connection with the ownership, operation, management or leasing of the
Property (even though a physical copy thereof may not be in the possession
of Seller), or (iii) of any violation of any of the Permits.
(t) Schedule 5.1.2(t) attached hereto sets forth a true and complete
list and description of all insurance policies relating to the Property.
Except as set forth in Schedule 5.1.2(t), there are no pending claims made
against the Property. The insurance, from January 1, 2004 to the date
hereof, has (i) been maintained in full force and effect and (ii) not been
canceled or changed except to extend the maturity dates thereof or alter
the premiums due thereunder.
(u) All water, storm and sanitary sewer, gas (if applicable),
electricity, telephone and other utilities serving the Land and
Improvements are (i) supplied directly
17
to the Land and Improvements by facilities of public utilities through
lands as to which public or private easements exist that, to Seller's
knowledge, will continue to inure to the benefit of the Land and
Improvements from and after the Closing Date, (ii) adequate to service the
normal operations of the Land and Improvements, and (iii) supplied through
installations the cost of which has been fully paid or will be paid.
(v) Annexed hereto as Schedule 5.1.2(v) and made a part hereof is a
true and complete list of all guarantees and warranties relating to the
Personalty, and all agreements, amendments, guarantees, side letters and
other documents relating thereto. To Seller's knowledge, all such
guarantees are in full force and effect and have not been invalidated by
any act or omission of Seller. Seller has delivered to Purchaser or to
Purchaser's Representatives true, correct and complete copies of the
documents referred to herein.
(w) The Land is served by public roads, which have been completed
and are physically and legally open for use by the public, and Seller has
full access to and the right to use such roads freely.
(x) Except as set forth in Schedule 5.1.2(x), the Land is assessed
for real estate tax purposes as a separate and wholly independent tax lot,
separate from any other land or improvements not constituting a part of
such lots, and no other land or improvements are assessed and taxed
together with any portion of the Land.
(y) Except as listed in Schedule 5.1.2(y) attached hereto and made a
part hereof, no Actions for the correction of the assessed valuation of
the Land have been filed on behalf of Seller and are pending.
(z) Seller owns good and indefeasible fee title to the Land, free
and clear of all exceptions and restrictions of any nature whatsoever,
subject only to the Permitted Exceptions.
(aa) The list of Personalty set forth in Schedule 5.1.2(aa) annexed
hereto and made a part hereof is true, accurate and complete in all
material respects. Except as otherwise noted in Schedule 5.1.2(aa), the
Personalty has been fully paid for and is not subject to any Lien. The
Personalty listed in Schedule 5.1.2(aa) is located on the Land and is the
Personalty used in the ownership, use, operation, leasing and maintenance
of the Land and Improvements.
(bb) Except as listed in Schedule 5.1.2(bb), to Seller's knowledge,
all fixtures, machinery, equipment, lighting fixtures and appliances
comprising a portion of the Personalty and all heating, air-conditioning,
ventilating, electrical and plumbing systems on or in the Land and
Improvements are free of material defects and are in good working order,
normal wear and tear excepted, and comply with the requirements of all
applicable Governmental Bodies, and all Laws including, without
limitation, all Environmental Laws and all Permits required thereby have
been obtained and are in full force and effect.
(cc) Except as listed in Schedule 5.1.2(cc), permanent certificates
of occupancy have been issued for the Improvements, and for all spaces
demised under the Tenant
18
Leases. Except as set forth in Schedule 5.1.2(cc), to Seller's
knowledge, the roofs and basements of the Improvements are free of
material water leaks and material structural defects.
(dd) Except as set forth in Schedule 5.1.2(dd) attached hereto,
there are no pending Actions of which Seller has received written notice
or, to the knowledge of Seller, contemplated Actions brought by or against
Seller, affecting all or any portion of the Property or Seller which are
not otherwise covered by insurance.
(ee) There are no union or employment contracts or agreements
(written or oral) affecting any Property and there are no employees of
Seller, who, by reason of any Laws, or by reason of any union or other
employment contract, written or otherwise, or any other reason whatsoever,
would become employees of Purchaser as a result of the transactions
contemplated in this Agreement. By the execution of this Agreement,
Purchaser is not expressly or implicitly assuming any liability,
obligation, cost or expense whatsoever with respect to any employment
contract, employee benefit plan or arrangement, employment policy or
practice, collective bargaining agreement, union contract, employment
related claims whether based on statute, common law, tort or otherwise or
any other liability relating in any way to employees.
(ff) Neither Seller, nor any of its officers, directors or partners,
nor any person or entity that, to Seller's present, actual knowledge,
directly owns more than 10% beneficial interest in it, as described in the
Schedule 14A Information Required in the Proxy Statement of Crescent Real
Estate Equities Company dated as of May 28, 2004, is a person or entity
(each, a "Prohibited Person") with whom U.S. persons or entities are
restricted from doing business under regulations of the Office of Foreign
Asset Control ("OFAC") of the Department of the Treasury (including those
named on OFAC's Specially Designated and Blocked Persons List) or under
Executive Order 13224 (the "Executive Order") signed on September 24,
2001, and entitled "Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism"), and Seller
has no present, actual knowledge that any other persons or entities
holding any legal or beneficial interest whatsoever in Seller are included
in, owned by, controlled by, knowingly acting for or on behalf of,
knowingly providing assistance, support, sponsorship or services of any
kind to, or otherwise knowingly associated with any of the persons or
entities referred to or described in the Executive Order, or banned or
blocked person, entity, nation or transaction pursuant to any law, order,
rule or regulation that is enforced or administered by OFAC.
(gg) For purposes of Section 514(c)(9) of the Code, except for those
leases that are disregarded pursuant to Section 514 (c)(9)(G) of the Code
and after taking into account any other applicable exemption: (i) The
Property is not as of the Effective Date leased to Seller or to any other
Affiliate of Seller or of Crescent (collectively, the "Crescent Parties"),
or any partner thereof, or any entity which bears a relationship to the
Crescent Parties, or any partner thereof described in Section 267(b) or
Section 707(b) of the Code, and (ii) neither the Property nor any interest
in Purchaser is being acquired from, and, to Seller's knowledge the
Property is not leased to any person, which bears a relationship described
in subparagraph (C), (E) or (G) of Section 4975(e)(2) of the Code
19
to any plan, fund, arrangement, program or account (each, a "Plan") having
an interest in SPF or which bears a relationship described in subparagraph
(F) or (H) of Section 4975(e)(2) of the Code to any person which bears a
relationship described in subparagraph (C), (E) or (G) of Section
4975(e)(2) of the Code to any Plan having an interest in SPF; provided,
however that for purposes of the foregoing clause, any relationship to
subparagraph (G) of Section 4975(e)(2) of the Code shall be determined as
though such subparagraph cross-referenced only sub-paragraph (C) and (E)
(and not subparagraphs (A), (B) and (D)).
(hh) To Seller's knowledge, except as set forth in the Ground Lease
Estoppel, there is no Default beyond applicable notice and cure periods by
either party under the Ground Lease.
Section 5.2.
5.2.1 No broker, agent, or party other than Seller is authorized to
make any representation or warranty for or on behalf of Seller. Terms such as
"to Seller's knowledge" or like phrases used in connection with the
representations and warranties contained in Section 5.1.2 of this Agreement mean
the actual knowledge of Xxxx Xxxx, Xxxxx Xxxx, Xxx Xxxxx and Xxx Xxxxxxx (the
"Seller Knowledge Parties"), without any duty of inquiry or investigation except
as otherwise expressly indicated in this Agreement and such terms do not include
constructive knowledge or imputed knowledge; provided that so qualifying
Seller's knowledge shall in no event give rise to any personal liability on the
part of the Seller Knowledge Parties, on account of any breach of any
representation or warranty made by Seller herein. Seller represents and warrants
that the Seller Knowledge Parties are parties primarily responsible for and most
knowledgeable about the Property.
