Exhibit 99.2
SALE, PURCHASE AND ESCROW AGREEMENT
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
(on behalf of a commingled separate account)
(Seller)
AND
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
(d/b/a Behringer Harvard Funds)
AND
CHICAGO TITLE INSURANCE COMPANY
(Escrow Agent)
TABLE OF CONTENTS
PAGE
ARTICLE I SALE AND PURCHASE OF PROPERTY........................................1
1.1 Agreement of Sale and Purchase....................................1
1.2 Property Defined..................................................2
ARTICLE II PURCHASE PRICE......................................................2
2.1 Price.............................................................2
2.2 Investments.......................................................2
2.3 Interest on the Deposit...........................................2
ARTICLE III CONDITIONS TO THE PARTIES' OBLIGATIONS.............................3
3.1 Conditions to Purchaser's Obligation to Purchase..................3
3.2 Conditions to Seller's Obligation to Sell.........................4
3.3 ERISA .........................................................4
ARTICLE IV PURCHASER'S DELIVERIES AND SELLER'S DELIVERIES TO ESCROW AGENT......5
4.1 Purchaser's Deliveries............................................5
4.2 Seller's Deliveries...............................................5
4.3 Failure to Deliver................................................6
ARTICLE V INVESTIGATION OF PROPERTY............................................6
5.1 Delivery of Documents.............................................6
5.2 Physical Inspection of Property...................................7
5.3 Investigation Period..............................................8
5.4 Effect of Termination.............................................9
5.5 No Obligation to Cure.............................................9
5.6 Copies of Third Party Reports.....................................9
5.7 Audit by Purchaser...............................................10
ARTICLE VI THE CLOSING........................................................10
6.1 Date and Manner of Closing.......................................10
ARTICLE VII PRORATION, FEES, COSTS AND ADJUSTMENTS............................10
7.1 Prorations.......................................................10
7.2 Seller's Closing Costs...........................................13
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7.3 Purchaser's Closing Costs........................................13
ARTICLE VIII DISTRIBUTION OF FUNDS AND DOCUMENTS..............................13
8.1 Delivery of the Purchase Price...................................13
8.2 Other Monetary Disbursements.....................................13
8.3 Recorded Documents...............................................13
8.4 Documents to Purchaser...........................................13
8.5 Documents to Seller..............................................14
8.6 All Other Documents..............................................14
ARTICLE IX RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION.....................14
9.1 Return of Seller's Documents.....................................14
9.2 Return of Purchaser's Documents..................................14
9.3 Deposit 15
9.4 Disbursement of Deposit..........................................15
9.5 No Effect on Rights of Parties; Survival.........................15
ARTICLE X DEFAULT.............................................................15
10.1 Seller's Remedies................................................15
10.2 Purchaser's Remedies.............................................16
ARTICLE XI REPRESENTATIONS AND WARRANTIES.....................................16
11.1 Seller's Warranties and Representations..........................16
11.2 Purchaser's Warranties and Representations.......................18
11.3 No Other Warranties and Representations..........................19
ARTICLE XII CASUALTY AND CONDEMNATION.........................................20
ARTICLE XIII CONDUCT PRIOR TO CLOSING.........................................21
13.1 Conduct..........................................................21
13.2 Actions Prohibited...............................................21
13.3 Modification of Existing Leases and Contracts....................21
13.4 New Leases and Contracts.........................................22
13.5 Confidentiality..................................................22
13.6 Right to Cure....................................................23
13.7 Management Agreements............................................23
ARTICLE XIV NOTICES...........................................................23
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ARTICLE XV TRANSFER OF POSSESSION.............................................25
15.1 Transfer of Possession...........................................25
15.2 Delivery of Documents at Closing.................................25
ARTICLE XVI GENERAL PROVISIONS................................................25
16.1 Captions 25
16.2 Exhibits 25
16.3 Entire Agreement.................................................25
16.4 Modification.....................................................25
16.5 Attorneys' Fees..................................................25
16.6 Governing Law....................................................25
16.7 Time of Essence..................................................25
16.8 Survival of Warranties...........................................25
16.9 Assignment by Purchaser..........................................26
16.10 Severability.....................................................26
16.11 Successors and Assigns...........................................26
16.12 Interpretation...................................................26
16.13 Counterparts.....................................................26
16.14 Recordation......................................................27
16.15 Limitation on Liability..........................................27
16.16 Possession of Advisor............................................27
16.17 Business Day.....................................................27
16.18 Waiver of Jury Trial.............................................27
16.19 Property Off Market..............................................28
ARTICLE XVII ESCROW AGENT DUTIES AND DISPUTES.................................28
17.1 Other Duties of Escrow Agent.....................................28
17.2 Disputes 28
17.3 Reports 29
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EXHIBITS
EXHIBIT A -- Description of Land
EXHIBIT B -- Form of Tenant Estoppel Certificate
EXHIBIT C -- Assignment and Assumption of Leases, Contracts and Other Property
Interests
EXHIBIT D -- Form of ▇▇▇▇ of Sale
EXHIBIT E -- Leases
EXHIBIT F -- Contracts
EXHIBIT G -- Form of Notice to Tenants
EXHIBIT H -- FIRPTA Affidavit
EXHIBIT I -- Form of Deed
EXHIBIT J -- Owner's Affidavit
EXHIBIT K -- Authority Documents
EXHIBIT L -- Due Diligence Items
EXHIBIT M -- Tangible Personal Property
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INDEX OF DEFINED TERMS
TERM SECTION
Additional Funds...........................................................2.1.2
Advisor....................................................................5.2.3
Assignment of Leases and Contracts.........................................4.1.2
▇▇▇▇ of Sale...............................................................4.1.3
Closing......................................................................6.1
Code......................................................................11.2.5
Contracts..................................................................4.2.2
Deed.......................................................................4.2.1
Deposit....................................................................2.1.1
ERISA.....................................................................11.2.5
Escrow Agent........................................................Introduction
Final Closing Date...........................................................6.1
Improvements.................................................................1.1
Investigation Period.......................................................5.3.2
Land.........................................................................1.1
Leases.....................................................................4.2.1
Permitted Encumbrances.....................................................4.2.1
Personal Property............................................................1.2
Property.....................................................................1.2
Proprietary Information.....................................................13.5
Purchase Price...............................................................2.1
Purchaser...........................................................Introduction
Real Property................................................................1.1
Seller..............................................................Introduction
Seller's Broker...........................................................11.1.1
Survey.....................................................................5.1.2
Tenant Payments............................................................7.1.1
Title Company..............................................................3.1.3
Title Objections...........................................................5.3.1
Title Policy...............................................................3.1.3
Title Report...............................................................5.1.1
Title Update...............................................................5.3.1
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SALE, PURCHASE AND ESCROW AGREEMENT
This AGREEMENT, dated as of February ___, 2006, is made by and between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation (on behalf of a
commingled separate account) ("SELLER"), and HARVARD PROPERTY TRUST, LLC, a
Delaware limited liability company (d/b/a Behringer Harvard Funds) ("PURCHASER")
and constitutes (i) a contract of sale and purchase between the parties and (II)
an escrow agreement among Seller, Purchaser and CHICAGO TITLE INSURANCE COMPANY
("ESCROW AGENT"), the consent of which appears at the end hereof.
ARTICLE I
SALE AND PURCHASE OF PROPERTY
1.1 AGREEMENT OF SALE AND PURCHASE. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey and Purchaser
agrees to purchase the following:
(i) that certain land (the "LAND") described in EXHIBIT A,
together with all improvements (the "Improvements") located thereon
located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in Minnetonka, Minnesota
(collectively, the "REAL PROPERTY");
(ii) the tangible personal property listed on EXHIBIT M
attached hereto owned by Seller and located upon or within the Real
Property or used in connection with the operation of the Real Property
(collectively, the "PERSONAL PROPERTY");
(iii) all of Seller's right, title and interest in all leases
or other agreements conferring the right to occupy the Real Property, as
listed on EXHIBIT E attached hereto (collectively, the "LEASES"); and
(iv) all of Seller's right, title and interest in and to (i)
all assignable contracts and agreements relating to the upkeep, repair,
maintenance or operation of the Real Property or Personal Property which
will extend beyond the date of Closing (as defined in SECTION 6.1), as
listed on EXHIBIT F attached hereto (collectively, the "CONTRACTS");
(ii) all warranties and guaranties issued to Seller in connection with
the Improvements or the Personal Property; (iii) all licenses, permits,
certificates of occupancy and other consents or approvals from
governmental authorities or private parties which relate to the Real
Property or Personal Property; (iv) all other intangible property
associated with the use or operation of the Real Property or Personal
Property, including specifically, without limitation, any and all trade
names or logos used by Seller in the operation of the Real Property or
Personal Property; and (v) all plans, specifications, drawings, reports,
studies, books, records and other documents used in the operation of the
Real Property or Personal Property to the extent located on-site at the
Property or in the possession of Seller's property manager, but
excluding any privileged, proprietary or confidential records
(collectively, the "INTANGIBLE PROPERTY").
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1.2 PROPERTY DEFINED. The Land, the Improvements, the Personal
Property, the Leases and the Intangible Property are hereinafter sometimes
referred to collectively as the Property.
ARTICLE II
PURCHASE PRICE
2.1 PRICE. In consideration of the covenants herein contained,
Seller hereby agrees to sell and Purchaser hereby agrees to purchase the
Property for a total purchase price of $9,000,000.00 (the "PURCHASE PRICE"),
which shall be paid by Purchaser as follows:
2.1.1 DEPOSIT. Purchaser has delivered concurrently with its
execution of this Agreement, or will deliver within two (2) business
days, to Escrow Agent by bank wire of immediately available funds the
sum of $250,000.00 (the "DEPOSIT").
2.1.2 ADDITION TO DEPOSIT. No later than two 2) business days
after the expiration of the Investigation Period (as defined in SECTION
5.3.2), Purchaser shall deliver to Escrow Agent, by bank wire transfer
of immediately available funds, an additional $250,000.00 (the
"ADDITIONAL FUNDS"), unless Purchaser shall have terminated this
Agreement in accordance with SECTION 5.3. The Additional Funds shall be
deemed part of the Deposit, for an aggregate Deposit of $500,000.00. If
Purchaser fails to deliver the Additional Funds to Escrow Agent within
two (2) business days after the expiration of the Investigation Period
(provided Purchaser has not terminated this Agreement in accordance with
SECTION 5.3), such failure shall be a default under this Agreement.
2.1.3 BALANCE OF PURCHASE PRICE. Purchaser shall, at the
Closing (as defined in SECTION 6.1), deliver to Escrow Agent, by bank
wire transfer of immediately available funds, a sum equal to the balance
of the Purchase Price. The balance of the Purchase Price received by
Seller at Closing shall be adjusted to reflect prorations and other
adjustments pursuant to SECTION 7.1 and SECTION 2.3.
2.2 INVESTMENTS. Following the collection of the Deposit, Escrow
Agent shall, at the direction of Purchaser, invest the Deposit in:
(i) obligations of the United States government, its
agencies or independent departments;
(ii) certificates of deposit issued by a banking institution
whose principal office is in New York City with assets in excess of $1
billion; or
(iii) an interest-bearing account of a banking institution
whose principal office is in New York City with assets in excess of $1
billion.
No investment of the Deposit shall have a maturity date beyond the Final Closing
Date (as defined in SECTION 6.1).
2.3 INTEREST ON THE DEPOSIT. Any interest earned on the Deposit
shall be credited and delivered to the party receiving the Deposit, PROVIDED,
HOWEVER, that if the transaction closes, at
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Closing any interest earned on the Deposit shall be credited to Purchaser by
applying the same against the Purchase Price.
ARTICLE III
CONDITIONS TO THE PARTIES' OBLIGATIONS
3.1 CONDITIONS TO PURCHASER'S OBLIGATION TO PURCHASE. Purchaser's
obligation to purchase is expressly conditioned upon each of the following:
3.1.1 PERFORMANCE BY SELLER. Performance in all material
respects of the obligations and covenants of, and deliveries required
of, Seller hereunder.
3.1.2 DELIVERY OF TITLE AND POSSESSION. Delivery at the
Closing of (I) the Deed (as defined in SECTION 4.2.1) and (II)
possession as provided in SECTION 15.1.
3.1.3 TITLE INSURANCE. Delivery at the Closing of the standard
current form of American Land Title Association (ALTA) owner's policy of
title insurance (the "TITLE POLICY"), or an irrevocable commitment to
issue the same, with liability in the amount of the Purchase Price
issued by Chicago Title Insurance Company (the "TITLE COMPANY"),
insuring that fee title to the Real Property vests in Purchaser subject
to the Permitted Encumbrances (as defined in SECTION 4.2.1). (At its
option, Purchaser may direct the Title Company to issue additional title
insurance endorsements if Purchaser pays for the extra cost of such
additional endorsements, provided that the Title Company's failure to
issue any such additional endorsements shall not affect Purchaser's
obligations under this Agreement).
