Exhibit 10.12
CONTRACT OF SALE
[Forest Abrams Building, Dallas, Texas]
THIS CONTRACT OF SALE (this "Contract") is made and entered into by and
between FOREST ABRAMS PLACE, LTD., a Texas limited partnership ("Seller") and
BEACON CAPITAL PARTNERS, L.P., a Delaware limited partnership ("Purchaser").
ARTICLE I.
SALE OF THE PROPERTY
1.1 Property. For the consideration and upon and subject to the terms,
provisions and conditions of this Contract, Seller agrees to sell to Purchaser,
and Purchaser agrees to purchase from Seller, Seller's respective rights, titles
and interests in and to all of the following described property (collectively,
the "Property"):
(a) All of Seller's rights, titles and interests in and to
that certain tract or parcel of land (the "Land") located in Dallas
County, Texas, more particularly described on Exhibit A attached hereto
and made a part hereof for all purposes, together with all
improvements, structures and fixtures, if any, located on the Land (the
"Improvements"), and all rights, titles and interests of Seller
appurtenant to the Land and Improvements, including, without
limitation, appurtenant easements, adjacent roads, highways and
rights-of-way;
(b) All tangible and intangible personal property of any kind
(the "Personalty") owned by Seller and attached to or located on or
used in connection with the Land or Improvements including, without
limitation, those items of tangible personal property set forth on the
Personal Property Schedule (hereinafter defined);
(c) All of Seller's rights, titles and interests under any
leases or other agreements demising space in or providing for the use
or occupancy of the Improvements or Land (the "Tenant Leases"), and all
unapplied deposits, whether security or otherwise ("Deposits"), paid by
tenants ("Tenants") under the Tenant Leases and all of Seller's rights,
titles and interests in and to all leasing commission agreements (the
"Commission Agreements") relating to the Tenant Leases that Purchaser
is required to assume as contemplated by Section 5.2 hereof ; and
(d) All of Seller's rights, titles and interests in and to all
service, management and maintenance contracts (the "Service Contracts")
that Purchaser is required to assume as contemplated by Section 5.2
hereof, and warranties, guaranties and bonds in effect at Closing
(hereinafter defined) relating to the Land, the Improvements or the
Personalty, to the extent the same are assignable.
ARTICLE II.
PURCHASE PRICE
2.1 Purchase Price. The total Purchase Price (herein so called) to be
paid by Purchaser to Seller for the Property shall be an amount equal to Four
Million One Hundred Eighty Thousand and No/100 Dollars ($4,180,000.00). The
Purchase Price shall be payable in cash or Current Funds (hereinafter defined)
at Closing.
ARTICLE III.
EARNEST MONEY; INDEPENDENT CONTRACT CONSIDERATION
3.1 Amount and Timing. Within two (2) business days after the Effective
Date (hereinafter defined), Purchaser shall deliver to Chicago Title Insurance
Company, located at 8117 Preston Road, Suite 100, Dallas, Texas 75225,
Attention: J. David Griffin, Esq. (the "Title Company"), One Hundred
Thirty-Seven Thousand Five Hundred and No/100 Dollars ($137,500.00) (the
"Earnest Money Deposit") in cash or Current Funds, to be held by the Title
Company in escrow to be applied or disposed of by the Title Company as is
provided in this Contract. In the event Purchaser fails to deposit the Earnest
Money Deposit with the Title Company as herein provided, Seller may, at its
option, terminate this Contract, in which event neither Seller nor Purchaser
shall have any further obligations hereunder except for provisions of this
Contract which expressly survive the termination of this Contract. As used in
this Contract, the term "Current Funds" shall mean wire transfers, certified
funds or cashier's checks in a form acceptable to the Title Company which would
permit the Title Company to immediately disburse such funds.
3.2 Application and Interest. If the purchase and sale hereunder is
consummated, then the Earnest Money Deposit shall be applied to the Purchase
Price at Closing. In all other events, the Earnest Money Deposit shall be
disposed of by the Title Company as provided in this Contract. The Earnest Money
Deposit shall be invested in an interest-bearing account with a financial
institution and in a manner reasonably acceptable to Purchaser. All interest
earned on the Earnest Money Deposit is part of the Earnest Money Deposit, to be
applied or disposed of in the same manner as the Earnest Money Deposit under
this Contract.
3.3 Independent Contract Consideration. At the same time as the deposit
of the Earnest Money Deposit with the Title Company, Purchaser shall deliver to
Seller a check in the sum of Fifty and No/100 Dollars ($50.00) (the "Independent
Contract Consideration"), which amount has been bargained for and agreed to as
consideration for Purchaser's right to purchase the Property and the Inspection
Period (hereinafter defined) provided for herein, and for Seller's execution and
delivery of this Agreement. The Independent Contract Consideration is in
addition to and independent of all other consideration provided for in this
Agreement, and is non-refundable in all events.
-2-
ARTICLE IV.
TITLE AND SURVEY
4.1 Title Commitment. On or before the Effective Date, Seller shall
cause to be furnished to Purchaser a current Commitment for Title Insurance for
the Land and Improvements (the "Title Commitment") issued by the Title Company.
The Title Commitment shall set forth the state of title to the Land and
Improvements, including a list of conditions or exceptions to title affecting
the Land and Improvements that would appear in an Owner's Policy of Title
Insurance, if one were issued. The Title Commitment shall contain the expressed
commitment of the Title Company to issue the Title Policy (hereinafter defined)
to Purchaser in the amount of the Purchase Price, insuring the title to the Land
and Improvements specified in the Title Commitment. At such time as the Title
Commitment is furnished to Purchaser, the Title Company also shall furnish to
Purchaser copies of instruments or documents (the "Exception Documents") that
create or evidence conditions or exceptions to title affecting the Land and
Improvements, as described in the Title Commitment.
4.2 Survey. On or before the Effective Date, Seller shall cause to be
furnished to Purchaser, at Seller's expense, a copy a survey of the Land and
Improvements (the "Survey") dated or recertified no earlier than thirty (30)
days prior to the Effective Date and certified to Purchaser and the Title
Company in a manner reasonably acceptable to Purchaser. Notwithstanding the
foregoing, in the event Purchaser elects to terminate this Contract pursuant to
Section 4.4 or 5.2 hereof, Purchaser shall be obligated to reimburse Seller on
demand for the reasonable expenses incurred by Seller in connection with
obtaining the Survey.
4.3 Review of Title and Survey. Purchaser shall have until the
expiration of the Inspection Period in which to notify Seller in writing (the
"Title Objection Notice") of any objections Purchaser has to any matters shown
or referred to in the Title Commitment, the Exception Documents or on the
Survey; provided, that Purchaser shall not object to current real estate taxes
and assessments or to easements, restrictions and exceptions affecting the
Property which do not materially adversely affect the value of the Property or
its current use by Seller, all of which shall be Permitted Exceptions hereunder.
Any title encumbrances, exceptions or other matters which are set forth in the
Title Commitment, the Exception Documents or on the Survey, and to which
Purchaser does not object within the Inspection Period, shall be deemed to be
permitted exceptions to the status of Seller's title (such encumbrances,
exceptions or other matters, together with such other matters included pursuant
to other provisions of this Contract, shall be referred to as the "Permitted
Exceptions"). Seller shall, notwithstanding anything to the contrary contained
herein, satisfy all liens securing the payment of a monetary obligation and
affecting the Property at or prior to Closing, except for any liens or
encumbrances expressly permitted in Section 4.5(c) and (d) hereof.
4.4 Objections to Status of Title and Survey. If Purchaser properly
objects to any item shown or referred to in the Title Commitment, Exception
Documents or Survey within the Inspection Period, Seller shall be given until
five (5) days after receipt of the Title Objection Notice to notify Purchaser
whether or not Seller will cure, prior to Closing and at Seller's option and
sole discretion
-3-
but without any obligation to do so, any objection to the condition of title
raised by Purchaser. If Seller notifies Purchaser that it elects not to cure any
such objections, then Purchaser may, at its option exercisable within five (5)
days following the date of receipt by Purchaser of written notice from Seller
stating that Seller is unable or unwilling to cure such objections, either (a)
accept such title as Seller can deliver, in which case all exceptions to title
set forth in the Title Commitment, Exception Documents and Survey which are not
removed shall be deemed to be Permitted Exceptions, or (b) terminate this
Contract by notice in writing to Seller in which event the Title Company shall
return the Earnest Money Deposit to Purchaser and neither party shall have any
further rights, duties or obligations hereunder, except for provisions of this
Contract which expressly survive termination of this Contract. In the event
Purchaser fails to notify Seller, within such five (5) day period, that
Purchaser has elected to proceed under either subpart (a) or (b) of the
immediately preceding sentence, Purchaser shall be deemed to have elected to
proceed under subpart (a), and this Contract shall remain in full force and
effect. If Seller notifies Purchaser that it elects to cure any such objections
but is unable to cure same by Closing or if Seller fails to notify Purchaser of
its intentions with respect to such objections and fails to cure same by
Closing, then Purchaser may, at its option, either (x) accept such title as
Seller can deliver in which case the parties shall proceed with Closing and all
exceptions to title set forth in the Title Commitment, Exception Documents and
Survey which are not removed shall be deemed to be Permitted Exceptions, or (y)
terminate this Contract by notice in writing to Seller at Closing, in which
event the Title Company shall return the Earnest Money Deposit to Purchaser and
neither party shall have any further rights, duties or obligations hereunder
except for provisions of this Contract which expressly survive termination of
this Contract. If any additional exceptions to title other than those shown on
the initial Title Commitment or Survey arise between the date of the initial
Title Commitment, the Survey and the Closing (such exceptions to title being
referred to herein as the "New Exceptions"), Purchaser shall have five (5)
business days after its receipt of written notice of such New Exceptions within
which to notify Seller of any such New Exceptions to which Purchaser objects.
