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SALE, PURCHASE AND ESCROW AGREEMENT
BETWEEN
TOWER FUND
LANDMARK LIMITED PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP,
(AS TO LANDMARK CENTER I ("TFLLP"), AND,
METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION,
ON BEHALF OF A COMMINGLED SEPARATE ACCOUNT
(AS TO LANDMARK CENTER I) ("MLICSA"),
(COLLECTIVELY, TFLLP AND MLICSA, "SELLER")
AND
HARVARD PROPERTY TRUST, LLC, a Delaware limited liability
company
("PURCHASER")
AND
STEWART TITLE GUARANTY COMPANY ("ESCROW AGENT")
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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
Deposit........................................................................................2
2.3 Balance of
Purchase
Price......................................................................2
2.4
Investments....................................................................................2
2.5 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
Performance by
Seller..........................................................................3
3.3 Conditions
to Seller's Obligation to
Sell......................................................4
3.4
ERISA..........................................................................................4
ARTICLE IV
PURCHASER'S DELIVERIES AND SELLER'S DELIVERIES TO ESCROW
AGENT.............................4
4.1
Purchaser's
Deliveries.........................................................................4
4.2 Seller's
Deliveries............................................................................5
4.3 Failure to
Deliver.............................................................................6
ARTICLE V
INSPECTION OF
PROPERTY.....................................................................6
5.1 Delivery
of
Documents..........................................................................6
5.2 Physical
Inspection of
Property................................................................7
5.3
Title..........................................................................................8
5.4 No
Obligation to
Cure..........................................................................8
5.5 Copies of
Third Party
Reports..................................................................9
5.6 Audit by
Purchaser.............................................................................9
ARTICLE VI
THE
CLOSING................................................................................9
6.1 Date and
Manner of
Closing.....................................................................9
ARTICLE VII
PRORATION, FEES, COSTS AND
ADJUSTMENTS.....................................................9
7.1
Prorations.....................................................................................9
7.2 Seller's
Closing
Costs........................................................................12
7.3
Purchaser's Closing
Costs.....................................................................12
ARTICLE VIII
DISTRIBUTION OF FUNDS AND
DOCUMENTS.......................................................12
8.1 Delivery
of the Purchase
Price................................................................12
8.2 Other
Monetary
Disbursements..................................................................12
8.3 Recorded
Documents............................................................................13
8.4 Documents
to
Purchaser........................................................................13
8.5 Documents
to
Seller...........................................................................13
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8.6 All Other
Documents...........................................................................13
ARTICLE IX
RETURN OF DOCUMENTS AND FUNDS UPON
TERMINATION............................................13
9.1 Return of
Seller's
Documents..................................................................14
9.2 Return of
Purchaser's
Documents...............................................................14
9.3
Deposit.......................................................................................14
9.4
Disbursement of
Deposit.......................................................................14
9.5 No Effect
on Rights of Parties;
Survival......................................................14
ARTICLE X
DEFAULT...................................................................................14
10.1
Seller's
Remedies.............................................................................14
10.2
Purchaser's
Remedies..........................................................................15
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..................................................................20
13.1
Conduct.......................................................................................21
13.2
Actions
Prohibited............................................................................21
13.3
Modification of Existing Leases and
Contracts.................................................21
13.4
New Leases and
Contracts......................................................................21
Confidentiality........................................................................................21
b)
..............................................................................................22
13.5
Right to
Cure.................................................................................22
13.6
Management
Agreements.........................................................................22
ARTICLE XIV
NOTICES...................................................................................22
ARTICLE XV
TRANSFER OF
POSSESSION....................................................................23
15.1
Transfer of
Possession........................................................................23
15.2
Delivery of Documents at
Closing..............................................................23
ARTICLE XVI
GENERAL
PROVISIONS........................................................................23
16.1
Captions......................................................................................24
16.2
Exhibits......................................................................................24
16.3
Entire
Agreement..............................................................................24
16.4
Modification..................................................................................24
16.5
Attorneys'
Fees...............................................................................24
16.6
Governing
Law.................................................................................24
16.7
Time of
Essence...............................................................................24
16.8
Survival of
Warranties........................................................................24
16.9
Assignment by
Purchaser.......................................................................24
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16.10
Severability..................................................................................25
16.11
Successors and
Assigns........................................................................25
16.12
Interpretation................................................................................25
16.13
Counterparts..................................................................................25
16.14
Recordation...................................................................................25
16.15
Limitation on
Liability.......................................................................25
16.16
Possession of
Advisor.........................................................................26
16.17
Business
Day..................................................................................26
16.18
Waiver of Jury
Trial..........................................................................26
16.19
Effective
Date................................................................................26
ARTICLE XVII
ESCROW AGENT DUTIES AND