3.1.4 SELLER'S REPRESENTATIONS. The representations and
warranties by Seller set forth in SECTION 11.1 being true and correct in
all material respects as of the Closing except as modified by notice (in
accordance with SECTION 11.1) to which Purchaser does not object in
writing within three (3) business days after receipt thereof (it being
agreed that the foregoing condition shall be deemed to have failed if
Seller delivers a notice in accordance with SECTION 11.1 and Purchaser
sends written objection thereto within such three (3) business day
period).
3.1.5 TENANT ESTOPPEL. Seller shall have obtained and
delivered to Purchaser, at least five (5) business days prior to the
Final Closing Date (the "ESTOPPEL RETURN DATE"), a tenant estoppel
certificate with respect to each Lease executed by each tenant (and, if
applicable, each guarantor) under such Lease, which estoppel certificate
shall (i) be in the form of EXHIBIT B attached hereto, provided,
however, that the form of tenant estoppel certificate shall reflect
appropriate changes thereto for any tenant that has specific
requirements in its Lease regarding the form or content of the tenant
estoppel certificate, and (ii) disclose no matter that might materially
and adversely affect the value of the Property and shall confirm the
rents payable by such tenant and the other matters set forth in EXHIBIT
B (the foregoing condition being herein referred to as the "TENANT
ESTOPPEL CONDITION"). An executed tenant estoppel certificate that meets
the requirements set forth in the preceding sentence is herein referred
to as a "TENANT ESTOPPEL", provided that any such executed tenant
estoppel certificate shall be considered a Tenant Estoppel as long as
3
it does not conflict with the terms of the applicable Lease or indicate
the continuing existence of a material default of Seller as landlord
under the applicable Lease. Seller shall use commercially reasonable
efforts to obtain a Tenant Estoppel with respect to each Lease. Seller
shall deliver each executed tenant estoppel certificate to Purchaser
(regardless of whether it is a Tenant Estoppel) promptly following
Seller's receipt thereof, provided that if such executed tenant estoppel
certificate is not a Tenant Estoppel, then Seller shall continue to have
the right, until the Estoppel Return Date, to attempt to cause the
applicable tenant to execute another tenant estoppel certificate which
satisfies the criteria set forth above. In the event that Seller is
unable to satisfy the Tenant Estoppel Condition by the Estoppel Return
Date, Seller shall not be in default under this Agreement. However, if
the Tenant Estoppel Condition is not fulfilled as of the Estoppel Return
Date, then, for three (3) business days thereafter, Purchaser or Seller
shall have the right, upon delivery of written notice to the other, to
extend the Final Closing Date to five (5) business days after
satisfaction of the Tenant Estoppel Condition, but in no event later
than April 18, 2006, to allow Seller more time to obtain additional
Tenant Estoppels. If Purchaser or Seller elects to extend the Final
Closing Date pursuant to this Section and the Tenant Estoppel Condition
is still not fulfilled on or before the expiration of such extension
period, then Purchaser may elect, upon delivery of written notice to
Seller, to either waive the Tenant Estoppel Condition or terminate this
Agreement, in which event the Deposit shall be returned to Purchaser in
accordance with Section 9.3 below.
3.2 CONDITIONS TO SELLER'S OBLIGATION TO SELL. Seller's obligation
to sell is expressly conditioned upon each of the following:
3.2.1 PERFORMANCE BY PURCHASER. Performance in all material
respects of the obligations and covenants of, and deliveries required
of, Purchaser hereunder.
3.2.2 RECEIPT OF PURCHASE PRICE. Receipt of the Purchase Price
and any adjustments due Seller under ARTICLE VII at the Closing in the
manner herein provided.
3.3 ERISA. Seller and Purchaser hereby agree that if the
transactions contemplated hereby are or may be prohibited transactions under
Section 406 of the Employee Retirement Income Security Act of 1974, as amended
and supplemented ("ERISA"), Seller shall not be obligated to sell, and Purchaser
shall not be obligated to purchase, the Property pursuant to this Agreement.
Within five (5) business days after the Effective Date, the parties shall agree
in writing to the form of representations as is necessary in order for each
party to determine whether the transaction contemplated hereby may be prohibited
under ERISA and related rules, which agreed upon representations without
amendment to the Agreement shall be deemed to be added to this Agreement If
either party determines, in its reasonable discretion, that the transaction
contemplated hereby may be prohibited under ERISA and related rules, then either
party may terminate this Agreement by written notice thereof to the other party
no later seven (7) business days after the Effective Date, and upon such
termination the Deposit shall be returned to Purchaser and neither party shall
thereafter have any further liability or obligations hereunder, except for those
obligations stated herein to survive such termination.
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ARTICLE IV
PURCHASER'S DELIVERIES AND SELLER'S DELIVERIES TO ESCROW AGENT
4.1 PURCHASER'S DELIVERIES. Purchaser shall, at or before the
Closing, deliver to Escrow Agent each of the following:
4.1.1 PURCHASE PRICE. The Purchase Price as set forth in
ARTICLE II.
4.1.2 ASSIGNMENT OF LEASES AND CONTRACTS. Four (4) executed
counterparts of the Assignment and Assumption of Leases, Contracts and
Other Property Interests (the "ASSIGNMENT OF LEASES AND CONTRACTS") in
the form of EXHIBIT C.
4.1.3 ▇▇▇▇ OF SALE. Four (4) executed counterparts of a ▇▇▇▇
of sale (the "▇▇▇▇ OF SALE") in the form of EXHIBIT D.
4.1.4 CLOSING STATEMENT. An executed settlement statement
reflecting the prorations and adjustments required under ARTICLE VII.
Purchaser and Seller agree to commence preparation of the Closing
Statement five (5) business days prior to Closing and to endeavor to
have a final executable copy of the Closing Statement approved by both
parties one (1) business day prior to Closing.
4.1.5 CASH - PRORATIONS. The amount, if any, required of
Purchaser under ARTICLE VII.
4.2 SELLER'S DELIVERIES. Seller shall, at or before the Closing,
deliver to Escrow Agent each of the following:
4.2.1 DEED. A limited warranty deed (the "DEED") in the form
of EXHIBIT I with respect to the Real Property, executed and
acknowledged by Seller, pursuant to which Seller shall convey title to
the Real Property subject to the following (collectively, the "PERMITTED
ENCUMBRANCES"):
(1) Non-delinquent real property taxes and all
assessments and unpaid installments thereof which are not
delinquent.
(2) The leases enumerated in EXHIBIT E and any
leases executed in accordance with this Agreement after the date
hereof (collectively, the "LEASES"), and the rights of the
tenants thereunder.
(3) Any other lien, encumbrance, easement or other
exception or matter voluntarily imposed or consented to by
Purchaser prior to or as of the Closing.
(4) All exceptions (including printed exceptions) to
title contained or disclosed in the Title Report (as defined in
SECTION 5.1.1) other than Title Objections (as defined in
SECTION 5.3.1) identified and not thereafter waived by
Purchaser.
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(5) All matters, rights and interests that would be
discovered by an inspection or survey of the Property.
4.2.2 ASSIGNMENT OF LEASES AND CONTRACTS. Four (4) executed
counterparts of the Assignment of Leases and Contracts in the form of
EXHIBIT C, and (whether through the closing escrow or through such other
method of delivery as the parties may establish) original executed
Leases (or copies if originals are not in Seller's possession) and the
Contracts assigned thereby.
4.2.3 ▇▇▇▇ OF SALE. Four (4) executed counterparts of the ▇▇▇▇
of Sale.
4.2.4 NOTICES TO TENANTS. A notice signed by Seller (or
Seller's manager for the Improvements) addressed to the tenants under
the Leases in the form of EXHIBIT G.
4.2.5 FIRPTA AFFIDAVIT. Four (4) executed copies of an
affidavit in the form of EXHIBIT H with respect to the Foreign
Investment in Real Property Tax Act.
4.2.6 CLOSING STATEMENT. An executed settlement statement
reflecting the prorations and adjustments required under ARTICLE VII.
4.2.7 CASH - PRORATIONS. The amount, if any, required of
Seller under ARTICLE VII.
4.2.8 OWNER'S AFFIDAVIT. An Owner's Affidavit in the form of
EXHIBIT J attached hereto (the "OWNER'S Affidavit").
4.2.9 SELLER AUTHORITY. The authority documents of Seller in
the form attached hereto as EXHIBIT K evidencing Seller's authority to
enter into and consummate the transaction contemplated herein which
authority documents are acceptable to the Title Company and Title
Company's execution of this Agreement evidences such acceptability.
4.2.10 ESTOPPELS. The executed Tenant Estoppels in the
possession of Seller.
4.3 FAILURE TO DELIVER. The failure of Purchaser or Seller to make
any delivery required above by and in accordance with this ARTICLE IV which is
not waived by the other party shall constitute a default hereunder by Purchaser
or Seller, as applicable.
ARTICLE V
INVESTIGATION OF PROPERTY
5.1 DELIVERY OF DOCUMENTS. Seller shall deliver, cause to be
delivered, or make available to Purchaser the following:
5.1.1 PRELIMINARY TITLE REPORT. A current preliminary title
report covering the Real Property issued by the Title Company, together
with copies of all documents referred to as exceptions therein
(collectively, the "TITLE REPORT").
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5.1.2 SURVEY. To the extent in Seller's possession, the most
recent survey of the Real Property prepared by a licensed surveyor (the
"SURVEY").
5.1.3 LEASES AND CONTRACTS. Copies of the Leases and the
Contracts.
5.1.4 PLANS AND SPECIFICATIONS. To the extent in Seller's
possession, copies of all plans and specifications for the Improvements.
5.1.5 REPORTS. To the extent in Seller's possession, copies of
all environmental reports prepared by third parties.
5.1.6 PERMITS. To the extent in Seller's possession, copies of
all governmental permits, certificates of occupancy and approvals, in
each case regarding the Property.
5.1.7 OTHER ITEMS. Operating statements in respect of the
Property for the past three (3) years, financial reports, current rent
roll, accounts receivable report, insurance loss histories, a list of
pending litigation (if any) affecting the Property and those items
listed on EXHIBIT L, to the extent they are available.
If requested by Seller, Purchaser shall provide written verification of its
receipt of those items listed in this SECTION 5.1.
5.2 PHYSICAL INSPECTION OF PROPERTY.
5.2.1 Seller shall allow Purchaser and Purchaser's engineers,
architects or other employees and agents' reasonable access to the
Property during normal business hours for the limited purposes provided
herein.
5.2.2 Purchaser and its engineers, architects and other
employees and agents may exercise such access solely for the purposes of
(i) reviewing contracts, books and records relating to the Property
(other than any privileged, proprietary or confidential records), soil
reports, environmental studies and reports, surveys, and building and
systems plans; (ii) reviewing records relating to operating expenses and
other instruments and correspondence relating to the Property; and (iii)
inspecting the physical condition of the Property and conducting
non-intrusive physical and environmental tests and inspections thereof.
PURCHASER SHALL NOT CONDUCT OR ALLOW ANY PHYSICALLY INTRUSIVE TESTING
OF, ON OR UNDER THE PROPERTY WITHOUT FIRST OBTAINING SELLER'S WRITTEN
CONSENT AS TO THE TIMING AND SCOPE OF THE WORK TO BE PERFORMED (WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD) AND THE PARTIES ENTERING
INTO AN AMENDMENT HERETO MEMORIALIZING SUCH SCOPE OF WORK AND ANY
ADDITIONAL AGREEMENTS OF THE PARTIES WITH RESPECT TO SUCH TESTING.
5.2.3 Purchaser agrees that it will cause it and any person
accessing the Property hereunder to be covered by not less than
$1,000,000 commercial general liability insurance (with, in the case of
Purchaser's coverage, a contractual liability endorsement, insuring its
indemnity obligation under this Agreement), insuring all activity and
conduct
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of such person while exercising such right of access and naming Seller
and BlackRock Realty Advisors, Inc. ("ADVISOR") as insureds, issued by a
licensed insurance company qualified to do business in the State in
which the Property is located and otherwise reasonably acceptable to
Seller.
5.2.4 Purchaser agrees that, in the exercise of the right of
access granted hereby, it will not unreasonably interfere with or permit
unreasonable interference with any person occupying or providing service
at the Property. Purchaser agrees that it or its agents will not
communicate with any tenants without providing one day's prior written
notice to Seller, in the case of written communication, to allow Seller
the opportunity to review such communication before it is delivered to
tenants, or, in the case of communication by telephone or interview, to
allow Seller the opportunity to monitor such communication.