Any such New Exceptions not objected to by Purchaser as aforesaid shall become
"Permitted Exceptions" hereunder; provided, however, all New Exceptions created,
caused by, or consented to by Seller shall be satisfied or removed at Closing
and shall not constitute Permitted Exceptions unless such New Exceptions are
expressly permitted in Section 4.5(c) or (d) hereof. If Purchaser objects to any
such New Exceptions, Seller shall have until Closing to remove such New
Exceptions, which removal may be accomplished by waiver or endorsement by the
Title Company reasonably satisfactory to Purchaser. If Seller fails to remove
any such New Exceptions as aforesaid, Purchaser may, as its sole and exclusive
remedy, terminate this Contract and obtain a return of the Earnest Money Deposit
and neither party shall have any further rights, duties, or obligations
hereunder except for provisions of the Contract which expressly survive the
termination of this Contract. If Purchaser does not elect to terminate this
Agreement, Purchaser shall consummate the Closing and accept title to the
Property subject to all such New Exceptions (in which event, all such New
Exceptions, together with all other Permitted Exceptions, shall be deemed
"Permitted Exceptions" hereunder).
4.5 Other Permitted Exceptions. The Permitted Exceptions shall include
those matters shown in the Title Commitment and the Survey which become
Permitted Exceptions pursuant to Sections 4.3 and 4.4 above and, in addition,
the following: (a) the Tenant Leases; (b) taxes and assessments for the year in
which Closing occurs and subsequent years that are not yet due and
-4-
payable; (c) liens and encumbrances arising after the date hereof to which
Purchaser consents in writing; and (d) any liens or encumbrances of a definite
or ascertainable amount not exceeding $50,000.00 for the Property (and when such
amount is added to the aggregate amounts of any liens or encumbrances to be
insured and bonded around by the respective Dependent Sellers (hereinafter
defined) under the Dependent Contracts (hereinafter defined), such aggregate
amount shall not exceed $125,000.00), provided that (i) Seller causes such liens
or encumbrances to be insured or bonded around such that same do not appear as
an exception in the Title Policy issued to Purchaser pursuant to the Commitment,
and (ii) Seller agrees to indemnify Purchaser from all losses incurred by
Purchaser as a result of such liens or encumbrances.
ARTICLE V.
INSPECTION BY PURCHASER
5.1 Inspection Period. Purchaser shall have a period of time commencing
on the Effective Date and expiring at 5:00 p.m., Dallas, Texas time on June 17,
1998 (the "Inspection Period") within which to examine the Property and to
conduct its feasibility study thereof. Seller agrees that, during the Inspection
Period, Seller will allow Purchaser and Purchaser's agents access to the
Property during normal business hours to conduct soil and engineering, hazardous
waste, marketing, feasibility, zoning and other studies or tests and to
otherwise determine the feasibility of the Property for Purchaser's intended
use; provided, however, that prior to conducting any invasive testing with
respect to the Land or Improvements, or any tests or studies which could cause
any damage to the Land or Improvements, Purchaser must advise Seller in writing
(which notice shall state in reasonable detail the nature and extent of such
proposed testing) of its intent to conduct such tests or studies and Seller may,
in its reasonable discretion, refuse to approve any such tests or studies, in
which event Purchaser's sole remedy shall be to terminate this Contract pursuant
to Section 5.2 hereof and receive a refund of the Earnest Money Deposit, all as
provided in said Section 5.2. Seller agrees that, during the Inspection Period,
Seller will allow Purchaser and Purchaser's agents to conduct interviews with
the Tenants set forth on Schedule 5.1 attached hereto and made a part hereof,
and with those certain Tenants which Purchaser notifies Seller in writing during
the Inspection Period that Purchaser desires to conduct interviews and which
Seller consents to, which consent shall not be unreasonably withheld, provided
that such interviews shall take place during normal business hours after
reasonable notice (which may be by telephone) to Seller, and such interviews
shall be conducted only in the presence of one of Seller's representatives. Not
withstanding the foregoing, (a) the costs and expenses of Purchaser's
investigation shall be borne solely by Purchaser, (b) prior to the expiration of
the Inspection Period, Purchaser shall restore the Property to the condition
which existed prior to Purchaser's entry thereon and investigation thereof to
the extent the condition of the Property was affected by or as a result of the
actions of Purchaser or its agents, contractors or representatives, (c)
Purchaser shall not, in Seller's reasonable opinion, materially interfere,
interrupt or disrupt the operation of Seller's business on the Property and,
further, such access by Purchaser and/or its agents shall be subject to the
rights of Tenants under Tenant Leases, (d) in the event the transaction
contemplated by this Contract does not close for any reason, Purchaser shall
deliver to Seller a descriptive listing of all tests, reports and inspections
conducted by Purchaser with respect to the Property and deliver copies thereof
to Seller (excluding,
-5-
however, any proprietary development or marketing materials), (e) Purchaser
shall not permit any mechanic's or materialman's liens or any other liens to
attach to the Property by reason of the performance of any work or the purchase
of any materials by Purchaser or any other party on Purchaser's behalf in
connection with any studies or tests conducted pursuant to this Section 5.1, (f)
Purchaser shall give notice (which may be by telephone) to Seller a reasonable
time prior to entry onto the Property and shall permit Seller to have a
representative present during all investigations and inspections conducted with
respect to the Property, and (g) Purchaser shall take all reasonable actions and
implement all protections necessary to ensure that all actions taken in
connection with the investigations and inspections of the Property, and all
equipment, materials and substances generated, used or brought onto the Property
pose no material threat to the safety of persons or the environment and cause no
damage to the Property or other property of Seller or other persons. All
information made available by Seller to Purchaser in accordance with this
Contract or obtained by Purchaser in the course of its investigations shall be
treated as confidential information by Purchaser, and, prior to the purchase of
the Property by Purchaser, Purchaser shall use its best efforts to prevent its
agents and employees from divulging such information to any third parties except
(i) as reasonably necessary to third parties engaged by Purchaser for the
limited purpose of analyzing and investigating such information for the purpose
of consummating the transaction contemplated by this Contract, including
Purchaser's attorneys and representatives, prospective lenders and engineers or
(ii) as may required by applicable law, unless such information is generally
available to the public or is disclosed by a party other than Purchaser or its
agents. Purchaser shall indemnify, defend and hold Seller harmless for, from and
against any and all claims, liabilities, causes of action, damages, liens,
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees) incident to, resulting from or in any way arising out of any of
Purchaser's and its agents', contractors' and representatives' activities on the
Property, including, without limitation, any tests or inspections conducted by
Purchaser or its agents, contractors or representatives on the Property. The
agreements contained in this Section 5.1 shall survive the Closing and not be
merged therein and shall also survive any termination of this Contract.