DISPUTES..........................................................26
17.1
Other Duties of Escrow
Agent..................................................................27
17.2
Disputes......................................................................................27
17.3
Reports.......................................................................................27
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EXHIBITS
EXHIBIT A - Description of Land
EXHIBIT B - Personal Property
EXHIBIT C - Leases
EXHIBIT D - Contracts
EXHIBIT E - Estoppel Certificate
EXHIBIT F - Assignment and Assumption of
Leases, Contracts and Other Property
Interests
EXHIBIT G - Form of Bill of Sale
EXHIBIT H - Form of Deed
EXHIBIT I - Additional Permitted
Encumbrances
EXHIBIT J - Form of Notice to Tenants
EXHIBIT K - FIRPTA Affidavit
EXHIBIT L - Due Diligence Items
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INDEX OF DEFINED TERMS
Term
Section
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Advisor.......................................................................................................5.2.3
Assignment of Leases and
Contracts............................................................................4.1.2
Bill of
Sale..................................................................................................4.1.3
Broker.......................................................................................................11.1.1
Closing.........................................................................................................6.1
Closing
Statement.............................................................................................4.1.4
Code.........................................................................................................11.2.5
Contracts.....................................................................................................4.2.2
Deed..........................................................................................................4.2.1
Deposit.......................................................................................................2.1.1
Effective
Date................................................................................................16.19
ERISA........................................................................................................11.2.5
Escrow
Agent...........................................................................................Introduction
Estoppel Return
Date..........................................................................................3.1.5
Final Closing
Date..............................................................................................6.1
Improvements....................................................................................................1.1
Indemnified
Parties...........................................................................................5.2.5
Intangible
Property..........................................................................................1.1(4)
Land............................................................................................................1.1
Leases........................................................................................................4.2.1
Limitation
Period..............................................................................................10.2
Maximum Liability
Cap.........................................................................................16.15
Permitted
Encumbrances........................................................................................4.2.1
Personal
Property...............................................................................................1.2
Property........................................................................................................1.2
Property
Manager(s)............................................................................................11.1
Proprietary
Information........................................................................................13.5
Purchaser's
Action.............................................................................................10.1
Purchase
Price..................................................................................................2.1
Purchaser..............................................................................................Introduction
Real
Property...................................................................................................1.1
Seller.................................................................................................Introduction
Seller
Parties................................................................................................16.15
Separate
Account...............................................................................................16.5
Survey........................................................................................................5.1.2
Tenant Estoppel
Condition.....................................................................................3.1.5
Tenant
Estoppel...............................................................................................3.1.5
Tenant
Payments...............................................................................................7.1.1
Title
Company.................................................................................................3.1.3
Title
Policy..................................................................................................3.1.3
Title
Report..................................................................................................5.1.1
Tower
Fund.....................................................................................................16.5
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SALE, PURCHASE AND ESCROW AGREEMENT
This Sale, Purchase and Escrow Agreement is made to be effective as
of
the Effective Date (as hereinafter defined)
by and between TOWER FUND LANDMARK
LIMITED PARTNERSHIP, a Texas limited
partnership ("TFLLP"), and METROPOLITAN
LIFE INSURANCE COMPANY, a New York
corporation, on behalf of a commingled
separate account ("MLICSA") , (TFLLP and
MLICSA individually referred also to as
"Seller"), and HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
("PURCHASER") and constitutes (I) a
contract of sale and purchase between the
parties and (II) an escrow agreement among
Seller, Purchaser and Stewart Title
Guaranty 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:
(1)
that certain tract or parcel of land described in
EXHIBIT A as "LANDMARK CENTER I", located at 18583 Dallas North
Tollway,
Dallas, Texas, and owned by TFLLP, and that certain tract or parcel
of
land described in EXHIBIT A, as "LANDMARK CENTER II", located at
18451
Dallas North Tollway, Dallas, Texas, and owned by MLICSA
(collectively,
the "LAND") together with all improvements (the "IMPROVEMENTS")
located
thereon (collectively said Land and Improvements are herein
referred to
as the "REAL PROPERTY");
(2)
the tangible personal property listed on EXHIBIT B
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");
(3)
all of Seller's right, title and interest in all oral or
written leases or other agreements conferring the right to occupy
the
Real Property, as listed on EXHIBIT C attached hereto
(collectively, the
"LEASES"); and
(4)
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 D attached hereto (collectively, the
"CONTRACTS");
(ii) all warranties and guaranties (express or implied) issued to
Seller
in connection with the Improvements or the Personal Property; (iii)
all
licenses, permits, certificates of occupancy and other consents
or
approvals from governmental authorities or private parties which
relate
to the Real 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, the
use
of the name "Landmark Center" and any and all other trade names or
logos
used by Seller in the operation of the Real Property or
Personal
Property; and (v) all plans,
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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 (collectively, the
"INTANGIBLE
PROPERTY").
