Exhibit 99.6
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made this _____ day of
January, 2006 between XXXXXXX PLAZA ASSOCIATES, L.P., a Delaware limited
partnership ("SELLER"), and HARVARD PROPERTY TRUST, LLC, A DELAWARE LIMITED
LIABILITY COMPANY, DOING BUSINESS AS BEHRINGER HARVARD FUNDS ("PURCHASER").
SECTION 1. CERTAIN TERMS.
1.1 EFFECTIVE DATE The date of this Agreement as set forth above
1.2 PURCHASE PRICE $172,000,000, payable a portion in cash or other
immediately available federal funds at Closing
(as hereinafter defined) and a portion by the
assumption of the Underlying Loan (as
hereinafter defined).
1.3 DEPOSIT $16,000,000.00, together with any interest
earned thereon.
1.4 TITLE PERIOD Intentionally deleted.
1.5 CLOSING DATE January 26, 2006, subject to extension pursuant
to Section 8.1(f), Section 8.1(i), and Section
9.1(d), or such earlier date as may be
acceptable to Purchaser and Seller.
1.6 PURCHASER'S NOTICE Harvard Property Trust, LLC
ADDRESS 00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
With a courtesy copy to Purchaser's counsel as
follows:
Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
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Xxxxxx & Xxxxxxx, L.L.P.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 214-373-8768
E-mail: xxxxxxx@xxxxxx.xxx
1.7 SELLER'S NOTICE Xxxxxxx Plaza Associates, L.P.
ADDRESS 2711 North Xxxxxxx, Suite 2150, LB 13
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-Mail: xxxxxx@xxxxxx.xxx
With a courtesy copy to Seller's counsel as
follows:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, P.C.
Telephone: 000-000-0000
Facsimile: 214-969-4343
E-Mail: xxxxxxx@xxxxxxxx.xxx
1.8 TITLE COMPANY Republic Title of Texas, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
E-Mail: XXxxxxx@xxxxxxxxxxxxx.xxx
1.9 BROKER Xxxxxx Brothers
1.10 UNDERLYING LOAN That certain $114,200,000.00 loan made by Bank
of America, N.A. (the "LENDER") to Seller
pursuant to that certain Loan Agreement dated as
of March 22, 2005 executed by Seller and Lender
(the "LOAN AGREEMENT").
1.11 UNDERLYING LOAN The $114,200,000.00 Promissory Note dated as of
DOCUMENTS March 22, 2005 executed by Seller and payable to
Lender (the "NOTE"), that certain Deed of Trust,
Assignment of Leases and Rents and Security
Agreement dated as of March 22, 2005, executed
by Seller to
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PRLAP, Inc., as Trustee and filed in the Deed of
Trust Records of Tarrant County, Texas and all
other documents securing payment of the
Underlying Loan.
1.12 PARKING LEASES The following parking leases between Seller, as
lessee, and the lessor named below: (a) Chase
Bank, NA, successor to Bank One, Texas, N.A. for
surface parking lot (the "CHASE PARKING LEASE");
(b) First United Methodist Church of Fort Worth
for surface parking lot (the "CHURCH PARKING
LEASE"); and (c) 813 Company, Ltd. for spaces in
a parking garage.
1.13 MANAGEMENT AND
LEASING AGREEMENT The Management and Leasing Agreement in the form
attached hereto as EXHIBIT E to be executed by
Purchaser at Closing.
SECTION 2. AGREEMENT TO SELL AND PURCHASE; PURCHASE PRICE.
2.1 SALE AND PURCHASE. Seller agrees to sell and convey to Purchaser and
Purchaser agrees to purchase from Seller for the Purchase Price, upon the terms
and conditions set forth in this Agreement, all of Seller's right, title and
interest in and to the following:
a. that certain real property described on EXHIBIT A to this
Agreement, which real property is located at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxx, together with all improvements thereon; all easements, covenants and
other rights appurtenant to such real property; and any land lying in the bed of
any street, avenue or alley, open or closed, in front of, abutting or adjoining
such parcel of real property (collectively, "REAL PROPERTY");
b. all furniture, furnishings, fixtures, equipment and other
tangible personal property, and replacements thereof, if any, now or hereafter
affixed to and/or located at the Real Property and used by Seller in connection
with the operation, maintenance or repair of the Real Property (collectively,
the "TANGIBLE Property"), but excluding any management office furniture,
furnishings, office equipment (including, without limitation, any personal
computers, facsimile machines, photocopy machines and telephone equipment), it
being agreed that a list of Tangible Property to be conveyed to Purchaser is
attached hereto as EXHIBIT B;
c. all leases of all or any portion of the Real Property,
including, without limitation, the leases set forth on EXHIBIT C to this
Agreement (together with all amendments, modifications and supplements thereto,
collectively, the "LEASES"), together with all refundable tenant security
deposits and any interest due thereon, letter of credit security deposits, and
lease guaranties;
d. to the extent assignable without the consent of any third-party,
all service and supply contracts and amendments thereto (whether written, oral
or otherwise) of any kind affecting or relating to the Real Property and/or the
Tangible Property and in effect on the Closing Date, to be included in the
Inspection Documents (exclusive of any Rejected Contracts, collectively, the
"CONTRACTS");
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e. all intangible property now or on the Closing Date owned or held
by Seller in connection with the Real Property or the Tangible Property,
including, without limitation, (i) to the extent assignable without the consent
of any third-party, all licenses; permits; authorizations; approvals;
certificates; and other governmental approvals (collectively, the "PERMITS");
(ii) to the extent assignable without the consent of any third-party, all land
use applications and fees, architectural, engineering and other plans,
specifications and drawings, floor area ratio rights, and all development
rights; and (iii) all property management records which are nonproprietary to
Seller or its manager, transferable warranties and all trade or project names
(including specifically, without limitation, the interest of Seller in the name
"Xxxxxxx Plaza") and all logos and marks (other than those including the names
"Xxxxxxxx Properties", "Brandywine" or derivatives thereof) (collectively, the
"INTANGIBLE PROPERTY"); however, Seller hereby notifies Purchaser that Seller
has taken no action to register or protect its right to use any trademarks,
tradenames or symbols; and
f. Seller's interest in and to the Parking Leases (the "PARKING
LEASES").
The "PROPERTY" means the Real Property, the Tangible Property, the Leases, the
Contracts, the Intangible Property and the Parking Leases.
SECTION 3. DEPOSIT.
3.1 POSTING OF DEPOSIT. Within two (2) business days after the Effective
Date, Purchaser shall deliver the Deposit of $16,000,000.00 to Title Company by
certified check, cashier's check or wire transfer of Federal funds ("IMMEDIATELY
AVAILABLE FUNDS"). If Purchaser does not, for any reason whatsoever, timely
deliver any Deposit to be delivered pursuant to this Agreement, then as a result
of such failure, Purchaser shall be deemed in default hereunder, Seller
thereupon may terminate this Agreement by notice to Purchaser as Seller's sole
remedy, any Deposit then held by the Title Company shall be promptly paid to
Seller, as liquidated damages, and neither party shall have any further rights
or obligations hereunder, except for any provisions which survive the
termination hereof. Except to the extent the Deposit is to be refunded to
Purchaser pursuant to this Agreement, the Deposit shall be non-refundable to
Purchaser so long as the conditions to Purchaser's obligations to consummate the
Closing set forth in Section 9.1 have been satisfied or waived by Purchaser. At
Closing, the Deposit shall be applied towards payment of the portion of the
Purchase Price payable in cash or immediately available funds.
3.2 INVESTMENT OF DEPOSIT. Title Company shall promptly place the Deposit in
an interest bearing account at a commercial bank reasonably satisfactory to
Seller and Purchaser whose deposits are insured by the Federal Deposit Insurance
Corporation and shall otherwise hold in escrow or disburse the Deposit in
accordance with the terms of this Agreement.
SECTION 4. STUDIES AND STUDIES INDEMNIFICATION.
4.1 TESTS AND STUDIES. Purchaser acknowledges and agrees that it has
satisfactorily completed such tests and studies on, about and of the Property as
Purchaser deemed necessary including, without limitation, reviewing the
Inspection Documents (herein so called) described on SCHEDULE 1 hereto and
conducted such architectural, engineering, environmental, soil boring,
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development and economic feasibility studies (the "STUDIES") as it deemed
necessary and appropriate.
4.2 STUDIES INDEMNIFICATION. Pursuant to that certain Access and Diligence
Agreement dated as of December 12, 2005 between Purchaser and Seller (as
amended, the "ACCESS AGREEMENT"), Purchaser acknowledges and agrees that it has
agreed to indemnify and hold Seller harmless from and against any lien, damage,
loss, cost or expense to (including attorneys' fees) or claims against such
persons or entities or the Property for damage to the Property (including the
cost of restoring the Property to its pre-entry condition) and injury to any
persons caused by Purchaser's or its agent's entry onto the Property in the
course of exercising Purchaser's rights under this Agreement and the Access
Agreement. Purchaser shall promptly restore or repair any damage to the Property
caused by or attributable to Purchaser's Studies, such obligation to survive the
termination or expiration of this Agreement and the Access Agreement. Purchaser
has agreed to, and shall, keep the Property free and clear of any liens arising
from Purchaser's exercise of its rights under this Agreement and the Access
Agreement. The indemnity and other agreements of Purchaser described in this
Section 4.2 are herein called the "STUDIES INDEMNIFICATION". The Studies
Indemnification shall survive the Closing or any termination of this Agreement.