5.2 Approval of Inspections. If Purchaser determines at any time prior
to the expiration of the Inspection Period that the Property is not satisfactory
to Purchaser, then Purchaser may deliver written notice to Seller within such
Inspection Period, given in accordance with the provisions of Section 13.1
hereof, in which event the Title Company shall return the Earnest Money Deposit
to Purchaser and neither party shall have any further rights, liabilities or
obligations hereunder, except for provisions of this Contract which by their
terms expressly survive the termination of this Contract. If Purchaser does not
timely deliver written notice of termination within such Inspection Period, the
conditions of this Section 5.2 shall be deemed satisfied, and Purchaser shall be
deemed to have approved the condition of the Property and may not thereafter
terminate this Contract pursuant to this Section 5.2. Prior to the end of the
Inspection Period, Purchaser shall deliver written notice (the "Service Contract
Termination Notice") to Seller of any Service Contracts which Purchaser does not
wish to assume; provided, that Purchaser shall be required to assume any Service
Contracts which are not terminable by notice within the time between Seller's
receipt of such Service Contract Termination Notice and the Closing Date
(hereinafter defined). Any Service Contracts which Purchaser does not specify be
terminated in the Service Contract Termination Notice delivered prior to the end
of the Inspection Period, and any Service Contracts specified in the Service
-6-
Contract Termination Notice which cannot be terminated without penalty prior to
the Closing Date, shall be deemed approved by Purchaser and shall be assumed by
Purchaser at Closing. Prior to the end of the Inspection Period, Purchaser shall
deliver written notice (the "Commission Agreement Termination Notice") to Seller
of any Commission Agreements which Purchaser does not wish to assume; provided,
that Purchaser shall be required to assume any Commission Agreements which are
not terminable by notice within the time between Seller's receipt of such
Commission Agreement Termination Notice and the Closing Date. Any Commission
Agreements which Purchaser does not specify be terminated in the Commission
Agreement Termination Notice delivered prior to the end of the Inspection
Period, and any Commission Agreements specified in the Commission Agreement
Termination Notice which either cannot be terminated or cannot be terminated
without penalty prior to the Closing Date shall be deemed approved by Purchaser
and shall be assumed by Purchaser at Closing.
5.3 Matters to be Delivered by Seller. Seller has previously delivered
to Purchaser and Purchaser hereby acknowledges receipt of the following items:
(i) A current rent roll for the Property in the form attached
to this Contract as Schedule 5.3(a) (the "Rent Roll"); and
(ii) A copy of all Tenant Leases listed on the Rent Roll
attached as Schedule 5.3(a) hereto.
On or before the Effective Date, Seller shall deliver to Purchaser each
of the following items:
(iii) A schedule of and copies of all Service Contracts
relating to the ownership and operation of the Property;
(iv) An itemized list of all tangible personal property owned
by Seller and attached to or located on or used in connection with the
Land or Improvements (the "Personal Property Schedule);
(v) A schedule of and copies of all Commission
Agreements relating to the Property;
(vi) A schedule of and copies of all environmental reports
prepared for Seller relating to the Property; and
(vii) An updated certified rent roll reflecting all payments
made by Tenants under Tenants Leases through May 25, 1998.
The items identified in (i)-(vii) hereinabove are collectively
referred to as the "Submission Matters".
-7-
Seller shall allow Purchaser to review and make copies of any other
documents, instruments or agreements it has with respect to the Property at
Seller's offices; provided that, in no event shall Purchaser be allowed to
review any documents which constitute or would be covered by the attorney-client
privilege or the 1998 budgets prepared by or for Seller with respect to the
Property.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND WAIVERS
6.1 Representations and Warranties of Purchaser. Purchaser represents
and warrants to Seller as of the date hereof and as of the Closing Date as
follows (which representations and warranties shall survive the Closing for a
period of 180 days): (a) Purchaser is a limited partnership duly organized and
validly existing under the laws of the State of Delaware; (b) Purchaser has full
right and authority to enter into this Contract and to consummate the
transactions contemplated herein; (c) each of the persons executing this
Contract on behalf of Purchaser is authorized to do so; and (d) this Contract
constitutes a valid and legally binding obligation of Purchaser, enforceable in
accordance with its terms.
6.2 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as of the date hereof and as of the Closing Date as
follows: (a) Seller is a limited partnership validly existing and duly organized
under the laws of the State of Texas; (b) Seller has full right and authority to
enter into this Contract and to consummate the transactions contemplated herein;
(c) each of the persons executing this Contract on behalf of Seller is
authorized to do so; (d) this Contract constitutes a valid and legally binding
obligation of Seller, enforceable in accordance with its terms; (e) as of the
date hereof, Seller has not received any written notice that it is in default or
breach under any of the Tenant Leases, Service Contracts or Commission
Agreements that Purchaser shall assume at Closing that remains uncured or has
not been settled or otherwise resolved; (f) all leasing commissions and all
"free rent" and other Tenant concessions due with respect to the current
unexpired term (excluding any future renewal or extension terms) of each Tenant
Lease executed prior to June 1, 1998 has been paid in full or will at Closing be
paid in full; (g) Seller has not received any written notice that the Property
is in violation of any laws, regulations or legal requirements applicable to the
Property; (h) except for any matters identified in any existing environmental
reports or other materials delivered to Purchaser, Seller has not received
written notice that the Property is in violation of any applicable environmental
laws; (i) Seller has not received notice of any pending or threatened claim,
demand, suit, proceeding of litigation of any kind with respect to the Property;
(j) to Seller's best knowledge after diligent inquiry, the list of Service
Contracts, Commission Agreements and Environmental Reports delivered to
Purchaser pursuant to Section 5.3 hereof are true, correct and complete lists of
all Service Contracts and Commission Agreements pertaining to the Property and
all Environmental Reports prepared for Seller pertaining to the Property; and
(k) Seller has delivered to Purchaser true and correct copies of all Service
Contracts and Commission Agreements that Purchaser is required to assume at
Closing. The representations and warranties of Seller hereunder shall survive
the Closing for a period of one hundred eighty (180) days.
-8-
6.3 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF SELLER. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN THIS CONTRACT OR
THE DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING, SELLER HAS NOT MADE, AND
SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING, (a) THE
NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE
EXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION OR
USE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER
AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THE
PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANY
GOVERNMENT OR OTHER REGULATORY BODY. EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES MADE BY SELLER IN THIS CONTRACT OR IN THE DOCUMENTS TO BE DELIVERED
BY SELLER AT CLOSING, PURCHASER AGREES TO ACCEPT THE PROPERTY AND ACKNOWLEDGES
THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY SELLER, ON AN
"AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER EXPRESSLY ACKNOWLEDGES
THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS
CONTRACT OR IN THE DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING, SELLER MAKES
NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED,
OR ARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S
WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PREMISES
WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION
(INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED BY OR ON BEHALF
OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SPECIFIED IN ANY WRITTEN
INSTRUMENT DELIVERED BY SELLER TO PURCHASER, SELLER MAKES NO REPRESENTATION OR
WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAW REGARDING OR WITH RESPECT TO ANY SUCH INFORMATION (INCLUDING,
WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED OR TO BE PROVIDED BY SELLER
REGARDING THE PROPERTY.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS
CONTRACT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS
CONTRACT OR IN THE DOCUMENTS TO BE DELIVERED BY
-9-
SELLER AT CLOSING, SELLER HAS MADE AND MAKES NO REPRESENTATION, WARRANTY OR
GUARANTY, AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE
PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY (OR ANY PARCEL IN PROXIMITY
THERETO) OF HAZARDOUS SUBSTANCES OR MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS
OR TOXIC UNDER ANY LOCAL, STATE OR FEDERAL LAW, STATUTE, ORDINANCE, RULE OR
REGULATION PERTAINING TO ENVIRONMENTAL OR SUBSTANCE REGULATION, CONTAMINATION,
CLEANUP OR DISCLOSURE (INCLUDING, WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE
NO LIABILITY TO PURCHASER THEREFOR. WITHOUT LIMITATION OF THE PRECEDING
SENTENCE, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR GUARANTY
REGARDING THE ACCURACY OF ANY ENVIRONMENTAL REPORTS WHICH MAY BE INCLUDED WITHIN
THE SUBMISSION MATTERS. BY ACCEPTANCE OF THIS CONTRACT AND THE DEED TO BE
DELIVERED BY SELLER AT THE CLOSING, PURCHASER ACKNOWLEDGES THAT PURCHASER'S
OPPORTUNITY FOR INSPECTION AND INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS
IN PROXIMITY THERETO) WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER'S
OWN DETERMINATION WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE
PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES
OR MATERIALS, AND PURCHASER ACCEPTS THE RISK OF THE PRESENCE OR DISPOSAL OF ANY
SUCH SUBSTANCES OR MATERIALS. PURCHASER AGREES THAT SHOULD ANY CLEANUP,
REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS
ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEAN-UP, REMOVAL OR
REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE
COST AND EXPENSE OF PURCHASER, UNLESS SUCH CONDITION ARISES OUT OF OR RELATES TO
A BREACH BY SELLER OF ITS REPRESENTATIONS AND WARRANTIES REGARDING ENVIRONMENTAL
MATTERS SET FORTH IN SECTION 6.2(h) HEREOF.
