Exhibit
10.1


 




 





PURCHASE AGREEMENT


 


BETWEEN


 


BEHRINGER HARVARD
MOCKINGBIRD COMMONS, LLC,

a Delaware limited liability company


 


AS SELLER


 


AND


 


JEL INVESTMENTS, LTD.,

a Canadian corporation


 


AS PURCHASER


 


Covering certain
condominium units of

M CENTRAL RESIDENCES, A CONDOMINIUM


 


In


 


Dallas County,
Texas




 





 

















 


PURCHASE
AGREEMENT


 


THIS AGREEMENT is entered into as of the Effective
Date (as hereinafter defined) between BEHRINGER HARVARD MOCKINGBIRD COMMONS,
LLC, a Delaware limited liability company (“Seller”), and JEL INVESTMENTS,
LTD., a Canadian corporation (“Purchaser”).


 


ARTICLE
I


 


PURCHASE
AND SALE


 


1.1           Agreement of Purchase and Sale.
In consideration of their covenants set forth in this Agreement, Seller agrees
to sell to Purchaser, and Purchaser agrees to purchase from Seller, for the
Purchase Price (as hereinafter defined) and on the terms and conditions set
forth herein, the following property (collectively, the “Property”): (a) the
fifty two (52) condominium units of M Central Residences, a Condominium, listed
on Exhibit A-1 attached hereto and made a part hereof (the “Units”);
together with such undivided interests in and to the Common Elements (as
identified in the Declaration, as hereinafter defined) as are appurtenant to
the Units, in the percentage designated for each Unit on Exhibit “C”
attached to the Declaration; and (b) the exclusive right to use the
parking spaces identified on Exhibit A-2 attached hereto and the
storage spaces identified on Exhibit A-3 attached hereto and made a
part hereof as limited common elements appurtenant to the Units.


 


1.2           Condominium Documents. The
parties acknowledge that the Property is subject to a condominium regime
created pursuant to the Uniform Condominium Act, Texas Property Code, Chapter
82, Section 82.001 et seq., as
amended from time to time (the “Act”). For purposes hereof, the term “Condominium
Documents” shall refer to all the following: (a) the Master Condominium
Declaration for M Central Master Condominiums that is recorded in Volume
2005182, Page 00111 of the Real Property Records of Dallas County, Texas
and all present and future amendments thereto (the “Master Declaration”); (b) the
articles, bylaws and rules and regulations of the M Central Master
Condominium Association, Inc., a Texas non-profit corporation, as
described in the Master Declaration (the “Master Association); (c) the
Condominium Declaration for the M Central Residences, a Condominium, that is
recorded in Volume 2005182, Page 00204 of the Real Property Records
of Dallas County, Texas, and all present and future amendments thereto (the “Declaration”);
(d) the articles, bylaws and rules and regulations of the M Central
Residences Condominium Association, Inc., a Texas non-profit corporation,
as described in the Declaration (the “Residential Association”); and (e) all
attachments, exhibits, schedules and amendments to the foregoing.


 


1.3           Hotel and Undeveloped Land.
The parties acknowledge that (a) there is a hotel currently being operated
by Kimpton Hotel & Restaurant Group, LLC or an affiliate (“Kimpton”)
in the Hotel Unit (as defined in the Master Declaration), and (b) there is
undeveloped land comprising the Future Development Area Unit that Seller or its
assigns may develop in the future. Purchaser has been advised that none of the
Property has been owned, developed, marketed or sold by Kimpton. Seller is
authorized to use the Hotel Palomar trademark and related trademarks pursuant
to a license agreement from Kimpton to Seller.


 


1.4           Loan Documents. The parties
further acknowledge that the Property is currently encumbered by liens and
security interests securing a loan (the “Loan”) described in that certain
Construction Loan Agreement dated as of September 30, 2005 (the “Loan
Agreement”), between Credit Union Liquidity Services, LLC, a Texas limited
liability company, formerly known as Texans Commercial Capital, LLC (“Lender”),
and evidenced by that certain promissory note dated as of September 30,
2005 (the “Note”) in the original principal amount of $34,047,458.00, executed
by Seller and payable to the order of Lender. The indebtedness evidenced by the
Note is secured by, among other 


 