SECTION 5. TITLE AND SURVEY.
5.1 a. TITLE APPROVAL. Purchaser has approved a current standard TLTA
commitment for owner's title insurance for the Property (the "TITLE COMMITMENT")
from the Title Company. All exceptions to title shown on the approved Title
Commitment are herein called the "PERMITTED EXCEPTIONS". The Title Company shall
obtain coinsurance through Partners Title Company of up to twenty percent (20%)
of the face amount of the title policy to be issued by the Title Company to
Purchaser. Purchaser has also approved a Survey of the Property (the "Survey").
b. CERTAIN LIENS. Any provision of this Agreement to the contrary
notwithstanding, any deeds of trust, mortgages, mechanic or materialmen liens,
tax liens (other than the Underlying Loan Documents and liens for taxes not due
and payable as of Closing (collectively, the "PERMITTED LIENS")) and other
monetary liens against the Property (collectively, the "MONETARY LIENS"), either
shall be discharged and removed by Seller at or before Closing, or the Title
Company shall have committed to issue a title policy to Purchaser at the Closing
without taking exception to such liens in reliance on an indemnity or bond
delivered by Seller at Closing.
5.2 TITLE WARRANTY. At Closing, Seller shall convey the Real Property to
Purchaser by special warranty deed, subject to the Permitted Exceptions,
including, without limitation, the Underlying Loan Documents (the "Deed").
5.3 CONTINUING TITLE COVENANTS. Seller covenants that Seller will not take
any action or fail to take any action that will result in a change in the
ownership, encumbrances, title exceptions or survey matters affecting the Real
Property from the Effective Date to Closing, except as otherwise permitted or
required under this Agreement.
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SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLER.
6.1 Seller represents and warrants to Purchaser as follows:
a. ORGANIZATION. Seller is a limited partnership duly organized,
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.
b. AUTHORITY. Seller and any individual executing this Agreement on
Seller's behalf, has the power to execute, deliver and perform this Agreement
and has taken all actions required to authorize the due execution and delivery
of this Agreement. The execution, delivery and performance of this Agreement
does not, and the consummation of the transactions contemplated hereby will not,
violate any provision of the articles of incorporation, bylaws, partnership
agreement, limited liability company agreement or other organizational documents
(as applicable) of Seller, or any provision of any agreement, instrument, order,
judgment or decree to which either Seller is a party or by which it or any of
its assets is bound.
c. BANKRUPTCY. Neither Seller nor any of its general partners, if
any (i) is in receivership or dissolution, (ii) has made an assignment for the
benefit of creditors or admitted in writing its inability to pay its debts as
they mature, (iii) has been adjudicated a bankrupt or filed a petition in
voluntary bankruptcy or a petition or answer seeking reorganization or an
arrangement with creditors under the Federal bankruptcy law or any other similar
law or statute of the United States or any jurisdiction and no such petition has
been filed against Seller or any of its general partners, if any, or (iv) to
Seller's knowledge, none of the foregoing are pending or threatened.
d. FIRPTA. Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986 ("FIRPTA").
e. LITIGATION. There are no actions, suits, claims or other
proceedings pending or, to Seller's knowledge, contemplated or threatened
against Seller not covered by Seller's insurance that could affect materially
and adversely Seller's ability to perform its obligations under this Agreement
in a timely manner or which could materially and adversely affect the Seller's
interest in the Property or any portion thereof.
f. MECHANIC LIENS. All bills and claims for labor performed or
materials supplied to Seller in connection with the Property have been paid in
full or will be paid in full in the ordinary course of business and there are no
mechanic's, materialman's or artisan's liens on or affecting Seller's interest
in the Property.
g. LEASES.
(i) Except for the Leases described on EXHIBIT C to this
Agreement, there are no tenant leases of all or any portion of the Real Property
to which Seller is a party.
(ii) To Seller's knowledge, Seller has received no written
notice as of the Effective Date from any tenant under the Leases asserting any
claim or offset affecting the collection of rent from such tenant, nor has any
tenant given any notice to Seller of its intention to terminate its tenancy.
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(iii) Seller has provided, or will make available at Seller's
office or at the Property to, Purchaser with a true and complete copy of each of
the Leases.
h. ASSESSMENTS. Seller has received no notice that any portion of
the Property is subject to any proposed or pending special assessments.
i. CONDEMNATION. There is no pending, or to Seller's knowledge,
threatened, condemnation or eminent domain proceeding affecting any portion of
the Property.
j. CONTRACTS. Except for the Contracts to be included in the
Inspection Documents, there are no service contracts or agreements or amendments
thereto (whether written, oral or otherwise) of any kind affecting or relating
to the Property which shall not be terminated by the Closing Date.
k. ENVIRONMENTAL. Other than as disclosed to Purchaser in the
Inspection Documents, Seller has received no written notice of any outstanding
violation of any Environmental Law relating to the Property or of the unlawful
presence on or release of Hazardous Materials from the Property or of the
presence of unlawful quantities of Hazardous Materials on the Property.
"ENVIRONMENTAL LAWS" means the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"),
the Clean Water Act, the Safe Drinking Water Act, the Toxic Substance Control
Act and other federal laws governing the environment as in effect on the
Effective Date together with their implementing regulations and guidelines as of
the Effective Date, and all state, regional, county, municipal and other local
laws, regulations and ordinances that are equivalent or similar to the federal
laws recited above or that purport to regulate Hazardous Materials. "HAZARDOUS
MATERIALS" includes petroleum as defined in CERCLA, asbestos and any substance,
material waste, pollutant or contaminant listed or defined as hazardous or toxic
under any Environmental Law; provided normal office and cleaning supplies
commonly used in properties similar to the Property and the leaking of gasoline
and oil in parking areas of the Property shall not be deemed to be Hazardous
Materials for purposes of this Section 6.1k.
l. VIOLATIONS. Other than as disclosed in the Inspection Documents,
Seller has received no written notices of violations of applicable laws
affecting the Real Property which have not been remedied.
m. UNDERLYING LOAN. To Seller's knowledge, there are no events of
default under the Underlying Loan Documents.
n. LEASING COMMISSIONS. All leasing commissions attributable to the
execution of Leases existing as of the Effective Date or the move-in of tenants
occupying the Property as of the Effective Date have been paid in full. To
Seller's knowledge, the only outstanding leasing commission agreements are those
described on EXHIBIT G hereto.
o. PARKING LEASES. To Seller's knowledge, there are no events of
default under the Parking Leases; provided, however, the failure to obtain
consents from the lessors under the Chase Parking Lease and the Church Parking
Lease to the assignment of such Parking Leases to Purchaser should not be deemed
to be a breach of this representation and warranty.
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6.2 SELLER'S KNOWLEDGE. Any representation or warranty made to "Seller's
knowledge," "to the best of Seller's knowledge," "to the best of Seller's
information and belief" or any similar knowledge qualification shall be deemed
to mean, and shall be limited to, the actual knowledge (as distinguished from
implied, constructive or imputed knowledge) of Xxxx Xxxxxxx, Xxxxx Xxxxxxx and
Xxxx Xxxxx, employees of an affiliate of Seller or its property manager, for the
Property ("SELLER REPRESENTATIVE"), without such person having made or having
any obligation to make any independent inquiry or investigation. Purchaser
agrees that no Seller Representative shall have any personal liability arising
out of any representations or warranties made hereunder. If any representation
or warranty above is known by Purchaser prior to Closing to be untrue, Purchaser
shall immediately notify Seller of Purchaser's discovery thereof, and if any
breach of a representation or warranty is not remedied by Seller prior to
Closing, Purchaser may as Purchaser's sole and exclusive remedy, either (i)
terminate this Agreement whereupon the Deposit shall be refunded to Purchaser,
and neither party shall have any further rights or obligations pursuant to this
Contract, other than as set forth herein with respect to rights or obligations
which survive termination, or (ii) waive its objections and close the
transaction without any reduction in the Purchase Price.