5.2.5 Purchaser agrees to indemnify, reimburse, defend and
hold harmless Seller, Advisor and their affiliates, members, partners,
subsidiaries, shareholders, officers, directors, employees and agents
(collectively, the "INDEMNIFIED PARTIES") from any loss, injury, damage,
cause of action, liability, claim, lien, cost or expense, including
reasonable attorneys' fees and costs, arising from the exercise by
Purchaser or its employees, consultants, agents or representatives of
the right of access under this Agreement or out of any of the foregoing.
The indemnity in this SECTION 5.2.5 shall survive the Closing or any
termination of this Agreement.
5.2.6 Purchaser agrees to give Seller reasonable prior notice
of its intent to conduct any inspections or tests so that Seller will
have the opportunity to have a representative present during any such
inspection or test, the right to do which Seller expressly reserves.
Purchaser agrees to cooperate with any reasonable request by Seller in
connection with the timing of any such inspection or test. Purchaser
agrees to provide Seller upon Seller's request with a copy of any
written inspection or test report or summary prepared by any third
party.
5.2.7 Purchaser agrees that any inspection, test or other
study or analysis of the Property shall be performed at Purchaser's
expense and in strict accordance with applicable law.
5.2.8 Purchaser agrees at its own expense to promptly repair
or restore the Property, or, at Seller's option, to reimburse Seller for
any repair or restoration costs, if any inspection or test requires or
results in any damage to or alteration of the condition of the Property.
The obligations set forth in this SECTION 5.2.8 shall survive the
Closing or any termination of this Agreement.
5.3 INVESTIGATION PERIOD. Purchaser shall have the right to make the
following investigations.
5.3.1 TITLE AND SURVEY. Purchaser shall have until February
24, 2006 at 5:00 p.m. (Eastern Time) to notify Seller of any objections
(the "TITLE OBJECTIONS") with respect to the Title Report and the Survey
based on its review thereof. If Purchaser does
8
not give such notice, such failure shall be conclusively deemed to be
full and complete approval of the Title Report and the Survey and any
matter disclosed therein. If Purchaser does give such notice, Seller
shall have five (5) business days after receipt thereof to notify
Purchaser that Seller (a) will cause or (b) elects not to cause any or
all of the Title Objections disclosed therein to be removed or insured
over by the Title Company. Seller's failure to notify Purchaser within
such five (5) business day period as to any Title Objection shall be
deemed an election by Seller not to remove or have the Title Company
insure over such Title Objection. If Seller notifies or is deemed to
have notified Purchaser that Seller shall not remove nor have the Title
Company insure over any or all of the Title Objections, Purchaser shall
have until the fifth (5th) day after the expiration of such five
business day period to (i) terminate this Agreement or (ii) waive such
Title Objections and proceed to Closing without any abatement or
reduction in the Purchase Price on account of such Title Objections. If
Purchaser does not give such notice within said period, Purchaser shall
be deemed to have elected to waive such Title Objections.
5.3.2 GENERAL INVESTIGATION. In addition, Purchaser shall have
from the date hereof until February 24, 2006 at 5:00 p.m. (Eastern Time)
(the "INVESTIGATION PERIOD") to notify Seller that, as a result of
Purchaser's review of any documents (other than the Title Report or the
Survey) or Purchaser's investigation of the Property, it disapproves of
any matter or item affecting the Property and terminates this Agreement.
If Purchaser fails to give such notice of disapproval and termination
with respect to any matter relating to the Property prior to the
expiration of the Investigation Period, such failure shall be
conclusively deemed to be full and complete approval of such matters and
a satisfaction of this condition.
5.4 EFFECT OF TERMINATION. If Purchaser terminates this Agreement in
accordance with SECTION 5.3, then subject to SECTION 5.2, all further rights and
obligations of the parties shall cease and terminate without any further
liability of either party to the other (except those obligations which are
specifically provided to survive such termination as provided in this
Agreement).
5.5 NO OBLIGATION TO CURE. Nothing contained in this Agreement or
otherwise shall require Seller to render its title marketable or to remove or
correct any exception or matter disapproved by Purchaser or to spend any money
or incur any expense in order to do so. However, notwithstanding the preceding
sentence or any other provision of this Agreement to the contrary, Seller shall
be obligated to remove from record the lien of any mortgage or deed of trust
("MORTGAGE") encumbering the Property. To the extent at Closing there are
additional encumbrances not included within the Permitted Encumbrances,
Purchaser shall have the right to terminate this Agreement and receive a return
of the Deposit, unless Seller (a) shall remove or correct any such encumbrance,
or (b) subject to Purchaser's reasonable approval, shall bond over such
encumbrance.
5.6 COPIES OF THIRD PARTY REPORTS. If the Investigation Period is
extended for any reason, including by amendment to this Agreement, or if Seller
otherwise requests, Purchaser, within three days after such extension or
request, shall provide Seller with copies of all third party reports and work
product generated with respect to the Property.
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5.7 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). Without limiting the generality of the
preceding sentence (a) 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; (b) Seller shall use
reasonable efforts to provide to Purchaser such financial information and
supporting documentation as are necessary for Purchaser's auditors to prepare
audited financial statements; (c) 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 party the information
requested by Purchaser; (d) Seller will make available for interview by
Purchaser and Purchaser's auditors the manager of the Property or other agents
or representatives of Seller responsible for the day-to-day operation of the
Property and the keeping of the books and records in respect of the operation of
the Property; and (e) 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.
ARTICLE VI
THE CLOSING
6.1 DATE AND MANNER OF CLOSING. Escrow Agent shall close the escrow
(the "CLOSING") as soon as all conditions to closing contained in this Agreement
have been satisfied (or deemed satisfied) or waived in writing which shall in
any event be not later than 11:00 A.M.. (Chicago Time) on March 1, 2006 (the
"FINAL CLOSING Date"), time being of the essence (subject only to Seller's
express rights of remedy or cure provided herein, in which event Seller will
give Purchaser not less than three (3) business days notice of the date of
Closing), by recording and delivering all documents and funds as set forth in
ARTICLE VIII.
ARTICLE VII
PRORATION, FEES, COSTS AND ADJUSTMENTS
7.1 PRORATIONS. Prior to the Closing, Seller shall determine the
amounts of the prorations in accordance with this Agreement and notify Purchaser
thereof. Purchaser shall review and approve such determination promptly and
prior to the Closing, such approval not to be unreasonably withheld or delayed.
Thereafter, Purchaser and Seller shall each inform Escrow Agent of such amounts.
7.1.1 CERTAIN ITEMS PRORATED. In accordance with the
notifications, Escrow Agent shall prorate between the parties (and the
parties shall deposit funds therefor with
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Escrow Agent or shall instruct Escrow Agent to debit against sums held
by Escrow Agent owing to such party), as of 11:59 p.m. on the day prior
to Closing all income and expenses with respect to the Property and
payable to or by the owner of the Property, including, without
limitation: (I) all real property taxes and assessments on the basis of
the fiscal period for which assessed (if the Closing shall occur before
the tax rate is fixed, the apportionment of taxes shall be based on the
tax rate for the preceding period applied to the latest assessed
valuation and after the Closing, when the actual real property taxes are
finally fixed, Seller and Purchaser shall promptly make a recalculation
of such proration, and the appropriate party shall make the applicable
payment reflecting the recalculation to the other party); (II) rents and
other tenant payments and tenant reimbursements (collectively, "TENANT
PAYMENTS") if any, received under the Leases; (III) Tenant Payments,
whether collected or not, for any tenant which is not delinquent on all
Tenant Payments through the month prior to the month of the Closing;
(IV) charges for water, sewer, electricity, gas, fuel and other utility
charges, all of which shall be read promptly before Closing, unless
Seller elects to close its own applicable account, in which event
Purchaser shall open its own account and the respective charges shall
not be prorated; (V) amounts prepaid and amounts accrued but unpaid on
Contracts which are to be assumed by Purchaser; and (VI) periodic fees
for licenses, permits or other authorizations with respect to the
Property. The adjustment obligation in item (i) above shall survive the
Closing pursuant to SECTION 7.1.5(2).
7.1.2 LEASING COMMISSIONS. At the Closing Purchaser shall pay
or reimburse Seller for all leasing commissions, tenant improvement
costs and other charges payable by reason of or in connection with any
Lease entered into after the date of this Agreement, any renewal or
extension of an existing Lease after such date and any new lease
referred to in SECTION 13.4; provided that Purchaser has previously
approved same pursuant to SECTION 13.3 or SECTION 13.4, as applicable.
Purchaser shall be and remain responsible for any leasing commissions
becoming payable after Closing for any renewal, extension or other
option under any existing or future lease.
7.1.3 TAXES.
(a) Real property tax refunds and credits received
after the Closing which are attributable to a fiscal tax year
prior to the Closing shall belong to Seller. Any such refunds
and credits attributable to the fiscal tax year during which the
Closing occurs shall be apportioned between Seller and Purchaser
after deducting the reasonable out-of-pocket expenses of
collection thereof. This apportionment obligation shall survive
the Closing.
(b) If any tax appeal or certiorari proceedings
shall not have been finally resolved or settled prior to the
Closing and shall relate to any tax period a portion or all of
which precedes the Closing, Seller shall be entitled to control
the disposition of any such tax appeal or certiorari proceeding
and any refunds received therefrom, net of any expenses incurred
by Seller in connection therewith, shall be prorated between the
parties on the basis of the portions accruing to periods before
and after the Closing.
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7.1.4 SECURITY AND OTHER DEPOSITS. At the Closing, Seller
shall deliver to Purchaser all unapplied refundable security deposits
(plus interest accrued thereon to the extent required to be paid by the
applicable Lease or applicable law) required to be held by Seller under
the Leases and Purchaser shall pay Seller an amount equal to all utility
and contract deposits then held by third parties with respect to the
Property and transferred to Purchaser hereunder. If any security
deposits shall be held by Seller in the form of letters of credit or
surety bonds, Seller shall assign its rights thereunder to Purchaser and
shall cooperate reasonably with Purchaser in respect of the reissuance
of any such letters of credit or bonds in the name of Purchaser.
7.1.5 ADJUSTMENTS.
(a) Delinquent Tenant Payments, other than such
amounts prorated pursuant to SECTION 7.1.1 (III), if any, shall
not be prorated and all rights thereto shall be retained by
Seller, who reserves the right to collect and retain such
delinquent Tenant Payments, and Purchaser agrees to cooperate
with Seller in Seller's efforts to collect such Tenant Payments;
PROVIDED, HOWEVER, that Seller shall not be entitled to commence
any disposition or eviction proceeding against the delinquent
tenant. If at any time after the Closing Purchaser shall receive
any such delinquent Tenant Payments (all of which Purchaser
shall use reasonable efforts to obtain), Purchaser shall
immediately remit such Tenant Payments to Seller, provided that
any monies received by Purchaser from a delinquent tenant shall
be applied first to current rents then due and payable and then
to delinquent rents in the inverse order in which they became
due and payable. The previous sentence shall survive the
Closing. If the Tenant Payments required to be made by any
tenants include percentage rent, additional rent or escalation
charges or reimbursements for real property taxes, operating
expenses or other charges, Seller and Purchaser shall at the
Closing reasonably estimate the unpaid amount thereof
attributable to any period prior to the Closing and Purchaser
shall pay such amount to Seller at the Closing.
(b) If real property taxes are apportioned at
Closing based on the tax rate for the preceding period applied
to the latest assessed valuation (or based on such other
estimate as the parties may agree) and if prior to six (6)
months after Closing, actual or better estimates of tax rates
and assessed valuation become available, the parties agree to
reapportion such real property taxes based on such updated
information. If neither Seller nor Purchaser has received
written request from the other prior to such date, to
reapportion such real property taxes, then Purchaser and Seller
shall each be deemed to have waived any right to seek such
reapportionment.
(c) Seller and Purchaser agree to adjust between
themselves after Closing any errors or omissions in the
prorations made at Closing; provided, however, that such
prorations shall be deemed final and not subject to further post
Closing adjustments if no such adjustments have been requested
within nine (9) months after the Closing.
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7.1.6 INSURANCE. Seller's existing liability and property
insurance pertaining to the Property shall be canceled as of the
Closing, and Seller shall receive any premium refund due thereon.
7.1.7 TRANSFER OF WARRANTIES. Seller agrees, upon receipt of
written request from Purchaser, to complete any documentation that may
be required by a warrantor in order to consummate an assignment to
Purchaser of any warranties included in the Property and to pay the cost
of any fee required to transfer any such warranty.