PURCHASER HEREBY FULLY RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER,
ITS EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, REPRESENTATIVES AND AGENTS, AND
THEIR RESPECTIVE PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM
ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION
ARISING FROM OR RELATED TO ANY CONSTRUCTION DEFECTS, ERRORS, OMISSION, OR OTHER
CONDITIONS AFFECTING THE PROPERTY; PROVIDED, THAT THIS SHALL NOT RELEASE SELLER
FROM CLAIMS ARISING, IF ANY, AS A RESULT OF ANY WRITTEN REPRESENTATION OR
WARRANTY OF SELLER BEING FALSE WHEN MADE. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH
OF ITS EXPRESSED TERMS AND PROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE
RELATING TO UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. THIS
COVENANT RELEASING SELLER SHALL
-10-
BE BINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS,
SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF THIS SECTION 6.3 (INCLUDING, WITHOUT LIMITATION,
THE WAIVER AND RELEASE OF CLAIMS CONTAINED HEREIN) SHALL SURVIVE THE
CLOSING OR EARLIER TERMINATION OF THIS CONTRACT.
6.4 Effect of Disclaimers. As specified in Section 6.3 above, the
Property will be sold in its "as is" condition. Except for the representations
and warranties of Seller in this Contract and the warranties contained in the
documents to be delivered by Seller to Purchaser at Closing, Purchaser shall
rely on its own due diligence in deciding to enter into and close the
transaction contemplated by this Contract. The price has been negotiated based
upon the "as is" nature of the sale contemplated hereunder.
ARTICLE VII.
CONDITIONS PRECEDENT TO PURCHASER'S AND
SELLER'S PERFORMANCE
7.1 Conditions to Purchaser's Obligations. Purchaser's obligation under
this Contract to purchase the Property is subject to the fulfillment of each of
the following conditions (any or all of which may be waived by Purchaser):
(a) The representations and warranties of Seller
contained herein shall be true, accurate and correct as of the Closing
Date;
(b) Seller shall be ready, willing and able to deliver title
to the Property in accordance with the terms and conditions of this
Contract;
(c) The condition specified in Section 7.3 hereof shall have
been satisfied; and
(d) Seller shall have delivered all the documents and other
items required pursuant to Section 8.2(a), and shall have performed, in
all material respects, all other covenants, undertakings and
obligations, and complied with all conditions required by this Contract
to be performed or complied with by the Seller at or prior to the
Closing.
7.2 Conditions to Seller's Obligations. Seller's obligation under this
Contract to sell the Property to Purchaser is subject to the fulfillment of each
of the following conditions (all or any of which may be waived by Seller):
(a) the representations and warranties of Purchaser
contained herein shall be true, accurate and correct as of the Closing
Date; and
-11-
(b) Purchaser shall have delivered the funds required
hereunder and all the documents to be executed by Purchaser set forth
in Section 8.2(b) and shall have performed, in all material respects,
all other covenants, undertakings and obligations, and complied with
all conditions required by this Contract to be performed or complied
with by Purchaser at or prior to Closing.
7.3 Estoppel Certificates. Prior to Closing, Seller shall deliver to
each Tenant an Estoppel Certificate (herein so called), in the form attached
hereto as Exhibit F, and request that each Tenant complete, sign and deliver
such Estoppel Certificate to Seller. Seller's only obligation with respect to
such Estoppel Certificates shall be to request that each Tenant complete and
deliver to Seller such Estoppel Certificates. Purchaser's obligations to
consummate the transaction contemplated by this Contract are expressly subject
to and conditioned upon (x) Seller delivering to Purchaser on or before the
Closing Date Estoppel Certificates dated no earlier than thirty (30) days prior
to the Closing Date executed by Tenants occupying at least seventy percent (70%)
of the net rentable area of the Improvements, in the aggregate, and from all
Tenants set forth in Schedule 7.3 attached hereto and made a part hereof (the
"Required Estoppels"), and (y) Seller delivering to Purchaser at Closing a
Seller's Certificate for each Tenant that has not delivered an Estoppel
Certificate on or before Closing. Seller shall be obligated to deliver to
Purchaser at Closing a Seller's Certificate for each Tenant that has not
delivered an Estoppel Certificate on or before Closing. If on or before the
Closing Date Seller has received Estoppel Certificates from Tenants occupying
more than sixty percent (60%) but less than seventy percent (70%) of the net
rentable area of the Improvements, then, at Closing, Seller at its option may
(without any obligation to do so) provide Purchaser with a certificate (herein
called the "Seller's Certificate"), setting forth Seller's certification that,
with respect to the Lease in question for which a Tenant did not deliver an
Estoppel Certificate, (i) the copy of such Lease (and all amendments and
modifications thereto) previously provided by Seller to Purchaser is true,
correct and complete, (ii) Seller has not received any rent thereunder for more
than one month in advance, and (iii) Seller has neither received nor given any
written notice of default under such Lease (or, if so, describing the nature
thereof). Each Seller's Certificate provided to Purchaser as provided in the
immediately preceding sentence shall be in lieu of and in substitution for the
Estoppel Certificate with respect to the Lease in question and shall count
against the minimum seventy percent (70%) requirement set forth in the
conditions set forth above, but only to the extent of such ten percent (10%) or
less shortfall and no Seller's Certificate may be delivered by Seller in
substitution for or count against the requirement to obtain any of the Required
Estoppels. In the event that an Estoppel Certificate is received from a Tenant
either before or within thirty (30) days after Closing which confirms the
accuracy of the certification set forth in the updated and certified rent roll
delivered by Seller to Purchaser at Closing with respect to the corresponding
Lease, the certified and updated rent roll shall be deemed to be superseded by
such Estoppel Certificate and, in such event, Seller shall no longer have any
liability hereunder with respect to that portion of the certification
superseded. In the event that an Estoppel Certificate is received from a Tenant
on or before thirty (30) days after the Closing and delivered by Seller to
Purchaser within such thirty-day period which confirms the accuracy of the
representations made by Seller in a Seller's Certificate delivered by Seller at
Closing, then such Seller's Certificate shall be deemed to be superseded by such
Estoppel Certificate and, in such event, Seller shall no longer
-12-
have any liability hereunder with respect to the Seller's Certificate relating
to the Tenant Lease in question. The provisions of this Section shall survive
the Closing and delivery of the Deed.
ARTICLE VIII.
CLOSING
8.1 Time and Place. The consummation of the purchase and sale of the
Property (the "Closing") shall take place at the office of the Title Company (it
being contemplated that the Closing will occur by the delivery of Closing
documents into escrow with the Title Company) on July 3, 1998, or at such
earlier date and time as Purchaser and Seller may mutually agree (the "Closing
Date").
8.2 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver, or cause to
be delivered, to the Title Company for recording or delivery to
Purchaser, as applicable, each of the following items:
(i) A standard Texas form Owner Policy of Title
Insurance dated no earlier than the date of the filing of the
Deed described in Section 8.2(a)(ii) hereof, issued by the
Title Company for the benefit of and at the expense of
Purchaser, and insuring Purchaser's title in the amount of the
Purchase Price, subject only to the Permitted Exceptions (the
"Title Policy").
(ii) A Special Warranty Deed (the "Deed") duly
executed and acknowledged by Seller in the form attached
hereto as Exhibit B and made a part hereof for all purposes
sufficient to convey to Purchaser good and indefeasible title
to the Land and Improvements free and clear of all liens and
encumbrances except for the Permitted Exceptions.
(iii) An Assignment and Assumption of Leases and
Commission Agreements (the "Assignment of Leases") duly
executed and acknowledged by Seller in the form attached
hereto as Exhibit C and made a part hereof for all purposes.
(iv) A Blanket Conveyance, Bill of Sale and
Assignment ("Bill of Sale") duly executed by Seller in the
form attached hereto as Exhibit D and made a part hereof for
all purposes.
(v) The Estoppel Certificates as required pursuant to
Section 7.3 hereof.
(vi) All original Tenant Leases that are in Seller's
possession together with letters addressed to the Tenants of
the Property (the "Notice Letters") in the form attached
hereto as Exhibit G and made a part hereof for all purposes,
or in such other
-13-
form as may be mutually agreed upon by Seller and Purchaser,
duly executed by Seller.
(vii) Original counterparts of all Service Contracts
that are in Seller's possession and which are to be assumed by
Purchaser, together with letters addressed to the service
providers thereunder in the form attached hereto as Exhibit
G-2 (the "Service Contract Notice Letters"), duly executed by
Seller.
(viii) A Non-Foreign Affidavit in the form attached
hereto as Exhibit E and made a part hereof for all purposes,
duly executed by Seller.
(ix) All amounts owing to Purchaser by Seller under
Article IX hereof.
(x) Evidence satisfactory to Purchaser and the Title
Company that the person or persons executing this Contract and
the closing documents on behalf of Seller have full right,
power and authority to do so.
(xi) Other items reasonably requested by the Title
Company for the sale of the Property in accordance with this
Contract or for administrative requirements for consummating
the Closing.