6.3 DISCLAIMERS AND RELEASES.
a. Except for Seller's representations and warranties set forth in
Section 6.1, Purchaser acknowledges and agrees that (i) neither Seller nor any
broker, agent, attorney, employee or representative of Seller has made or is now
making any representation or warranty as to the truth, accuracy or completeness
of any materials, data or information delivered by or made available by Seller
to Purchaser in connection with this Agreement; and (ii) all materials, data and
information delivered by Seller to Purchaser in connection with the transaction
contemplated hereby are provided to Purchaser as a convenience only and that any
reliance on or use of such materials, data or information by Purchaser shall be
at the sole risk of Purchaser.
b. Except for Seller's representations and warranties set forth in
Section 6.1, Purchaser acknowledges and agrees that (i) neither Seller nor any
broker, agent, attorney, employee or representative of Seller has made or is now
making any representation, warranty or guaranty of any kind or character,
express or implied, oral or written, past, present or future, concerning or with
respect to the Property or any other matter whatsoever including, but not
limited to, any representations or warranties as to habitability,
merchantability, fitness for a particular purpose, zoning, tax consequences,
latent or patent physical or environmental condition, utilities, operating
history or projections, valuation, governmental approvals or any other matter or
thing regarding the Property or otherwise; and (ii) upon Closing, Seller shall
convey the Real Property and the Personal Property to Purchaser and Purchaser
shall accept the Real Property and the Personal Property in "AS IS, WHERE IS"
condition and with all faults.
c. Except to the extent of the representations and warranties of
Seller expressly set forth in this Agreement, but otherwise notwithstanding any
other provision of this Agreement to the contrary, Purchaser, on behalf of
itself and its successors and assigns, waives its right to recover from, and
forever releases and discharges, Seller, Seller's affiliates, the partners,
trustees, shareholders, directors, officers, employees and agents of each of
them, and their respective heirs, successors, personal representatives and
assigns (collectively, the "SELLER'S RELATED PARTIES"), from any and all
demands, claims, legal or administrative proceedings, losses,
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liabilities, damages, penalties, fines, liens, judgments, costs or expenses
whatsoever (including, without limitation, attorneys' fees and costs), whether
direct or indirect, known or unknown, foreseen or unforeseen, which may arise on
account of or in any way be connected with the physical condition of the Real
Property or any law or regulation applicable thereto, including, without
limitation, the Environmental Laws.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
7.1 REPRESENTATIONS. Purchaser represents and warrants to Seller as follows:
a. ORGANIZATION. Purchaser is a limited liability company duly
organized, validly existing and in good standing under laws of the State of
Delaware.
b. AUTHORITY. Purchaser and any individual executing this Agreement
on Purchaser's behalf, has the power to execute, deliver and perform this
Agreement and has taken all actions required to authorize the due execution and
delivery of this Agreement, including, without limitation, obtaining all
requisite board approvals to enter into this Agreement and to consummate the
transactions described in this Agreement. The execution, delivery and
performance of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of the articles of
organization, limited liability company agreement or other organization
documents (as applicable) of Purchaser, or any provision of any agreement,
instrument, order, judgment or decree to which either Purchaser is a party or by
which it or any of its assets is bound.
c. BANKRUPTCY. Neither Purchaser nor any of its general partners or
members (i) is in receivership or dissolution, (ii) has made an assignment for
the benefit of creditors or admitted in writing its inability to pay its debts
as the mature, (iii) has been adjudicated a bankrupt or filed a petition in
voluntary bankruptcy or a petition or answer seeking reorganization or an
arrangement with creditors under the Federal bankruptcy law or any other similar
law or statute of the United States or any jurisdiction and no such petition has
been filed against Purchaser or any of its general partners or members, and (iv)
to Purchaser's knowledge, none of the foregoing are pending or threatened.
d. NO FINANCING CONTINGENCY. Purchaser has adequate funds to
consummate the transactions described in this Agreement, and its obligations to
close the transactions described in this Agreement on the Closing Date are not
subject to any financing contingency other than its assumption of the Underlying
Loan.
e. PERMITTED TRANSFEREE. Purchaser and affiliated entities which
are directly or indirectly under common control with Purchaser or directly or
indirectly control Purchaser or are controlled by Purchaser (i) own and operate
at least ten (10) first-class office buildings totalling at least 5,000,000
square feet in major metropolitan markets (the Property is not included as part
of such 5,000,000 square feet), (ii) have a net worth, determined as of the date
hereof, of at least $500,000,000.00 (which $500,000,000.00 net worth does not
include the value of the Property), and (iii) control, directly or indirectly,
real estate assets with a market value of at least $500,000,000.00 (exclusive of
the value of the Property).
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SECTION 8. COVENANTS.
8.1 SELLER COVENANTS. Seller covenants as follows:
a. LEASES. After the Effective Date, Seller will not execute any
lease, license or other occupancy agreement or any amendment to any existing
Lease, license or other occupancy agreement for any portion of the Property (any
such lease or modification to an existing Lease executed after the date of the
Access Agreement being herein called a "NEW LEASE") without the prior written
consent of Purchaser. After the Effective Date, Seller shall provide promptly
notices received by Seller from tenants under Leases asserting any claim or
offset which would affect the collection of rent from such tenant or notifying
Seller of a tenant's intention to terminate its tenancy.
b. PERFORMANCE UNDER AGREEMENTS. From the Effective Date to
Closing, Seller will perform its material obligations under the Parking Leases,
Underlying Loan Documents, Leases and the Contracts and any other agreements
that may affect the Property.
c. CONTRACTS. Seller shall (i) not, from the Effective Date to
Closing, enter into any Contracts that will survive Closing (except in the case
of an emergency), (ii) send a termination notice to vendors under those
Contracts that have been designated for termination or rejection in a written
notice delivered by Purchaser to Seller on or before the Effective Date (the
"REJECTED CONTRACTS"). The Rejected Contracts shall not include any Contracts
that are not terminable by Seller upon thirty (30) or fewer days prior written
notice to the Contract vendor or service provider, nor shall the Rejected
Contracts include any Contracts that are terminable by Seller only upon payment
of a penalty or premium or forfeiture of Seller's deposit. The foregoing or any
other provision of this Agreement to the contrary notwithstanding, Rejected
Contracts shall include and Seller shall terminate at Closing Seller's property
management and the leasing agreement between Seller and an affiliate of Seller
affecting the Real Property.
d. MAINTENANCE OF REAL PROPERTY. From the Effective Date to
Closing, Seller shall maintain the common areas and the non-tenanted areas of
the Property in the same condition as of the Effective Date, ordinary wear and
tear excepted, and subject to the casualty and condemnation provisions of this
Agreement. Seller shall not remove or permit to be removed from the Property,
any Tangible Property, except as required for any necessary repairs and also
except that worn out or useless items may be removed provided such items are
replaced with new items of substantially equal or better quality that are free
and clear of any lien or encumbrance.
e. INSURANCE. From the Effective Date to Closing, Seller shall
maintain in full force and effect substantially the same public liability and
casualty insurance coverage as is in effect with respect to the Property on the
Effective Date.
f. TENANT ESTOPPEL CERTIFICATES. Seller shall make commercially
reasonable efforts to obtain and deliver to Purchaser promptly after receipt by
Seller, but not later than three (3) business days prior to the Closing Date
(the "ESTOPPEL RETURN DATE"), tenant estoppel certificates from all tenants
under the Leases substantially in the form of EXHIBIT D attached hereto or such
other form as is required or permitted by the applicable Lease; provided,
Purchaser agrees to
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accept estoppel certificates from tenants which are governmental or
quasi-governmental entities in the forms required by such tenants. An executed
tenant estoppel certificate in the form required or permitted by the preceding
sentence is herein referred to as a "TENANT ESTOPPEL". Notwithstanding anything
contained herein to the contrary, it shall be a condition precedent to the
obligation of Purchaser to consummate the transaction that is the subject of
this Agreement that Seller deliver to Purchaser, on or before the Estoppel
Return Date (i) Tenant Estoppels executed by each of the tenants denoted on
EXHIBIT F as being "REQUIRED MAJOR TENANTS"; and (ii) Tenant Estoppels executed
by each of the tenants denoted on EXHIBIT F as being "OTHER MAJOR TENANTS",
provided, however, that in lieu of furnishing to Purchaser a Tenant Estoppel
from one or more of the Other Major Tenants, Seller may, at Seller's sole
option, execute and deliver to Purchaser a certificate as to the matters set
forth in EXHIBIT D hereto (the foregoing condition being herein referred to as
the "TENANT ESTOPPEL CONDITION"). If Seller is unable to satisfy the Tenant
Estoppel Condition on or before the Estoppel Return Date, then Purchaser may,
not later than the Closing, elect (in a written notice directed to Seller) one
of the following: (1) to waive the Tenant Estoppel Condition, or (2) to extend
the Closing Date for up to twenty-one (21) days to allow Seller more time to
satisfy the Tenant Estoppel Condition. If Purchaser elects to extend the Closing
Date pursuant to clause (2) of the preceding sentence and the Tenant Estoppel
Condition is still not fulfilled on or before the expiration of the twenty-one
(21) day extension period, then Purchaser may elect the option set forth in
clause (1) of the preceding sentence or Purchaser may elect to terminate this
Agreement, in which event all of the Deposit shall be returned to Purchaser. The
failure of Seller to obtain any Tenant Estoppel (or the refusal of Seller to
correct any claimed default by landlord under a Lease) shall not be and shall
not be deemed to be a breach of or default under this Agreement. Within five (5)
business days after the Effective Date, the parties shall agree on the
information to be inserted into the form tenant estoppel certificate for each
tenant under a Lease, so that such certificates may be provided to said tenants.