7.1.8 CLOSING CREDIT. Notwithstanding anything herein to the
contrary, Purchaser shall receive at Closing a credit equal to the free
rent due KMG and Vanco from and after Closing pursuant to their
respective Leases.
7.2 SELLER'S CLOSING COSTS. Seller shall pay (i) any documentary
stamps or transfer tax, (ii) the title premium for the Title Policy, (iii) the
cost of any new survey of the Property or any update of the Survey, (iv)
one-half of Escrow Agent's escrow fee or escrow termination charge, and (v)
Seller's own attorneys' fees.
7.3 PURCHASER'S CLOSING COSTS. Purchaser shall pay (i) any mortgage
registry tax (or the equivalent thereof), (ii) one-half of Escrow Agent's escrow
fee or escrow termination charge, (iii) the cost of any title insurance
endorsements ordered by Purchaser, (iv) any costs incurred in recording the Deed
or any other instruments, (v) any costs incurred in connection with Purchaser's
investigation of the Property pursuant to ARTICLE V, including the cost of any
new environmental assessment commissioned by Purchaser, and (vi) Purchaser's own
attorneys' fees.
ARTICLE VIII
DISTRIBUTION OF FUNDS AND DOCUMENTS
8.1 DELIVERY OF THE PURCHASE PRICE. At the Closing, Escrow Agent
shall deliver the Purchase Price to Seller, and the transaction shall not be
considered closed until such delivery occurs.
8.2 OTHER MONETARY DISBURSEMENTS. Escrow Agent shall, at the
Closing, hold for personal pickup or arrange for wire transfer, (I) to Seller,
or order, as instructed by Seller, all sums and any proration or other credits
to which Seller is entitled and less any appropriate proration or other charges
and (II) to Purchaser, or order, any excess funds therefore delivered to Escrow
Agent by Purchaser and all sums and any proration or other credits to which
Purchaser is entitled and less any appropriate proration or other charges.
8.3 RECORDED DOCUMENTS. Escrow Agent shall cause the Deed and any
other documents that Seller or Purchaser desires to record to be recorded with
the appropriate county recorder and, after recording, returned to the grantee,
beneficiary or person acquiring rights under said document or for whose benefit
said document was required.
8.4 DOCUMENTS TO PURCHASER. Escrow Agent shall at the Closing
deliver by overnight express delivery to Purchaser the following:
(1) one conformed copy of the Deed showing all recording
data;
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(2) two originals of the Assignment of Leases and Contracts;
(3) two originals of the ▇▇▇▇ of Sale;
(4) originals of the Tenant Estoppels;
(5) one original of the Notice to Tenants;
(6) two originals of the FIRPTA Affidavit;
(7) two originals of the Owner's Affidavit;
(8) one original of the Closing Statement; and
(9) one original of the Title Policy.
8.5 DOCUMENTS TO SELLER. Escrow Agent shall at the Closing deliver
by overnight express delivery to Seller, the following:
(1) one conformed copy of the Deed showing all recording
data;
(2) two originals of the Assignment of Leases and Contracts;
(3) two originals of the ▇▇▇▇ of Sale;
(4) copies of the Tenant Estoppels;
(5) one copy of the Notice to Tenants;
(6) two originals of the FIRPTA Affidavit;
(7) two originals of the Owner's Affidavit;
(8) one original of the Closing Statement; and
(9) one copy of the Title Policy.
8.6 ALL OTHER DOCUMENTS. Escrow Agent shall at the Closing deliver
by overnight express delivery, each other document received hereunder by Escrow
Agent to the person acquiring rights under said document or for whose benefit
said document was required.
ARTICLE IX
RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
9.1 RETURN OF SELLER'S DOCUMENTS. If escrow or this Agreement is
terminated for any reason, Purchaser shall, within five days following such
termination, deliver to Seller all documents and materials relating to the
Property previously delivered to Purchaser by Seller. Escrow Agent shall deliver
all documents and materials deposited by Seller and then in Escrow Agent's
possession to Seller and shall destroy any documents executed by both Purchaser
and Seller. Upon delivery by Escrow Agent to Seller (or such destruction, as
applicable) of such documents and materials, Escrow Agent's obligations with
regard to such documents and materials under this Agreement shall be deemed
fulfilled and Escrow Agent shall have no further liability with regard to such
documents and materials to either Seller or Purchaser.
9.2 RETURN OF PURCHASER'S DOCUMENTS. If escrow or this Agreement is
terminated for any reason, Escrow Agent shall deliver all documents and
materials deposited by Purchaser and then in Escrow Agent's possession to
Purchaser and shall destroy any documents executed by both Purchaser and Seller.
Upon delivery by Escrow Agent to Purchaser (or such destruction, as applicable)
of such documents and materials, Escrow Agent's obligations with regard to such
documents and materials under this Agreement shall be deemed fulfilled and
Escrow Agent shall have no further liability with regard to such documents and
materials to either Seller or Purchaser.
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9.3 DEPOSIT. If escrow or this Agreement is terminated (I) pursuant
to SECTION 5.3, SECTION 10.2 or ARTICLE XII or (II) due to the failure of a
condition set forth in SECTION 3.1, then, subject to SECTION 5.2, Purchaser
shall be entitled to obtain the return of the Deposit pursuant to SECTION 9.4
below. If the Closing does not take place and escrow or this Agreement is
terminated for any other reason, Seller shall be entitled to the Deposit by
retaining or causing Escrow Agent to deliver the Deposit to Seller pursuant to
SECTION 9.4 below.
9.4 DISBURSEMENT OF DEPOSIT. If Escrow Agent receives a notice from
either party instructing Escrow Agent to deliver the Deposit to such party,
Escrow Agent shall deliver a copy of the notice to the other party within three
(3) business days after receipt of the notice. If the other party does not
object to the delivery of the Deposit as set forth in the notice within three
(3) business days after receipt of the copy of the notice, Escrow Agent shall,
and is hereby authorized to, deliver the Deposit to the party requesting it
pursuant to the notice. Any objection hereunder shall be by notice setting forth
the nature and grounds for the objection and shall be sent to Escrow Agent and
to the party requesting the Deposit.
9.5 NO EFFECT ON RIGHTS OF PARTIES; SURVIVAL. The return of\
documents and monies as set forth above shall not affect the right of either
party to seek such legal or equitable remedies as such party may have under
ARTICLE X with respect to the enforcement of this Agreement. The obligations
under this ARTICLE IX shall survive termination of this Agreement.
ARTICLE X
DEFAULT
10.1 SELLER'S REMEDIES. If, for any reason whatsoever (other than the
failure of a condition set forth in SECTION 3.1 and other than a termination of
this Agreement pursuant to SECTION 5.3, SECTION 10.2 or ARTICLE XII), Purchaser
fails to complete the acquisition as herein provided, Purchaser shall be in
breach of its obligations hereunder and Seller shall be entitled, as its sole
and exclusive remedy (except for the obligations which are specifically provided
to survive the termination of this Agreement) to retain the Deposit and Seller
shall be released from any further obligations hereunder. BY INITIALING BELOW,
PURCHASER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT SELLER'S ACTUAL DAMAGES
IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY PURCHASER WOULD BE EXTREMELY
DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT IS THE
PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER IN
THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE, AND
THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF
THIS AGREEMENT. PURCHASER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE
DEPOSIT SHALL BE THE SOLE REMEDY OF SELLER AT LAW IN THE EVENT OF SUCH A BREACH
OF THIS AGREEMENT BY PURCHASER. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS SECTION 10.1, IF PURCHASER BRINGS AN ACTION AGAINST SELLER FOR
AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT,
RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER'S ABILITY TO SELL
AND TRANSFER THE PROPERTY OR REFUSES TO CONSENT TO OR INSTRUCT RELEASE OF THE
DEPOSIT TO SELLER IF REQUIRED
15
BY ESCROW AGENT (EACH A "PURCHASER'S ACTION"), SELLER SHALL NOT BE RESTRICTED BY
THE PROVISIONS OF THIS SECTION 10.1 FROM BRINGING AN ACTION AGAINST PURCHASER
SEEKING EXPUNGEMENT OR RELIEF FROM ANY IMPROPERLY FILED LIS PENDENS, INJUNCTION
OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS AND EXPENSES (INCLUDING
ATTORNEYS' FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF ANY PURCHASER'S
ACTION BUT ONLY TO THE EXTENT THAT SELLER IS THE PREVAILING PARTY; AND THE
AMOUNT OF ANY SUCH FEES, COSTS AND EXPENSES AWARDED TO SELLER SHALL BE IN
ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. NOTHING IN THIS AGREEMENT
SHALL, HOWEVER, BE DEEMED TO LIMIT PURCHASER'S LIABILITY TO SELLER FOR DAMAGES
OR INJUNCTIVE RELIEF FOR BREACH OF PURCHASER'S INDEMNITY OBLIGATIONS UNDER
SECTION 5.2.5 ABOVE OR FOR ATTORNEYS' FEES AND COSTS AS PROVIDED IN SECTION 16.5
BELOW.
ACCEPTED AND AGREED TO:
-------------------------- -------------------------
Seller Purchaser
10.2 PURCHASER'S REMEDIES. If the sale is not completed as herein
provided solely by reason of a default of Seller, Purchaser shall be entitled,
as its sole and exclusive remedy, to either (i) (a) terminate this Agreement (by
delivering notice to Seller which includes a waiver of any right, title or
interest of Purchaser in the Property) and (b) if Purchaser so elects, pursue an
action at law for recovery of Purchaser's actual out-of-pocket third-party costs
incurred as part of Purchaser's due diligence efforts hereunder, subject to a
cap of $25,000, which action must be commenced, if at all, within the thirty
(30) day period following the occurrence of such material default of Seller (the
"LIMITATION PERIOD"); or (ii) treat this Agreement as being in full force and
effect and pursue only the specific performance of this Agreement, provided that
Purchaser must commence any action for specific performance within thirty (30)
days after the scheduled Final Closing Date. Purchaser waives any right to
pursue any other remedy at law or equity for such default of Seller, including,
without limitation, any right to seek, claim or obtain damages (other than for
costs under (i) (b) above), punitive damages or consequential damages. In no
case shall Seller ever be liable to Purchaser under any statutory, common law,
equitable or other theory of law, either prior to or following the Closing, for
any lost rents, profits, "benefit of the bargain," business opportunities or any
form of consequential damage in connection with any claim, liability, demand or
cause of action in any way or manner relating to the Property, the condition of
the Property, this Agreement, or any transaction or matter between the parties
contemplated hereunder. Purchaser's remedies hereunder are in addition to the
right to receive the return of the Deposit, subject to SECTION 9.4, to the
extent it is not applied to the Purchase Price in connection with Purchaser's
action for specific performance.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 SELLER'S WARRANTIES AND REPRESENTATIONS. The matters set forth
in this SECTION 11.1 constitute representations and warranties by Seller which
are now and (subject to
16
matters contained in any notice given pursuant to the next succeeding sentence)
shall, in all material respects, at the Closing be true and correct. If Seller
has actual knowledge that any of the representations and warranties contained in
this ARTICLE XI may cease to be true, Seller shall give prompt notice to
Purchaser (which notice shall include copies of the instrument, correspondence,
or document, if any, upon which Seller's notice is based). As used in this
SECTION 11.1, the phrase "to the extent of Seller's actual knowledge" shall mean
the actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the asset manager of Advisor
responsible for the Property. There shall be no duty imposed or implied to
investigate, inquire, inspect, or audit any such matters, and there shall be no
personal liability on the part of such asset manager. To the extent Purchaser
has or acquires actual knowledge or is deemed to know prior to the expiration of
the Investigation Period that these representations and warranties are
inaccurate, untrue or incorrect in any way, such representations and warranties
shall be deemed modified to reflect Purchaser's knowledge or deemed knowledge.
Purchaser shall be deemed to know a representation or warranty is untrue,
inaccurate or incorrect if this Agreement or any files, documents, materials,
analyses, studies, tests, or reports disclosed or made available to Purchaser
prior to the expiration of the Investigation Period contains information which
is inconsistent with such representation or warranty.
11.1.1 NO BROKER. With respect to the transaction contemplated
by this Agreement, Seller represents that its sole broker is CB ▇▇▇▇▇▇▇
▇▇▇▇▇ (the "SELLER'S BROKER"). Seller agrees that if any person or
entity, other than Seller's Broker, makes a claim for brokerage
commissions or finder's fees related to the sale of the Property by
Seller to Purchaser, and such claim is made by, through or on account of
any acts or alleged acts of Seller or its representations, Seller will
protect, indemnify, defend and hold Purchaser free and harmless from and
against any and all loss, liability, cost, damage and expense (including
reasonable attorney's fees) in connection therewith. The provisions of
this paragraph shall survive Closing or any termination of this
Agreement. Seller shall pay a brokerage commission to Seller's Broker in
accordance with a separate agreement with Seller's Broker.