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 an aggregate total purchase
price for all of the Property of
$33,250,000.00 (the "PURCHASE PRICE").
Seller and Purchaser agree that the
Purchase Price shall be allocated with
$15,790,000 allocated to Landmark Center
I and $17,460,00 allocated to Landmark
Center II, and shall be paid by Purchaser
as follows:
2.2 DEPOSIT. Within
three (3) business days after the Effective Date
of this Agreement, Purchaser will deliver
to Escrow Agent by bank wire of
immediately available funds the sum of
$1,250,000.00 (the "DEPOSIT"), which
Deposit shall be fully earned by Seller and
non-refundable except only as
expressly provided in SECTION 5.4 or
SECTION 10.2, Article XII and for failure
of a condition under SECTION 3.1 or SECTION
3.3. Seller and Purchaser stipulate
that Purchaser's delivery of the Deposit is
sufficient consideration to support
this Agreement.
2.3
BALANCE OF PURCHASE PRICE. Purchaser shall, not later than 3:00
p.m. Eastern Time on the date of Closing,
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.
2.4
INVESTMENTS. Following the collection of the Deposit, Escrow
Agent shall, at the direction of Purchaser,
invest the Deposit in:
(1)
obligations of the United States government, its
agencies or independent departments;
(2)
certificates of deposit issued by a banking institution
whose principal office is in New York, N.Y. with assets in excess
of $1
billion; or
(3)
an interest-bearing account of a banking institution
whose principal office is in New York, N.Y. 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).
2.5
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
2
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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:
3.2
PERFORMANCE BY SELLER. Performance in all material respects of
the obligations and covenants of, and
deliveries required of, Seller hereunder.
3.2.1 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.
3.2.2 TITLE
INSURANCE. Delivery at the Closing of the standard
current form of Texas 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 Stewart Title
Guaranty
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).
3.2.3 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).
3.2.4 TENANT
ESTOPPELS. 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 E 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
E (the foregoing condition being herein referred to as the
"TENANT
ESTOPPEL CONDITION"). The term "materially and adversely affect
the
value of the Property" shall be deemed to be a condition that
affects
the value in an amount that exceeds $75,000.00, provided, however,
that
if Seller elects in its sole discretion, to provide Purchaser at
Closing
with a credit against the Purchase Price or with other
3
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security that is reasonably acceptable to Purchaser for such
condition
then such estoppel certificate shall be accepted by Purchaser
notwithstanding such condition. An executed tenant estoppel
certificate
that meets the requirements set forth in the preceding sentence
is
herein referred to as a "TENANT ESTOPPEL". Seller shall use
commercially
reasonable efforts to obtain a Tenant Estoppel with respect to
each
Lease. Seller shall deliver each Tenant Estoppel to Purchaser
(regardless of whether it complies with this Agreement)
promptly
following Seller's receipt thereof. 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 shall
have
the option either to (a) waive the Tenant Estoppel Condition, (b)
extend
the Final Closing Date for up to fourteen (14) days to allow Seller
more
time to obtain additional Tenant Estoppels; or (c) terminate
this
Agreement, in which event the Deposit shall be returned to
Purchaser. If
Purchaser elects to extend the Final Closing Date pursuant to
clause (b)
of the preceding sentence and the Tenant Estoppel Condition is
still not
fulfilled on or before the expiration of the fourteen (14) day
extension
period, then Purchaser may elect one of the options set forth in
clauses
(a) and (c) of the preceding sentence.