Seller shall deliver each Tenant Estoppel to Purchaser promptly following
Seller's receipt thereof. Seller shall have no obligation to amend any Lease or
to provide any concession, service or payment, reimbursement or other
consideration to any tenant in connection with Seller's efforts to obtain Tenant
Estoppels.
g. AUDIT BY PURCHASER. Purchaser has advised Seller that Purchaser
must cause to be prepared up to three (3) years of audited financial statements
in respect of the Property in compliance with the policies of Purchaser and
certain laws and regulations, including, without limitation, Securities and
Exchange Commission Regulation S-X, Rule 3-14. Seller agrees to use reasonable
efforts to cooperate with Purchaser's auditors in the preparation of such
audited financial statements (it being understood and agreed that the foregoing
covenant shall survive the Closing for ninety (90) days, and Seller shall not be
required to prepare any additional statements other than those in Seller's
possession and shall not be required to obtain information from Seller's outside
auditors not currently in Seller's possession). Without limiting the generality
of the preceding sentence (i) Seller shall, during normal business hours, allow
Purchaser's auditors reasonable access to such books and records maintained by
Seller (and Seller's manager of the Property) in respect of the Property as
necessary to prepare such audited financial statements; (ii) Seller shall use
reasonable efforts to provide to Purchaser such financial information and
supporting documentation in Seller's possession as are necessary for Purchaser's
auditors to prepare audited financial statements; (iii) if Purchaser or its
auditors require any information that is in the possession of the party from
which Seller purchased the Property, Seller shall contact such prior owner of
the Property and use commercially reasonable efforts to obtain from such
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party the information requested by Purchaser; (iv) Seller will make available
for interview by Purchaser and Purchaser's auditors the affiliate of Seller
which is the manager of the Property or other employees of Seller or its
affiliates responsible for the day-to-day operation of the Property and the
keeping of the books and records in respect of the operation of the Property;
and (v) if Seller has audited financial statements with respect to the Property,
Seller shall promptly provide Purchaser's auditors with a copy of such audited
financial statements. If after the Closing Date Seller obtains an audited
financial statement in respect of the Property for a fiscal period prior to the
Closing Date that was not completed as of the Closing Date, then Seller shall
promptly provide Purchaser with a copy of such audited financial statement, and
the foregoing covenant shall survive Closing for twelve (12) months.
h. TRANSFER OF WARRANTIES. Seller agrees to complete any
documentation that may be required by a warrantor in order to consummate an
assignment to Purchaser of any warranties included in the Property and to pay
the cost of any fee required to transfer any such warranty.
i. ESTOPPEL REGARDING PARKING LEASE. Notwithstanding anything
contained herein to the contrary, it shall be a condition precedent to the
obligation of Purchaser to consummate the transaction that is the subject of
this Agreement that Seller deliver to Purchaser, on or before the Estoppel
Return Date, an estoppel from 813 Company, Ltd. confirming the amount of rent
payable under the Parking Lease with such lessor, the expiration date of such
Parking Lease, and stating that no default currently exists under such Parking
Lease (the foregoing condition being herein referred to as the "PARKING LEASE
ESTOPPEL CONDITION"). If Seller is unable to satisfy the Parking Lease Estoppel
Condition on or before the Estoppel Return Date, then Purchaser may, not later
than the Closing, elect (in a written notice directed to Seller) one of the
following: (i) to waive the Parking Lease Estoppel Condition; or (ii) to extend
the Closing Date for up to twenty-one (21) days to allow Seller more time to
satisfy the Parking Lease Estoppel Condition. If Purchaser elects to extend the
Closing Date pursuant to clause (ii) of the preceding sentence and the Parking
Lease Estoppel Condition is still not fulfilled on or before the expiration of
the twenty-one (21) day extension period, then Purchaser may elect the option
set forth in clause (i) of the preceding sentence or Purchaser may elect to
terminate this Agreement, in which event all of the Deposit shall be returned to
Purchaser. The failure of Seller to satisfy the Parking Lease Estoppel Condition
shall not be and shall not be deemed to be a breach of or default under this
Agreement.
SECTION 9. CONDITIONS PRECEDENT TO CLOSING.
9.1 PURCHASER CONDITIONS. Purchaser's obligation to consummate Closing under
this Agreement is subject to the satisfaction, as of Closing, of all of the
following conditions:
a. SELLER REPRESENTATIONS. Seller's representations and warranties
set forth in this Agreement shall be true and accurate in all material respects
as of the Effective Date and, except for the representation and warranty in
Section 6.1(g)(ii), as of the Closing Date without any material modification. No
updates to the Rent Roll will constitute (individually or in the aggregate)
material modifications to Seller's representations and warranties set forth in
this Agreement. If on or before the Closing Date, Purchaser discovers that
Seller has breached in any material respect any representation or warranty,
Purchaser's sole remedy shall be as described in Section 6.2(i) or (ii) above.
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b. SELLER COVENANTS. Seller shall have performed in all material
respects the covenants and obligations required under this Agreement to be
performed or observed by Seller on or before the Closing Date.
c. ESTOPPEL CERTIFICATES. The Estoppel Delivery Threshold shall
have been met or waived by Purchaser as set forth in Section 8.1f. Purchaser
acknowledges and agrees that estoppel certificates and/or consents from lessors
under the Parking Leases shall not be a condition to Closing.
d. LOAN ASSUMPTION. Lender shall have approved Purchaser's
assumption of the Underlying Loan Documents, without material modification and
Purchaser shall have approved the terms of the assumption documents required by
Lender as a condition to such approval (Purchaser's approval of such assumption
documents not to be unreasonably withheld or delayed); provided, however,
Purchaser agrees to consent to such assumption documents so long as they do not
materially modify the provisions of the Underlying Loan Documents. Purchaser
covenants and agrees immediately on or before the Effective Date to pay Lender
the $15,000.00 non-refundable processing fee if required by the Lender under the
Underlying Loan Documents and to provide timely all information reasonably
required by Lender in connection with Lender's approval of Purchaser's
assumption of the Underlying Loan Documents, and Purchaser shall use
commercially reasonable efforts to obtain Lender's consent to Purchaser's
assumption of the Underlying Loan as soon as reasonably possible. Purchaser,
upon a request from Seller, shall provide to Seller the current status of
Purchaser's efforts to obtain Lender's consent to the assumption of the
Underlying Loan. Notwithstanding anything in this Agreement to the contrary, if
Lender fails to approve Purchaser's assumption of the Underlying Loan within the
earlier of (i) the date Lender notifies Seller in writing that Lender is
unwilling to approve Purchaser's assumption of the Underlying Loan, or (ii) one
hundred twenty (120) days following the Effective Date, then either Purchaser or
Seller may terminate this Agreement, in which event the Deposit shall be
refunded to Purchaser so long as Purchaser is not then in default under this
Agreement and, so long as no default then exists under this Agreement, neither
party shall have any further rights or obligations under this Agreement, save
and except the provisions of this Agreement which expressly survive a
termination hereof. Purchaser covenants and agrees to use commercially
reasonable efforts to satisfy the requirements of Lender to the assumption of
the Underlying Loan pursuant to the Underlying Loan Documents, including,
without limitation, the requirements of Section 6.1 of the Loan Agreement.
9.2 SELLER CONDITIONS. Seller's obligation under this Agreement to sell the
Property to Purchaser is subject to the satisfaction, as of Closing, of all of
the following conditions:
a. PURCHASER REPRESENTATIONS. Purchaser's representations and
warranties set forth in this Agreement shall be true, accurate and complete in
all material respects as of the Effective Date and as of the Closing Date
without any material modification; provided, however, (a) the representation and
warranty in Section 6.1(h) shall not be deemed untrue if, after the Effective
Date, Seller receives a notice of an assessment of $100,000.00 or less, and (b)
the representation and warranty in Section 6.1(i) shall not be deemed to be
untrue if, after the Effective Date, Seller receives notice of a condemnation
which would not materially and adversely affect the Property or any material
portion thereof.
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b. PURCHASER COVENANTS. Purchaser shall have performed in all
material respects the covenants and obligations required by this Agreement to be
performed by Purchaser on or before the Closing Date.
SECTION 10. CLOSING; DELIVERIES AT CLOSING.
10.1 CLOSING. Closing of the transaction contemplated under this Agreement
("CLOSING") shall take place at 4:00 p.m. on the Closing Date at a location to
be mutually agreed upon by Seller and Purchaser or by an escrow closing.