11.1.2 ORGANIZATION. Seller has been duly formed, validly
exists and is in good standing in the jurisdiction of its formation and
in the state in which the Property is located.
11.1.3 POWER AND AUTHORITY. Seller has the legal power, right
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
11.1.4 PROCEEDINGS. Seller has not received any written notice
of any pending or threatened condemnation or similar proceeding
affecting any part of the Property.
11.1.5 CONTRAVENTION. Seller is not prohibited from
consummating the transactions contemplated by this Agreement by any law,
regulation, agreement, instrument, restriction, order or judgment.
11.1.6 LEASES AND CONTRACTS. The Leases and Contracts comprise
all of the leases and material contracts which will affect the Property
on and after the Closing.
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11.1.7 COMPLIANCE. Seller has not received written notice from
any governmental authority that the Property is not in material
compliance with all applicable laws, except for such failures to comply,
if any, which have been remedied.
11.1.8 EMPLOYEES. Seller has no employees on-site at the
Property providing on-site services to the Property and all such
services are performed by Seller's manager of the Property.
11.1.9 LITIGATION. To the extent of Seller's actual knowledge,
there is no material litigation affecting the Property which litigation
is not covered by insurance.
11.1.10 LEASE ASSIGNMENT. Seller has not made any prior
transfer, assignment, hypothecation or pledge of its interest in the
Leases other than to the holder of any first mortgage on the Property.
11.1.11 LEASING COMMISSIONS. All leasing commissions which are
attributable solely to the execution of Leases existing as of the date
of this Agreement or the move-in of tenants occupying the Property as of
the date of this Agreement have been paid in full.
11.1.12 PATRIOT ACT. Seller is not a person and/or entity with
whom Purchaser, a U.S. company or person, is restricted from doing
business under the International Emergency Economic Powers Act, 50
U.S.C. ss. 1701 et seq.; the Trading with the Enemy Act, 50 U.S.C. App.
ss. 5; any executive orders promulgated thereunder; any implementing
regulations promulgated thereunder by the U.S. Department of Treasury
Office of Foreign Assets Control ("OFAC") (including those persons
and/or entities named on OFAC's List of Specially Designated Nationals
and Blocked Persons (the "SDN List")); or any other applicable law of
the United States.
11.1.13 PATRIOT ACT NOTICE. Seller hereby covenants and agrees
that if Seller obtains knowledge that Seller or Metropolitan Life
Insurance Company becomes listed on the SDN List or is indicted,
arraigned, or custodially detained on charges involving money laundering
or predicate crimes to money laundering, Seller shall immediately notify
Purchaser in writing, and in such event, Purchaser shall have the right
to terminate this Agreement without penalty or liability to Purchaser
immediately upon delivery of written notice thereof to Seller.
11.2 PURCHASER'S WARRANTIES AND REPRESENTATIONS. The matters set
forth in this SECTION 11.2 constitute representations, warranties and covenants
by Purchaser which are now and shall, at the Closing, be true and correct.
11.2.1 NO BROKER. With respect to the transaction contemplated
by this Agreement, except for Seller's Broker Purchaser represents that
it has neither engaged nor dealt with any other broker. Purchaser agrees
that if any person or entity, other than Sellers' Broker, makes a claim
for brokerage commissions or finder's fees related to the sale of the
Property by Seller to Purchaser, and such claim is made by, through or
on account of any acts or alleged acts of Purchaser or its
representations, Purchaser will protect, indemnify, defend and hold the
Indemnified Parties free and harmless from and
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against any and all loss, liability, cost, damage and expense (including
reasonable attorney's fees) in connection therewith. The provisions of
this paragraph shall survive Closing or any termination of this
Agreement.
11.2.2 POWER AND AUTHORITY. Purchaser has the legal power,
right and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
11.2.3 INDEPENDENT INVESTIGATION. The consummation of this
transaction shall constitute Purchaser's acknowledgment that it has
independently inspected and investigated the Property and has made and
entered into this Agreement based upon such inspection and investigation
and its own examination of the condition of the Property.
11.2.4 PURCHASER RELIANCE. Purchaser is experienced in and
knowledgeable about the ownership and management of real estate, and it
has relied and will rely exclusively on its own consultants, advisors,
counsel, employees, agents, principals and/or studies, investigations
and/or inspections with respect to the Property, its condition, value
and potential. Purchaser agrees that, notwithstanding the fact that it
has received certain information from Seller or its agents or
consultants, Purchaser has relied solely upon and will continue to rely
solely upon its own analysis and will not rely on any information
provided by Seller or its agents or consultants, except as expressly set
forth in SECTION 11.1.
11.2.5 PATRIOT ACT. Purchaser is not a person and/or entity
with whom Seller, a U.S. company or person, is restricted from doing
business under the International Emergency Economic Powers Act, 50
U.S.C. ss. 1701 et seq.; the Trading with the Enemy Act, 50 U.S.C. App.
ss. 5; any executive orders promulgated thereunder; any implementing
regulations promulgated thereunder by the U.S. Department of Treasury
Office of Foreign Assets Control ("OFAC") (including those persons
and/or entities named the SDN List); or any other applicable law of the
United States.
11.2.6 PATRIOT ACT NOTICE. Purchaser hereby covenants and
agrees that if Purchaser obtains knowledge that Purchaser or any of its
beneficial owners becomes listed on the SDN List or is indicted,
arraigned, or custodially detained on charges involving money laundering
or predicate crimes to money laundering, Purchaser shall immediately
notify Seller in writing, and in such event, Seller shall have the right
to terminate this Agreement without penalty or liability to Purchaser
immediately upon delivery of written notice thereof to Purchaser.
11.3 NO OTHER WARRANTIES AND REPRESENTATIONS. Except as specifically
set forth in this ARTICLE XI, neither Seller nor Advisor has made, make or have
authorized anyone to make, any warranty or representation as to the Leases, the
Contracts, any written materials delivered to Purchaser, the persons preparing
such materials, the truth, accuracy or completeness of such materials, the
present or future physical condition, development potential, zoning, building or
land use law or compliance therewith, the operation, income generated by, or any
other matter or thing affecting or relating to the Property or any matter or
thing pertaining to this Agreement. Purchaser expressly acknowledges that no
such warranty or representation has been made and
19
that Purchaser is not relying on any warranty or representation whatsoever other
than as is expressly set forth in this ARTICLE XI. Purchaser shall accept the
Property "as is" and in its condition on the date of Closing subject only to the
express provisions of this Agreement and hereby acknowledges and agrees that
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE,
OF, AS TO, CONCERNING OR WITH RESPECT TO, THE PROPERTY.
11.3.1 NO ENVIRONMENTAL REPRESENTATIONS. Seller makes no
representations or warranties as to whether the Property contains
asbestos, radon or any hazardous materials or harmful or toxic
substances, or pertaining to the extent, location or nature of same, if
any. Further, to the extent that Seller has provided to Purchaser
information from any inspection, engineering or environmental reports
concerning asbestos, radon or any hazardous materials or harmful or
toxic substances, Seller makes no representations or warranties with
respect to the accuracy or completeness, methodology of preparation or
otherwise concerning the contents of such reports.
11.3.2 RELEASE OF CLAIMS. Subject to the express provisions
hereof, Purchaser acknowledges and agrees that Seller makes no
representation or warranty as to, and Purchaser, for itself, its
successors and assigns, hereby waives and releases the Indemnified
Parties from any present or future claims, at law or in equity, whether
known or unknown, foreseeable or otherwise, arising from or relating to,
the Property, this Agreement or the transactions contemplated hereby,
including without limitation the presence or alleged presence of
asbestos, radon or any hazardous materials or harmful or toxic
substances in, on, under or about the Property, including without
limitation any claims under or on account of (i) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as the
same may have been or may be amended from time to time, and similar
state statutes, and any regulations promulgated thereunder, (ii) any
other federal, state or local law, ordinance, rule or regulation, now or
hereafter in effect, that deals with or otherwise in any manner relates
to, environmental matters of any kind, (iii) this Agreement, or (iv) the
common law. Purchaser hereby specifically acknowledges that Purchaser
has carefully reviewed this SECTION 11.3.2 and has discussed its import
with legal counsel and that the provisions of this SECTION 11.3.2 are a
material part of this Agreement. This SECTION 11.3.2 shall survive the
Closing forever.
ARTICLE XII
CASUALTY AND CONDEMNATION
Promptly upon learning thereof, Seller shall give Purchaser written
notice of any condemnation, damage or destruction of the Property occurring
prior to the Closing. If prior to the Closing all or a material portion of the
Property is condemned, damaged or destroyed by an insured casualty, Purchaser
shall have the option of either (I) applying the proceeds of any condemnation
award or payment under any insurance policies (other than business interruption
or rental loss insurance) toward the payment of the Purchase Price to the extent
such condemnation awards or insurance payments have been received by Seller,
receiving from Seller
20
an amount equal to any applicable deductible under any such insurance policy and
receiving an assignment from Seller of Seller's right, title and interest in any
such awards or payments not theretofore received by Seller, or (II) terminating
this Agreement by delivering written notice of such termination to Seller within
ten (10) days after Purchaser has received written notice from Seller of such
material condemnation, damage or destruction. If, prior to the Closing, a
portion of the Property is condemned, damaged or destroyed and such portion is
not a material portion of the Property, the proceeds of any condemnation award
or insurance payment and any applicable deductible under any insurance policies
shall be applied toward the payment of the Purchase Price to the extent such
condemnation awards or insurance payments have been received by Seller and
Seller shall assign to Purchaser all of Seller's right, title and interest in
any unpaid awards or payments. For purposes of this ARTICLE XII, the term
"material portion" shall mean greater than ten percent (10%) of the improvements
on the Property or an absence of reasonable access to, or parking upon, the
Property. If the damage or destruction arises out of an uninsured risk, Seller
shall elect, by written notice within ten (10) days of the occurrence of such
damage or destruction either to terminate this Agreement or to close the
transaction contemplated hereby with a reduction of the Purchase Price equal to
the costs of repairing the Property, as reasonably estimated by an engineer
engaged by Seller and reasonably acceptable to Purchaser.
ARTICLE XIII
CONDUCT PRIOR TO CLOSING
13.1 CONDUCT. From and after the date hereof, Seller shall operate
the Property in accordance with its standard business procedures.
13.2 ACTIONS PROHIBITED. Seller shall not, without the prior written
approval of Purchaser, which approval will not be unreasonably withheld or
delayed:
(i) make any material structural alterations or additions to
the Property except as (a) in the ordinary course of operating the
Property, (b) required for maintenance and repair, (c) required by any
of the Leases or the Contracts or (d) required by this Agreement;
(ii) sell, transfer, encumber or change the status of title
of all or any portion of the Property;
(iii) change or attempt to change, directly or indirectly, the
current zoning of the Real Property in a manner materially adverse to
it; or
(iv) cancel, amend or modify, in a manner materially adverse
to the Property, any license or permit held by Seller with respect to
the Property or any part thereof which would be binding upon Purchaser
after the Closing.
13.3 MODIFICATION OF EXISTING LEASES AND CONTRACTS. Prior to the
expiration of the Investigation Period, Seller may cancel, amend and modify any
of the Leases and any of the Contracts, PROVIDED notice is given to Purchaser
within five (5) business days after such action and in any event at least two
(2) business days prior to the expiration of the Investigation Period. After the
expiration of the Investigation Period, Seller may not, without prior written
consent of Purchaser (which consent shall not be unreasonably withheld or
delayed), cancel, amend, or
21
modify any Contracts or Leases, in a manner binding upon Purchaser after the
Closing. If Seller shall request Purchaser's approval of any of the foregoing
matters, Purchaser shall have five (5) business days from its receipt of such
request to give Seller notice of its approval or disapproval of such matter. If
Purchaser does not give such notice within such five (5) business day period,
such matter shall be deemed approved by Purchaser.
13.4 NEW LEASES AND CONTRACTS. Prior to the expiration of the
Investigation Period, Seller may enter into any new lease or contract affecting
the Property, or any part thereof, PROVIDED notice is given to Purchaser within
five (5) business days after such action and in any event at least two (2)
business days prior to the expiration of the Investigation Period. After the
expiration of the Investigation Period, Seller may not enter into any new lease
or contract without Purchaser's consent, which consent will not be unreasonably
withheld or delayed. Notwithstanding the preceding sentence, after the
expiration of the Investigation Period, Seller may enter into any new contracts
without Purchaser's consent if doing so is in the ordinary course of operating
the Property and the contract (i) will not be binding on Purchaser or (ii) is
cancelable on thirty (30) days or less notice without penalty or premium.