3.3
CONDITIONS TO SELLER'S OBLIGATION TO SELL. Seller's obligation
to sell is expressly conditioned upon each
of the following:
3.3.1
PERFORMANCE BY PURCHASER. Performance in all material
respects of the obligations and covenants of, and deliveries
required
of, Purchaser hereunder.
3.3.2 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.
3.4
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.
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 for each of Landmark
Center I and Landmark Center II:
4
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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 F.
4.1.3 BILL OF
SALE. Four (4) executed counterparts of a bill
of sale (the "BILL OF SALE") in the form of EXHIBIT G.
4.1.4 CLOSING
STATEMENT. An executed settlement statement
reflecting the prorations and adjustments required under ARTICLE
VII
(the "CLOSING STATEMENT"). 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 for each of Landmark Center I and
Landmark Center II:
4.2.1 SPECIAL
WARRANTY DEED. A Special Warranty Deed (the
"DEED") in the form of EXHIBIT H with respect to the Real
Property,
executed and acknowledged by Seller, pursuant to which Seller
shall
convey title to the Real Property subject to only to the
following
(collectively, the "PERMITTED ENCUMBRANCES"):
(a)
Non-delinquent real property taxes and all
assessments and unpaid installments thereof which are not
delinquent.
(b)
The Leases enumerated in EXHIBIT C and any
leases executed in accordance with this Agreement after the
date
hereof and the rights of the tenants thereunder.
(c)
Any other lien, encumbrance, easement or other
exception or matter voluntarily imposed or consented to by
Purchaser prior to or as of the Closing.
(d)
The printed exceptions to title contained in the
Title Report (as defined in SECTION 5.1.1) that are required to
be included as exceptions under state regulations and the
exceptions listed on EXHIBIT I attached hereto.
(e)
All matters, rights and interests that would be
disclosed by a survey of the Property.
5
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4.2.2 ASSIGNMENT
OF LEASES AND CONTRACTS. Four (4) executed
counterparts of the Assignment of Leases and Contracts, 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 BILL OF
SALE. Four (4) executed counterparts of the Bill
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 J. 4.2.5 FIRPTA AFFIDAVIT. Four
(4)
executed copies of an affidavit in the form of EXHIBIT K with
respect to
the Foreign Investment in Real Property Tax Act.
4.2.6 CLOSING
STATEMENT. An executed Closing Statement.
4.2.7 CASH -
PRORATIONS. The amount, if any, required of
Seller under ARTICLE VII.
4.2.8 BROKER'S
LIEN WAIVER. Two (2) executed copies of a
Broker's Lien Waiver from Broker acknowledging payment of all
commissions and waiving any lien rights Broker may have.
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
INSPECTION OF PROPERTY
5.1
DELIVERY OF DOCUMENTS. Seller has delivered or made 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").
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.
6
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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, will be
provided
to Purchaser to the extent not previously delivered to
Purchaser.
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 (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD) AS TO
THE
TIMING AND SCOPE OF THE WORK TO BE PERFORMED 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 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 of Texas 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
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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 pension fund clients,
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 written
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 written 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
TITLE5.3.1 . Purchaser fully and completely approves the Title
Report (but only to the extent that there
are no additional exceptions to title
other than the Permitted Encumbrances) and
the Survey, as applicable, and any
matter disclosed therein.
5.4
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;
provided, however, Seller shall be
obligated to remove from record the lien of
any mortgage or deed of trust
("MORTGAGE"). 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.
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5.5
COPIES OF THIRD PARTY REPORTS. If Seller requests in writing,
Purchaser, within three (3) business days
after such written request, shall
provide Seller with copies of all third
party reports received by Purchaser with
respect to the Property.
5.6
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. Prior to Closing and for a period
of ninety (90) days after Closing, Seller
agrees to use reasonable efforts to
cooperate with Purchaser's auditors in the
preparation of such audited financial
statements. Without limiting the generality
of the preceding sentence (i) Seller
shall, during normal business hours, allow
Purchaser's auditors reasonable
access to such books and records maintained
on-site by Seller and in the
possession of Seller's manager of the
Property in respect of the Property as
necessary to prepare such audited financial
statements; (ii) Seller shall use
reasonable efforts to provide to Purchaser
such financial information and
supporting documentation as are
commercially reasonably necessary for
Purchaser's auditors to prepare audited
financial statements; (iii) 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 (iv) 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. Seller
shall have no obligations under this
Section 5.6 beyond ninety days after
Closing, but if Seller shall, at its sole
election, elect to prepare audited
financials with respect to the Property for
its term of ownership of the
Property during 2005, Seller shall provide
Purchaser with a copy of such audited
financial statement.