10.2 SELLER DELIVERIES. At Closing, Seller shall deliver (duly and fully
executed, acknowledged and notarized as appropriate) to Title Company or perform
the following:
a. the Deed;
b. a xxxx of sale ("XXXX OF SALE") in form reasonably acceptable to
Seller and Purchaser conveying title to the Tangible Property, free and clear of
all liens and containing special warranties of such title and right to convey;
c. a general assignment and assumption agreement (the "ASSIGNMENT
AND ASSUMPTION AGREEMENT") in a form reasonably satisfactory to Seller and
Purchaser, that covers all Leases, Parking Leases, security deposits, Contracts
(other than any Rejected Contracts), and Intangible Property, including those
relating to the Tangible Property conveyed under the Xxxx of Sale;
d. such resolutions and organizational documentation as Title
Company reasonably requires;
e. all documents reasonably required by Title Company with respect
to Seller's compliance with FIRPTA;
f. all keys, codes and other security devices for the Real
Property;
g. Seller's books and records necessary for the orderly transition
of Property operations;
h. a closing statement setting forth the charges, credits and
adjustments to each party;
i. written notice from Seller and Purchaser to each tenant of the
Property stating that the Property has been sold to Purchaser and directing such
tenants to make rental payments payable to the party and at the address
specified by Purchaser as set forth in such notice; and
j. a Rent Roll, certified by Seller, to Seller's knowledge, to be a
true and accurate in all material respects and to be a copy of the rent roll
that Seller uses on a day to day basis in connection with the Property, prepared
as of the first day of the full calendar month immediately preceding the Closing
Date.
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10.3 PURCHASER DELIVERIES. At Closing, Purchaser shall deliver (duly and
fully executed, acknowledged and notarized as appropriate) to Title Company or
perform the following:
a. written instructions to Title Company to release the Deposit to
Title Company for disbursement in accordance with this Agreement (unless
Purchaser irrevocably funds the entire Purchase Price and directs the Deposit to
be refunded to Purchaser);
b. the balance of the Purchase Price, less the outstanding
principal balance of the Underlying Loan assumed by Purchaser, and all Closing
and other costs required of Purchaser under this Agreement;
c. such resolutions and organizational documentation as Title
Company reasonably requires;
d. the Xxxx of Sale;
e. the Assignment and Assumption Agreement;
f. a closing statement setting forth the charges, credits and
adjustments to each party;
g. the Management and Leasing Agreement; and
h. such assumption documents and other matters as may be required
by Lender as a condition to Lender's consent to the assumption of the Underlying
Loan Documents by Purchaser.
10.4 ADDITIONAL DELIVERIES. At Closing, Seller and Purchaser shall duly
execute and deliver all other documents reasonably necessary to consummate the
Closing.
SECTION 11. COSTS, ADJUSTMENTS AND DISBURSEMENTS.
11.1 SELLER COSTS. At Closing, Seller shall pay:
a. Deed recordation costs;
b. Seller's attorneys' fees;
c. the cost of the Survey update;
d. one-half of Title Company's escrow services charge;
e. the costs of releasing all liens and other encumbrances that are
to be released and of recording such releases;
f. the cost of the examination of title, the title commitment and
the title insurance policy; provided, if Purchaser requests any endorsements to
the basic form of the title insurance policy, Purchaser shall be responsible for
the premiums for any such endorsements;
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g. all other expenses stipulated to be paid by Seller under other
provisions of this Agreement;
h. the costs payable to Lender in connection with its approval of
the Underlying Loan assumption by Purchaser;
i. any commission payable to Broker; and
j. except as expressly set forth in this Agreement to the contrary,
such other costs (other than costs expressly set forth herein as being payable
by Purchaser) as are customarily paid by sellers in comparable transactions in
the local market in which the Property is located.
11.2 PURCHASER COSTS. At Closing, Purchaser shall pay:
a. Purchaser's attorneys' fees;
b. one-half of Title Company's escrow services charge;
c. all other expenses stipulated to be paid by Purchaser under
other provisions of this Agreement;
d. the cost of any endorsements to the title insurance policy; and
e. except as expressly set forth in this Agreement to the contrary,
such other costs (other than costs expressly set forth herein as being payable
by Seller) as are customarily paid by purchasers in comparable transactions in
the local market in which the Property is located.
11.3 ADJUSTMENTS. The following shall be adjusted as of 11:59 p.m. of the day
immediately preceding the Closing Date:
a. city, state, county and school district ad valorem taxes,
business improvement district charges, personal property taxes and all other
taxes and assessments;
b. collected rents (and any applicable stare or local tax on rent)
under the Leases in effect on the Closing Date; collected operating and common
area maintenance expense payments; and other collected income from the Property.
Purchaser shall be credited with the amount of any security and other deposits
paid to Seller by tenants of the Property. Any sums received after Closing for
the account of tenants of the Property shall be applied first to all sums due
Purchaser under the Leases, and the balance, if any, shall be remitted to
promptly thereafter to Seller. To the extent Purchaser receives after Closing
any rent, operating and common area maintenance expense payments or other income
from the Property on account of amounts due prior to Closing, Purchaser shall
promptly remit such payments to Seller. The provisions of this paragraph shall
survive the Closing.
c. utilities; public and private water, sewer and storm water rents
and charges; natural gas; telephone; electricity; and all other utilities
necessary or appropriate for the operation of the Property. As of Closing,
Purchaser shall be responsible for the transfer of accounts and establishment of
all utility services to the Property in the name of the Purchaser.
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Seller shall pursue with the appropriate utility company(ies) the return of any
Seller utility deposits;
d. fees for the rental of vaults and other public space;
e. rental under the Parking Leases;
f. fees and expenses under any Contracts assumed by Purchaser;
g. with respect to any tenant's exercise on or after the Effective
Date of an extension or expansion option under a Lease existing prior to
Effective Date, tenant improvement allowances and leasing commissions payable in
connection therewith shall be prorated on the basis of Seller's and Purchaser's
respective periods of ownership of the Property in relation to the term of such
extension or the benefit of such expansion;
h. with respect to leases and extension and/or expansion agreements
entered into on or after the Effective Date in accordance with the terms of this
Agreement, tenant improvement allowances and leasing commissions payable in
connection therewith shall be prorated on the basis of Seller's and Purchaser's
respective periods of ownership of the Property in relation to the term of such
lease or extension or the benefit of such expansion;
i. any provision of this Agreement to the contrary notwithstanding,
Purchaser shall pay the tenant improvement allowance, leasing commissions and
sums payable by the landlord under or in connection with any New Lease or
modification of a Lease entered into after the Effective Date so long as
Purchaser has approved such New Lease or Lease modification prior to the
execution thereof; and
j. all payments made by Seller under the Underlying Loan shall be
prorated appropriately so that Seller has made all payments until the Closing
Date and Purchaser has made all such payments from and after the Closing Date.
At Closing, Seller shall assign to Purchaser (and Purchaser shall reimburse
Seller at Closing for) all tax, insurance and other escrow deposits paid by
Seller and then held by Lender in accordance with the Underlying Loan Documents.
11.4 TRUE-UP. If, at any time after the Closing Date, the amount of any
Closing cost or pro-rated charge or adjustment shall prove to be incorrect
(whether as a result of an omission, an error in calculation or a lack of
complete or current information as of the Closing or otherwise), the party in
whose favor the error was made shall pay to the other party the sum necessary to
correct such error within thirty (30) days after receipt of reasonable evidence
of such error, provided that such evidence must be delivered no later than April
30, 2007. Seller and Purchaser shall, after the Closing Date, cooperate in good
faith to reconcile and adjust the amounts prorated under Section 11.3. The
provisions of this Section 11.4 shall survive the Closing.
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SECTION 12. DEFAULT.
12.1 PURCHASER DEFAULT.
a. If Purchaser defaults in its obligation to consummate the
Closing in accordance with the terms of this Agreement or otherwise defaults in
any material respect under this Agreement prior to Closing, Seller shall give
Purchaser and Title Company written notice specifying the nature of the default.
Purchaser shall have five (5) business days from receipt of Seller's notice of
default within which to cure the specified default; however, Purchaser shall not
be entitled to any notice or opportunity to cure Purchaser's obligations to pay
the cash portion of the Purchase Price and perform its other obligations on the
Closing Date.
b. If Purchaser defaults in its obligation to consummate the
Closing in accordance with the terms of this Agreement and fails to cure such
default within any applicable cure period, the Deposit shall be forfeited to
Seller as complete and liquidated damages and as Seller's sole remedy, this
Agreement shall automatically terminate and Seller and Purchaser shall be
relieved from all further liability or obligation hereunder except for
Purchaser's liability under the Studies Indemnification and except that, upon
such termination, Purchaser shall make a good faith attempt to promptly deliver
to Seller all documents that Purchaser received from Seller or its agents in
connection with this Agreement. Seller and Purchaser agree that forfeiture of
the Deposit shall be liquidated damages and not a penalty, that the actual
damages caused by Purchaser's breach of this Agreement would be difficult or
impossible to measure and that the Deposit is a reasonable estimate of those
damages.
12.2 SELLER DEFAULT.
a. If Seller defaults in its obligation to consummate the Closing
in accordance with the terms of this Agreement or otherwise defaults in any
material respect under this Agreement prior to Closing, Purchaser shall give
Seller and Title Company written notice specifying the nature of the default.