1

















 


things (a) that certain Amended and Restated Deed
of Trust, Security Agreement, Financing Statement, and Assignment of Rental,
dated September 30, 2005 (the “Deed of Trust”), executed by Borrower to
Joel B. Fox and/or John C. O’Shea, as trustee for the benefit of Lender,
covering the property described therein and recorded October 4, 2005 as
Instrument No. 200503532798, Official Records of Dallas County, Texas, and
(b) that certain Absolute Assignment of Leases and Rents from Borrower to
Lender, dated September 30, 2005 (the “Assignment”), covering the property
described therein and recorded as Instrument No. 200503532799, Official
Records of Dallas County, Texas. For purposes hereof, the Loan Agreement, the
Note, the Deed of Trust, and the Assignment, as same may have been amended, and
all other documents evidencing or securing the Loan, as same may have been
amended, are referred to as the “Loan Documents”


 


1.5          Permitted Exceptions. The
Property shall be conveyed subject to the Condominium Documents, the Loan
Documents, and subject to the matters that are, or are deemed to be, Permitted
Exceptions pursuant to Article II hereof (herein referred to collectively
as the “Permitted Exceptions”).


 


1.6          Purchase Price. The purchase
price for the Property shall be Twenty Five Million Four Hundred Thousand and
No/100 Dollars ($25,400,000.00) (“Purchase Price”).


 


1.7          Payment of Purchase Price.
Seller and Purchaser agree that the Purchase Price shall be paid as follows:


 


(a)           A portion of the Purchase Price equal
to Five Million Eighty Thousand Dollars ($5,080,000) (the “Cash Payment”) shall
be paid by Purchaser in immediately available funds at Closing, it being agreed
that the Cash Payment shall be delivered to Lender and applied towards payment
of the Loan;


 


(b)           The balance of the Purchase Price
shall be paid pursuant to a financing arrangement (“Purchase-Money Financing”)
agreed upon by Seller and Purchaser and approved by Lender during the
Inspection Period (as hereinafter defined), it being agreed that the liens and
security interests created by and set forth in the Loan Documents shall
continue to encumber the Property after Closing. The Purchase Money Financing
documents shall include the following business terms: (i) the maturity
date of the Purchase Money Financing will be eighteen (18) months after the
Closing (as hereinafter defined); (ii) the principal amount of the Purchase
Money Financing shall accrue interest at the rate of seven percent (7%) per
annum, with Purchaser to pay installments of interest only until maturity. In
addition, the Purchase Money Financing documents will include a subordinate
deed of trust on the Property and other loan documents containing customary
provisions, including specifically, without limitation, provisions to the
effect that any leases of the Property are subject to the approval of Seller
and that the Property will be operated in a first class manner. Without
limiting the manner in which the Purchase Money Financing arrangement may be
structured, Seller and Purchaser agree that the following financing options
will be considered: (A) structuring the Purchase Money Financing as “wrap”
financing that includes the principal amount of the Loan and is secured by a
subordinate lien in favor of Seller, or (B) structuring the Purchaser
Money Financing as an assumption of the Loan by Purchaser with a subordinate
lien in favor of Seller. The Purchase Money Financing will be subject to
obtaining any required approvals from Lender and from Bank of America, N.A. (“Hotel
Lender”), which holds a lien on, among other property, the Hotel Unit, as well
as execution of satisfactory intercreditor agreements.


 


1.8          Earnest Money. Within five (5) days
after the Effective Date, Purchaser shall deposit with Federal Title, Inc.
(the “Title Company”), having its office at 1700 Alma Drive, Suite 405,
Plano, Texas 75075, Attention: Kevin Kerr, the sum of One Hundred Thousand
Dollars ($100,000) (the “First Deposit”) in good funds, either by certified
bank or cashier’s check or by federal wire transfer. If Purchaser does not
exercise the right to terminate this Agreement in accordance with Section 2.4
or 


 


2

















 


Section 3.3 hereof, Purchaser shall, on or before
the last date of the Inspection Period (as such term is defined in Section 3.1
hereof), deposit with the Title Company the additional sum of One Hundred
Thousand Dollars ($100,000) (the “Second Deposit”) in good funds, either by
certified bank or cashier’s check or by federal wire transfer as an additional
deposit under this Agreement. The Title Company shall hold the First Deposit
and the Second Deposit in an interest-bearing account in accordance with the
terms and conditions of this Agreement. The First Deposit and the Second
Deposit, together with all interest earned on such sums, are herein referred to
collectively as the “Earnest Money.” All interest accruing on such sums shall
become a part of the Earnest Money and shall be distributed as Earnest Money in
accordance with the terms of this Agreement. If Purchaser fails to deliver the
Second Deposit to the Title Company within the time period specified above,
this Agreement shall terminate automatically on the last day of the Inspection
Period, Title Company shall deliver the Earnest Money to Seller promptly
thereafter and neither party shall have any further rights, obligations or
liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement.  Time is of the essence for the delivery of Earnest Money
under this Agreement. After
the expiration of the Inspection Period, the Earnest Money shall become
non-refundable to Purchaser unless otherwise expressly set forth in this
Agreement.