5.2.2 If, prior to the Closing Date, (a) Purchaser had actual
knowledge that any of the representations or warranties of Seller contained in
this Agreement are false or inaccurate, (b) such false or inaccurate
representations or warranties resulted from facts or circumstances beyond the
control of Seller, and (c) Seller had no knowledge that such representations or
warranties were false or inaccurate when made, then Seller shall have no
liability or obligation respecting such false or inaccurate representations or
warranties (and any cause of action resulting therefrom shall terminate upon the
Closing). Terms such as "Purchaser had actual knowledge" or like phrases mean
the actual knowledge of Xxxxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, Xxx Xxxxxxx and
Xxxxxx Xxxxxx (the "JPM Employees"), without any duty of inquiry or
investigation except as otherwise expressly indicated and such terms do not
include constructive knowledge or imputed knowledge; provided that under no
circumstances shall the JPM Employees have any personal liability hereunder.
Prior to the Effective Date, Purchaser delivered to Seller true, correct and
complete copies of all physical condition and environmental reports prepared by
third parties at Purchaser's request in connection with Purchaser's due
diligence efforts pertaining to the Property.
Section 5.3. PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, NEITHER SELLER, NOR ANY PERSON ACTING ON BEHALF OF
SELLER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS
REVIEWED BY PURCHASER IN
20
CONDUCTING ITS DUE DILIGENCE PRIOR TO THE EFFECTIVE DATE, NOR ANY DIRECT OR
INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT,
REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, CONSULTANT,
CONTRACTOR, SUCCESSOR OR ASSIGN OF SELLER, ITS AFFILIATES OR ANY OF THE OTHER
FOREGOING PARTIES (SELLER, AND ALL OF THE OTHER PARTIES DESCRIBED IN THE
PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN PURCHASER) SHALL BE REFERRED TO
HEREIN COLLECTIVELY AS THE "EXCULPATED PARTIES") HAS MADE OR SHALL BE DEEMED TO
HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED
OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION
WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE), WITH RESPECT TO THE PROPERTY, THE PERMITTED USE OF THE PROPERTY OR THE
ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE
COMPLIANCE BY THE PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR
ASSOCIATED WITH THE PROPERTY, OR OTHERWISE RELATING TO THE PROPERTY OR THE
TRANSACTION CONTEMPLATED HEREIN. PURCHASER FURTHER ACKNOWLEDGES THAT, EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY
ANY OF THE EXCULPATED PARTIES, HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR
REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY
PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND PURCHASER SHALL NOT HAVE ANY
RECOURSE AGAINST SELLER OR ANY OF THE OTHER EXCULPATED PARTIES IN THE EVENT OF
ANY ERRORS THEREIN OR OMISSIONS THEREFROM, EXCEPT TO THE EXTENT OF ANY
REPRESENTATIONS OR WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR CONTAINED
IN ANY CLOSING DOCUMENT. PURCHASER IS ACQUIRING THE PROPERTY BASED SOLELY ON ITS
OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE PROPERTY PRIOR TO THE
EFFECTIVE DATE AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY SELLER, OR ANY
OF THE OTHER EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH HEREIN. PURCHASER EXPRESSLY DISCLAIMS ANY INTENT TO RELY ON
ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN CONNECTION WITH ITS DUE DILIGENCE
PRIOR TO THE EFFECTIVE DATE EXCEPT TO THE EXTENT SUCH MATERIALS ARE THE SUBJECT
OF ANY REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT AND AGREES THAT
IT SHALL RELY SOLELY ON ITS OWN INDEPENDENTLY DEVELOPED OR VERIFIED INFORMATION.
Section 5.4. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT,
SELLER AND PURCHASER AGREE THAT PURCHASER IS PURCHASING THE PROPERTY "AS IS"
WITH ANY AND ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO WARRANTY BY
SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, PURCHASER
ACKNOWLEDGES AND AGREES THAT IT IS NOT RELYING UPON ANY REPRESENTATIONS,
STATEMENTS OR OTHER ASSERTIONS WITH RESPECT TO THE PROPERTY
21
CONDITION, BUT IS RELYING UPON ITS OWN EXAMINATION OF THE PROPERTY PRIOR TO THE
EFFECTIVE DATE. PURCHASER IS PURCHASING THE PROPERTY UNDER THE EXPRESS
UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, EXCEPT AS
EXPRESSLY SET FORTH HEREIN. IN NO EVENT SHALL PURCHASER HAVE THE RIGHT TO
RECOVER CONSEQUENTIAL DAMAGES. PURCHASER HEREBY WAIVES ANY ACTION UNDER THE
TEXAS DECEPTIVE TRADE PRACTICES ACT. THE PROVISIONS OF SECTIONS 5.3 AND 5.4
SHALL SURVIVE THE CLOSING.
Section 5.5. The provisions of the foregoing Sections 5.3 and 5.4 shall be
deemed incorporated by reference and made a part of all documents or instruments
delivered by Seller to Purchaser in connection with the consummation of the
transactions contemplated herein.
Section 5.6. As of the Effective Date, Purchaser represents and warrants
to Seller the following:
5.6.1 Purchaser is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. Purchaser
has the full power and authority to own, lease and operate its assets and to
conduct its business as now conducted.
5.6.2 This Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms. Purchaser has taken all necessary action to authorize and approve the
execution and delivery of this Agreement and its performance thereof.
5.6.3 The execution and delivery of this Agreement and the
performance by Purchaser of its obligations hereunder do not and will not
conflict with or violate any current Law of any court or Governmental Body with
jurisdiction over Purchaser, including, without limitation, the United States of
America and the State of Delaware, or any political subdivision of any of the
foregoing, or any decision or ruling of any arbitrator to which Purchaser is a
party or by which Purchaser is bound or affected.
5.6.4 Purchaser is not a party to, or subject to or bound by, any
agreement, judgment, order, writ, injunction or decree of any court or
governmental body that could prevent the performance of all or any of the terms
of this Agreement.
5.6.5 Neither Purchaser, nor any person or entity that, to
Purchaser's present, actual knowledge, directly owns a 10% or greater equity
interest in Seller, nor any of its officers, directors or partners is a
Prohibited Person, and Purchaser has no present, actual knowledge that any other
persons or entities holding any legal or beneficial interest whatsoever in
Purchaser are included in, owned by, controlled by, knowingly acting for or on
behalf of, knowingly providing assistance, support, sponsorship or services of
any kind to, or otherwise knowingly associated with any of the persons or
entities referred to or described in the Executive Order, or banned or blocked
person, entity, nation or transaction pursuant to any law, order, rule or
regulation that is enforced or administered by OFAC.
22
ARTICLE 6.
SURVIVAL AND LIMITATION OF LIABILITY OF
REPRESENTATIONS AND WARRANTIES.
Section 6.1. The Parties agree that all representations and warranties set
forth in this Agreement, or in any instrument or document delivered pursuant to
this Agreement or in connection with the transactions contemplated hereby, shall
survive the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby for a period of eighteen (18) months from the
Closing Date unless expressly provided to the contrary (the "Survival Period").
Section 6.2. Subject to the limitations set forth in Section 6.3 below,
Crescent agrees to indemnify, defend and hold Purchaser harmless from and
against any and all Damages incurred by Purchaser from or in connection with any
breach of any representation or warranty made by Seller in this Agreement or in
any instrument or document delivered pursuant to this Agreement or in connection
with the transactions contemplated hereby.
Section 6.3. Each Party shall have the right to bring an action against
the other (and, in the case of Purchaser, against Crescent) on the breach of a
representation or warranty hereunder, or in any instrument or document delivered
pursuant to this Agreement or in connection with the transactions contemplated
hereby, but only on the following conditions: (a) the Party bringing the action
for breach first obtains actual knowledge of the breach after Closing and files
such action within the Survival Period; (b) except as otherwise provided in
Section 6.5, no Party, and no Affiliate of any Party, shall have the right to
bring a cause of action for a breach of a representation or warranty unless the
Damages to such Party on account of such breach (individually or when combined
with Damages from other breaches hereunder or under any instrument or document
delivered pursuant to this Agreement or in connection with the transactions
related to the Property (but not other property) contemplated hereby) equals or
exceeds $250,000.00 (the "Floor"); (c) except as otherwise provided in Section
6.5, the liability of Seller, Crescent and any of their respective Affiliates
for a breach of a representation or warranty shall be limited to Damages to
Purchaser on account of such breach (individually or when combined with Damages
from other breaches hereunder or under any instrument or document delivered
pursuant to this Agreement or in connection with the transactions related to the
Property (but not other property) contemplated hereby) in an amount not to
exceed $9,720,000 (the "Representations and Warranties Cap"); (d) the liability
of Purchaser and any of its Affiliates for a breach of a representation or
warranty shall be limited to Damages to Seller on account of such breach
(individually or when combined with Damages from other breaches hereunder or
under any instrument or document delivered pursuant to this Agreement or in
connection with the transactions related to the Property (but not other
property) contemplated hereby) in an amount not to exceed the Representations
and Warranties Cap; (e) notwithstanding anything to the contrary herein, no
Party shall have the right to recover punitive or consequential damages with
respect to a claim for breach of representation or warranty; and (f) the Party
bringing the action will refrain from exercising any of their respective
remedies hereunder for an alleged breach of a representation or warranty without
first giving the other Party thirty (30) days' prior written notice and
opportunity to cure such breach to the reasonable satisfaction of the Party
bringing the action; provided, that if the other Party is unable to cure such
breach within such thirty (30) day period, such other Party shall be allowed
additional time as is
23
reasonably necessary to cure the breach so long as such other Party commences
curative efforts within the initial thirty (30) day period and diligently
pursues such efforts to completion; provided, the Survival Period shall be
tolled during such curative period.