(xii) Evidence of termination of all Service
Contracts and Commission Agreements not being assumed by
Purchaser at Closing.
(xiii) An updated Rent Roll certified by Seller as
being true, accurate and complete as of the Closing Date in
the same format as Schedule 5.3(a) hereto.
(xiv) An original of a closing statement prepared by
the Title Company setting forth the Purchase Price and the
closing adjustments and prorations.
(xv) A Designation of Person Responsible for Tax
Reporting under Internal Revenue Code Section 6045 designating
the Title Company as the party responsible for making the
returns required under Internal Revenue Code Section 6045.
(xvi) Keys to all locks at the Property.
(xvii) Evidence that Broker (hereinafter defined) has
or will be paid at Closing the brokerage commissions referred
to in Section 11.1 hereof.
(xviii) A management agreement for the Property and
all of the properties under the Dependent Contracts executed
by Breunig Commercial Management, Inc. in form and substance
reasonably acceptable to Purchaser and Breunig Commercial
Management, Inc. (the "Management Agreement"), which
Management Agreement
-14-
shall have a term of one year, be terminable by Purchaser
after six months without cause or premium, have a management
fee of five percent (5%), pay standard leasing commissions and
require Purchaser to pay $300,000 to such manager for use
exclusively as bonuses to employees of such manager that are
dedicated to property level services including, without
limitation, accounting and leasing services, with no more than
$150,000 of such bonuses being paid prior to the date that is
six months after the Closing, provided, however, if Purchaser
acquires less than all of the properties under this Contract
and the Dependent Contracts pursuant to Section 14.1(f)
hereof, then Purchaser shall be entitled to reduce such
$300,000 figure on a pro rata basis based upon the purchase
prices of the properties not acquired under this Contract and
the Dependent Contracts to the aggregate purchase prices of
all of the properties under this Contract and the Dependent
Contracts.
(b) Purchaser. At the Closing, Purchaser shall deliver to the
Title Company, for recording or delivery to Seller, as
applicable, each of the following items:
(i) The Purchase Price in Current Funds.
(ii) The Assignment of Leases, duly executed and
acknowledged by Purchaser.
(iii) The Bill of Sale, duly executed by Purchaser.
(iv) Such additional funds in cash or Current Funds,
as may be necessary to cover Purchaser's share of the closing
costs and prorations hereunder.
(v) Evidence satisfactory to Seller and the Title
Company that the person or persons executing this Contract and
the closing documents on behalf of Purchaser have full right,
power and authority to do so.
(vi) The Notice Letters and Service Contract Notice
Letters duly executed by Purchaser.
(vii) Other items reasonably requested by the Title
Company for the sale of the Property in accordance with this
Contract or for administrative requirements for consummating
the Closing.
(viii)The Management Agreement executed by Purchaser.
8.3 Costs of Closing. The escrow fees of the Title Company shall all be
paid equally by Seller and Purchaser. Any and all costs relating to the Title
Policy and any endorsements thereto shall be borne by Purchaser. Any costs,
including, without limitation, recording costs, loan fees and attorneys' fees,
relating to (a) any financing obtained by the Purchaser for the purchase of the
Property, and/or (b) any documentary stamp taxes, deed taxes, transfer taxes,
intangible taxes,
-15-
mortgage taxes or other similar taxes, fees or assessments incurred in
connection with any such financing shall be borne and paid exclusively by
Purchaser. All other expenses incurred by Seller and Purchaser with respect to
the Closing, including, but not limited to, the attorneys' fees and costs and
expenses incurred in connection with negotiating, preparing and closing the
transaction contemplated by this Contract, shall be borne and paid exclusively
by the party incurring same, unless otherwise expressly provided in this
Contract.
8.4 Prorations. All normal and customarily proratable items, including,
without limitation, rents (including, without limitation, base rents, additional
rents, percentage rents and common area maintenance charges but excluding
Delinquent Rent [hereinafter defined] that is more than thirty (30) days past
due) which shall be prorated based upon the updated Rent Roll delivered by
Seller to Purchaser at Closing, operating expenses and other fees and payments
relating to any agreements affecting the Property which survive the Closing,
shall be prorated as of the Closing Date, Seller being charged and credited for
all of same attributable to the period up to the Closing Date (and credited for
any amounts paid by Seller attributable to the period on or after the Closing
Date) and Purchaser being responsible for, and credited or charged, as the case
may be, for all of same attributable to the period on and after the Closing
Date. All unapplied Deposits under Tenant Leases, if any, and all prepaid rents
paid by Tenants under Tenant Leases (but only to the extent such rents are for
periods from and after the Closing Date) shall be credited to Purchaser against
the Purchase Price at the Closing. Any real estate ad valorem or similar taxes
for the Property, or any installment of assessments payable in installments
which installment is payable in the year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. In connection with the
proration of real property taxes or installments of assessments, such proration
shall be based upon the assessed valuation and tax rate figures for the year in
which the Closing occurs to the extent the same are available; provided, that in
the event that actual figures (whether for the assessed value of the Property or
for the tax rate) for the year of Closing are not available at the Closing Date,
the proration shall be made using figures from the preceding year for the
figures which are unavailable for the year of Closing. All prorations hereunder
shall be final and unadjustable.
8.5 New Leases. Notwithstanding anything contained in this Contract to
the contrary, Purchaser shall be responsible for the costs of all tenant
improvement expenses and leasing commissions payable or attributable to any new
Tenant Leases entered into by Seller after June 1, 1998 and prior to the Closing
Date; provided, that such new Tenant Leases have been delivered by Seller to
Purchaser for Purchaser's approval and Purchaser has approved of such new Tenant
Leases, which approval shall not be unreasonably withheld, conditioned or
delayed, and which shall be deemed approved if Purchaser has not notified Seller
of its rejection of such new Tenant Lease within three (3) business days after
receipt of a request for approval of such new Tenant Lease from Seller (which
request shall be accompanied by a copy of the Tenant Lease in question and the
amount of any leasing commissions relating thereto). In the event that Seller
has paid any of such expenses and/or leasing commissions prior to Closing,
Purchaser shall reimburse Seller at Closing for the amount of any such expenses
and/or leasing commissions paid by Seller and, in the event Seller has not paid
such expenses and/or leasing commissions prior to Closing, Purchaser shall be
responsible for payment of all such expenses and/or leasing commissions after
Closing.
-16-
8.6 Possession and Closing. Possession of the Property shall be
delivered to Purchaser by Seller at the Closing, subject to the Permitted
Exceptions and the rights of the Tenants under Tenant Leases. Purchaser shall
make its own arrangements for the provision of public utilities to the Property
and Seller shall terminate its contracts with such utility companies that
provide services to the Property.
8.7 Delinquent Rent.
(a) Application of Delinquent Rent. If on the Closing Date any
Tenant is in arrears in the payment of any rent under any Tenant Lease
(the "Delinquent Rent") payable by it, any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be
applied to amounts due and payable by such Tenant during the following
periods in the following order of priority: (i) with respect to any
Delinquent Rent which is less than one month late, (A) first, to the
period of time on or before the Closing Date; and (ii) with respect to
any Delinquent Rent which is one month or more late as of the Closing
Date, (A) first, to the period of time after the Closing Date, and (B)
second, to the period of time on or before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser
after the Closing are due and payable to the other party by reason of
this allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys' fees and costs and expenses expended in
connection with the collection thereof, shall be promptly paid to the
other party. The provisions of this Section 8.7(a) shall survive the
Closing.
(b) Collection of Delinquent Rent. After the Closing, Seller
shall continue to have the right, in its own name, to demand payment of
and to collect Delinquent Rent owed to Seller by any Tenant, which
right shall include, without limitation, the right to continue or
commence legal actions or proceedings against any Tenant, but shall
specifically exclude the right to seek possession of the premises
demised to a Tenant or to terminate a Tenant Lease, and the delivery of
the Assignment of Leases [as defined in Section 8.2(a)(iii)] shall not
constitute a waiver by Seller of such right. Purchaser agrees to
cooperate with Seller in connection with all efforts by Seller to
collect such Delinquent Rent and to take all steps, whether before or
after the Closing Date, as may be necessary to carry out the intention
of the foregoing, including, without limitation, the delivery to
Seller, upon demand, of any relevant books and records (including,
without limitation, rent statements, receipted bills and copies of
tenant checks used in payment of such rent), the execution of any and
all consents or other documents, and the undertaking of any act
reasonably necessary for the collection of such Delinquent Rent by
Seller, but without any obligation to incur any out-of-pocket costs or
expenses. The provisions of this Section 8.7(b) shall survive the
Closing.