 


1.9           Independent Contract Consideration.
Upon the Effective Date, Purchaser shall deliver to Seller a check in the
amount of Fifty Dollars ($50) (the “Independent Contract Consideration”), which
amount Seller and Purchaser hereby acknowledge and agree has been bargained for
and agreed to as consideration for Seller’s execution and delivery of this
Agreement. The Independent Contract Consideration is in addition to and
independent of any other consideration or payment provided for in this
Agreement, and is nonrefundable in all events.


 


ARTICLE
II


 


TITLE
REVIEW


 


2.1           Title Commitment. As soon
after the Effective Date as reasonably practicable through the use of good faith
efforts by Seller, Seller shall cause the Title Company to deliver to
Purchaser, at Seller’s expense, (a) a title commitment (“Commitment”) for
an owner’s policy of title insurance, on the standard form promulgated by the
Texas State Board of Insurance, issued by the Title Company in the amount of
the Purchase Price, and (b) copies of all instruments referenced in
Schedule B and Schedule C of the Commitment (the “Title Exceptions”).


 


2.2           Review of Commitment.
Purchaser shall have ten (10) days (the “Title Review Period”) after the
receipt of the Commitment and the Title Exceptions to notify Seller in writing
of such objections as Purchaser may have to anything contained in the
Commitment; provided, however, that Purchaser shall not have the right to
object to any Permitted Exceptions described in Section 2.4 below. If
Purchaser fails to object in writing to any item contained in the Commitment
during the Title Review Period, Purchaser shall be deemed to have waived its
right to object to such item, and such item shall thereafter be deemed a
Permitted Exception. In the event that Purchaser objects to any item contained
in the Commitment within the Title Review Period (such items being herein
referred to as “Title Defects”), Seller shall notify Purchaser in writing
within five (5) days following the date of Purchaser’s notice of such
Title Defects (the “Cure Period”) that either (a) the Title Defects have
been, or will be at or prior to Closing, removed from the Commitment, or (b) Seller
has failed to arrange to have the Title Defects removed.


 


2.3           Failure to Cure Title Defects.
If upon the expiration of the Cure Period Seller has not notified Purchaser
that Seller has arranged to have the Title Defects removed, then Purchaser may
elect (which election must be made in writing within five (5) days
following expiration of the Cure Period) either: (a) to terminate this
Agreement, in which event the Earnest Money shall be returned to Purchaser 


 


3

















 


as Purchaser’s sole remedy hereunder; or (b) to
take title as it then is. If Purchaser does not, within five (5) days
after the expiration of the Cure Period, send written notice to Seller of its
election to terminate this Agreement pursuant to clause (a) of the
preceding sentence, then: (x) Purchaser shall be deemed to have elected to
take title as it then is without any reduction in the Purchase Price; (y) all
Title Defects not removed from the Commitment will thenceforth be deemed
Permitted Exceptions; and (z) this Agreement shall remain in full force
and effect. Anything to the contrary in this Agreement notwithstanding, Seller
shall have no affirmative obligation hereunder to expend any funds or incur any
liabilities in order to cause any matters shown in the Commitment to be
removed, cured or insured over, except that Seller shall pay or discharge any
lien or encumbrance arising after the date hereof and voluntarily created or
assumed by Seller and not created by or resulting from the acts of Purchaser or
other parties not related to Seller. If the Commitment (or any subsequent
revision thereof) discloses exceptions other than the Permitted Exceptions, and
other than those which Seller has agreed to insure against, pay or discharge,
then unless Purchaser agrees to accept title as it then is without reduction of
the Purchase Price, Seller may, at its option, terminate this Agreement, in
which event the Earnest Money shall be returned to Purchaser as Purchaser’s
sole remedy under this Agreement.


 


2.4           Other Permitted Exceptions. In
addition to the matters shown in the Commitment which become Permitted
Exceptions pursuant to the Section 2.2 or 2.3 above, the following shall
also be deemed to be Permitted Exceptions: (a) the Condominium Documents; (b) the
liens and security interests created by the Deed of Trust, the Assignment and
any other Loan Documents; (c) the liens and security interests created by
the documents evidencing and securing the Purchase Money Financing; (d) taxes
and assessments for the year in which Closing occurs; (d) liens and
encumbrances arising after the date hereof to which Purchaser consents in
writing; and (e) any liens or encumbrances of a definite or ascertainable
amount, provided that Seller causes such liens or encumbrances to be insured
around such that same do not appear as an exception in the owner’s title
insurance policy issued to Purchaser pursuant to the Commitment.