Section 6.4. Notwithstanding anything to the contrary in this Article 6,
the Parties agree that (a) to the extent Seller has provided Purchaser a Tenant
Estoppel Certificate upon which Purchaser is entitled to rely relating to any
Tenant Lease and Major Lease; (b) such Tenant Estoppel Certificate confirms the
content of any representation and warranty relating thereto as set forth in
Section 5.1.2(d) above; and (c) such Tenant thereafter asserts a position or
right contrary to any assurance provided in its Tenant Estoppel Certificate and
contrary to any representation and warranty of Seller relating thereto as set
forth in Section 5.1.2(d), then Purchaser, before proceeding against Seller for
a breach of such representation or and warranty, shall first use commercially
reasonable efforts, at the sole expense of Seller and Crescent, to enforce its
rights against such Tenant.
Section 6.5. Notwithstanding anything to the contrary contained herein,
the Parties and Crescent hereby acknowledge and agree that (a) the
representations and warranties contained in Section 5.1.2(e) above shall not be
subject to the Survival Period, the Floor or the Representations and Warranties
Cap; (b) such representations and warranties shall survive indefinitely; and (c)
the liability of Seller and Crescent for breach of such representations or
warranties shall not be limited.
Section 6.6. Concerning the "Seller Certificate" (herein so called), in
the form of Exhibit O attached hereto and made a part hereof, and provided by
Seller at Closing with respect to Tenant Leases for which no executed Tenant
Estoppel Certificate was available at Closing, Purchaser acknowledges and agrees
that (a) the information provided by Seller therein amounts to additional
representations and warranties of Seller pertaining to the transactions that are
the subject of this Agreement; (b) except with respect to the Major Tenant
Estoppels (hereinafter defined), all such representations, warranties and
information provided by Seller in the Seller Certificate shall be subject in all
respects to the provisions of this Article 6, including without limitation the
Survival Period, the Floor and the Representations and Warranties Cap; and (c)
Seller shall be released from liability under this Agreement with respect to
such representations, warranties and information as set forth in any Tenant
Estoppel Certificate attached to the Landlord's Estoppel if the tenant named in
such tenant estoppel delivers to Purchaser a signed Tenant Estoppel Certificate
within ninety (90) days of the Effective Date, to the extent that such Tenant
Estoppel Certificate is (i) made for the benefit of Purchaser, (ii) contains
substantially the same representations, warranties and information as set forth
in the Tenant Estoppel Certificate that is attached to the Seller Certificate,
and (iii) contains no material deviations or discrepancies with respect to such
form of such Tenant Estoppel Certificate that is attached to the Seller
Certificate. The Parties acknowledge that Exhibit P-1 attached hereto and made a
part hereof contains a schedule identifying the respective Tenant Leases with
respect to which an executed Tenant Estoppel Certificate was available at
Closing, and that Exhibit P-2 attached hereto and made a part hereof contains a
schedule identifying the respective Tenant Leases with respect to which an
executed Tenant Estoppel Certificate was not available at Closing. For the
purposes of this Section 6.6, "Major Tenant Estoppels" means (x) the Tenant
Estoppel Certificate with respect to which the tenant named therein is The Bear
Xxxxxxx Companies, Inc, with respect to its Tenant Lease dated June 27, 1994;
(y) the Tenant Estoppel
24
Certificate with respect to which the tenant named therein is Xxxxx Xxxxxx,
Xxxxxx Xxxxx & Co. Incorporated, with respect to its Tenant Lease dated June 26,
1986; and (z) the Tenant Estoppel Certificate with respect to which the tenant
named therein is UBS Securities LLC, with respect to its Tenant Lease dated May
1, 2000. Seller acknowledges and agrees that, notwithstanding anything to the
contrary herein, the representations, warranties and information provided by
Seller in the Seller Certificate with respect to the Major Tenant Estoppels
shall not be subject to the Survival Period, the Floor or the Representations
and Warranties Cap; provided, however, that such representations, warranties and
information provided by Seller in the Seller Certificate with respect to the
Major Tenant Estoppels shall otherwise be subject in all respects to the
provisions of this Section 6.6, including clause (c) above.
Section 6.7. The provisions of this Article 6 shall survive the Closing.
ARTICLE 7.
BROKERAGE.
Except for Xxxxxx, each of the Parties and Crescent represents and
warrants to the other that neither it nor its Affiliates has dealt with or
engaged any broker or other intermediary in connection with or relating to the
transaction which is the subject of this Agreement. Purchaser covenants and
agrees to pay Xxxxxx pursuant to the terms of a separate agreement. Each of the
Parties and Crescent shall defend, indemnify and hold harmless the other from
and against any and all liability, claim, charge or damages, including, without
limitation, reasonable counsel fees and court costs, incurred by the other as a
result of any breach by the indemnitor of the foregoing representation. The
provisions of this Article 7 shall survive the Closing.
ARTICLE 8.
CLOSING COSTS; TRANSFER TAXES.
Seller shall be responsible for the payment of (a) the costs of its legal
counsel, advisors and other professionals employed by it in connection with the
sale of the Property; (b) all state and local deed taxes and real property
transfer taxes, if any; (c) all costs associated with the Survey, the UCC
Searches, the Litigation Searches and the Lien Searches; (d) all recording
charges and fees; (e) all costs and expenses of transferring to Purchaser's name
(or issuing in Purchaser's name replacements of) any letters of credit held by
Seller as Deposits under Tenant Leases, (f) all costs and expenses of
transferring to Purchaser's name any assignable warranties pertaining to the
Improvements; (g) all title insurance costs to be borne by Seller as set forth
in Section 4.2 above; and (h) all usual escrow and/or closing fees customarily
paid by a seller in a commercial real estate transaction closed in Dallas
County, Texas. Purchaser shall be responsible for the payment of (i) the costs
and expenses associated with Purchaser's due diligence investigations conducted
prior to the Effective Date; (ii) the costs and expenses of its legal counsel,
advisors and other professionals employed and/or retained by it in connection
with the purchase of the Property; (iii) all title insurance costs to be borne
by Purchaser as set forth in Section 4.2 above; (iv) the costs and expenses of
the lender in connection with any new loan that provides funds for all or part
of the Purchase Price (a "New Loan"), including without limitation, loan fees,
mortgage recording taxes, financing costs and lender's legal fees, but excluding
title insurance costs which are to be borne as provided above; and (v) all usual
escrow and/or closing fees customarily paid by a purchaser in a commercial real
estate transaction closed in Dallas
25
County, Texas. In addition to the foregoing, at the Closing Seller and Purchaser
shall execute, acknowledge, deliver and file all such returns, if any, as may be
necessary to comply with any applicable city, county or state conveyance tax
laws and/or Texas real estate conveyance tax laws (collectively, as the same may
be amended from time to time, the "Transfer Tax Laws"). The transfer taxes, if
any, payable pursuant to the Transfer Tax Laws shall collectively be referred to
as the "Transfer Taxes". On the Closing Date, Seller shall pay the Transfer
Taxes, if any, to the appropriate taxing authorities, in connection with the
consummation of the transactions contemplated by this Agreement. The provisions
of this Article 8 shall survive the Closing.
ARTICLE 9.
DELIVERIES TO BE MADE BY SELLER AT THE CLOSING.