Seller shall have five (5) business days from receipt of Purchaser's notice of
default within which to cure the specified default; however, Seller shall not be
entitled to any notice or opportunity to cure Seller's obligation to delivery
the Deed and other closing documents described in Section 10.2 on the Closing
Date.
b. Purchaser acknowledges and agrees that if Seller does not cure
such default within said five (5) business day period, Seller shall have no
liability whatsoever for damages arising out of the performance or
nonperformance of Seller's obligations (except as set forth below) and
Purchaser's sole remedy shall be to elect one of the following:
(i) terminate this Agreement by written notice given to
Seller, in which event the Deposit shall be returned to Purchaser, and Seller
and Purchaser shall thereafter be relieved from all further liability or
obligation hereunder;
(ii) proceed to Closing with the same constituting a waiver
of any right to pursue a post-Closing action against Seller for such default; or
(iii) proceed with an action for specific performance of this
Agreement by Seller.
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12.3 ATTORNEYS' FEES. If any party hereto engages an attorney for the purpose
of enforcing this Agreement or any judgment based on this Agreement, in any
legal proceeding, including insolvency, bankruptcy, arbitration, declaratory
relief or other litigation, the prevailing party shall be entitled to receive
reimbursement from the non-prevailing party for all reasonable attorneys' fees
and out-of-pocket expenses incurred in connection with such proceeding including
legal assistant, service of process, filing, court and court reporter,
investigative and expert witness fees and costs, and such reimbursement shall be
included in any judgment, decree or final order issued in that proceeding. The
"PREVAILING PARTY" means the party who receives substantially the relief
desired, whether by judgment, dismissal or otherwise.
SECTION 13. SURVIVAL.
13.1 SURVIVAL TIME. If Closing occurs, Seller's and Purchaser's respective
obligations and liabilities under this Agreement shall survive Closing (except
for any obligations and liabilities that have been waived or that are deemed
waived pursuant to the terms of this Agreement) and shall not be merged with
Seller's delivery of the Deed; provided, however, any party's liability for
breach of any of representation or warranty made by such party in this Agreement
shall terminate twelve (12) months after Closing and shall thereafter be deemed
to have merged into the Deed, except to the extent the other party has
commenced, on or before such date, a legal proceeding based on the breach
thereof, and to the extent Purchaser first discovers a breach of a
representation or warranty after the Closing Date, Seller's aggregate liability
to Purchaser for all breaches of representations and warranties of Seller under
this Agreement, shall not exceed $1,500,000.00.
13.2 SURVIVAL IF NO CLOSING. Any provision of this Agreement to the contrary
notwithstanding, if Closing does not occur and Seller or Purchaser terminates
this Agreement other than due to the other party's default under this Agreement
(which is addressed in Section 12), Seller's and Purchaser's respective
obligations and liabilities under the following sections or provisions of this
Agreement shall survive such termination: (i) as to Seller and Purchaser,
Sections 12.3 (Attorneys' Fees), 14 (Confidentiality), 16 (Brokers), 18.14
(Waiver of Jury Trial), and 18.15 (Governing Law); (ii) as to Seller and
Purchaser, all other provisions (if any) that expressly provide that such
party's obligations or liabilities shall survive the termination of this
Agreement; and (iii) as to Purchaser only, Purchaser's obligations and
liabilities for the Studies Indemnification.
SECTION 14. CONFIDENTIALITY.
14.1 CONFIDENTIAL INFORMATION. Prior to Closing, neither Seller nor Purchaser
shall disclose the existence of this Agreement, the terms of this Agreement or
the transactions contemplated under this Agreement (the "CONFIDENTIAL
INFORMATION"), whether in a press release, communication with any media
representative or otherwise. However, notwithstanding the foregoing provisions
or anything else to the contrary contained in this Agreement (i) Seller or
Purchaser may disclose Confidential Information to its respective consultants,
attorneys, accountants, prospective investors and lenders, and others who need
to know the information for the purpose of assisting such party in connection
with the transaction that is the subject of this Agreement; (ii) the foregoing
covenant of confidentiality shall not be applicable to any information published
by Seller as public knowledge or otherwise available in the public domain; (iii)
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Seller and Purchaser shall be permitted to disclose such Confidential
Information as may be recommended by such party's legal counsel in order to
comply with all financial reporting, securities laws and other legal
requirements applicable to Seller or Purchaser, as the case may be, including
any required disclosures to the Securities and Exchange Commission; (iv) Seller
and Purchaser shall be permitted to disclose Confidential Information in
connection with litigation or similar proceedings related to this Agreement; and
(iv) any duty of confidentiality set forth in this Agreement shall terminate
upon Closing.
14.2 PRESS RELEASE. After Closing, neither Seller nor Purchaser shall issue a
press release or otherwise communicate with any media representative regarding
the Confidential Information unless such release or communication has received
the prior written approval of the other party hereto, which approval shall not
be unreasonably withheld or delayed. The foregoing notwithstanding, after
Closing, Seller and Purchaser shall each have the right to publicly announce
(including to the press) Purchaser's acquisition of the Property and the date on
which the Closing occurred, but such announcement shall not include the Purchase
Price or any other economic terms of this Agreement.
SECTION 15. CASUALTY AND CONDEMNATION.
15.1 DESTRUCTION OR DAMAGE PRIOR TO CLOSING. If at any time prior to Closing,
all or any portion of the Property is damaged or destroyed by fire or other
casualty, Seller shall promptly give written notice thereof to Purchaser. The
rights and obligations of the parties by reason of such destruction or damage
shall be as follows:
a. If the Repair Cost of such destruction or damage shall be
determined to be one percent (1%) of the Purchase Price or less, Seller, at
Seller's expense, shall restore the Property promptly to its condition prior to
such destruction or damage and Closing shall be delayed for a reasonable period
of time to allow Seller sufficient time to do so. "REPAIR COST" means an
estimate from a qualified reputable general contractor selected by Seller and
reasonably acceptable to Seller's insurance carrier, of the actual cost of
repair and restoration obtained by Seller within twenty-one (21) days after the
destruction or damage. If Closing is scheduled to occur during said twenty-one
(21) day period, Closing shall be delayed to allow Purchaser the full benefit of
the said twenty-one (21) day period.
b. If the Repair Cost of such destruction or damage exceeds one
percent (1%) of the Purchase Price, Purchaser shall have the option either (i)
to accept the Property in its destroyed or damaged condition and accept
assignment of insurance payments by giving written notice to Seller of such
election not later than fifteen (15) days after the Repair Cost is determined
(in which case Purchaser shall receive a credit at Closing for the amount of any
deductible under the applicable insurance policy), or (ii) to cancel this
Agreement. In such case, Closing shall be deferred to give Purchaser an
opportunity to make such election. Upon the giving of such notice, this
Agreement shall terminate and be of no further force and effect except as
otherwise expressly set forth in Section 13. In such event, Title Company shall
promptly return the Deposit to Purchaser. If Purchaser fails to give such notice
timely, Purchaser shall be deemed to have elected option (ii) above.
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15.2 CONDEMNATION. If Seller has knowledge of any pending or threatened
condemnation proceedings or actions, Seller shall promptly advise Purchaser in
writing. If, on or prior to the Closing Date, any material portion of the
Property shall be condemned or taken pursuant to any governmental or other power
of eminent domain, any written notice of taking or condemnation is issued, or
any proceedings are instituted by any governmental authority having the power or
eminent domain, then Purchaser shall have the option either (i) of proceeding to
Closing and accepting the Property subject to the condemnation or taking and
reducing the Purchase Price by the amount of the condemnation award (or
accepting an assignment of the award, if the award has theretofore been
delivered), or (ii) of terminating this Agreement by giving written notice to
Seller not later than fifteen (15) days after receiving written notice from
Seller advising of the condemnation or taking. If Closing is scheduled to occur
during said fifteen (15) day period, Closing shall be delayed to allow Purchaser
the full benefit of the said fifteen (15) day period. Upon the giving of such
notice, this Agreement shall terminate and be of no further force and effect
except as otherwise expressly set forth in Section 13. If Purchaser fails to
give such notice timely, Purchaser shall be deemed to have elected option (i)
above. If Purchaser elects to proceed to Closing and accept the Property subject
to the condemnation or taking, and the portion of the Property to be condemned
has not yet been taken and paid for by the condemning authority by the Closing
Date, then there shall be no abatement in the Purchase Price and Seller shall
assign to Purchaser at Closing all of Seller's right to any unpaid condemnation
awards, and Seller shall convey the entire Property to Purchaser.
SECTION 16. BROKERS.
16.1. IDENTIFICATION OF BROKERS. Seller represents to Purchaser and Purchaser
represents to Seller that such representing party has not dealt with any real
estate broker, agent or finder in connection with the transaction contemplated
by this Agreement other than Broker. Seller shall pay Broker's commission at
Closing pursuant to the separate written agreement between Broker and Seller.