 


2.5           Owner Title Policy. Subject to
the provisions of Section 2.3, promptly after the Closing Date Seller
shall cause the Title Company to issue an owner’s title insurance policy at
Seller’s cost insuring fee simple title in Purchaser as of the Closing Date, in
accordance with the Commitment, subject only to the Permitted Exceptions;
provided, however, that Seller shall have no obligation to pay anything other
than the basic premium for such title insurance policy. If Purchaser desires to
obtain a modification of the “survey exception” or other modification or
endorsement, same shall be at the sole expense of Purchaser.


 


2.6           Expiration of Inspection Period.
It is the intent of the parties that the right granted to Purchaser in Section 2.3(a) to
terminate this Agreement shall expire upon the expiration of the Inspection
Period, notwithstanding that the Title Review Period, the Cure Period or any
election period may extend beyond the expiration of the Inspection Period.
Accordingly, notwithstanding anything contained herein to the contrary, if
Purchaser has not terminated this Agreement pursuant to Section 2.3(a) prior
to the expiration of the Inspection Period, then Purchaser shall no longer have
any right to terminate this Agreement under Section 2.3(a), and in such
event Purchaser shall be bound to accept title to the Property under the
conditions specified in Sections 2.3(x), 2.3(y) and 2.3(z) above.


 


2.7           New Title Defects. In the
event that, after the expiration of the Inspection Period and prior to Closing,
a revision of the Commitment reveals an adverse matter objectionable to
Purchaser that was not disclosed to Purchaser prior to the expiration of the
Inspection Period and is not a Permitted Exception (a “New Title Defect”),
Purchaser shall have five (5) days after such matter is disclosed to
Purchaser to send written notice to Seller of such New Title Defect (it being
agreed that if Purchaser fails to object to the New Title Defect within such
five (5) day period, then such New Title Defect shall thereafter be deemed
a Permitted Exception). Seller shall notify Purchaser in writing within five (5) days



 


4

















 


following the date of Purchaser’s notice of such New
Title Defect (the “New Title Defect Cure Period”) that either (a) the New
Title Defect has been, or will be at or prior to Closing, removed from the
Commitment, or (b) Seller has failed to arrange to have the New Title
Defect removed. If, upon the expiration of the New Title Defect Cure Period,
Seller has not notified Purchaser that Seller has arranged to have the New
Title Defect removed, then Purchaser may elect (which election must be made in
writing within five (5) days following expiration of the New Title Defect
Cure Period) either: (i) to terminate this Agreement as Purchaser’s sole
remedy hereunder (in which event the Earnest Money shall be returned to
Purchaser); or (ii) to take title as it then is. If Purchaser does not,
within five (5) days after the expiration of the New Title Defect Cure
Period, send written notice to Seller of its election to terminate this
Agreement pursuant to clause (i) of the preceding sentence, then (x) Purchaser
shall be deemed to have elected to take title as it then is without any
reduction in the Purchase Price; (y) the New Title Defect will thenceforth
be deemed a Permitted Exception; and (z) this Agreement shall remain in
full force and effect.


 


2.8           Amendment to Declaration.
Notwithstanding anything contained herein to the contrary, Seller and Purchaser
agree that prior to or at Closing Seller shall use reasonable efforts to cause
to be executed and recorded in the Real Property Records of Dallas County,
Texas, a Third Amendment to Residential Condominium Declaration for M Central
Residences, a Condominium (the “Third Amendment to Declaration”) in
substantially the form of Exhibit F attached hereto. It is
acknowledged by the parties that the Third Amendment to Declaration requires
certain approvals (including specifically, without limitation, approval by the
Lender) and that there is no assurance that such approvals will be obtained.


 


ARTICLE
III


 


INSPECTION
PERIOD


 


3.1           Property Documents. As soon
after the Effective Date as reasonably practicable through the use of good
faith efforts by Seller, Seller shall deliver or make available to Purchaser at
the Property or at Seller’s office, to the extent in Seller’s possession, the
documents described on Exhibit B attached hereto and made a part
hereof for all purposes (the “Property Documents”). Purchaser shall, if
requested by Seller, execute instruments acknowledging receipt of the Property
Documents or any other document delivered or made available to Purchaser in
connection with the transaction contemplated hereby. During the Inspection
Period (as hereinafter defined), Purchaser may inspect the Property Documents
during normal business hours and may photocopy same at Purchaser’s expense.
Notwithstanding the foregoing provisions, Seller shall not be obligated to
deliver to Purchaser any report described in Exhibit B if the terms
of such report restrict Seller from doing so. With respect to any environmental
report or other report described in Exhibit B which Seller delivers
to Purchaser, Purchaser understands and agrees that (a) such report shall
be delivered to Purchaser for general information purposes only, (b) Purchaser
shall not have any right to rely on any report received from Seller and will
not rely thereon, but rather will rely on inspections and reports performed by
or on behalf of Purchaser, and (c) Seller shall have absolutely no
liability for any inaccuracy in or omission from any report which it delivers
to Purchaser.