Section 9.1. As provided above, the transactions contemplated by this
Agreement include (a) Seller's agreement to convey to CBTIILP all of Seller's
right, title and interest in and to the Property, (b) CBTIILP's agreement to
contribute to Big Tex all of CBTIILP's right, title and interest in and to the
Property, and (c) Big Tex's agreement to contribute to Purchaser all of Big
Tex's right, title and interest in and to the Property. For the purposes hereof,
the Parties acknowledge and agree that all references in this Article 9 to
"Seller Deliveries" (as hereinafter defined) and in Article 10 to "Purchaser
Deliveries" (as hereinafter defined) are intended in each instance to refer also
to the delivery on the Closing Date by CBTIILP and Big Tex respectively of such
substantially similar documents and agreements (and of the consideration set
forth in Section 3.1 hereof) as necessary to consummate the transactions
described herein in accordance with the terms and conditions hereof. In this
regard, the Parties further acknowledge that the forms of certain closing
documents, referenced below and attached as exhibits hereto, were prepared in a
form showing transfers from "Seller" to "Purchaser," and agree that such forms
shall be revised for delivery at Closing as necessary to reflect the specific
transactions that are the subject of this Agreement. Subject in all respects to
the foregoing provisions of this Section 9.1, Seller shall deliver or cause to
be delivered to Purchaser on the Closing Date concurrently with the execution of
this Agreement, the following (collectively, the "Seller Deliveries"):
9.1.1 A duly executed and acknowledged Special Warranty Deed (the
"Deed") in the form of Exhibit B.
9.1.2 The Owner Title Policy and Mortgagee Policy.
9.1.3 An insured closing service letter (Form T-51) with respect to
the Escrow Agent.
9.1.4 An Assignment and Assumption of Leases (the "Assignment of
Leases"), duly executed and acknowledged by Seller, in the form of Exhibit C.
9.1.5 A duly executed Blanket Conveyance, Xxxx of Sale and
Assignment (the "Xxxx of Sale") in the form of Exhibit D.
9.1.6 The affidavit referred to in Section 1445 of the Code with all
pertinent information confirming that Seller is not a foreign person, trust,
estate, corporation or partnership, duly executed by Seller, in the form of
Exhibit E.
26
9.1.7 A fully executed counterpart of the Leasing and Management
Agreement.
9.1.8 The Project Name License, duly executed and acknowledged by
Seller, in the form of Exhibit N.
9.1.9 Letters to all Tenants under the Tenant Leases (the "Tenant
Notice Letters"), duly executed by Seller, in the form of Exhibit F.
9.1.10 The Deposits (together with interest accrued thereon),
including any letters of credit and/or certificates of deposit held by Seller as
security under the Tenant Leases or under the Guaranties, but only to the extent
the same have not been applied or returned to Tenants or Guarantors in
accordance with the Tenant Leases or Guaranties, as applicable; provided, that
the delivery by Seller of any letters of credit and/or certificates of deposit
held by Seller as security under the Tenant Leases or Guaranties and required to
be delivered hereunder shall be governed by the provisions of Section 28.10
hereof.
9.1.11 Evidence reasonably satisfactory to the Escrow Agent that the
person or persons executing this Agreement and the closing documents on behalf
of Seller have full right, power and authority to do so.
9.1.12 Any notices required by applicable Law to be delivered by
Seller to Purchaser on or before Closing.
9.1.13 The returns required under the Transfer Tax Laws, if any, and
any other tax laws applicable to the transactions contemplated herein, duly
executed and acknowledged by Seller.
9.1.14 A duly executed and acknowledged Affidavit of Debts and Liens
in form satisfactory to the Title Company.
9.1.15 Certain of the Title Estoppels as identified on Schedule
9.1.15 attached hereto, duly executed and acknowledged.
9.1.16 UCC Releases.
9.1.17 Ordinance 19890 Assignment, duly executed and acknowledged by
Seller.
9.1.18 The XxXxxxx Letters.
9.1.19 The Xxxxxx Letter.
9.1.20 Other items reasonably requested by the Escrow Agent and/or
the Title Company for the sale of the Property in accordance with this Agreement
or for administrative requirements for consummating the Closing.
In addition to the foregoing, Seller shall make available to Purchaser, at
the location of the Land and Improvements or at such other location as may be
reasonably acceptable to Purchaser, the following items: (A) all original Tenant
Leases and all Tenant files and
27
correspondence that are in Seller's possession; (B) original counterparts of all
Operating Agreements that are in Seller's possession; (C) all keys and master
keys to all locks pertaining to the Improvements, properly tagged for
identification, as well as combinations, card keys and cards for the security
systems, if any; (D) originals of all Permits in Seller's possession; (E)
originals or, if originals are unavailable, copies, of plans and specifications,
technical manuals and similar materials for the Improvements to the extent same
are in Seller's possession or control; (F) originals of the Tenant Estoppel
Certificates; and (G) original books and records for the Land and Improvements.
In addition, as soon as practicable following the Closing Date, (1) Seller shall
use commercially reasonable efforts to obtain from the City of Dallas its
consent to the Ordinance 19890 Assignment, at Seller's sole cost, and to deliver
such consent to Purchaser, and (2) Seller shall use commercially reasonable
efforts to obtain and to deliver to Purchaser the remaining Title Estoppels
(that is, the Title Estoppels other than those set forth in Schedule 9.1.15), at
Seller's sole cost (provided, however, that Seller shall not be required
hereunder to file suit nor to pay any fee or any commercially unreasonable
expense in its efforts to obtain any such Title Estoppel). The provisions of the
preceding sentence shall survive the Closing.
ARTICLE 10.
DELIVERIES TO BE MADE BY PURCHASER AT THE CLOSING.
Section 10.1. Subject in all respects to the first three sentences set
forth in Section 9.1 above, Purchaser shall deliver or cause to be delivered to
Seller on the Closing Date, concurrently with the execution of this Agreement,
the following (the "Purchaser Deliveries"):
10.1.1 Payment of the balance of the Purchase Price payable at the
Closing, as adjusted for apportionments under Article 11 hereof and as may be
necessary to cover Purchaser's share of the Closing costs hereunder.
10.1.2 Counterparts of the Assignment of Leases, the Xxxx of Sale,
the Leasing and Management Agreement, the Project Name License, and the Tenant
Notice Letters, duly executed and (where required) acknowledged by Purchaser.
10.1.3 The returns required under the Transfer Tax Laws, if any, and
any other tax laws applicable to the transactions contemplated herein.
10.1.4 Copies of partnership resolutions and/or consents of the
constituent partners of Purchaser authorizing the execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated by this Agreement, all certified as true and correct by the general
partner of Purchaser.
10.1.5 Other items reasonably requested by the Escrow Agent for the
sale of the Property in accordance with this Agreement or for administrative
requirements for consummating the Closing.
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ARTICLE 11.
APPORTIONMENTS.
Section 11.1. The following shall be apportioned between Seller and
Purchaser as of 11:59 p.m. on the day immediately preceding the Closing Date
(the "Apportionment Date") on the basis of the actual number of days of the
month which shall have elapsed as of the Closing Date and based upon the actual
number of days in the month and a 366 day year:
11.1.1 Subject to Section 11.2, prepaid Rents.
11.1.2 Rents collected by Seller covering the month of Closing.
11.1.3 Real estate taxes, sewer rents and taxes, water rates and
charges (to the extent not accounted for pursuant to Section 11.1.1 above),
vault charges and taxes, business improvement district taxes and assessments and
any other governmental taxes, charges or assessments levied or assessed against
the Property or any part thereof (including an appropriate allocation for any
tax reimbursement payment received with respect to the Crescent Court Hotel)
(collectively, "Property Taxes"), on the basis of the respective periods for
which each is assessed or imposed, to be apportioned in accordance with Section
11.3.
11.1.4 Fuel, if any, as estimated by Seller's supplier, at current
cost, together with any sales taxes payable in connection therewith, if any (a
letter from Seller's fuel supplier shall be conclusive evidence as to the
quantity of fuel on hand and the current cost therefor).
11.1.5 Prepaid fees for Permits assigned to Purchaser at the
Closing.
11.1.6 Any amounts prepaid or payable under the Operating Agreements
by the owner of the Property to the extent being assumed by Purchaser at
Closing.