8.8 Tenant Reimbursements. Any additional rents, percentage rents,
common area maintenance charges and other rent items that have accrued, but have
not yet been paid for the calendar year 1997 shall be owned exclusively by
Seller and to the extent any of such amounts are paid by Tenants to Purchaser
after the Closing Date, Purchaser shall promptly deliver such amounts to Seller.
Purchaser acknowledges that based upon the operating expenses of the Property
for calendar year 1997 and based upon projected increases in operating expenses
for calendar year 1998,
-17-
Seller has notified Tenants in writing that estimated additional rent payments
(the "1998 Additional Rent Payments") are required to be paid by the Tenants at
such time as base rent payments are due and payable during the balance of the
1998 calendar year. Purchaser agrees that at such time as the 1998 Additional
Rent Payments are received from the Tenants after the Closing Date, Purchaser
shall promptly deliver Seller's Pro rata Portion of such 1998 Additional Rent
Payments to Seller. As used in this Section 8.8, Seller's Pro rata Portion shall
be equal to the amount expressed in percentage terms determined by dividing (x)
the number of days that Seller owned the Property in the 1998 calendar year by
(y) 365. The provisions of this Section 8.8 shall survive the Closing.
ARTICLE IX.
CONDEMNATION OR CASUALTY
9.1 Condemnation.
(a) In the event that all or any substantial portion of the
Property is condemned or taken by eminent domain or conveyed by deed in
lieu thereof, or if any condemnation proceeding is commenced for all or
any substantial portion of the Property, prior to Closing, Purchaser
may elect to terminate this Contract by written notice thereof to
Seller within ten (10) days after Seller notifies Purchaser of the
condemnation, taking or deed in lieu or institution of such
condemnation proceeding, and in the case of such termination, the
Earnest Money Deposit shall be returned to Purchaser and neither party
shall have any further rights, duties, or obligations hereunder except
for provisions of this Contract which expressly survive the termination
of this Contract. If Purchaser does not terminate this Contract as
aforesaid or the taking is not substantial, then both parties shall
proceed to close the transaction contemplated herein pursuant to the
terms hereof, in which event Seller shall, except as limited in Section
9.1(b) hereof, deliver to Purchaser at the Closing any proceeds
actually received by Seller attributable to the Property from such
condemnation, eminent domain proceeding or deed in lieu thereof and
assign its interest in and to the balance of any unpaid proceeds, and
there shall be no reduction in the Purchase Price.
(b) For the purpose of this Section 9.1(a), a "substantial
portion" of the Property shall be deemed to be (x) any portion of the
Improvements, (y) any portion of the Property that restricts or reduces
the existing access to the Property, or (z) any portion of the parking
lot that reduces the existing aggregate parking spaces by more than
five percent (5%) or renders the Property in violation of existing
zoning requirements. Notwithstanding anything to the contrary contained
in Section 9.1(a), if Purchaser has not timely elected to terminate in
accordance with Section 9.1(a), and if the proceeds payable with
respect to the Property as a result of condemnation exceed the Purchase
Price for the Property, the portion of such proceeds in excess of the
Purchase Price shall be paid to Seller (in addition to the Purchase
Price) at the Closing. The foregoing provision shall survive the
Closing.
-18-
9.2 Casualty.
(a) In the event that all or any substantial portion of the
Property shall be damaged or destroyed by fire or other casualty prior
to Closing, Purchaser may terminate this Contract by written notice
thereof to Seller within ten (10) days after Seller notifies Purchaser
of the casualty, and in the case of such termination, the Earnest Money
Deposit shall be returned to Purchaser and neither party shall have any
further rights, duties, or obligations hereunder except for provisions
of this Contract which expressly survive the termination of this
Contract. If Purchaser does not terminate this Contract as aforesaid,
then both parties shall proceed to close the transaction contemplated
herein pursuant to the terms hereof, in which event Seller shall,
except as limited in Section 9.2(b) hereof, deliver to Purchaser at the
Closing any insurance proceeds actually received by Seller attributable
to the Property from such casualty (except for proceeds previously used
to repair the Property) together with any deductible under Seller's
insurance policy and assign to Purchaser all of Seller's right, title
and interest in and to any claims which Seller may have under the
insurance policies covering the Property, and there shall be no
reduction in the Purchase Price. In the event less than a substantial
portion of the Property shall be damaged or destroyed by fire or other
casualty prior to Closing, then the parties shall proceed in accordance
with the second sentence in this Section 9.2(a).
(b) For the purposes of Section 9.2(a), a "substantial
portion" of the Property shall be deemed to be any portion of the
Property with either a fair market value or replacement cost in an
amount equal to or greater than One Hundred Sixty-Seven Thousand Two
Hundred and No/100 Dollars ($167,200.00). Notwithstanding anything in
Section 9.2(a) to the contrary, if Purchaser has not timely elected to
terminate in accordance with Section 9.2(a), and if the proceeds
payable with respect to the Property as a result of casualty exceed the
Purchase Price for the Property, the portion of such proceeds in excess
of the Purchase Price shall be paid to Seller (in addition to the
Purchase Price) at the Closing. The foregoing provision shall survive
the Closing.
ARTICLE X.
DEFAULTS AND REMEDIES
10.1 Default by Purchaser. If Seller shall not be in default hereunder
and Purchaser refuses or fails to consummate the Closing under this Contract for
reasons other than due to a termination permitted hereunder or other than due to
a failure of a condition precedent to Purchaser's obligation to close as set
forth in Section 7.1 hereof, Seller shall, as its sole and exclusive remedy,
terminate this Contract in which event neither party shall have any further
rights, duties, or obligations hereunder except for provisions of this Contract
which expressly survive the termination hereof, and Seller shall be entitled to
receive and retain the Earnest Money Deposit as liquidated damages (Seller and
Purchaser hereby acknowledging that the amount of damages in the event of
Purchaser's default is difficult or impossible to ascertain but that such amount
is a fair estimate of such damage). Notwithstanding anything contained in this
section to the contrary, in the event of any default by
-19-
Purchaser of any indemnity under this Contract which survives the Closing or
termination of this Contract, Seller shall have any and all rights and remedies
available at law or in equity by reason of such default, excluding, however, any
punitive, speculative or consequential damages or damages for loss of
opportunity or lost profit. Except as otherwise provided in this Section 10.1,
in no event shall Purchaser be liable to Seller for any damages, including,
without limitation, any actual, punitive, speculative or consequential damages
or damages for loss of opportunity or lost profit.
10.2 Default by Seller. If Purchaser shall not be in default hereunder
and if Seller refuses or fails to consummate the Closing under this Contract
other than due to a termination permitted hereunder or a failure of a condition
precedent to Seller's obligation to close as set forth in Section 7.2 hereof,
Purchaser may, at Purchaser's sole option, as its sole and exclusive remedies,
either (a) terminate this Contract in which event neither party shall have any
further rights, duties or obligations hereunder except for provisions of this
Contract which expressly survive the termination hereof, and Purchaser shall be
entitled to a refund of the Earnest Money Deposit, or (b) enforce specific
performance of this Contract. Notwithstanding anything contained in this Section
to the contrary, in the event of (x) (i) any breach by Seller of any
representation or warranty under this Contract which survives the Closing, and
(ii) the Closing occurs under this Contract or (y) any breach by Seller of any
indemnity under this Contract which survives the Closing or termination of this
Contract, in either the case of (x) or (y), Purchaser shall have any rights and
remedies available at law or in equity by reason of such breach, excluding,
however, any punitive, speculative or consequential damages or damages for loss
of opportunity or lost profit. Except as otherwise provided in this Section
10.2, in no event shall Seller be liable to Purchaser for any damages,
including, without limitation, any actual, punitive, speculative or
consequential damages or damages for loss of opportunity or lost profit.
10.3 Attorneys' Fees. If it shall be necessary for either Purchaser or
Seller to employ an attorney to enforce its rights pursuant to this Contract,
the non-prevailing party shall reimburse the prevailing party for its reasonable
attorneys' fees.
ARTICLE XI.