 


3.2           Right of Inspection. During
the period beginning on the Effective Date and ending at 5 p.m., Dallas,
Texas time, on the thirtieth (30th) day thereafter (the “Inspection Period”),
Purchaser and its representatives (including Purchaser’s architects, engineers
and consultants) shall have the right to examine the Property Documents and to
make a physical inspection of the Property (including the right to conduct such
soil, engineering, environmental, hazardous or toxic material, noise pollution,
seismic or other physical test, study or investigation as Purchaser may desire,
provided, however, that Purchaser must obtain Seller’s consent to any
physically invasive testing). In this regard, Purchaser and its authorized
agents and representatives shall be entitled to enter upon the Property at all
reasonable times 


 


5

















 


during the Inspection Period, upon reasonable prior
oral or written notice to Seller and while accompanied by a representative of
Seller, subject to the rights of tenants of the Property. All activities by
Purchaser or its representatives during the Inspection Period shall be
coordinated through Seller’s designated representative, Sam Gillespie. Seller
shall have the right to have a representative present during any meetings with
tenants of the Property or with representatives of the hotel that is located in
the Hotel Unit. All inspections shall occur at reasonable times agreed upon by
Seller and Purchaser and shall be conducted so as not to unreasonably interfere
with use of the Property or any business conducted within the Hotel Unit or
elsewhere within the condominium regime of which the Property is a part. In no
event shall Purchaser or its representatives perform any off-site testing.
Purchaser will use its best efforts to minimize any disruption or interference
caused by any such testing and will repair all damage caused by such testing.
Before and during Purchaser’s inspections, Purchaser and each Purchaser
representative conducting any Purchaser inspection shall maintain workers’
compensation insurance in accordance with applicable law, and Purchaser, or the
applicable Purchaser representative conducting any Purchaser inspection, shall
maintain (a) commercial general liability insurance with limits of at
least Three Million Dollars ($3,000,000) for bodily or personal injury or
death, (b) property damage insurance in the amount of at least One Million
Dollars ($1,000,000), and (c) contractual liability insurance. Purchaser
shall deliver to Seller evidence of such workers’ compensation insurance and a
certificate evidencing the commercial general liability, property damage and
contractual liability insurance before conducting any Purchaser inspection on
the Property. Each such insurance policy shall be written by a reputable insurance
company having a rating of at least “A+:VII” by Best’s Rating Guide (or a
comparable rating by a successor rating service), and shall otherwise be
subject to Seller’s prior approval. Such insurance policies shall name as
additional insureds Seller, Seller’s lender and such other parties holding
insurable interests as Seller may designate. Purchaser shall indemnify, defend
and hold Seller and the Property harmless of and from any and all losses,
liabilities, costs, expenses (including, without limitation, reasonable
attorneys’ fees and costs of court), damages, liens, claims (including, without
limitation, mechanics’ or materialmen’s liens or claims of liens), actions and
causes of actions arising from or relating to Purchaser’s (or Purchaser’s
agents, employees or representatives) entering upon the Property to test,
study, investigate or inspect the same or any part thereof, whether pursuant to
this Section 3.2 or otherwise, except to the extent arising solely from
the negligence of Seller. The foregoing indemnity of Purchaser shall expressly
survive the Closing or the earlier termination of this Agreement.


 


3.3           Right of Termination Seller
agrees that in the event Purchaser determines, in its sole discretion, that the
Property is not suitable for its purposes, then Purchaser shall have the right
(“Purchaser’s Termination Right”) to terminate this Agreement. Purchaser’s
Termination Right shall be exercisable only by sending written notice of
termination (the “Notice of Termination”) to Seller prior to the expiration of
the Inspection Period. In the event that Purchaser timely exercises Purchaser’s
Termination Right, this Agreement shall terminate and the Earnest Money shall
be returned to Purchaser. If Purchaser fails to send Seller a Notice of
Termination prior to the expiration of the Inspection Period, Purchaser shall
be deemed to have approved the Property Documents and the Property in all
respects and Purchaser’s Termination Right shall automatically and irrevocably
expire.


