PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("AGREEMENT") is made this _____ day of
January, 2006 between BURNETT PLAZA ASSOCIATES, L.P., a Delaware limited
partnership ("SELLER"), and HARVARD PROPERTY TRUST, LLC, A DELAWARE LIMITED
LIABILITY COMPANY, DOING BUSINESS AS BEHRINGER HARVARD FUNDS ("PURCHASER").
SECTION 1. CERTAIN TERMS.
1.1 EFFECTIVE DATE The date of this Agreement as set forth above
1.2 PURCHASE PRICE $172,000,000, payable a portion in cash or other
immediately available federal funds at Closing
(as hereinafter defined) and a portion by the
assumption of the Underlying Loan (as
1.3 DEPOSIT $16,000,000.00, together with any interest
1.4 TITLE PERIOD Intentionally deleted.
1.5 CLOSING DATE January 26, 2006, subject to extension pursuant
to Section 8.1(f), Section 8.1(i), and Section
9.1(d), or such earlier date as may be
acceptable to Purchaser and Seller.
1.6 PURCHASER'S NOTICE Harvard Property Trust, LLC
ADDRESS 15601 Dallas Parkway, Suite 600
Addison, Texas 75001
Attention: Jon Dooley
With a courtesy copy to Purchaser's counsel as
Harvard Property Trust, LLC
15601 Dallas Parkway, Suite 600
Addison, Texas 75001
Attention: Gerald Reihsen
Powell & Coleman, L.L.P.
8080 North Central Expressway, Suite 1380
Dallas, Texas 75206
Attention: Patrick M. Arnold
1.7 SELLER'S NOTICE Burnett Plaza Associates, L.P.
ADDRESS 2711 North Haskell, Suite 2150, LB 13
Dallas, Texas 75204
Attention: Christopher M. Hipps
With a courtesy copy to Seller's counsel as
Akin Gump Strauss Hauer & Feld LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675
Attention: Randall M. Ratner, P.C.
1.8 TITLE COMPANY Republic Title of Texas, Inc.
2626 Howell Street, 10th Floor
Dallas, Texas 75204-4064
Attention: Bo Feagin
1.9 BROKER Lehman Brothers
1.10 UNDERLYING LOAN That certain $114,200,000.00 loan made by Bank
of America, N.A. (the "LENDER") to Seller
pursuant to that certain Loan Agreement dated as
of March 22, 2005 executed by Seller and Lender
(the "LOAN AGREEMENT").
1.11 UNDERLYING LOAN The $114,200,000.00 Promissory Note dated as of
DOCUMENTS March 22, 2005 executed by Seller and payable to
Lender (the "NOTE"), that certain Deed of Trust,
Assignment of Leases and Rents and Security
Agreement dated as of March 22, 2005, executed
by Seller to
PRLAP, Inc., as Trustee and filed in the Deed of
Trust Records of Tarrant County, Texas and all
other documents securing payment of the
1.12 PARKING LEASES The following parking leases between Seller, as
lessee, and the lessor named below: (a) Chase
Bank, NA, successor to Bank One, Texas, N.A. for
surface parking lot (the "CHASE PARKING LEASE");
(b) First United Methodist Church of Fort Worth
for surface parking lot (the "CHURCH PARKING
LEASE"); and (c) 813 Company, Ltd. for spaces in
a parking garage.
1.13 MANAGEMENT AND
LEASING AGREEMENT The Management and Leasing Agreement in the form
attached hereto as EXHIBIT E to be executed by
Purchaser at Closing.
SECTION 2. AGREEMENT TO SELL AND PURCHASE; PURCHASE PRICE.