If Seller shall request Purchaser's approval to any of the foregoing
matters, Purchaser shall have five (5) business days from its receipt of such
request to give Seller notice of its approval or disapproval of such matter. If
Purchaser does not give such notice within five (5) business day period, such
matter shall be deemed approved by Purchaser.
13.5 CONFIDENTIALITY.
13.5.1 Seller and Purchaser shall, prior to the Closing,
maintain the confidentiality of this sale and purchase and shall not,
except as required by law or governmental regulation applicable to
Seller or Purchaser, disclose the terms of this Agreement or of such
sale and purchase to any third parties whomsoever other than investors
or prospective investors in Seller or Purchaser or the principals of
Broker, Escrow Agent, the Title Company and such other persons whose
assistance is required in carrying out the terms of this Agreement.
Purchaser agrees that all documents and information regarding the
Property of whatsoever nature made available to it by Seller or Seller's
agents and the results of all tests and studies of the Property
(collectively, the "PROPRIETARY INFORMATION") are confidential and
Purchaser shall not disclose any Proprietary Information to any other
person. Notwithstanding the foregoing provisions, however (i) Purchaser
and Seller may disclose information (including Proprietary Information)
to its consultants, attorneys, accountants, prospective investors and
lenders, and others who need to know the information for the purpose of
assisting in connection with the transaction that is the subject of this
Agreement; (ii) the foregoing covenant of confidentiality shall not be
applicable to any information published as public knowledge or otherwise
available in the public domain; and (iii) Purchaser and Seller shall be
permitted to disclose such information as may be recommended by
Purchaser's or Seller's legal counsel in order to comply with all
financial reporting, securities laws and other legal requirements
applicable to Purchaser or Seller, including any required disclosures to
the Securities and Exchange Commission. The provisions of this SECTION
13.5.1 shall not survive the Closing.
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13.5.2 Neither Seller nor Purchaser shall at any time issue a
press release or otherwise communicate with media representatives
regarding this sale and purchase unless such release or communication
has received the prior written approval of the other party, provided,
however, either party shall have the right after Closing to issue a
press release or private communication announcing the sale and
acquisition of the Property and the resulting ownership and control of
the Property, without prior written approval of the other so long as the
other party is not identified in such release and the release does not
disclose the economic terms thereof. The provisions of this SECTION
13.5.2 shall survive the Closing.
13.6 RIGHT TO CURE. If any title defect or other matter which would
entitle Purchaser to terminate this Agreement shall first arise after Purchaser
notifies Seller of its Title Objections pursuant to SECTION 5.3.1 and prior to
the Closing or if Seller shall have breached any representation or warranty
hereunder, Seller may elect, by written notice to Purchaser, to cure such title
defect or other matter by causing it to be removed, insured over or bonded to
cure such breach and Seller may adjourn the Closing for up to thirty days to do
so. Nothing contained in this SECTION 13.6 shall require Seller to cure any such
title defect or other matter or to incur any liability or expense to do so.
13.7 MANAGEMENT AGREEMENTS. Any and all property management contracts
and leasing agreements with respect to the Property shall be terminated by
Seller as of the Closing, with Seller having fully paid and discharged any and
all obligations accruing thereunder (other than with respect to leasing
commissions as to future renewals, expansions and the like).
ARTICLE XIV
NOTICES
All notices, demands or other communications given hereunder shall be in
writing and shall be deemed to have been duly delivered (i) upon the delivery
(or refusal to accept delivery) by messenger or overnight express delivery
service (or, if such date is not on a business day, on the business day next
following such date), or (ii) on the third (3rd) business day next following the
date of its mailing by certified mail, postage prepaid, at a post office
maintained by the United States Postal Service, or (iii) upon the receipt by
facsimile transmission as evidenced by a receipt transmission report (followed
by delivery by one of the other means identified in (i)-(ii)), addressed as
follows:
If to Purchaser, to: Harvard Property Trust, LLC
c/o Behringer Harvard Funds
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
23
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 214-373-8768
If to Seller, to: c/o BlackRock Realty Advisors, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
c/o BlackRock Realty Advisors, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(to be changed to the DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ LLP
following address upon ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
receipt of e-mail Suite 1900
notice to Purchaser): ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (312) ______________
If to Escrow Agent, to: Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may, by notice given as aforesaid, change the address or addresses,
or designate an additional address or additional addresses, for its notices,
provided, however, that no notice of a change of address shall be effective
until actual receipt of such notice.
24
ARTICLE XV
TRANSFER OF POSSESSION
15.1 TRANSFER OF POSSESSION. Possession of the Property shall be
transferred to Purchaser at the time of Closing subject to the Permitted
Encumbrances.
15.2 DELIVERY OF DOCUMENTS AT CLOSING. At the time of Closing, Seller
shall deliver to Purchaser originals or copies of any additional documents,
instruments or records in the possession of Seller or its agents which are
necessary for the ownership and operation of the Property.
ARTICLE XVI
GENERAL PROVISIONS
16.1 CAPTIONS. Captions in this Agreement are inserted for
convenience of reference only and do not define, describe or limit the scope or
the intent of this Agreement or any of the terms hereof.
16.2 EXHIBITS. All exhibits referred to herein and attached hereto
are a part hereof.
16.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the transaction contemplated hereby and all
prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein.
16.4 MODIFICATION. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is in writing and signed
by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought.
16.5 ATTORNEYS' FEES. Should any party hereto employ an attorney for
the purpose of enforcing or construing this Agreement, or any judgment based on
this Agreement, in any legal proceeding whatsoever, including insolvency,
bankruptcy, arbitration, declaratory relief or other litigation, the prevailing
party shall be entitled to receive from the other party or parties thereto
reimbursement for all reasonable attorneys' fees and all costs, whether incurred
at the trial or appellate level, including but not limited to service of
process, filing fees, court and court reporter costs, investigative costs,
expert witness fees and the cost of any bonds, whether taxable or not, and such
reimbursement shall be included in any judgment, decree or final order issued in
that proceeding. The "prevailing party" means the party in whose favor a
judgment, decree, or final order is rendered.
16.6 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State in which the Property is located.
16.7 TIME OF ESSENCE. Time is of the essence to this Agreement and to
all dates and time periods set forth herein.
16.8 SURVIVAL OF WARRANTIES. Only those warranties and
representations contained in SECTIONS 11.1 and 11.2 and the provisions of
SECTION 11.3 shall survive the Closing, the delivery of the Deed and the payment
of the Purchase Price, PROVIDED that (I) such representations and
25
warranties (but not such provisions), along with the various documents executed
and delivered at Closing, shall cease and terminate six (6) months after the
date of Closing, except in respect of any representation or warranty as to which
Purchaser or Seller, as the case may be, shall have commenced, on or before such
six (6) month anniversary, a legal proceeding based on the breach thereof as of
the date of Closing, and then only for so long as such proceeding shall continue
and limited to the breach therein claimed, (II) Seller shall have no liability
to Purchaser with respect thereto unless and until the damages suffered by
Purchaser as a result thereof shall equal or exceed $25,000.00 in the aggregate
(provided that if the liability equals or exceeds $25,000.00, then Purchaser
shall have the right to bring a claim against Seller for the entire amount of
such liability and not just the amount in excess of $25,000.00), and (III) the
maximum total liability for which Seller shall be responsible with respect to
all representations and warranties shall not exceed the Maximum Liability Cap in
the aggregate. Unless otherwise expressly herein stated to survive, all other
representations, covenants, indemnities, conditions and agreements contained
herein shall merge into and be superseded by the various documents executed and
delivered at Closing and shall not survive the Closing and all representations,
covenants, indemnities, conditions and agreements contained in the various
documents executed and delivered at Closing shall cease and terminate six (6)
months after the date of Closing. However, in no event shall the warranty set
forth in the Deed be subject to the six (6) month survival period, as aforesaid.
16.9 ASSIGNMENT BY PURCHASER. Purchaser may not assign its rights
under this Agreement to any party other than an Affiliate (as hereinafter
defined) without the prior written consent of Seller. Purchaser may assign its
rights under this Agreement to an Affiliate without the prior written consent of
Seller so long as reasonably acceptable ERISA representations from such
Affiliate are made to Seller. For purposes of this SECTION 16.9, the term
"AFFILIATE" shall mean: (i) an entity that controls, is controlled by, or is
under common control with Purchaser; (ii) any partnership in which Purchaser or
Purchaser's controlling member is the general partner; (iii) any fund or entity
sponsored by Purchaser; or (iv) any entity that retains Purchaser or a company
affiliated with Purchaser to manage the Property.
16.10 SEVERABILITY. If any term, covenant, condition, provision or
agreement herein contained is held to be invalid, void or otherwise
unenforceable by any court of competent jurisdiction, the fact that such term,
covenant, condition, provision or agreement is invalid, void or otherwise
unenforceable shall in no way affect the validity or enforceability of any other
term, covenant, condition, provision or agreement herein contained.
16.11 SUCCESSORS AND ASSIGNS. All terms of this Agreement shall be
binding upon, inure to the benefit of and be enforceable by, the parties hereto
and their respective legal representatives, successors and assigns (subject to
SECTION 16.9).
16.12 INTERPRETATION. Seller and Purchaser acknowledge each to the
other that both they and their counsel have reviewed and revised this Agreement
and that the normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.
16.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
26
16.14 RECORDATION. This Agreement may not be recorded and any attempt
to do so shall be of no effect whatsoever.
16.15 LIMITATION ON LIABILITY. In any action or actions brought to
enforce the obligations of Seller under this Agreement or any other document
delivered in connection herewith, the judgment(s) or decree(s) shall be subject
to the provisions of SECTION 16.8 and shall, otherwise in any event, be
enforceable against Seller only up to a maximum of $200,000.00, in the aggregate
(the "MAXIMUM LIABILITY CAP"). In connection with this Agreement, Advisor is
acting as the investment adviser to Seller and shall not have any individual
liability hereunder. Furthermore, Seller's liability under this Agreement is
explicitly limited to the assets of a separate account of Seller referred to as
the "Tower Fund" (the "SEPARATE ACCOUNT"). Purchaser shall have no recourse
against any other property or assets of Seller, the general account of Seller,
any separate account of Seller other than the Separate Account, any assets of
the Advisor, or to any of the past, present or future, direct or indirect,
shareholders, partners, members, managers, principals, directors, officers,
agents, incorporators, affiliates (except the Separate Account) or
representatives of Seller or the Advisor (collectively, "SELLER PARTIES") or of
any of the assets or property of any of the foregoing for the payment or
collection of any amount, judgment, judicial process, arbitral award, fee or
cost or for any other obligation or claim arising out of or based upon this
Agreement and requiring the payment of money by Seller. Except for the assets of
the Separate Account, neither Seller nor any Seller Party shall be subject to
levy, lien, execution, attachment or other enforcement procedure for the
satisfaction of any of Purchaser's rights or remedies under or with respect to
this Agreement, at law, in equity or otherwise. Purchaser shall not seek
enforcement of any judgment, award, right or remedy against any property or
asset of Seller or any Seller Parties other than the assets of the Separate
Account. The provisions of this Section shall survive the termination of this
Agreement.
16.16 POSSESSION OF ADVISOR. As used in this Agreement, the
"possession" or "receipt" of a document, notice or similar writing by Seller
shall be deemed to be only the possession, receipt or notice of such document by
Advisor.
16.17 BUSINESS DAY. As used in this Agreement, "business day" shall be
deemed to be any day other than a day on which banks in the state of New Jersey
shall be permitted or required to close. If any day upon which action is to be
taken hereunder is not a business day, then the deadline for taking such action
shall be extended until the next business day.
16.18 WAIVER OF JURY TRIAL. PURCHASER AND SELLER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER
WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS AGREEMENT OR ANY CLAIMS OR DEFENSES ASSERTING THAT THIS
AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL
27
INDUCEMENT FOR SELLER TO ENTER INTO AND ACCEPT THIS AGREEMENT AND THE DOCUMENTS
TO BE DELIVERED BY PURCHASER AT CLOSING, AND SHALL SURVIVE THE CLOSING OR
TERMINATION OF THIS AGREEMENT. Each party hereby authorizes and empowers the
other to file this SECTION 16.18 and this Agreement with the clerk or judge of
any court of competent jurisdiction as a written consent to waiver of jury
trial.
16.19 PROPERTY OFF MARKET. Seller agrees it shall not market the
Property to any third party during the pendency of this Agreement.