 


3.4           Payment of Certain Expenses Upon
Termination. Notwithstanding anything contained in this Agreement to the
contrary, in the event that Purchaser exercises Purchaser’s Termination Right,
Purchaser shall be responsible for payment of any escrow costs charged by the
Title Company in connection with this Agreement.


 


6
















 


ARTICLE
IV



CLOSING


 


4.1                               Time
and Place. The consummation of the purchase and sale of the Property (“Closing”)
shall take place at the office of the Title Company on a date (the “Closing
Date”) mutually agreed upon by the parties, but not later than the fifteenth
(15th) day after the expiration of the Inspection Period. At
Closing, Seller and Purchaser shall perform the obligations set forth in,
respectively, Section 4.2 and Section 4.3 below, the performance of
which obligations shall be concurrent conditions.


 


4.2                               Seller’s
Obligations at Closing. At Closing, Seller shall:


 


(a)                                  deliver
to Purchaser a Special Warranty Deed (the “Deed”) in the form of Exhibit C
attached hereto and made a part hereof for all purposes, executed and
acknowledged by Seller and in recordable form, it being agreed that the
conveyance effected by the Deed shall be subject to the Permitted Exceptions;


 


(b)                                 deliver
to Purchaser an affidavit sworn by an officer of Seller in the form of Exhibit D
attached hereto and made a part hereof for all purposes (the “FIRPTA Affidavit”),
or in such other form as may be prescribed by federal regulations;


 


(c)                                  to
the extent that any leases of the Property exist as of the Closing, deliver to
Purchaser a letter notifying tenants of the Property of the sale of the
Property and the transfer of such tenants’ security deposits to Purchaser (as
set forth in Section 4.4(c) below);


 


(d)                                 to
the extent agreed upon during the Inspection Period, execute and deliver any
documents required to be executed by Seller in connection with the Purchase
Money Financing;


 


(e)                                  deliver
to the Title Company such documents as the Title Company may reasonably require
as to the authority of the person or persons executing documents on behalf of
Seller; and


 


(f)                                    deliver
to Purchaser possession of the Property, subject to the Permitted Exceptions.


 


4.3                               Purchaser’s
Obligations at Closing. At Closing, Purchaser shall:


 


(a)                                  pay
to Seller the Cash Payment in immediately available funds, it being agreed that
the Earnest Money shall be delivered to Seller at Closing and applied towards
payment of the Cash Payment.


 


(b)                                 join
with Seller in execution of any tenant notice letters described in Section 4.2(c);


 


(c)                                  to
the extent agreed upon during the Inspection Period, execute and deliver any documents
required to be executed by Purchaser in connection with the Purchase Money
Financing;


 


(d)                                 deliver
to Seller an Agreement Regarding Disclaimers in the form of Exhibit E
attached hereto and made a part hereof for all purposes executed by Purchaser and
counsel for Purchaser; and


 


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(e)                                  deliver
to the Title Company such documents as the Title Company may reasonably require
as to the authority of the person or persons executing documents on behalf of Purchaser.


 


4.4                               Prorations.
The following adjustments to the Purchase Price paid hereunder shall be made
between Seller and Purchaser and shall be prorated (as applicable) on a per
diem basis as if Purchaser owned the Property for the entire day on the Closing
Date:


 


(a)                                  All
real estate taxes and installments of special assessments due and payable with
respect to the calendar year of Closing shall be prorated between Seller and
Purchaser at Closing. All other installments of special assessments not yet due
and payable shall be paid by Purchaser. If at the time of Closing the tax rate
or the assessed valuation for the current year has not yet been fixed, taxes
shall be prorated based upon the tax rate and the assessed valuation
established for the previous tax year; provided, however, that Seller and
Purchaser agree that to the extent the actual taxes for the current year differ
from the amount so apportioned at Closing, the parties hereto will make all
necessary adjustments by appropriate payments between themselves following the
Closing, and this provision shall survive Closing.


 


(b)                                 At
the Closing, Purchaser shall pay to the Residential Association the monthly
assessment allocated to the Units established pursuant to the Declaration,
including the proportionate share of the expenses for which the Residential
Association is responsible, as set forth in the Declaration (prorated from and
including the Closing Date).