11.1.7 Such other items as are customarily apportioned in real
estate closings of commercial properties in the City of Dallas, State of Texas.
Section 11.2. For the purposes of this Article 11, the following terms
shall have the following meanings: (a) "Rents" means all Base Rents, Overage
Rent, and Additional Rent; (b) "Base Rents" means monthly base rents and parking
charges under the Tenant Leases; (c) "Overage Rent" means additional or
escalation rent based upon (i) a percentage of a Tenant's gross sales during a
specified annual or other period or (ii) increases in real estate taxes,
operating expenses, labor costs, cost of living indices or xxxxxx'x wages; and
(d) "Additional Rent" means items of rent or charges which are not Base Rents or
Overage Rents, such as charges for electricity, steam, water, cleaning, overtime
services, sundry charges or other charges of a similar nature.
11.2.1 Rents shall be adjusted and prorated on an if, as, and when
collected basis. Rents collected by Purchaser or Seller after the Closing Date
from any Tenant who owes Rents for periods prior to the Closing Date shall be
applied, (a) first, in payment of all Rents due and owing from such Tenant for
all periods following the Closing Date; (b) second, in payment of all Rents due
and owing from such Tenant for the calendar month in which the Closing Date
occurs (Rents applied under this subclause (b) shall be prorated between
Purchaser and Seller on a per
29
diem basis as of the Apportionment Date); and (c) third, in payment of all Rents
due and owing from such Tenant for all periods prior to the Closing Date. Each
such amount, less reasonable collection costs, shall be adjusted and prorated as
provided above, and the Party receiving such amount shall, within thirty (30)
days, pay to the other Party the portion thereof to which it is so entitled.
11.2.2 Purchaser shall use commercially reasonable efforts for a
period of one hundred eighty (180) days following the Closing Date to collect
Rents past due as of the Closing Date; provided, however, that Purchaser shall
have no obligation to commence any actions or proceedings to collect any such
past due Rents. Rents collected by Purchaser after the Closing Date to which
Seller is entitled pursuant to Section 11.2.1 above shall be paid to Seller
within thirty (30) days after receipt thereof by Purchaser. Purchaser shall
provide Seller with monthly reports setting forth the status of such collection
efforts. From and after the Closing Date, Seller shall not take any action
whatsoever to collect any Rents or other sums delinquent as of the Closing Date
from any person or entity while such person or entity is a Tenant.
11.2.3 To the extent any portion of Overage Rent is required to be
paid monthly by Tenants on account of estimated amounts for the current period,
and at the end of each calendar year (or, if applicable, at the end of each
lease year or tax year or any other applicable accounting period) such estimated
amounts are to be recalculated based upon the actual expenses, taxes and other
relevant factors for that calendar year (or lease or tax year or other
applicable accounting period), with the appropriate adjustments being made with
such Tenants, then such portion of the Overage Rent shall be prorated between
Seller and Purchaser as of the Apportionment Date based on such estimated
payments (i.e., with (a) Seller entitled to retain all monthly installments of
such amounts with respect to periods prior to the calendar month in which the
Closing Date occurs, to the extent such amounts are as of the Closing Date
estimated to equal the amounts ultimately due to Seller for such periods, (b)
Purchaser entitled to receive all monthly installments of such amounts with
respect to periods following the calendar month in which the Closing Date
occurs, and (c) Seller and Purchaser apportioning all monthly installments of
such amounts with respect to the calendar month in which the Closing Date
occurs). At the time(s) of final calculation and collection from (or refund to)
Tenants of the amounts in reconciliation of actual Overage Rent for a period for
which estimated amounts have been prorated, there shall be a re-proration
between Seller and Purchaser of the amounts collected from or refunded to
Tenants (as the case may be). That portion of any amounts received by Purchaser
from Tenants in such reconciliation(s) which is allocable to Seller per such
re-proration shall be paid to Seller within thirty (30) days of Purchaser's
receipt thereof. Seller shall pay to Purchaser within thirty (30) days of
Purchaser's demand therefor that portion of any amounts required to be refunded
to Tenants in such reconciliation(s) which is allocable to Seller per such
re-proration.
11.2.4 To the extent that any Tenant, pursuant to a right contained
in an existing Tenant Lease, conducts an audit respecting any Overage Rent or
Additional Rent calculation (a "Rent Audit") for an accounting period that
expired prior to the Closing Date, or otherwise becomes entitled to a refund of
Overage Rent or Additional Rent with respect to a period prior to the Closing
Date, Seller shall be liable for any refunds due to such Tenant or shall be
entitled to receive and retain any additional payments due from such Tenant as
the result of such Rent Audit. The results of any Rent Audit for any other
accounting period shall be apportioned in the
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same manner as Rents. Rent Audits for accounting periods that expire prior to
the Closing Date shall be settled by Seller in accordance with the applicable
existing Tenant Lease, subject to Purchaser's approval, which shall not be
unreasonably withheld, delayed or conditioned; provided, however, that
Purchaser's consent to any such settlement shall not be required if the Tenant
as part of such settlement agrees in writing (and an original counterpart (or
certified (by Seller) copy) is promptly delivered to Purchaser) that such
settlement shall not be binding on any landlord in calculating similar amounts
for subsequent periods and that such Tenant will not introduce any such
settlement in challenging amounts due in any such subsequent periods. Rent
Audits for accounting periods prior to the Closing Date but extending after the
Closing Date shall be settled by Purchaser in accordance with the applicable
existing Tenant Lease, but Seller shall receive notice of all negotiations or
proceedings in connection therewith, shall have the right to participate and/or
intervene therein and shall be entitled to approve all matters to be approved by
the landlord under the applicable existing Tenant Lease in connection therewith,
which approval shall not be unreasonably withheld, delayed or conditioned.
11.2.5 To the extent that any amounts are paid or payable to Seller
by a Tenant under a Tenant Lease in advance of the period to which such expense
applies, whether as a one time payment or in installments (e.g. for real
property tax escalations), such amounts shall be apportioned as provided above
but based upon the period for which such payments were or are being made.
Section 11.3. Property Taxes shall be apportioned on the basis of the
fiscal period for which assessed. If the Closing takes place before an
assessment is made or a tax rate is fixed for the tax period in which the
Closing Date occurs, the apportionment of such Property Taxes based thereon
shall be made at the Closing by applying the tax rate for the preceding year to
the latest assessed valuation, but, promptly after the assessment and tax rate
for the current year are fixed, the apportionment thereof shall be recalculated
and Seller or Purchaser, as the case may be, shall make an appropriate payment
to the other within thirty (30) days based on such recalculation. If as of the
Closing Date the Property or any portion thereof shall be affected by any
Property Taxes which are or may become payable in installments of which an
installment is then a lien and has become payable, Seller shall pay the unpaid
installments of such assessments which are due prior to the Closing Date and
Purchaser shall pay the installments which are due on or after the Closing Date.
Section 11.4. If there are water meters, the unfixed water rates and
charges and sewer rents and taxes covered by meters, if any, shall be
apportioned (a) on the basis of an actual reading done within thirty (30) days
prior to the Apportionment Date, or (b) if such reading has not been made, on
the basis of the last available reading. If the apportionment is not based on an
actual current reading, then upon the taking of a subsequent actual reading, the
Parties shall, within thirty (30) days following notice of the determination of
such actual reading, readjust such apportionment and Seller shall deliver to
Purchaser or Purchaser shall deliver to Seller, as the case may be, the amount
determined to be due upon such readjustment.
Section 11.5. Charges for all electricity, steam, gas and other utility
services (collectively, "Utilities") shall be billed to Seller's account up to
the Apportionment Date and, from and after the Apportionment Date, all Utilities
shall be billed to Purchaser's account. If for any reason such changeover in
billing is not practicable as of the Closing Date as to any Utility,
31
such Utility shall be apportioned on the basis of actual current readings or, if
such readings have not been made, on the basis of the most recent bills that are
available. If any apportionment is not based on an actual current reading, then
upon the taking of a subsequent actual reading, the Parties shall, within thirty
(30) days following notice of the determination of such actual reading, readjust
such apportionment and Seller shall deliver to Purchaser, or Purchaser shall
deliver to Seller, as the case may be, the amount determined to be due upon such
adjustment.