ARTICLE XVII
ESCROW AGENT DUTIES AND DISPUTES
17.1 OTHER DUTIES OF ESCROW AGENT. Escrow Agent shall not be bound in
any way by any other agreement or contract between Seller and Purchaser, whether
or not Escrow Agent has knowledge thereof. Escrow Agent's only duties and
responsibilities with respect to the Deposit shall be to hold the Deposit and
other documents delivered to it as agent and to dispose of the Deposit and such
documents in accordance with the terms of this Agreement. Without limiting the
generality of the foregoing, Escrow Agent shall have no responsibility to
protect the Deposit and shall not be responsible for any failure to demand,
collect or enforce any obligation with respect to the Deposit or for any
diminution in value of the Deposit from any cause, other than Escrow Agent's
gross negligence or willful misconduct. Escrow Agent may, at the expense of
Seller and Purchaser, consult with counsel and accountants in connection with
its duties under this Agreement. Escrow Agent shall not be liable to the parties
hereto for any act taken, suffered or permitted by it in good faith in
accordance with the advice of counsel and accountants. Escrow Agent shall not be
obligated to take any action hereunder that may, in its reasonable judgment,
result in any liability to it unless Escrow Agent shall have been furnished with
reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.
17.2 DISPUTES. Escrow Agent is acting as a stakeholder only with
respect to the Deposit. If there is any dispute as to whether Escrow Agent is
obligated to deliver the Deposit or as to whom the Deposit is to be delivered,
Escrow Agent shall not make any delivery, but shall hold the Deposit until
receipt by Escrow Agent of an authorization in writing, signed by all the
parties having an interest in the dispute, directing the disposition of the
Deposit, or, in the absence of authorization, Escrow Agent shall hold the
Deposit until the final determination of the rights of the parties in an
appropriate proceeding. Escrow Agent shall have no responsibility to determine
the authenticity or validity of any notice, instruction, instrument, document or
other item delivered to it, and it shall be fully protected in acting in
accordance with any written notice, direction or instruction given to it under
this Agreement and believed by it to be authentic. If written authorization is
not given, or proceedings for a determination are not begun, within thirty (30)
days after the date scheduled for the closing of title and diligently continued,
Escrow Agent may, but is not required to, bring an appropriate action or
proceeding for leave to deposit the Deposit with a court of the State of New
Jersey pending a determination. Escrow Agent shall be reimbursed for all costs
and expenses of any action or proceeding, including, without limitation,
attorneys' fees and disbursements incurred in its capacity as Escrow Agent, by
the party determined not to be entitled to the Deposit. Upon making delivery of
the Deposit in the manner provided in this Agreement, Escrow Agent shall have no
further liability
28
hereunder. In no event shall Escrow Agent be under any duty to institute, defend
or participate in any proceeding that may arise between Seller and Purchaser in
connection with the Deposit.
17.3 REPORTS. Escrow Agent shall be responsible for the timely filing
of any reports or returns required pursuant to the provisions of Section 6045(e)
of the Internal Revenue Code of 1986 (and any similar reports or returns
required under any state or local laws) in connection with the closing of the
transaction contemplated by this Agreement.
(SIGNATURE PAGE FOLLOWS)
29
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first set forth above.
SELLER:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
(on behalf of a commingled separate account)
By: BLACKROCK REALTY ADVISORS, INC.,
its investment advisor
By:______________________________
Name:____________________________
Its:_____________________________
PURCHASER:
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
(d/b/a Behringer Harvard Funds)
By:______________________________________
Name:____________________________________
Title:___________________________________
CONSENT AND AGREEMENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (I) accept the foregoing
Agreement, (II) be escrow agent under said Agreement, and (III) be bound by said
Agreement in the performance of its duties as escrow agent.
CHICAGO TITLE INSURANCE COMPANY
By: _____________________________________
Printed Name: ___________________________
Title: __________________________________
EXHIBIT A
DESCRIPTION OF LAND
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Center 2nd Addition, according to the
recorded plat thereof, Hennepin County, Minnesota.
EXHIBIT B
Form of Tenant Estoppel Certificate
_______________, 2006
[ADDRESS OF BUYER]
[ADDRESS OF LENDER]
RE: [Name and Address of Property]
Gentlemen:
Reference is made to that certain [LEASE AGREEMENT] dated as of
____________ __, ____ between ____________________________, a ____________, as
landlord ("LANDLORD"), and the undersigned, as tenant ("Tenant"), demising
premises at the captioned address more particularly described in the Lease (the
"PREMISES"). The lease, together with all amendments thereto included in
SCHEDULE 1 attached hereto, is herein referred to as the "LEASE". Tenant hereby
represents to the Benefited Parties (as herein defined) that the following
statements are true and correct as of the date hereof:
1. SCHEDULE I attached hereto is a list of all amendments,
modifications, side letters, guaranties and other documents evidencing,
governing or securing Tenant's obligations under the Lease, and attached hereto
as EXHIBIT A is a true and correct copy of the Lease and all amendments,
modifications, side letters, guaranties and other documents evidencing,
governing or securing Tenant's obligations under the Lease. The documents listed
in SCHEDULE I and attached hereto as EXHIBIT A represent the entire agreement
between the parties as to the Premises. The undersigned is the Tenant under the
Lease for space at the Premises covering ___________ rentable square feet.
2. The Lease is in full force and effect and has not been amended,
modified, supplemented or superseded except as indicated in Schedule 1.
3. The term of the Lease commenced on ________________, and expires
on _________________, subject to any rights of Tenant to extend the term as
provided therein. The base rent presently being charged is $__________. All
rentals, charges, additional rent and other obligations on the part of the
undersigned have been paid to and including ____________, 200_. No rental, other
than for the current month, has been paid in advance. The undersigned has
accepted possession and now occupies the Premises and is currently open for
business. In addition to the fixed minimum Base Rent, the Tenant pays its
pro-rata share of real estate taxes and operating expenses in excess of a base
stop of _________________.
4. Tenant has paid to Landlord a security deposit in the amount of
$____________________. Tenant has no claim against Landlord for any other
security.
5. To Tenant's actual knowledge: (a) Landlord is not in any respect
in default in the performance of the terms and provisions of the Lease, (b) no
state of facts or conditions exist, which with the giving of notice or the
passage of time, or both, would result in a default by Landlord and (c) all
conditions under the Lease to be performed by Landlord have been satisfied.
Without limiting the generality of the foregoing, all improvements to be
constructed in the Premises by Landlord have been completed to the satisfaction
of Tenant and accepted by Tenant and any tenant construction allowances have
been paid in full, and all duties of an inducement nature required of Landlord
in the Lease have been fulfilled to Tenant's satisfaction.
6. To Tenant's actual knowledge, 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. Tenant is not in any respect in default in the performance of
the terms and provisions of the Lease nor, to Tenant's actual knowledge, does
any state of facts or condition exist, with the giving of notice or the passage
of time, or both, would result in such a default.
9. Tenant has not assigned the Lease nor sublet all or any part of
the Premises, except as shown on Schedule 1 attached hereto and made a part
hereof for all purposes.
The above certifications are made to the Benefited Parties
knowing that the Benefited Parties will rely thereon in making an investment in
the Premises. For purposes hereof, the term "BENEFITED PARTIES" means the
addressees of this letter and all of the following: (a) Harvard Property Trust,
LLC, a Delaware limited liability company and its successors, assigns, and
designees; and (b) any lender to which any party described in the foregoing
clause (a) grants a deed of trust, mortgage or other lien upon the Premises.
Very truly yours,
________________________________________,
a _______________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
JOINDER OF GUARANTOR
The undersigned joins in the execution of this Estoppel Certificate for
the purpose of confirming to and for the benefit of the Benefited Parties (a)
that the guaranty of Tenant's obligations under the Lease executed by the
undersigned remain in full force and effect, and (b) to the undersigned's actual
knowledge, with no duty to investigate, that the undersigned has no defenses or
offsets to its obligations under the guaranty of the Lease executed by the
undersigned. The undersigned understands that the Benefited Parties will rely
upon the foregoing confirmations.
________________________________________,
a _______________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
SCHEDULE 1
List of Lease Documents
EXHIBIT A
See Attached Lease Documents
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASES,
CONTRACTS AND OTHER PROPERTY INTERESTS
For good and valuable consideration, the receipt of which is hereby
acknowledged, METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation (on
behalf of a commingled separate account) ("ASSIGNOR") hereby irrevocably
assigns, transfers and sets over to ______________, a _____________ ("ASSIGNEE")
all of Assignor's right, title and interest in and to (I) the lease agreements
(the "LEASES") enumerated on SCHEDULE A attached hereto and made a part hereof,
together with tenant security deposits held by Assignor under the Leases, (II)
to the extent assignable, the contracts (the "CONTRACTS") enumerated in SCHEDULE
B attached hereto and made a part hereof, (III) to the extent assignable, any
governmental permits and approvals (the "PERMITS AND APPROVALS") related to the
improvements (the "IMPROVEMENTS") located on the land (the "LAND") being
conveyed by Assignor to Assignee by Deed, dated the date hereof, and (IV) to the
extent assignable, all contract rights (including, without limitation, all
existing third-party warranties, if any, on materials and equipment constituting
a part of or used in the operation and maintenance of the Improvements),
licenses, permits, plans and specifications, surveys, soils reports, insurance
proceeds by reason of damage to the Improvements, condemnation awards and all
other rights, privileges or entitlements necessary to continue the use and
operation of the Land and the Improvements (the "OTHER PROPERTY INTERESTS"). All
Leases, Contracts, Permits and Approvals and Other Property Interests are
referred to hereinafter, collectively, as the "ASSIGNED ITEMS."
Assignee hereby assumes all obligations in connection with the Assigned
Items, arising or first becoming due and payable after the date hereof.
Assignor hereby reserves the right to collect and retain delinquent
rentals as described on SCHEDULE A.
Assignor hereby represents and warrants only that it has not previously
assigned the Assigned Items. Assignor makes no other representation or warranty
in connection with this Assignment and, except for the foregoing, this
Assignment is made without recourse to Assignor. However, Assignor shall remain
liable for all of Assignor's obligations under or with respect to the Leases,
the Contracts and the Permits accruing prior to the date hereof, to the extent
and only to the extent such obligations accrued during Assignor's ownership of
the Property.
All terms of this Assignment shall be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective legal
representatives, successors and assigns.
No modification, waiver, amendment, discharge or change of this
Assignment shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment, discharge
or change is or may be sought.
This Assignment shall be construed and enforced in accordance with the
laws of the State of Minnesota.
In any action brought to enforce the obligations of Assignor under this
Assignment, the judgment or decree shall be subject to SECTIONS 16.8 and 16.15
of that certain Sale, Purchase and Escrow Agreement, dated as of
_______________, between Assignor, Assignee and Chicago Title Insurance Company.
This Assignment may be executed in any number of counterparts, each of
which so executed shall be deemed an original; such counterparts shall together
constitute but one agreement.
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment of this ______ day of ____________, 2006.
ASSIGNOR:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
on behalf of a commingled separate account)
By: BLACKROCK REALTY ADVISORS, INC.,
Its investment advisor
By: _____________________________
Name: ___________________________
Its: ____________________________
ASSIGNEE:
[PURCHASER ENTITY]
By:______________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT D
FORM OF ▇▇▇▇ OF SALE
KNOW ALL MEN BY THESE PRESENTS, that METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation (on behalf of a commingled separate account)
("SELLER"), for good and valuable consideration paid by_____________, a
_______________ ("PURCHASER"), hereby sells to Purchaser, its successors and
assigns, the personal property ("PERSONAL PROPERTY") more particularly referred
to in SCHEDULE A attached hereto.
TO HAVE AND TO HOLD the same unto Purchaser, its successors and assigns
to and for its own use and behalf forever.
Purchaser agrees to pay all sales taxes payable by reason of the
transfer to Purchaser of said Personal Property.
This ▇▇▇▇ of Sale shall be without representation or warranty by, and
without recourse to, Seller.
This ▇▇▇▇ of Sale may be executed in any number of counterparts, each of
which so executed shall be deemed an original; such counterparts shall together
constitute but one agreement.
IN WITNESS WHEREOF, Seller and Purchaser have caused these presents to
be signed by their duly authorized officers as of ______________, 2006.
SELLER
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
(on behalf of a commingled separate account)
By: BLACKROCK REALTY ADVISORS, INC.,
its investment advisor
By: _____________________________
Name: ___________________________
Its: ____________________________
PURCHASER
[PURCHASER ENTITY]
________________________________________,
a _______________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT E
LEASES
ASSOCIATED FINANCIAL GROUP (FORMERLY CFG) - SUITE 100 (33,270 SQUARE FEET)
--------------------------------------------------------------------------
o Lease dated April 15, 2003.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇ (▇▇,▇▇▇ SQUARE FEET)
--------------------------------------------------------
o Lease dated February 2, 2005.