 


(c)                                  Any
rents and other income from the Property shall be prorated between Seller and
Purchaser at Closing based upon such amounts actually collected by Seller as of
the Closing Date. Rent which is unpaid or delinquent as of the Closing Date
shall not be prorated, but such unpaid or delinquent rent collected after the
Closing Date shall be delivered as follows: (i) if Seller collects any
unpaid or delinquent rent after the Closing Date, Seller shall deliver to
Purchaser any such rent relating to the Closing Date and any period thereafter
within fifteen (15) days after the receipt thereof, and (ii) if Purchaser
collects any unpaid or delinquent rent after the Closing Date, Purchaser shall
deliver to Seller any such rent relating to the period prior to the Closing
Date within fifteen (15) days after the receipt thereof. Seller and Purchaser
agree that (A) all rent received by Seller after the Closing Date shall be
applied first to delinquent rentals, if any, in the order of their maturity,
and then to current rentals, and (B) all rent received by Purchaser after
the Closing Date shall be applied first to current rentals and then to
delinquent rentals, if any, in inverse order of maturity. Purchaser will make a
good faith effort after Closing to collect all rents in the usual course of
Purchaser’s operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or incur any expense to collect delinquent rents.
Notwithstanding the foregoing provisions, Seller shall not be required to
prorate any amounts collected by Seller after Closing from former tenants of
the Property, it being understood and agreed that Seller may retain all amounts
that Seller recovers from such former tenants. Any security deposits shall, at
Seller’s option, either be transferred or credited to Purchaser at Closing.


 


(d)                                 Charges
under service agreements, utility charges for which Seller is liable, and other
operating expenses of the Property shall be prorated between Seller and
Purchaser at Closing.


 


(e)                                  Interest
in respect of the Loan shall be prorated between Seller and Purchaser at
Closing.


 


(f)                                    Refundable
cash or other refundable deposits posted with utility companies or other
entities in connection with the Property shall, at Seller’s option, either be
assigned to Purchaser and


 


8

















 


credited to Seller at Closing, or Seller shall be
entitled to receive and retain such refundable cash and deposits.


 


(g)                                 To
the extent Purchaser receives a benefit for any sums escrowed by Lender, Seller
shall receive a credit at Closing in the amount of all such escrowed sums.


 


(h)                                 All
prorations described in this Section 4.4 shall be effected by increasing
or decreasing, as appropriate, the amount of cash to be paid by Purchaser to
Seller at Closing. Except for the proration of taxes described in Section 4.4(a) above,
all prorations provided for herein shall be final. The proration of taxes
described in Section 4.4(a) above shall be deemed final if no
adjustment thereto is requested within one (1) year after Closing.


 


4.5                               Closing
Costs. Seller shall pay (a) the fees of any counsel representing it in
connection with this transaction; (b) the basic premium for the owner’s
policy of title insurance to be issued to Purchaser by the Title Company
(specifically excluding the additional premium chargeable for modification of
the survey exception or any endorsements, which expense shall be borne by
Purchaser); (c) the fees for recording the Deed; and (d) one-half
(1/2) of any escrow fee which may be charged by the Title Company. Purchaser
shall pay (v) the fees of any counsel representing Purchaser in connection
with this transaction; (w) the additional premium chargeable for
modification of the survey exception or any endorsements to the owner’s policy
of title insurance, if such modification is desired by Purchaser; (x) any
transfer or assumption fee and all fees, expenses and charges payable to Lender
or Hotel Lender in connection with the transfer of the Property, (y) any
transfer tax, documentary stamp tax, sales tax or similar tax which becomes
payable by reason of the transfer of the Property or any component thereof; and
(z) one-half (1/2) of any escrow fees charged by the Title Company. All
other costs and expenses incident to this transaction and the closing thereof
shall be paid by the party incurring same.


 


4.6                               Residential
Association. After Closing, Seller and Purchaser shall use reasonable
efforts to cooperate with each other (a) in causing the members of the
board of directors and the officers of the Residential Association (as defined
in the Declaration) over which Seller has control to be replaced, and (b) in
causing the representative of the
Residential Unit (as defined in the Master Declaration) on the board of
directors of the Master Association (as defined in the Master Declaration) over
which Seller has control to be replaced, in each case consistent with Purchaser’s
ownership of the Units and its new standing in the Residential
Association.  The books and
records maintained by or on behalf of the Residential Association shall
continue to be in the possession of the Residential Association. Seller shall
use reasonable efforts to cause any other documents, keys and other items used
in the operation of the Property to be provided to Purchaser. Seller makes no
representations regarding the existence or adequacy of such documents or items
for use in management or operation of the Property. The foregoing shall not
include the separate books, records, correspondence and other documentation of
Seller located at its offices, nor shall it include any computer software or
computer programs used by the manager of the Property or Seller in connection
with the Property, it being understood and agreed that the foregoing items are
not part of the “Property” to be conveyed to Purchaser hereunder. After the
Closing, Seller shall have the right to inspect the books and records of the
Property to verify that Purchaser is remitting to Seller all amounts to be
remitted to Seller according to the terms of this Agreement, and for any other
purpose related to Seller’s prior ownership of the Property, and this provision
shall survive Closing.