16.2 INDEMNIFICATION. Subject to the foregoing, each party shall defend,
indemnify and hold the other party harmless from and against all claims,
demands, causes of action, expenses or other liabilities (including reasonable
attorneys' fees and court costs, whether or not suit is instituted) incurred by
the indemnified party arising from any breach of the foregoing representation
and from any brokerage, agent or finder claim of entitlement to a commission,
fee, cost or other expense that (if payable) would result in a breach of the
foregoing representation by the indemnifying party.
SECTION 17. NOTICES.
17.1. ADDRESSES. All notices, consents, approvals and other communications
("NOTICE" or "NOTICES") given under this Agreement shall be (a) in writing; (b)
shall be addressed (i) if to Purchaser, to Purchaser's Notice Address or sent by
facsimile transmission to the person and the facsimile number set forth in
Purchaser's Notice Address, and (ii) if to Seller, to Seller's Notice Address or
sent by facsimile transmission to the person and the facsimile number set forth
in Seller's Notice Address; (c) sent, with all charges prepaid, by (i) hand
delivery, (ii) certified or registered mail, return receipt requested, (iii) a
nationally recognized overnight courier service, or (iv) facsimile transmission
as aforesaid but with notice also being sent by hand delivery or a
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nationally recognized overnight courier service (next business day delivery) on
the same day that such facsimile transmission is sent; and (d) effective only
when delivered or delivery is refused, except that facsimile notices shall only
be effective where there is written confirmation of receipt issued by the
addressee or the addressee's office or authorized agent and then, facsimile
transmissions shall be deemed received on the date received if received on or
before 5:00 p.m. (Dallas, Texas local time), or if received after 5:00 p.m.
(Dallas, Texas local time), then on the next day. Any party may change its
address(es) for notice at any time upon ten (10) days notice to the other party
given in accordance with the terms of this Section. Rejection or other refusal
to accept or the inability to deliver because of a changed address of which no
notice was given shall not invalidate the effectiveness of any notice.
17.2 COURTESY COPIES. Courtesy copies of notices sent to the parties listed
above as receiving copies shall be given in the same manner as the original
notice that was sent but shall not be a prerequisite to the effectiveness of any
notice.
SECTION 18. GENERAL PROVISIONS.
18.1 ASSIGNMENT AND BINDING EFFECT. Purchaser may not assign its rights
hereunder without the written consent of Seller, except that, upon three (3)
days prior written notice to Seller, Purchaser may assign its rights hereunder
to any entity owned by, under common control with, or affiliated with Purchaser
which either is a Permitted Transferee (as defined in the Loan Agreement) or is
otherwise expressly approved by the Lender, without the consent of, but with
notice to, Seller. Promptly after such assignment, Purchaser shall deliver a
copy of the assignment document(s) to Seller. No such assignment shall relieve
Purchaser of its liabilities and obligations under this Agreement. Subject to
the foregoing, all of the terms, covenants, conditions, obligations and
indemnifications contained in this Agreement shall be binding upon the parties
and inure to the benefit of their respective heirs, legal representatives,
successors and assigns.
18.2 DATES. If any date upon which action or notice is required under this
Agreement shall be a Saturday, Sunday or legal holiday for national banks in the
jurisdiction in which the Real Property is located, the date for such action
shall be extended to the first business day after such date that is not a
Saturday, Sunday or legal holiday.
18.3 TIME OF THE ESSENCE. Time is of the essence with respect to each and
every provision of this Agreement.
18.4 WAIVER OF CONDITIONS. Either party may waive any of the terms and
conditions of this Agreement made for its benefit provided such waiver is in
writing and signed by the party waiving such terms or conditions.
18.5 HEADINGS. The article and sections headings used in this Agreement are
for reference and convenience only and shall not be considered in interpreting
this Agreement.
18.6 SINGULAR/PLURAL. Wherever in this Agreement the singular number is used,
the same shall, include the plural and vice versa, and the masculine gender
shall include the feminine and neuter genders, and vice versa, as the context
shall require.
22
18.7 PARTIAL INVALIDITY. If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance shall be
invalid or unenforceable, at any time or to any extent, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby. Each term, covenant, condition and provision of
this Agreement shall be valid and enforced to the fullest extent permitted by
law.
18.8 ENTIRE AGREEMENT. This Agreement contains the entire agreement among the
parties. There are no promises, agreements, terms, conditions, undertakings,
understandings, warranties, covenants or representations, oral or written,
express or implied, among them, other than as set forth in this Agreement.
18.9 RECORDATION. Neither Seller nor Purchaser shall record this Agreement or
any memorandum hereof.
18.10. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall constitute an original, but all of which together shall
constitute one and the same instrument. The signature of a party on any
counterpart may be removed and attached to any other counterpart.
18.11 SIGNATURE BY FACSIMILE. This Agreement and all amendments hereto may be
signed by facsimile. The signature of any party thereon shall be considered as
an original signature and the document transmitted shall be considered to have
the same binding legal effect as if it were originally signed. Promptly
following a written request therefor, the party signing a document by facsimile
shall execute and deliver to the requesting party such facsimile party's
signature in original form on the applicable document.
18.12 CERTAIN DEFINITIONS. Unless expressly set forth in this Agreement to the
contrary, as used in this Agreement, the word "including" shall be deemed to
mean "including, without limitation."
18.13 CONSTRUCTION OF AGREEMENT. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared primarily by counsel for one of the parties, it
being recognized that both Seller and Purchaser have contributed substantially
and materially to the preparation of this Agreement.
18.14 WAIVER OF JURY TRIAL. SELLER AND PURCHASER EACH HEREBY WAIVES ANY RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING UNDER OR IN CONNECTION WITH
THIS AGREEMENT.
18.15 GOVERNING LAW. This Agreement shall be governed by and interpreted under
the laws of the jurisdiction in which the Real Property is located, without
regard to the application of choice of law principles.
18.16 LIKE KIND EXCHANGE. Both Seller and Purchaser acknowledge and agree that
Seller and/or Purchaser may each close the transaction contemplated by this
Agreement as a like-kind exchange (a "LIKE-KIND EXCHANGE") pursuant to Section
1031 of the Internal Revenue Code of 1986, as amended from time to time;
provided that any such Like-Kind Exchange does not delay
23
the Closing or have any other material adverse impact on the transaction
contemplated by this Agreement; and provided, further, that the party desiring a
Like-Kind Exchange shall bear all extra out-of-pocket costs and expenses and
fees of escrow agent resulting from the Like-Kind Exchange and shall hold the
other party harmless from and indemnify them against any and all loss,
liability, damage or expense, including reasonable attorneys' fees, resulting
from the Like-Kind Exchange. Subject to the conditions of this Section, Seller
hereby agrees to execute such documents as are reasonably necessary to effect a
Like-Kind Exchange desired by Purchaser and Purchaser hereby agrees to execute
such documents as are reasonably necessary to effectuate a Like-Kind Exchange
desired by Seller.
[SIGNATURES FOLLOW]
24
IN WITNESS WHEREOF, the parties have signed and delivered this Agreement
under seal as of the Effective Date.
SELLER:
XXXXXXX PLAZA ASSOCIATES, L.P., a Delaware
limited partnership
By: Xxxxxxx Plaza Associates GP, LLC, a Delaware
limited liability company, General Partner
By: Brandywine Acquisition Partners LP, a
Delaware limited partnership, Sole
Member
By: BDN Properties I Inc., a Delaware
corporation, General Partner
By: ________________________________
Name: Xxxxxxxxxxx X. Xxxxx
Title: Executive Vice President
Seller's EIN Identification No. 00-0000000
PURCHASER:
HARVARD PROPERTY TRUST, LLC, a Delaware
limited liability company
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Purchaser's Tax Identification No. 00-0000000
EXHIBITS
Schedule 1 - Inspection Documents
Exhibit A - Description of Real Property
Exhibit B - Tangible Property
Exhibit C - Leases
Exhibit D - Form of Tenant Estoppel Certificate
Exhibit E - Management and Leasing Agreement
Exhibit F - Required Estoppels
Exhibit G - Schedule of Leasing Commission Agreements
25
Schedule 1
INSPECTION DOCUMENTS
ADA Compliance, studies/reports
Building/Capital Improvements Projects, Current
Building Permits
Building Plans, Specifications,
Paper
Capital Improvements, historical/projected, 3 years
Certificates of Occupancy:
Building
Tenants
Emergency/Life Safety Systems, Operating Manual
Environmental Site Assessment, Existing
Financial Items:
Aging Reports, Current and past 6 months
Balance Sheet, to date
Budget & Narrative, Current Year
Excess Operating Expenses Calculation paid by tenants during calendar year
2005
Invoices, as requested, copies only
Operating Expense Reconciliations (3 previous years)
Operating Statements for property, including a general ledger for each
year - 3 years
Rent Roll, Current
Security Deposit Listing, Current, LOC's/Guaranty's to be transferred
Floor Plans, as leased
Geotechnical Report, if any
Ground Lease, if any
Include Commencement Notices (made available in a CD format)
Insurance Certificate, Current, of Seller and Tenants
Insurance Claims, Pending
Insurance Claims History - 3 years
Intellectual Property Documents, if any
Leases and all amendments (made available in a CD format)
Lease Commission Schedule of Unpaid Commissions
Litigation - Pending
O & M Reports (Asbestos, Mold, etc.)