BROKERAGE COMMISSIONS
11.1 Brokerage Commission. Seller and Purchaser represent each to the
other that each has had no dealings with any broker, finder or other party
concerning the purchase of the Property except Breunig Commercial Management,
Inc. ( the "Broker"). Seller shall be solely responsible for the payment of any
commission to Broker pursuant to a separate written agreement. Seller represents
and warrants to Purchaser that Broker's right to receive a commission or any
other amount with respect to this Contract or the Property is expressly
conditioned upon Closing the sale of the Property and Seller's receipt of the
Purchase Price under this Contract. Seller represents and warrants to Purchaser
that Broker shall have no right to receive this commission or any other amount
with respect to this Contract or the Property unless and until Closing shall be
final and fully consummated and Seller shall have received the Purchase Price as
provided in this Contract. Seller agrees to indemnify Purchaser and hold
Purchaser harmless from any loss, liability, damage, cost
-20-
or expense (including, without limitation, reasonable attorneys' fees) arising
out of or paid or incurred by Purchaser by reason of any claim to any broker's,
finder's or other fee in connection with this transaction by any party claiming
by, through or under Seller (including, without limitation, Broker). Purchaser
agrees to indemnify Seller and hold Seller harmless from any loss, liability,
damage, cost or expense (including, without limitation, reasonable attorneys'
fees) arising out of or paid or incurred by Seller by reason of any claim to any
broker's, finder's or other fee in connection with this transaction by any party
claiming by, through or under Purchaser (excluding Broker). Notwithstanding
anything to the contrary contained herein, the indemnities and other provisions
set forth in this Article XI shall survive the Closing or termination of this
Contract.
Purchaser hereby acknowledges that at the time of the execution of this
Contract, Purchaser is advised by this writing that Purchaser should have an
abstract covering the Property examined by an attorney of Purchaser's own
selection, or that Purchaser should be furnished with or obtain an owner policy
of title insurance.
ARTICLE XII.
OPERATION OF THE PROPERTY PRIOR TO THE CLOSING
12.1 Operation of the Property. Between June 1, 1998 and the Closing
Date, Seller shall (a) lease, operate, manage and enter into contracts with
respect to the Property, in the same manner done by Seller prior to the date
hereof (provided, however, that without the prior consent of Purchaser, which as
to (i) and (ii) shall not be unreasonably delayed, conditioned or withheld, (i)
Seller shall not enter into any Service Contract that cannot be terminated with
thirty (30) days notice or materially modify any existing Service Contracts to
be assumed by Purchaser at Closing, and (ii) after June 1, 1998, Seller shall
not materially modify or terminate any existing Tenant Lease or grant any
material consents under any existing Tenant Lease (except as otherwise required
pursuant to the terms and conditions of such Tenant Lease), or enter into any
new Tenant Lease, and (iii) Seller shall not apply any then unapplied Deposits
(as reflected on the Rent Roll delivered by Seller to Purchaser pursuant to
Schedule 5.3(vii) hereof) under Tenant Leases); and (b) advise Purchaser of the
commencement of any litigation, condemnation or other judicial or administrative
proceedings affecting the Property of which Seller has current actual knowledge.
Notwithstanding anything to the contrary set forth in this Contract,
Purchaser acknowledges that after June 1, 1998 and prior to Closing, Seller will
enter into contracts for the completion of Tenant improvements under Tenant
Leases entered into after June 1, 1998 pursuant to the terms of Section 12.1
hereof (collectively, the "Tenant Finish Contracts"). Purchaser and Seller agree
that at Closing, Purchaser shall assume the obligations of Seller under all such
Tenant Finish Contracts including, without limitation, the obligations to pay
any costs and expenses charged with respect to construction of improvements in
the space subject to such Tenant Leases. At Closing, Purchaser shall execute and
deliver to the Seller an Assignment, Assumption and Indemnity Agreement in the
form attached hereto as Exhibit H and made a part hereof for all purposes.
-21-
ARTICLE XIII.
MISCELLANEOUS
13.1 Notices. Any notice provided or permitted to be given under this
Contract must be in writing and may be served by (a) depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, (b) delivering the same
in person to such party via a hand delivery service, Federal Express or any
other nationally recognized courier service that provides a return receipt
showing the date of actual delivery of same to the addressee thereof, or (c)
facsimile transmission with confirmation of receipt to the party sending same,
if a copy is deposited in the United States Mail as provided in 13.1(a) above or
sent by a nationally recognized courier service as provided in 13.1(b) above.
Notice given in accordance herewith shall be effective upon receipt (including,
without limitation, by facsimile transmission) at the address of the addressee.
For purposes of notice, the addresses of the parties shall be as follows:
If to Seller: Forest Abrams Place, Ltd.
c/o Breunig Realty Group, Inc.
12160 North Abrams Road, Suite 305
Dallas, Texas 75243-4525
Attention: Mr. Robert P. Breunig
Facsimile No.: 972/234-3810
Telephone No.: 972/235-3300
With a copy to: Liechty & McGinnis, P.C.
10440 North Central Expressway, Suite 1100
Dallas, Texas 75231
Attention: Kevin P. McGinnis, Esq.
Facsimile No.: 214/265-0615
Telephone No.: 214/265-0008
If to Purchaser: Beacon Capital Partners, L.P.
225 West Washington St., Suite 2200
Chicago, Illinois 60606
Attention: E. Valjean Wheeler
Facsimile No.: 312/419-7071
Telephone No.: 312/419-7070
And to: Beacon Capital Partners, Inc.
One Federal Street, 26th Floor
Boston, Massachusetts 02110
Attn: Wistar Wood
Facsimile: 617/457-0499
Telephone: 617/457-0460
-22-
With a copy to: Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
Attn: Jordan P. Krasnow, Esq.
Facsimile: 617/574-4112
Telephone: 617/574-4081
13.2 GOVERNING LAW; VENUE. THIS CONTRACT IS BEING EXECUTED AND
DELIVERED, AND IS INTENDED TO BE PERFORMED IN, THE STATE OF TEXAS, AND THE LAWS
OF SUCH STATE SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF THIS CONTRACT AND IN THE EVENT OF A DISPUTE INVOLVING THIS
CONTRACT OR ANY DOCUMENTS EXECUTED IN CONNECTION HEREWITH, PURCHASER IRREVOCABLY
AGREES THAT VENUE FOR SUCH DISPUTE SHALL LIE IN ANY COURT OF COMPETENT
JURISDICTION IN DALLAS COUNTY, TEXAS.
13.3 Entirety and Amendments. This Contract embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the transaction described herein, and may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought.
13.4 Parties Bound. Subject to the provisions of Section 13.5 hereof,
this Contract shall be binding upon and inure to the benefit of Seller and
Purchaser, and their respective heirs, personal representatives, successors and
assigns.
13.5 Assignment. This Contract may be assigned by Purchaser to any
person or entity controlling, controlled by or under common control with
Purchaser without the prior written consent of Seller. Any assignment of this
Contract by Purchaser other than as provided foregoing shall, at Seller's
option, be null and void and of no effect. In the event of an assignment of this
Contract by Purchaser, Purchaser shall not be released from any liability or
obligations hereunder.
13.6 Headings. Headings used in this Contract are used for reference
purposes only and do not constitute substantive matter to be considered in
construing the terms of this Contract.
13.7 Survival. Except as otherwise expressly provided herein, no
representations, warranties, covenants, acknowledgments or agreements contained
in this Contract shall survive the Closing of this Contract and the delivery of
the Deed by Seller to Purchaser.
13.8 Interpretation. The parties acknowledge that each party and its
counsel have reviewed this Contract, and the parties hereby agree 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 Contract or any amendments or exhibits hereto. In case any one or more
of the provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof,
-23-
and this Contract shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained herein. When the context in
which words are used in this Contract indicates that such is the intent, words
in the singular number shall include the plural and vice versa, and words in the
masculine gender shall include the feminine and neuter genders and vice versa.
13.9 Exhibits. All references to "Exhibits" contained herein are
references to exhibits attached hereto, all of which are hereby made a part
hereof for all purposes.
13.10 Time of Essence. It is expressly agreed by the parties hereto
that time is of the essence with respect to this Contract and Closing hereunder.
13.11 Multiple Counterparts. This Contract may be executed in a number
of identical counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement, but, in making proof of this Contract,
it shall not be necessary to produce or account for more than one such
counterpart.
13.12 Risk of Loss. Risk of loss or damage to the Property, or any part
thereof, by fire or any other casualty from the date this Contract is fully
executed up to the time of delivering the Deed transferring title to the
Property to the Purchaser will be on the Seller and, thereafter, will be on the
Purchaser.
13.13 Effective Date. As used herein, the term "Effective Date" shall
mean for all purposes in this Contract the date on which the Title Company
acknowledges receipt of an original of the Contract executed by Purchaser and
Seller with all changes, if any, to the printed portion of this Contract
initialed by Purchaser and Seller.
13.14 Business Days. All references to "business days" contained herein
are references to normal working business days, i.e., Monday through Friday of
each calendar week, exclusive of federal and national bank holidays. In the
event that any event hereunder is to occur, or a time period is to expire, on a
date which is not a business day, such event shall occur or such time period
shall expire on the next succeeding business day.
13.15 No Recordation of Contract. In no event shall this Contract or
any memorandum hereof be recorded in the public records of the place in which
the Property is situated, and any such recordation or attempted recordation
shall constitute a breach of this Contract by the party responsible for such
recordation or attempted recordation.