2.1 SALE AND PURCHASE. Seller agrees to sell and convey to Purchaser and
Purchaser agrees to purchase from Seller for the Purchase Price, upon the terms
and conditions set forth in this Agreement, all of Seller's right, title and
interest in and to the following:
a. that certain real property described on EXHIBIT A to this
Agreement, which real property is located at 801 Cherry Street, Fort Worth,
Texas, together with all improvements thereon; all easements, covenants and
other rights appurtenant to such real property; and any land lying in the bed of
any street, avenue or alley, open or closed, in front of, abutting or adjoining
such parcel of real property (collectively, "REAL PROPERTY");
b. all furniture, furnishings, fixtures, equipment and other
tangible personal property, and replacements thereof, if any, now or hereafter
affixed to and/or located at the Real Property and used by Seller in connection
with the operation, maintenance or repair of the Real Property (collectively,
the "TANGIBLE Property"), but excluding any management office furniture,
furnishings, office equipment (including, without limitation, any personal
computers, facsimile machines, photocopy machines and telephone equipment), it
being agreed that a list of Tangible Property to be conveyed to Purchaser is
attached hereto as EXHIBIT B;
c. all leases of all or any portion of the Real Property,
including, without limitation, the leases set forth on EXHIBIT C to this
Agreement (together with all amendments, modifications and supplements thereto,
collectively, the "LEASES"), together with all refundable tenant security
deposits and any interest due thereon, letter of credit security deposits, and
d. to the extent assignable without the consent of any third-party,
all service and supply contracts and amendments thereto (whether written, oral
or otherwise) of any kind affecting or relating to the Real Property and/or the
Tangible Property and in effect on the Closing Date, to be included in the
Inspection Documents (exclusive of any Rejected Contracts, collectively, the
e. all intangible property now or on the Closing Date owned or held
by Seller in connection with the Real Property or the Tangible Property,
including, without limitation, (i) to the extent assignable without the consent
of any third-party, all licenses; permits; authorizations; approvals;
certificates; and other governmental approvals (collectively, the "PERMITS");
(ii) to the extent assignable without the consent of any third-party, all land
use applications and fees, architectural, engineering and other plans,
specifications and drawings, floor area ratio rights, and all development
rights; and (iii) all property management records which are nonproprietary to
Seller or its manager, transferable warranties and all trade or project names
(including specifically, without limitation, the interest of Seller in the name
"Burnett Plaza") and all logos and marks (other than those including the names
"Prentiss Properties", "Brandywine" or derivatives thereof) (collectively, the
"INTANGIBLE PROPERTY"); however, Seller hereby notifies Purchaser that Seller
has taken no action to register or protect its right to use any trademarks,
tradenames or symbols; and
f. Seller's interest in and to the Parking Leases (the "PARKING
The "PROPERTY" means the Real Property, the Tangible Property, the Leases, the
Contracts, the Intangible Property and the Parking Leases.
SECTION 3. DEPOSIT.
3.1 POSTING OF DEPOSIT. Within two (2) business days after the Effective
Date, Purchaser shall deliver the Deposit of $16,000,000.00 to Title Company by
certified check, cashier's check or wire transfer of Federal funds ("IMMEDIATELY
AVAILABLE FUNDS"). If Purchaser does not, for any reason whatsoever, timely
deliver any Deposit to be delivered pursuant to this Agreement, then as a result
of such failure, Purchaser shall be deemed in default hereunder, Seller
thereupon may terminate this Agreement by notice to Purchaser as Seller's sole
remedy, any Deposit then held by the Title Company shall be promptly paid to
Seller, as liquidated damages, and neither party shall have any further rights
or obligations hereunder, except for any provisions which survive the
termination hereof. Except to the extent the Deposit is to be refunded to
Purchaser pursuant to this Agreement, the Deposit shall be non-refundable to
Purchaser so long as the conditions to Purchaser's obligations to consummate the
Closing set forth in Section 9.1 have been satisfied or waived by Purchaser. At
Closing, the Deposit shall be applied towards payment of the portion of the
Purchase Price payable in cash or immediately available funds.
3.2 INVESTMENT OF DEPOSIT. Title Company shall promptly place the Deposit in
an interest bearing account at a commercial bank reasonably satisfactory to
Seller and Purchaser whose deposits are insured by the Federal Deposit Insurance
Corporation and shall otherwise hold in escrow or disburse the Deposit in
accordance with the terms of this Agreement.
SECTION 4. STUDIES AND STUDIES INDEMNIFICATION.
4.1 TESTS AND STUDIES. Purchaser acknowledges and agrees that it has
satisfactorily completed such tests and studies on, about and of the Property as
Purchaser deemed necessary including, without limitation, reviewing the
Inspection Documents (herein so called) described on SCHEDULE 1 hereto and
conducted such architectural, engineering, environmental, soil boring,
development and economic feasibility studies (the "STUDIES") as it deemed
necessary and appropriate.
4.2 STUDIES INDEMNIFICATION. Pursuant to that certain Access and Diligence
Agreement dated as of December 12, 2005 between Purchaser and Seller (as
amended, the "ACCESS AGREEMENT"), Purchaser acknowledges and agrees that it has
agreed to indemnify and hold Seller harmless from and against any lien, damage,
loss, cost or expense to (including attorneys' fees) or claims against such
persons or entities or the Property for damage to the Property (including the
cost of restoring the Property to its pre-entry condition) and injury to any
persons caused by Purchaser's or its agent's entry onto the Property in the
course of exercising Purchaser's rights under this Agreement and the Access
Agreement. Purchaser shall promptly restore or repair any damage to the Property
caused by or attributable to Purchaser's Studies, such obligation to survive the
termination or expiration of this Agreement and the Access Agreement. Purchaser
has agreed to, and shall, keep the Property free and clear of any liens arising
from Purchaser's exercise of its rights under this Agreement and the Access
Agreement. The indemnity and other agreements of Purchaser described in this
Section 4.2 are herein called the "STUDIES INDEMNIFICATION". The Studies
Indemnification shall survive the Closing or any termination of this Agreement.