Section 11.6. Purchaser shall have no right to receive any rental
insurance proceeds which relate to the period prior to the Closing Date and, if
any such proceeds are delivered to Purchaser, Purchaser shall, within thirty
(30) days following receipt thereof, pay the same to Seller.
Section 11.7. Seller shall be responsible for the payment of all leasing
costs and expenses arising out of Tenant Leases (including, without limitation,
all tenant improvement costs, all outstanding tenant improvement allowances, any
Tenant Inducement Costs (hereinafter defined), and all outstanding leasing
commissions) identified on Schedule 5.1.2(e) as the expense of "Crescent".
Purchaser shall be responsible for the payment of all leasing costs and expenses
arising out of Tenant Leases (including, without limitation, all tenant
improvement costs, all outstanding tenant improvement allowances, any Tenant
Inducement Costs, and all outstanding leasing commissions) identified on
Schedule 5.1.2(e) as Purchaser's expense. Consistent with the foregoing
provisions, the Parties have agreed that Seller's obligations hereunder
pertaining to payment of such leasing costs, including certain free rent, and
expenses arising out of Tenant Leases shall be satisfied and discharged by means
of a credit to Purchaser at Closing in an agreed amount as reflected in the
settlement statement executed by the Parties contemporaneously herewith. If as
of the Closing Date Seller shall have paid any items for which Purchaser is
responsible pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing, provided that Seller has supplied invoices and
statements for any items to Purchaser on or before the Closing Date; and
provided further, that if Seller has not supplied invoices and statements for
any such items to Purchaser on or before the Closing Date, then Seller shall
supply such invoices and statements for any such items to Purchaser not later
than thirty (30) days after the Closing Date, whereupon Purchaser, within thirty
(30) days following receipt of such invoices and statements, shall reimburse
Seller therefor. For the purposes hereof, the term "Tenant Inducement Costs"
shall mean any out-of-pocket payments required under a Tenant 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 or concession, including, without
limitation, tenant improvement costs, design, refurbishment and other work
allowances, lease buyout costs, and moving allowances; provided, however, that
"Tenant Inducement Costs" shall not include loss of income resulting from any
free rental period (it being agreed that Seller shall bear such loss resulting
from any free rental period with respect to the period prior to the Closing
Date, which loss shall be deemed paid and discharged by means of the credit to
Purchaser at Closing described above in this Section 11.7, and that Purchaser
shall bear such loss with respect to the period from and after the Closing
Date).
Section 11.8. If any payment to be made after Closing under this Article
11 shall not be paid when due hereunder, the same shall bear interest (which
shall be paid together with the applicable payment hereunder) from the date due
until so paid at a rate per annum equal to the Prime Rate (as such rate may vary
from time to time) as reported in The Wall Street Journal plus
32
3% (the "Default Rate"). To the extent a payment provision in this Article 11
does not specify a period for payment, then for purposes hereof such payment
shall be due within seven (7) business days of the date such payment obligation
is triggered.
Section 11.9. The provisions of this Article 11 shall survive the Closing.
ARTICLE 12.
TENANT ESTOPPEL CERTIFICATES.
The Parties acknowledge that, prior to the Effective Date hereof, (a)
Seller requested a Tenant Estoppel Certificate in the form attached hereto as
Exhibit I from each of the Tenants, including the Major Tenants; (b) Seller
delivered to Purchaser and/or Purchaser's Representatives copies of all Tenant
Estoppel Certificates obtained by Seller, each of which is identified in Exhibit
P-1 attached hereto; and (c) subject to Seller's obligation to deliver at
Closing the Seller Certificate, Purchaser has reviewed and approved the Tenant
Estoppel Certificates.
ARTICLE 13.
DEFAULT.
Section 13.1. IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY
REASON OF A DEFAULT UNDER THIS AGREEMENT, THEN PURCHASER OR SELLER SHALL HAVE,
AS ITS EXCLUSIVE REMEDIES, THE RIGHT TO EITHER (A) TERMINATE THIS AGREEMENT, OR
(B) SPECIFICALLY ENFORCE THIS AGREEMENT (BUT NO OTHER ACTION, FOR DAMAGES OR
OTHERWISE, SHALL BE PERMITTED), PROVIDED THAT ANY ACTION BY PURCHASER OR SELLER
FOR SPECIFIC PERFORMANCE MUST BE FILED, IF AT ALL, WITHIN THIRTY (30) DAYS OF
THE DATE HEREOF, AND THE FAILURE TO FILE WITHIN SUCH PERIOD SHALL CONSTITUTE A
WAIVER OF SUCH RIGHT AND REMEDY. IF A PARTY SHALL HAVE NOT FILED AN ACTION FOR
SPECIFIC PERFORMANCE WITHIN THE AFOREMENTIONED TIME PERIOD OR SO NOTIFIED THE
OTHER PARTY OF ITS ELECTION TO TERMINATE THIS AGREEMENT, SUCH PARTY'S SOLE
REMEDY SHALL BE TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH CLAUSE (A) ABOVE.
IF SPECIFIC PERFORMANCE IS UNAVAILABLE BECAUSE SELLER HAS SOLD THE PROPERTY TO A
BONA FIDE PURCHASER FOR VALUE FOR A PURCHASE PRICE IN EXCESS OF THE PURCHASE
PRICE, PURCHASER SHALL HAVE THE RIGHT TO XXX SELLER FOR "BENEFIT OF THE BARGAIN"
DAMAGES (I.E. THE DIFFERENCE BETWEEN THE PURCHASE PRICE PAID BY SUCH BONA FIDE
PURCHASER AND THE PURCHASE PRICE); PROVIDED, HOWEVER, THAT AS A CONDITION
PRECEDENT TO PURCHASER EXERCISING ANY RIGHT IT MAY HAVE TO BRING SUCH A DAMAGE
ACTION AS A RESULT OF SELLER'S SALE OF THE PROPERTY TO A BONA FIDE PURCHASER FOR
VALUE, PURCHASER MUST COMMENCE SUCH AN ACTION WITHIN THIRTY (30) DAYS AFTER THE
OCCURRENCE OF SUCH DEFAULT AND PURCHASER AGREES THAT FAILURE TO TIMELY COMMENCE
SUCH ACTION FOR "BENEFIT OF THE BARGAIN" DAMAGES WITHIN SUCH THIRTY (30) DAY
PERIOD SHALL BE DEEMED A
33
WAIVER OF SUCH RIGHT TO COMMENCE SUCH ACTION. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, IN NO EVENT SHALL EITHER PARTY HAVE THE RIGHT TO RECOVER DAMAGES FROM
THE OTHER ON ACCOUNT OF ANY DEFAULT. THE PARTIES HEREBY WAIVE ANY ACTION UNDER
THE TEXAS DECEPTIVE TRADE PRACTICES ACT. THE PROVISIONS OF THIS SECTION 13.1
SHALL SURVIVE THE CLOSING.
Section 13.2. From and after the Closing Date, if any Party (the
"Breaching Party") breaches a covenant herein that survives the Closing, (a) the
other Party will refrain from bringing any Action based thereon or from
otherwise exercising any of its remedies hereunder without first giving the
Breaching Party thirty (30) days' prior written notice and opportunity to cure
such breach to the reasonable satisfaction of the other Party; provided, that if
the Breaching Party is unable to cure such breach within such thirty (30) day
period, the Breaching Party shall be allowed additional time as is reasonably
necessary to cure the breach so long as the Breaching Party commences curative
efforts within the initial thirty (30) day period and diligently pursues such
efforts to completion; and provided further, that the preceding clause regarding
additional time to cure shall be inapplicable to any breach of a covenant to pay
money; and (b) if the Breaching Party fails to cure the breach in accordance
with the foregoing provisions, then the other Party shall have the right to
avail itself of all legal and equitable remedies available to the other Party by
reason of the Breaching Party's default, except that in no event shall the other
Party have the right to recover consequential damages. The Parties agree that
the foregoing provisions of this Article 13 shall not be applicable to claims
for breaches of representations or warranties, which claims shall be governed by
the provisions of Article 6 hereof. The provisions of this Article 13 shall
survive the Closing. If Seller is the Breaching Party, after the expiration of
the foregoing notice and opportunity to cure provisions, Purchaser shall have
the right to bring an action against Seller (and/or Crescent if such claim
arises under Article 6 hereof).
ARTICLE 14.
NOTICES.