VANCO SERVICES LLC - SUITE 200 (17,015 SQUARE FEET)
---------------------------------------------------
o Lease dated May 12, 2004.
o Parking Space License Agreement dated August 23, 2004.
EXHIBIT F
CONTRACTS
Contractor Service Provided
---------------------------------------- ---------------------------------------
Allied Waste Industries, Inc. Trash Removal
---------------------------------------- ---------------------------------------
Crosstown Sweeping Corporation Sweeping
---------------------------------------- ---------------------------------------
Lawn Detailers, Inc. Snow Removal
---------------------------------------- ---------------------------------------
American Security Corporation Security Patrol Service
---------------------------------------- ---------------------------------------
▇▇▇▇▇ Pest Control Exterminating Contract
---------------------------------------- ---------------------------------------
Lawn Detailers, Inc. Landscaping
---------------------------------------- ---------------------------------------
Harvard Maintenance, Inc. Janitorial - Nightly/Day ▇▇▇▇▇▇
---------------------------------------- ---------------------------------------
CBRE Technical Services HVAC Preventative Maintenance
---------------------------------------- ---------------------------------------
CBRE Technical Services On-Site Maintenance Services
---------------------------------------- ---------------------------------------
Life Safety Systems Alarm Monitoring and Maintenance
---------------------------------------- ---------------------------------------
Life Safety Systems Fire Alarm System Inspection
---------------------------------------- ---------------------------------------
▇▇▇▇▇▇▇▇▇▇ Corporation Elevator Contract
---------------------------------------- ---------------------------------------
Trans-Alarm, Inc. Card Access System
---------------------------------------- ---------------------------------------
EXHIBIT G
FORM OF NOTICE TO TENANTS
____________, 2006
______________________________
______________________________
______________________________
Re: ______________________________
______________________________
Dear Tenant:
Please be advised that effective _______________, 2006, Metropolitan Life
Insurance Company (on behalf of a commingled separate account) has sold the
above-referenced property to ________________________________. Your security
deposit has been transferred to such entity and such entity shall be responsible
for holding the same in accordance with the terms of your lease. Effective
___________, 2006, all future rental payments should be sent to the following
address:
______________________________
______________________________
______________________________
Any questions regarding maintenance and management of the property should be
addressed to:
______________________________
______________________________
______________________________
Very truly yours,
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
(on behalf of a commingled separate account)
By: BLACKROCK REALTY ADVISORS, INC.,
its investment advisor
By: _____________________________
Name: ___________________________
Its: ____________________________
EXHIBIT H
FIRPTA AFFIDAVIT
TRANSFEROR'S CERTIFICATION OF NON-FOREIGN STATUS
To inform [PURCHASER ENTITY], a __________________ ("TRANSFEREE"), that
withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as
amended (the "CODE"), will not be required upon the transfer of certain real
property to Transferee by METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (on behalf of a commingled separate account) ("TRANSFEROR"), the
undersigned hereby certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are defined
in the Code and the Income Tax Regulations promulgated thereunder);
2. Seller is not a disregarded entity as defined in
ss.1.1445-2(b)(2)(iii);
3. Transferor's U.S. employer identification number is
▇▇-▇▇▇▇▇▇▇; and
4. Transferor's office address is c/o BlackRock Realty
Advisors, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferor.
Dated: _________________
METROPOLITAN LIFE INSURANCE
COMPANY a New York corporation
(on behalf of a commingled separate account)
By: BLACKROCK REALTY ADVISORS, INC.,
its investment advisor
By: ________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT I
FORM OF DEED
Corporation or Partnership to Individual(s)
STATE DEED TAX DUE HEREON: $__________________
Date: _________ ___, 2006
FOR VALUABLE CONSIDERATION,
METROPOLITAN LIFE INSURANCE COMPANY (on behalf of a commingled separate
account) Grantor, hereby conveys and quitclaims to ___________________
Grantee (whether one or more) real property in Hennepin County,
Minnesota, described as follows:
See Legal Description Attached as Exhibit A.
together with all hereditaments and appurtenances belonging thereto subject to
the following exceptions:
(1) This Deed conveys after-acquired title; and
(2) Grantor has not made, done, executed or suffered any act or thing
whereby the above-described property or any part thereof, now or at any time
hereafter, shall or may be imperiled, charged or encumbered in any manner and
Grantor will warrant the title to the above-described property against all
persons claiming same from or through Grantor as a result of any such act or
thing, EXCEPT: See Exhibit B attached hereto.
SELLER:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation (on behalf of a
commingled separate account)
By: BLACKROCK REALTY ADVISORS, INC.,
its investment advisor
Affix Deed Stamp Here
By:______________________________
Name:____________________________
Title:___________________________
Grantor certifies that Grantor does not know of any ▇▇▇▇▇ on the described real
estate.
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of
_________, 2006 by _________________________________ the
_______________________________________ of BlackRock Realty Advisors, Inc., the
investment advisor of METROPOLITAN LIFE INSURANCE COMPANY (on behalf of a
commingled separate account)
________________________________________________
SIGNATURE OF PERSON TAKING ACKNOWLEDGEMENT
Tax Statements for the real property described
in this instrument should be sent to (include
name and address of Grantee)
EXHIBIT A
LEGAL DESCRIPTION
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Center 2nd Addition, according to the
recorded plat thereof, Hennepin County, Minnesota.
EXHIBIT B
PERMITTED EXCEPTIONS
Exhibit B - 1
EXHIBIT J
OWNER'S AFFIDAVIT
The undersigned Affiant, being first duly sworn, and being duly authorized to do
so on behalf of the Owner named below, hereby makes the following affidavit to
Chicago Title Insurance Company ("TITLE COMPANY") in connection with the
transaction identified as follows:
AFFIANT: Metropolitan Life Insurance Company,
a New York corporation
OWNER: Metropolitan Life Insurance Company,
a New York corporation
PROPERTY: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
COMMITMENT: _________________
1. There are no other parties who are in possession, or who have or claim a
right to be in possession, of any part of Property, except for the
tenants set forth in Exhibit A hereto.
2. (a) No person has furnished any labor, services, or materials in
connection with the construction or repair of any buildings or
improvements on any of the Property within the last One Hundred Eighty
(180) days; (b) there are no unpaid amounts due for any labor, material,
or services in connection with the construction or repair of any
improvements on any of the Property, or with respect to the Property
itself, that could form the basis of a lien thereon; and (c) Owner has
not received any notice of intention to file or record a lien in
connection with any of the Property.
3. There has been no material change in the exterior aspects of any
improvements on any of the Property as shown in the respective survey
plans referred to in the Commitment and no services of a broker have
been engaged by the undersigned with regard to the management, sale,
purchase, lease, option, or other conveyance of interest in the
Property, except for ______________________________.
4. All real estate taxes and municipal or county charges currently due and
owing with respect to the Property have been paid, or will be paid prior
to the date on which same will become delinquent.
5. As an inducement to Title Company to insure over any matters attaching
or created during the "gap" in time between the last continuation of
title and the recording of the appropriate deed, mortgage, or other
instrument with respect to the Property, Owner shall promptly remove of
record any matters filed of record during said gap period, but only to
the extent caused by Owner.
Exhibit J-1
6. This Affidavit is given with the understanding and intention that Title
Company shall rely thereon in issuing the title insurance policy which
is based on the Commitment.
7. THE UNDERSIGNED EXECUTES THIS AGREEMENT BECAUSE OF THE BENEFITS DIRECTLY
AND INDIRECTLY ACCRUING TO IT BY REASON OF THE ISSUANCE OF THE POLICY.
Executed as of the ____ day of _________, 2006.
AFFIANT:
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation (on behalf of a commingled separate account)
By: BLACKROCK REALTY ADVISORS, INC.,
its investment advisor
By: ______________________________
Name:_____________________________
Title:____________________________
State of ________________________ County of ____________________
Subscribed and sworn to before me this ______ day of ____________, 2006.
________________________________________
Notary Public/Justice of Peace
My commission expires:
_________________________________
Exhibit J-2
EXHIBIT K
SELLER'S AUTHORITY DOCUMENTS
I, ▇▇▇▇▇▇ ▇▇▇▇, do certify that I am Assistant Secretary of BlackRock
Realty Advisors, Inc. ("BlackRock"), which is a corporation organized and
existing under the laws of the State of Delaware.
I do further certify that BlackRock is the Investment Advisor to Tower
Fund, a separate account owned by Metropolitan Life Insurance Company, which
owns the property commonly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the
"PROPERTY"); and
I do further certify that pursuant to the by-laws of BlackRock and
authority delegated by the Board of Directors of BlackRock, the sale of the
Property by Metropolitan Life Insurance Company, as Seller, pursuant to the
Sale, Purchase and Escrow Agreement dated as of ____________ (as amended, the
"AGREEMENT") with __________________________________ as purchaser, for the
purchase price of approximately $___________________, has been approved and
authorized.
I do further certify that the following named individuals on the date
hereof, duly held the positions with BlackRock set forth opposite their name
below. Each one of them, acting alone, is authorized to represent, act for, and
execute any and all documents, for and on behalf of Metropolitan Life Insurance
Company, or in its capacity as authorized representative, which are required in
connection with the sale of the Property and the signatures set opposite their
names and offices are their genuine signatures:
NAME TITLE SIGNATURE
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Director __________________________
▇▇▇▇▇▇▇ ▇▇▇▇ Director __________________________
This certificate is given under seal this ___ day of ___________, 2006.
________________________________________
▇▇▇▇▇▇ ▇▇▇▇, Assistant Secretary
K-1
EXHIBIT L
Behringer Harvard Real Estate Investments
Due Diligence Item List for Purchase & Sale Contract
ADA Compliance, studies/reports
Building/Capital Improvements Projects, Current
Building Measurement Surveys by Registered Architect
Building Permits
Building Plans, Specifications,
Paper
CADD Disk
Business Licenses
Capital Improvements, historical/projected, 3 years
Certificates of Occupancy:
Building
Tenants
Covenants, Conditions & Restriction's (Owner association, condo, etc)
Easement Information, existing and pending
Emergency/Life Safety Systems, Operating Manual
Environmental Site Assessment, Existing
Financial Items:
Aging Reports, Current and past 6 months (month-by-month)
Balance Sheet, to date
Budget & Narrative, Current Year
Excess Operating Expenses Calculations - Current Year
Invoices, as requested, copies only
Operating Expense Reconciliations (3 previous years)
Operating Statements for property, including a general ledger for
each year - 3 yrs
Rent Roll, Current
Security Deposit Listing, Current, LOC's/Guaranty's to be transferred
Flooding Info, Historical
Floor Plans, as leased
Geotechnical Report, if any
Ground Lease, if any
Insurance Certificate, Current, of Seller and Tenants
Insurance Claims, Pending
Insurance Claims History
Intellectual Property Documents, if any
Leases and all amendments and Commencement Date Letters
Lease Commission Schedule, 3 previous years
Litigation - Pending
Management & Leasing Agreement - Existing
Occupancy/Vacancy History, 3 previous years
O & M Reports (Asbestos, Mold, etc.)
L-1
Parking Garage Lease/Operating Agreement
Parking Space Configuration (Surface and Garage if applicable)
Permits & Licenses - Alarm
Permits & Licenses - Construction
Permits & License - Elevator
Permits & License - Engineering
Personal Property Inventory including Office Equipment to remain on site
Photos of the Building
Property Taxes land/improvements current year
Property Tax Statements, Personal, Current & Prior 3 yrs
Retail tenants, sales data and percentage rent ▇▇▇▇▇▇▇▇
Roof Reports
Security Incident Reports, for prior 24 months
Seismic Reports
Service Contracts
Site Plans
Stacking Plan
Staffing/Payroll Schedule
Standard Form of Lease
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
Title commitment policy of Seller, existing
Title Work - Preliminary
Title Work - Final
Utility Agreements/Power Supply Agreements
Utilities, prior 2 years/invoices/summary
Utility Security Deposits
Warranty, Elevator if applicable
Warranty, HVAC Equipment, if applicable
Warranty, Mechanical, if applicable
Warranty, Roof, if applicable
Website/Domain Information
Work Order Systems & Operating Manuals
Zoning Report, existing if available
*Additional material/reports required for the completion of the 3-14 Audit
Detailed accrued expense listing for each quarter ended during the current year
and the prior two years
Detailed rent straight-line schedule for each quarter ended during the current
year and the prior two years
L-2
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 for each quarter during
the current calendar year and the prior two years
Detailed income statements by month year-to-date and the prior two years
L-3
EXHIBIT M
Personal Property
M-1