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 4:00 P.M.
Eastern Time on July 6, 2005 (the "FINAL
CLOSING DATE"), time being of the essence,
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 Escrow Agent or shall
instruct
Escrow Agent to debit against sums held by Escrow Agent owing to
such
party), either a) as of 11:59 p.m. on the day of Closing if the
balance
of the Purchase Price is received by Escrow Agent on the date of
Closing
or b) as of 11:59 p.m. on the day prior to the Closing if the
balance of
the Purchase Price is received by Escrow Agent on the day prior to
the
date of 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 Effective Date, 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.
(1)
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.
(2)
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
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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.
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.
(1)
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.
(2)
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 December 1,
2005, 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.
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(3)
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.
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 CARPET
REIMBURSEMENT. At Closing, Seller shall be
credited the sum of $24,676.79 against any sums owed by Seller
under
this Agreement in reimbursement of the new lobby carpet in
Landmark
Center II so long as the tenant estoppel received by Purchaser
at
Closing confirms tenant's obligation to pay such sum in the future
to
Purchaser as the successor landlord. If such tenant shall not so
confirm
such payment obligation in the estoppel certificate, Seller shall
have
the continuing right after Closing to pursue such tenant for
such
reimbursement directly, provided that Seller shall not have the
right to
assert that tenant's failure to pay such amount can result in a
loss of
possession of the premises by tenant.
7.1.8 TRANSFER
OF WARRANTIES. Seller agrees to complete any
documentation that may be required by a warrantor in order to
consummate
an assignment to Purchaser of any warranties included in the
Property
and to pay the cost of any fee required to transfer any such
warranty.
7.2
SELLER'S CLOSING COSTS. Seller shall pay (i)) one-half of
Escrow
Agent's escrow fee or escrow termination
charge, (ii) the cost of the Title
Report and the basic premium for the Title
Policy, (iii) the cost of the Survey,
and (IV) Seller's own attorneys' fees.
7.3
PURCHASER'S CLOSING COSTS. Purchaser shall pay (I) any
documentary stamp or transfer tax, (II)
one-half of Escrow Agent's escrow fee or
escrow termination charge, (III) the cost
of any title insurance endorsements
ordered by Purchaser in respect of the
Title Policy, (IV) the cost of any new
survey of the Property or any update of the
Survey, (V) any costs incurred in
recording the Deeds or any other
instruments, (VI) any costs incurred in
connection with Purchaser's investigation
of the Property pursuant to ARTICLE V,
including the cost of any environmental
assessment commissioned by Seller, and
(VII) 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
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
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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:
(a)
one conformed copy of the Deeds showing all recording
data;
(b)
two originals of the Assignment of Leases and Contracts;
(c)
two originals of the Bill of Sale;
(d)
one original of the Notice to Tenants;
(e)
two originals of the FIRPTA Affidavit;
(f)
one original of a Broker's Lien Waiver from the Broker;
(g)
one original of the Closing Statement; and (h) 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:
(a)
one conformed copy of the Deed showing all recording
data;
(b) two originals of the
Assignment of Leases and Contracts;
(c)
two originals of the Bill of Sale;
(d)
one copy of the Notice to Tenants;
(e)
two originals of the FIRPTA Affidavit;
(f)
one
original of a Broker's Lien Waiver from the Broker;
(g)
one original of the Closing Statement; and
(h)
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
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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.
9.3
DEPOSIT. If escrow or this Agreement is terminated (I) pursuant
to SECTION 10.2 or ARTICLE XII or (II) due
to the failure of a condition set
forth in SECTION 3.1 or SECTION 3.3, 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 or SECTION 3.3 and other than a
termination of this Agreement pursuant to,
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
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its sole and exclusive remedy, 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 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
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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 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, in this
Agreement and any other instruments
executed by Seller, the actual knowledge of
Celia Deluga, the asset manager of
Advisor responsible for the Property (the
"PROPERTY Manager(s)"). 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 Property
Manager(s). To the extent Purchaser has or
acquires actual knowledge or is
deemed to know prior to the date of this
Agreement 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
sha