All demands, requests or other communications (collectively, "Notices")
required to be given or which may be given hereunder shall be in writing and
shall be sent by (a) certified or registered mail, return receipt requested,
postage prepaid, or (b) national prepaid overnight delivery service, or (c)
telecopy or other facsimile transmissions (followed with hard copy sent by
national prepaid overnight delivery service), or (d) personal delivery with
receipt acknowledged in writing, directed to:
Seller: c/o Crescent Real Estate Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Executive Vice President, Capital Markets
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
34
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
CBTIILP: c/o Crescent Real Estate Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Executive Vice President, Capital Markets
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Big Tex: x/x Xxxxxxxx Xxxx Xxxxxx Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Executive Vice President, Capital Markets
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to: J.P. Acquisition Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Purchaser: c/o J.P. Acquisition Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Stroock & Stroock & Xxxxx LLP
35
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to: Stutzman, Bromberg, Esserman & Xxxxxx,
A Professional Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Crescent: Crescent Real Estate Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Executive Vice President, Capital Markets
Facsimile: (000) 000-0000
with a copy to: Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Any Notice so sent by certified or registered mail shall be deemed given
on the date of receipt or refusal as indicated on the return receipt. All other
Notices shall be deemed given when actually received or refused by the party to
whom the same is directed. A Notice may be given either by a party or by such
party's attorney. Seller and Purchaser may designate by not less five (5)
business days' Notice given to the other in accordance with the terms of this
Article, additional or substituted parties to whom Notices should be sent
hereunder. The provisions of this Article 14 shall survive the Closing.
ARTICLE 15.
AMENDMENTS.
This Agreement may not be modified or terminated orally or in any manner
other than by an agreement in writing signed by all the Parties hereto or their
respective successors in interest. The provisions of this Article 15 shall
survive the Closing.
ARTICLE 16.
GOVERNING LAW; CONSTRUCTION.
This Agreement (a) shall be governed by the laws of the State of Texas
without giving effect to conflict of laws principles thereof, and (b) shall be
given a fair and reasonable construction in accordance with the intentions of
the parties hereto and without regard to, or aid of, any rules of construction
requiring construction against any party drafting this Agreement. Each party
hereto acknowledges that it has participated in the drafting of this Agreement,
and
36
any applicable rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in connection with the
construction or interpretation hereof. Each party has been represented by
independent counsel in connection with this Agreement. For purposes of
construction of this Agreement, provisions that are deleted or crossed out shall
be treated as if never included herein. The provisions of this Article 16 shall
survive the Closing.
ARTICLE 17.
CONSENT TO JURISDICTION/WAIVER OF TRIAL BY JURY.
The Parties and Crescent agree to submit to personal jurisdiction in the
state or federal court in Dallas County, Texas in any Action arising out of this
Agreement and, in furtherance of such agreement, the Parties and Crescent hereby
agree and consent that without limiting other methods of obtaining jurisdiction,
personal jurisdiction over the Parties and Crescent in any such Action may be
obtained within or without the jurisdiction of any state or federal court
located in Dallas County, Texas and that any process or notice of motion or
other application to any such court in connection with any such action or
proceeding may be served upon the Parties and Crescent by registered or
certified mail to or by personal service at the last known address of the
Parties and Crescent, whether such address be within or without the jurisdiction
of any such court. The Parties and Crescent recognize that courts outside Dallas
County, Texas may also have jurisdiction over Actions arising out of this
Agreement, and in the event that any Party or Crescent shall institute a
proceeding involving this Agreement in a jurisdiction outside Dallas County,
Texas, the one instituting such proceeding shall indemnify any other Party or
Crescent for any losses and expenses that may result from the breach of the
foregoing covenant to institute such proceeding only in a state or federal court
in Dallas County, Texas, including without limitation any additional expenses
incurred as a result of litigating in another jurisdiction, such as reasonable
fees and expenses of local counsel and travel and lodging expenses for parties,
witnesses, experts and support personnel. Seller, Crescent and Purchaser hereby
irrevocably and unconditionally waive any and all right to trial by jury in any
action, suit or counterclaim arising in connection with, out of or otherwise
relating to this Agreement. The provisions of this Article 17 shall survive the
Closing.
ARTICLE 18.
PARTIAL INVALIDITY.
If any provision of this Agreement is held to be invalid or unenforceable
as against any person or under certain circumstances, the remainder of this
Agreement and the applicability of such provision to other persons or
circumstances shall not be affected thereby. Each provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by Law. The
provisions of this Article 18 shall survive the Closing.
ARTICLE 19.
COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall constitute an original, but all of which, taken together, shall
constitute but one and the same instrument.
37
ARTICLE 20.
NO THIRD PARTY BENEFICIARIES.
This Agreement is an agreement solely for the benefit of Seller and
Purchaser, and except to the extent of Crescent's joinder herein solely for the
purposes of Article 6, Article 7, Article 13, Article 16 and Article 17 hereof,
no other person, party or entity shall have any rights hereunder nor shall any
other person, party or entity be entitled to rely upon the terms, covenants and
provisions contained herein. The provisions of this Article 20 shall survive the
Closing.
ARTICLE 21.
WAIVER.
No failure or delay of either Party in the exercise of any right given to
such Party hereunder or the waiver by any Party of any condition hereunder for
its benefit (unless the time specified herein for exercise of such right, or
satisfaction of such condition, has expired) shall constitute a waiver of any
other or further right nor shall any single or partial exercise of any right
preclude other or further exercise thereof or any other right. The waiver of any
breach hereunder shall not be deemed to be waiver of any other or any subsequent
breach hereof. The provisions of this Article 21 shall survive the Closing.
ARTICLE 22.
ASSIGNMENT.
No Party to this Agreement shall have the right to assign all or any
portion of its rights or obligations hereunder without the prior written consent
of each other Party to this Agreement; provided, that in no event shall
Purchaser be relieved of any of its rights or obligations hereunder. The
provisions of this Article 22 shall survive the Closing.
ARTICLE 23.
BINDING EFFECT.
This Agreement is binding upon, and shall inure to the benefit of, the
Parties and each of their respective successors and permitted assigns, if any;
provided, however, that none of the representations or warranties made by Seller
hereunder shall inure to the benefit of any person or entity that may, after the
Closing Date, succeed to Purchaser's interest in the Property other than an
assignee of Purchaser with respect to which Seller has granted its consent in
accordance with Article 22 hereof. The provisions of this Article 23 shall
survive the Closing.
ARTICLE 24.
ENTIRE AGREEMENT.
This Agreement (together with the Ancillary Agreements and the instruments
or documents delivered pursuant to this Agreement or in connection with the
transactions contemplated hereby) is the entire agreement between the Parties
and there are no other terms, obligations, covenants, representations,
statements or conditions, oral or otherwise, of any kind whatsoever. Any
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of this Agreement in whole or in part unless such
agreement is in writing
38
and signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
ARTICLE 25.
ATTORNEYS' FEES.
In the event of any litigation between the Parties hereto to enforce any
of the provisions of this Agreement or any right of either Party hereto, the
unsuccessful Party to such litigation agrees to pay to the successful Party all
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred herein by the successful Party in and as part of the judgment rendered
in such litigation.
ARTICLE 26.
PARAGRAPH HEADINGS.
The headings of the various articles of this Agreement have been inserted
only for the purpose of convenience and are not part of this Agreement and shall
not be deemed in any manner to modify, expand, explain or restrict any of the
provisions of this Agreement.
ARTICLE 27.
SIMULTANEOUS CLOSINGS.
It shall be a condition precedent to the obligations of Seller and
Purchaser hereunder that the Closing shall occur simultaneously with the
closings of each of the transactions contemplated by Houston Center Contract and
the Post Oak Contract.
ARTICLE 28.
MISCELLANEOUS.
Section 28.1. Possession of the Land and Improvements, and the Personalty
relating thereto, shall be delivered to Purchaser by Seller at the Closing,
subject to the Permitted Exceptions. Purchaser shall make its own arrangements
for the provision of Utilities to the Property and Seller shall terminate its
contracts with such utility companies that provide Utilities to the Property.