13.16 Post-Closing Obligations. After the Closing, Seller and Purchaser
shall cooperate with one another at reasonable times and on reasonable
conditions and shall execute and deliver such instruments and documents as may
be necessary in order fully to carry out the intent and purposes of the
transactions contemplated hereby. Except for such instruments and documents as
the parties were originally obligated to deliver by the terms of this Contract,
such cooperation shall be without additional cost or liability. The provisions
of this Section 13.16 shall survive the Closing for a period of one year.
-24-
13.17 Disclosure: Audit Right.
(a) Public Disclosure of Contract. Seller acknowledges that
Purchaser and/or its general partner, Beacon Capital Partners, Inc.,
have made and intend in the future to make private and/or public
securities offerings which are or may be subject to regulation by the
Securities and Exchange Commission ("SEC"), and that the regulations of
the SEC may require that Purchaser disclose the existence of this
Contract and the contents of some or all of the documents and materials
delivered by Seller. Accordingly and notwithstanding anything to the
contrary contained in their Contract, Seller expressly consents to the
disclosure of the terms and conditions of this transaction, this
Contract itself, and terms of any document or materials which Purchaser
in good faith believes should be disclosed in connection with
fulfillment of its disclosure requirements under SEC regulations. In
addition, Purchaser shall have the right to issue press releases
announcing this transaction at any time after the expiration of the
Inspection Period. Seller shall be entitled to a prior review of the
press release. The provisions of this Section 13.17(a) shall survive
the Closing.
(b) Right to Audit. In order to comply with SEC regulations,
Purchaser may need the right prior to or subsequent to Closing, to
conduct an audit of Seller's books and records for the Property in
conformity with applicable SEC Regulations for prior years and/or for
Seller's period of ownership during the year in which the Closing
occurs. Seller hereby agrees, for a period of six months after Closing,
to permit Purchaser and Purchaser's accountants access to such books
and records (including those maintained by Seller's management agent
for the Property) and to cooperate with Purchaser, and to cause
Seller's accountants to cooperate with Purchaser, at no cost to Seller,
to enable such audit to be performed. The provisions of this Section
13.17(b) shall survive the Closing for a period of six months.
ARTICLE XIV.
SPECIAL PROVISIONS
14.1 Dependent Contracts. Seller and Purchaser acknowledge that on the
Effective Date of this Contract, Purchaser entered into those certain contracts
of sale described in Schedule 14.1 hereof (collectively, the "Dependent
Contracts"). Notwithstanding anything contained in this Contract to the
contrary, Seller and Purchaser agree with respect to the Dependent Contracts as
follows:
(a) Purchaser's obligations under this Contract to purchase
the Property is expressly subject to and conditioned upon the
consummation of the closing of the acquisition of the properties set
forth and described in the Dependent Contracts pursuant to the terms
and conditions thereof;
(b) Seller's obligations under this Contract to sell the
Property to Purchaser is expressly subject to and conditioned upon the
consummation of the closing of the acquisition
-25-
of the properties set forth and described in the Dependent Contracts
pursuant to the terms and conditions thereof;
(c) A default by Purchaser or any of the sellers (the
"Dependent Sellers") under any of the Dependent Contracts shall be
deemed to be a default by Purchaser or Seller, respectively, under this
Contract and shall entitle such non-defaulting party to the rights and
remedies set forth in this Contract;
(d) The termination by Purchaser of this Contract pursuant to
a right hereunder automatically terminates each of the Dependent
Contracts and a termination by Purchaser of any of the Dependent
Contracts automatically terminates this Contract and the other
Dependent Contracts and any termination of this Contract by Purchaser
which entitles Purchaser to receive the Earnest Money Deposit shall
terminate all of the other Dependent Contracts and the Earnest Money
Deposit held under this Contract and the earnest money deposits held
under the Dependent Contracts shall be promptly returned to Purchaser;
(e) The termination by Seller of this Contract pursuant to a
right hereunder automatically terminates each of the Dependent
Contracts and a termination by any of the Dependent Sellers of any of
the Dependent Contracts automatically terminates this Contract and the
other Dependent Contracts and any termination of this Contract by
Seller which entitles Seller to receive the Earnest Money Deposit shall
terminate all of the other Dependent Contracts and the Earnest Money
Deposit held under this Contract shall be promptly paid to Seller and
the earnest money deposits held under the Dependent Contracts shall be
promptly paid to the applicable Dependent Sellers; and
(f) Notwithstanding anything contained in this Section 14.1
hereof, in the event of a termination of this Contract or any of the
Dependent Contracts due to (x) the failure or refusal of Seller to
consummate the Closing under this Contract (other than due to a
termination permitted hereunder or a failure of a condition precedent
to Seller's obligation to close or due to the default of Purchaser
hereunder) or the failure or refusal of any of the Dependent Sellers to
consummate the closing under any of the Dependent Contracts (other than
due to a termination permitted thereunder or a failure of a condition
precedent to such Dependent Seller's obligation to close or due to the
default of Purchaser thereunder) or (y) a casualty or condemnation
pursuant to the terms and provisions set forth in Article IX hereof,
then at Purchaser's option, the Dependent Contracts and this Contract
not so terminated shall not be automatically terminated and the
closings thereunder shall occur pursuant to the terms thereof.
14.2 Section 1031 Exchange. Purchaser acknowledges that Seller may
elect to transfer its interest in the Property pursuant to a like-kind exchange
qualifying under Section 1031 of the Internal Revenue Code of 1986, as amended.
Purchaser agrees to reasonably cooperate with Seller, subject to the limitations
of this Section 14.3, in order to enable Seller to consummate the transfer of
the Property as part of a like-kind exchange qualifying pursuant to Section
1031.
-26-
The exchange is not to occur simultaneously with the conveyance of the
Property and, therefore, Purchaser will, upon Seller's request, cooperate with
Seller in a "delayed exchange". Pursuant to a delayed exchange, Purchaser will
acquire the Property from a third party designated by Seller who will be
contractually bound to (i) acquire replacement property designated by Seller and
(ii) transfer the designated replacement property to Seller as part of Seller's
exchange with the third party; provided, that notwithstanding that Purchaser may
acquire the Property from such third party, Forest Abrams Place, Ltd. will
remain obligated as the Seller under this Contract, and all representations,
warranties, covenants, agreements and obligations which survive the Closing and
are binding upon the Seller hereunder shall survive and continue as
representations, warranties, covenants, agreements and obligations of Forest
Abrams Place, Ltd.
To accomplish Seller's goal in either case, Purchaser shall execute or
consent to such additional documents and transactions as may be reasonably
requested by Seller, including, but not limited, to any assignments of documents
or interest in the contemplated transactions, provided that (a) there shall be
no delay in the Closing Date and the consummation of the transactions
contemplated in this Contract; (b) Seller shall not be released if the exchange
fails for any reason and in such event only Seller shall remain obligated to
consummate the transaction contemplated in this Contract; (c) Seller shall
reimburse Purchaser for any and all costs reasonably incurred by Purchaser as a
result of the exchange or attempted exchange; (d) Purchaser need not assume any
additional liabilities or obligations as a result of the exchange or attempted
exchange; and (e) Seller shall not be released from any representations,
warranties, covenants, agreements or obligations hereunder as a result of the
exchange or attempted exchange.
Seller shall fully indemnify, defend and hold Purchaser harmless for,
from and against any and all liabilities, claims, damages, expenses (including,
without limitation, reasonable attorneys' fees), taxes, fees, proceedings and
causes of action of any kind or nature whatsoever arising out of, connected with
or in any manner related to such Section 1031 exchange or attempted exchange.
The provisions of the immediately preceding sentence shall survive Closing and
the transfer of title to the Property to Purchaser. Any Section 1031 exchange
shall be consummated in such a manner that Purchaser shall not be required to
acquire title to any real or personal property other than the Property, or incur
any liability, in connection therewith.
-27-
IN WITNESS WHEREOF, the undersigned have executed this Contract
effective as of the Effective Date.
SELLER:
FOREST ABRAMS PLACE, LTD.,
a Texas limited partnership
By: Forest Abrams Place Partners, Inc.,
a Texas corporation,
its General Partner
By: /s/ Robert P. Breunig
----------------------------------------------
Robert P. Breunig
President
Dated: 6/10/98
-------------------------------------------
PURCHASER:
BEACON CAPITAL PARTNERS, L.P.,
a Delaware limited partnership
By: Beacon Capital Partners, Inc.,
a Maryland corporation
By: /s/ Erin OBoyle
----------------------------------------------
Name: Erin OBoyle
--------------------------------------------
Title: S.V.P.
-------------------------------------------
Dated: 6/8/98
-------------------------------------------
-28-