SECTION 5. TITLE AND SURVEY.
5.1 a. TITLE APPROVAL. Purchaser has approved a current standard TLTA
commitment for owner's title insurance for the Property (the "TITLE COMMITMENT")
from the Title Company. All exceptions to title shown on the approved Title
Commitment are herein called the "PERMITTED EXCEPTIONS". The Title Company shall
obtain coinsurance through Partners Title Company of up to twenty percent (20%)
of the face amount of the title policy to be issued by the Title Company to
Purchaser. Purchaser has also approved a Survey of the Property (the "Survey").
b. CERTAIN LIENS. Any provision of this Agreement to the contrary
notwithstanding, any deeds of trust, mortgages, mechanic or materialmen liens,
tax liens (other than the Underlying Loan Documents and liens for taxes not due
and payable as of Closing (collectively, the "PERMITTED LIENS")) and other
monetary liens against the Property (collectively, the "MONETARY LIENS"), either
shall be discharged and removed by Seller at or before Closing, or the Title
Company shall have committed to issue a title policy to Purchaser at the Closing
without taking exception to such liens in reliance on an indemnity or bond
delivered by Seller at Closing.
5.2 TITLE WARRANTY. At Closing, Seller shall convey the Real Property to
Purchaser by special warranty deed, subject to the Permitted Exceptions,
including, without limitation, the Underlying Loan Documents (the "Deed").
5.3 CONTINUING TITLE COVENANTS. Seller covenants that Seller will not take
any action or fail to take any action that will result in a change in the
ownership, encumbrances, title exceptions or survey matters affecting the Real
Property from the Effective Date to Closing, except as otherwise permitted or
required under this Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLER.
6.1 Seller represents and warrants to Purchaser as follows:
a. ORGANIZATION. Seller is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is qualified to do business in the State of Texas.
b. AUTHORITY. Seller and any individual executing this Agreement on
Seller's behalf, has the power to execute, deliver and perform this Agreement
and has taken all actions required to authorize the due execution and delivery
of this Agreement. The execution, delivery and performance of this Agreement
does not, and the consummation of the transactions contemplated hereby will not,
violate any provision of the articles of incorporation, bylaws, partnership
agreement, limited liability company agreement or other organizational documents
(as applicable) of Seller, or any provision of any agreement, instrument, order,
judgment or decree to which either Seller is a party or by which it or any of
its assets is bound.
c. BANKRUPTCY. Neither Seller nor any of its general partners, if
any (i) is in receivership or dissolution, (ii) has made an assignment for the
benefit of creditors or admitted in writing its inability to pay its debts as
they mature, (iii) has been adjudicated a bankrupt or filed a petition in
voluntary bankruptcy or a petition or answer seeking reorganization or an
arrangement with creditors under the Federal bankruptcy law or any other similar
law or statute of the United States or any jurisdiction and no such petition has
been filed against Seller or any of its general partners, if any, or (iv) to
Seller's knowledge, none of the foregoing are pending or threatened.
d. FIRPTA. Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986 ("FIRPTA").
e. LITIGATION. There are no actions, suits, claims or other
proceedings pending or, to Seller's knowledge, contemplated or threatened
against Seller not covered by Seller's insurance that could affect materially
and adversely Seller's ability to perform its obligations under this Agreement
in a timely manner or which could materially and adversely affect the Seller's
interest in the Property or any portion thereof.
f. MECHANIC LIENS. All bills and claims for labor performed or
materials supplied to Seller in connection with the Property have been paid in
full or will be paid in full in the ordinary course of business and there are no
mechanic's, materialman's or artisan's liens on or affecting Seller's interest
in the Property.
(i) Except for the Leases described on EXHIBIT C to this
Agreement, there are no tenant leases of all or any portion of the Real Property
to which Seller is a party.
(ii) To Seller's knowledge, Seller has received no written
notice as of the Effective Date from any tenant under the Leases asserting any
claim or offset affecting the collection of rent from such tenant, nor has any
tenant given any notice to Seller of its intention to terminate its tenancy.
(iii) Seller has provided, or will make available at Seller's
office or at the Property to, Purchaser with a true and complete copy of each of