Section 28.2. The Parties acknowledge that, prior to the Closing Date,
they conferred and agreed on a press release to be issued jointly by Purchaser
and Seller disclosing the transaction and the appropriate time for making such
release. Neither Purchaser nor Seller shall issue any press releases (or other
public statements except as many be required by law) with respect to the
transaction contemplated in this Agreement without approval of the other Party,
which approval may be withheld in such other Party's sole and absolute
discretion. Notwithstanding any terms or conditions in this Agreement to the
contrary, no conditions of confidentiality within the meaning of IRC Section
6111(d) or the Treasury Regulations promulgated under IRC Sec. 6011 are
intended, and the parties hereto are expressly authorized to disclose every U.S.
federal income tax aspect of any transaction covered by this Agreement with any
and all persons, without limitation of any kind. The provisions of this Section
28.2 shall survive the Closing.
39
Section 28.3. Seller and Purchaser will do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, assignments,
notices, transfers and assurances as may be reasonably required by the other
Party, for the better assuring, conveying, assigning, transferring and
confirming unto Purchaser the Property and for carrying out the intentions or
facilitating the consummation of this Agreement. The provisions of this Section
28.3 shall survive the Closing.
Section 28.4. It is expressly agreed by the Parties hereto that time is of
the essence with respect to this Agreement and Closing hereunder. The provisions
of this Section 28.4 shall survive the Closing.
Section 28.5. All references to "business days" contained hereunder are
references to normal working business days, i.e., Monday through Friday of each
calendar week, exclusive of federal and national bank holidays. In the event
that any event hereunder is to occur, or a time period is to expire, on a date
which is not a business day, such event shall occur or such time period shall
expire on the next succeeding business day. The provisions of this Section 28.5
shall survive the Closing.
Section 28.6. Either Seller, on the one hand, or Purchaser, on the other
hand (the "Exchanging Party"), may consummate the purchase and sale of the
Property as part of one (1) or more so-called like-kind exchanges (each, an
"Exchange") pursuant to Section 1031 of the Code including all or any portion of
the Property, provided that: (i) the Exchanging Party shall effect an Exchange
through an assignment of its rights (including, without limitation, an
assignment of all or any portion of the deposits) under this Agreement to a
qualified intermediary or an exchange accommodation titleholder; and (ii) the
other Party shall not be required to take an assignment of the purchase
agreement for the replacement property or be required to acquire or hold title
to any real property for purposes of consummating an Exchange. Anything in this
Agreement to the contrary notwithstanding, for purposes of facilitating separate
Exchanges by the respective partners of the Exchanging Party or prior to
Closing, the Exchanging Party may distribute interests in the Property among the
partners of the Exchanging Party or entities which are controlled by or under
common control with any one or more of such partners and engage in multiple
Exchanges, provided that such transfers shall be subject to, and the transferees
shall assume and agree to be bound by, the provisions of this Agreement; and
provided that any such distribution shall not release the Exchanging Party from
its obligations under this Agreement. The other Party shall not by this
Agreement or acquiescence to an Exchange (1) have its rights under this
Agreement affected or diminished in any manner or (2) be responsible for
compliance with or be deemed to have warranted to the Exchanging Party that the
Exchange in fact complies with Section 1031 of the Code. The Exchanging Party
shall indemnify, defend and hold the other Party harmless from and against any
and all liabilities, claims, damages, expenses (including, without limitation,
reasonable attorneys' fees), taxes, fees, proceedings and causes of action of
any kind or nature whatsoever arising out of or resulting solely from such
Exchange or attempted Exchange. The obligations of the Exchanging Party under
the preceding sentence shall survive Closing.
Section 28.7. In no event shall this Agreement or any memorandum hereof be
recorded in the public records of the place in which the Land is situated, and
any such recordation or attempted recordation shall constitute a breach of this
Agreement by the Party responsible for
40
such recordation or attempted recordation. The provisions of this Section 28.7
shall survive the Closing.
Section 28.8. All schedules and exhibits attached hereto are incorporated
herein by reference.
Section 28.9. The Parties acknowledge that Seller is a party to a certain
Net Profits Participation Agreement (the "Korshak Participation Agreement")
dated August 8, 2002 with Korshak, a Tenant of the Property. Notwithstanding
anything to the contrary in this Agreement, the Parties agree that Seller is not
required as a part of the transactions contemplated herein to assign or
otherwise transfer its rights and interests under such Net Profits Participation
Agreement; rather, Seller shall have the right to retain such rights and
interests. The Parties further agree that the Assignment of Leases shall not be
construed to transfer or assign to Purchaser any interest whatsoever in such Net
Profits Participation Agreement. Seller covenants and agrees not to take any
action under the Korshak Participation Agreement that will have any material
adverse effect on the Korshak Lease and/or on Purchaser's rights, duties or
obligations under the Korshak Lease. The provisions of this Section 28.9 shall
survive the Closing.
Section 28.10. With respect to any letters of credit and/or certificates
of deposit held by Seller as security under the Tenant Leases or the Guaranties
that are required to be delivered to Purchaser pursuant to Section 9.1.10
hereof, (a) Seller shall deliver to Purchaser at Closing the original of each
such letter of credit and/or certificate of deposit, and (b) Seller, at Seller's
sole cost, shall cause all such letters of credit and/or certificates of deposit
to be transferred and reissued in Purchaser's name and delivered to Purchaser as
soon as practicable following the Closing. Between the Closing Date and the date
of any such transfer of a letter of credit to Purchaser, Seller shall draw upon
such letter of credit, and promptly deliver the proceeds thereof to Purchaser,
upon Purchaser's notification to Seller that the tenant under the applicable
Tenant Lease or the guarantor under the Guaranty has defaulted such that
Purchaser, as the landlord or beneficiary thereunder, is entitled to draw upon
the letter of credit. The provisions of this Section 28.10 shall survive the
Closing.
Section 28.11. It is not the intent of the Parties that Purchaser, by
closing the transactions contemplated herein, should assume any liability for
pending Actions pertaining to, or claims asserted against, the Property as of
the Closing Date. Accordingly, Seller agrees to indemnify, defend and hold
Purchaser harmless from and against any and all Damages incurred by Purchaser
from or in connection with any such pending Actions pertaining to, or claims
asserted against, the Property as of (but not after) the Closing Date.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
41
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
to be effective as of the Effective Date.
SELLER:
CRESCENT REAL ESTATE FUNDING I, L.P.,
a Delaware limited partnership
By: CRE Management I Corp.,
a Delaware corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name:
---------------------------
Title: President
--------------------------
CBTIILP:
CRESCENT BT I INVESTOR, L.P.,
a Delaware limited partnership
By: CBT I Management Corp., a Delaware corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name:
---------------------------
Title: President
--------------------------
42
BIG TEX:
CRESCENT BIG TEX I, L.P.,
a Delaware limited partnership,
By: Crescent BT I GP, L.P.,
a Delaware limited partnership,
general partner
By: Crescent BT I Management, LLC,
a Delaware limited liability company,
its general partner
By: Crescent Real Estate Equities, Ltd.,
a Delaware corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name:
---------------------------
Title: President
--------------------------
PURCHASER:
CRESCENT TC INVESTORS, L.P.,
a Delaware limited partnership
By: Crescent TCI GP, LLC,
a Delaware limited liability company,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name:
---------------------------
Title: President
--------------------------
43
SOLELY FOR THE PURPOSES OF ARTICLE 6, ARTICLE 7,
ARTICLE 13, ARTICLE 16 AND ARTICLE 17:
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP,
a Delaware limited partnership,
By: Crescent Real Estate Equities, Ltd.,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name:
---------------------------
Title: President
--------------------------
44
LIST OF EXHIBITS:
A PROPERTY DESCRIPTION
B SPECIAL WARRANTY DEED
C ASSIGNMENT AND ASSUMPTION OF LEASES
D BLANKET CONVEYANCE, XXXX OF SALE AND ASSIGNMENT
E NON-FOREIGN AFFIDAVIT
F TENANT NOTICE LETTER
G PERMITTED EXCEPTIONS
H LIST OF REPORTS
I TENANT ESTOPPEL CERTIFICATE
J CC&Rs ESTOPPEL
K GROUND LEASE ESTOPPEL
L METLIFE ESTOPPEL
M UCC SEARCHES
N LICENSE AGREEMENT
O SELLER CERTIFICATE
P-1 and P-2 TENANT ESTOPPEL SCHEDULES
The foregoing exhibits have been omitted and will be furnished to the Commission
upon request.