Parking Garage Lease/Operating Agreement
Parking Space Configuration (Surface and Garage if applicable)
Permits & Licenses - Alarm
Permits & Licenses - Construction (current)
Permits & License - Elevator
Permits & License - Engineering
Personal Property Inventory including Office Equipment to remain on site
Photos of the Building
Property Condition Report, existing
Property Taxes land/improvements current year
Schedule 1 - Page 1
Property Tax Statements, Personal, Current & Prior 3 years
Retail tenants, sales data and percentage rent xxxxxxxx
Security Incident Reports, for prior 24 months
Service Contracts
Site Plans
Stacking Plan
Survey, existing
Tenant Contact Information
Tenant Financial Statements, if available
Tenant Improvement projects, currently under construction (copy of contract(s))
Tenant Improvement Schedule, 3 previous years as shown on general ledger
Utility Agreements
Utilities, prior 2 years/invoices/summary
Utility Security Deposits (none)
Warranty, Roof, if applicable
Year-end Occupancy/Vacancy History, 3 previous years
Zoning Report, existing if available
*Additional material reports required for the completion of the 3-14 Audit to be
delivered upon request:
Detailed accrued expense listing for each quarter ended during the current year
and the prior two years
Detailed listing of all tenants with termination options
Detail of the cash receipts and disbursements journal (downloaded in Excel if
possible) for the full prior year and to date for the current year
Detailed general ledger report of revenues and expenses during the current
calendar year and the prior two years
Detailed income statements by month year-to-date and the prior two years
Schedule 1 - Page 2
Exhibit A
DESCRIPTION OF REAL PROPERTY
Exhibit A - Page 1
Exhibit B
TANGIBLE PROPERTY
Exhibit B - Page 1
EXHIBIT C
LEASES
Pepi's Cheese & Wine Deli dba Alonti Deli
RDH3, Inc. dba Xxxxxxxxx'x Finer Dry Cleaners
Americredit
AXA Equitable Life Insurance Company
Xxxx Xxxxx Electric
Xxxxx & Xxxxxxx
Xxxxxx Fiber
Brotherhood of Locomotive Engineers
Burlington Resources
Xxxxxxx Oil
Xxxxxx & Hanger
Cash America
Xxxxxx & Xxxxxxxxx
Corvel
Xxxxxx Xxxxx XxXxxxx XxXxxxx Xxxx & Xxxxx
Xxxxx Xxxxx
Grande Communications
HUD
Xxx Xxxxxx
Xxxx X. Xxxxxx
Kforce
Xxxxxx Xxxx
Xxxx Xxxx
Oce USA
Practioners Publishing AKA Thomson Publishing
Xxxxxxxx Properties
Red Mortgage
SEC
Sherry's
XX Xxxxxxxxxx
Xxxxxxxx Knight
US Attorney
Univision Television Group
Voyager
Wachovia
Xxxxxx St Xxxx
Xxxxxx Xxxxxxx
Worth National Bank
Exhibit C - Page 1
Exhibit D
FORM OF TENANT ESTOPPEL CERTIFICATE
_______________, 200__
[ADDRESS OF BUYER]
[ADDRESS OF LENDER]
RE: Xxxxxxx Plaza, Fort Worth, Texas (the "BUILDING")
Gentlemen:
Reference is made to that certain [LEASE AGREEMENT] dated as of
____________ __, ____ between ____________________________, a ____________, as
landlord, predecessor-in-interest to Xxxxxxx Plaza Associates, L.P.
("LANDLORD"), and the undersigned, as tenant ("TENANT"), demising premises in
the Building more particularly described in the Lease (the "PREMISES"). The
lease, together with all amendments thereto described in SCHEDULE I attached
hereto, is herein referred to as the "LEASE". Tenant hereby represents to the
Benefited Parties (as herein defined) that the following statements are true and
correct as of the date hereof:
1. Attached hereto as SCHEDULE I is a list describing the Lease and
all amendments, modifications, side letters and guaranties executed in
connection with the Lease. The undersigned is the Tenant under the Lease for
space at the Premises covering ___________ rentable square feet.
2. The Lease is in full force and effect and has not been amended,
modified, supplemented or superseded except pursuant to the amendments or
modifications described on SCHEDULE I hereto. There are no understandings,
contracts, agreement or commitments of any kind whatsoever with respect to the
Premises, except as expressly provided in the Lease or described on SCHEDULE I
hereto.
3. The term of the Lease commenced on ________________, and expires
on _________________, subject to any rights of Tenant to extend the term as
provided therein. The base rent presently being charged is $__________. All
rentals, charges, additional rent and other obligations on the part of the
undersigned have been paid to and including ____________, 200_. No rental, other
than for the current month, has been paid in advance. The undersigned has
accepted possession and now occupies the Premises and is currently open for
business. In addition to the fixed minimum Base Rent, the Tenant pays its
pro-rata share of real estate taxes and operating expenses in excess of a base
stop of _________________.
4. Tenant has paid to Landlord a security deposit in the amount of
$______________. Tenant has no current claim against Landlord for any other
security, rental, cleaning access card, key or other deposits or any prepaid
rentals.
Exhibit D - Page 1
5. To Tenant's knowledge, Landlord is not in default in the
performance of the terms and provisions of the Lease, nor does any state of
facts or condition exist which, with the giving of notice or the passage of
time, or both, would result in such a default.
6. There currently is no defense, offset, lien, claim or
counterclaim by or in favor of Tenant against Landlord under the Lease or
against the obligations of Tenant under the Lease (including, without
limitation, any rentals or other charges due or to become due under the Lease)
and Tenant is not contesting any such obligations, rentals or charges.
7. Tenant has no renewal, extension or expansion option, no right
of first offer or right of first refusal and no other similar right to renew or
extend the term of the Lease or expand the property demised thereunder except as
may be expressly set forth in the Lease. Tenant has no right to lease or occupy
any parking spaces within the Property except as set forth in the Lease. Tenant
is entitled to no free rent nor any credit, offsets or deductions in rent, nor
other leasing concessions other than those specified in the Lease.
8. To Tenant's knowledge, Tenant is not in default in the
performance of the terms and provisions of the Lease nor does any state of facts
or condition exist which, with the giving of notice or the passage of time, or
both, would result in such a default. Tenant has not received notice of a prior
transfer, assignment, hypothecation or pledge by Landlord of any of Landlord's
interest in the Lease other than to the holder of any first mortgage on the
Building.
9. Tenant has not assigned the Lease nor sublet all or any part of
the Premises, except as shown in the documents described on as SCHEDULE I.
The above certifications are made to the Benefited Parties knowing that
the Benefited Parties will rely thereon in making an investment in the Building.
For purposes hereof, the term "BENEFITED PARTIES" means the addressees of this
letter and all of the following: (a) Harvard Property Trust, LLC, a Delaware
limited liability company and its successors, assigns, and designees (including,
without limitation, any tenant in common purchasers); and (b) any lender which
now or hereafter holds a lien on the Building.
Very truly yours,
TENANT
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
Exhibit D - Page 2
JOINDER OF GUARANTOR
The undersigned joins in the execution of this Estoppel Certificate for
the purpose of confirming to and for the benefit of the Benefited Parties (a)
that the guaranty of Tenant's obligations under the Lease executed by the
undersigned remains in full force and effect, and (b) that the undersigned has
no defenses or offsets to its obligations under the guaranty of the Lease
executed by the undersigned. The undersigned understands that the Benefited
Parties will rely upon the foregoing confirmations.
______________________________________
By:___________________________________
Name:_________________________________
Title:________________________________
Exhibit D - Page 3
Exhibit E
MANAGEMENT AND LEASING AGREEMENT
Exhibit E - Page 1
Exhibit F
REQUIRED MAJOR TENANTS
NRA
Burlington Resources 198,539
Americredit 238,303
Practitioners 81,516
Xxxxxx & Hanger 62,964
Voyager 73,246
OTHER MAJOR TENANTS
GSA HUD 102,418
GSA U.S. Attorney's Office 35,973
Securities and Exchange Commission 50,817
Xxxxxx Xxxxx 18,309
Corvel 15,087
Xxxxxxx Oil Company 17,174
Xxxxxx Xxxx 10,589
Xxxxxxxx & Knight 11,520
---------
916,455
Building NRA 1,024,627
Percentage of Leased NRA of the Building 89.443%
========
Exhibit F - Page 1
Exhibit G
SCHEDULE OF LEASING COMMISSION AGREEMENTS
Exhibit G - Page 1