 


4.7                               Preservation
of Right to Contest. Seller reserves the right to contest after Closing
taxes and assessments with respect to the Property and interest or penalties
pertaining thereto, to the extent same are applicable to periods prior to
Closing, and Seller shall be entitled to any refunds made with respect to such
contested taxes. All taxes imposed because of a change of use or ownership of
the Property after or in connection with the Closing shall be for the account of
Purchaser, and Purchaser shall indemnify and hold Seller harmless of, from and
against any and all costs, damages, expenses, claims, or


 


9

















 


liability arising from the imposition of any such
taxes. The provisions of this section shall survive the Closing.


 


ARTICLE
V



REPRESENTATIONS, WARRANTIES, AND COVENANTS


 


5.1                               Representations
and Warranties of Seller. As of the Effective Date, Seller represents and
warrants to Purchaser as follows:


 


(a)                                  Seller is duly formed and validly existing
under the laws of the State of Texas and is organized and qualified under the
laws of the State of Texas to conduct business therein.


 


(b)                                 Seller
has no actual knowledge of any legal actions pending or threatened against the
Property.


 


(c)                                  Seller
is not a “foreign person” as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.


 


5.2                               Notice
of Breach.


 


(a)                                  To
the extent that, before the expiration of the Inspection Period, Purchaser
obtains actual knowledge or is deemed to know that Seller’s representations and
warranties are inaccurate, untrue or incorrect in any way, such representations
and warranties shall be deemed modified to reflect such actual or deemed
knowledge as of the end of the Inspection Period. For purposes hereof,
Purchaser shall be deemed to know all information set forth in the written
materials delivered to Purchaser in respect of the Property.


 


(b)                                 If
after the expiration of the Inspection Period but prior to the Closing,
Purchaser first obtains actual knowledge that any of the representations or
warranties made herein by Seller are untrue, inaccurate or incorrect in any
material respect, Purchaser shall give Seller written notice thereof within
five (5) days after obtaining such actual knowledge (but, in any event,
prior to the Closing). In such event, Seller shall have the right (but not the
obligation) to attempt to cure such misrepresentation or breach and shall, at
its option, be entitled to a reasonable adjournments of the Closing (not to
exceed thirty (30) days) for the purpose of such cure. If Seller elects to
attempt to so cure but is unable to so cure any misrepresentation or breach of
warranty, then Purchaser, as its sole remedy for any and all such materially
untrue, inaccurate or incorrect representations or warranties, shall elect
either (i) to waive such misrepresentations or breaches of representations
and warranties and consummate the transaction contemplated hereby without any
reduction of or credit against the Purchase Price, or (ii) if Purchaser
first obtained actual knowledge of such material misrepresentation or breach of
warranty after the end of the Inspection Period, to terminate this Agreement in
its entirety by written notice given to Seller on the Closing Date, in which
event this Agreement shall be terminated, the Earnest Money shall be returned
to Purchaser, and thereafter neither party shall have any further rights or
obligations hereunder except as provided in any section hereof that by its
terms expressly provides that it survives any termination of this Agreement.


 


5.3                               Survival
of Representations. It is the intent of Seller and Purchaser that the
representations and warranties made by Seller in Section 5.1 above (the “Seller
Obligations”) shall survive Closing for a period of one hundred eighty (180)
days after the date of Closing. Accordingly, Purchaser and Seller hereby agree
that, notwithstanding any provision of this Agreement or any provision of law
to the contrary, any action which may be brought under this Agreement by
Purchaser against Seller


 


10

















 


for breach of any Seller Obligations shall be forever
barred unless Purchaser (a) delivers to Seller no later than one hundred
eighty (180) days after the date of Closing a written notice of its claim
setting forth in reasonable detail the factual basis for such claim and
Purchaser’s good faith estimate of its damages arising out of such claim, and (b) files
a complaint or petition against Seller alleging such claim in an appropriate
state or federal court in Dallas County, Texas, no later than two (2) years
after the date of Closing. In no event shall Seller be liable after the date of
Closing for its breach of any Seller Obligations if such breach was actually
known to Purchaser prior to the completion of Closing. With respect to any
matter constituting breach of a Seller Obligation, Purchaser shall first seek
any available recovery under any insurance policies, service contracts and
Leases prior to seeking recovery from Seller, and Seller shall not be liable to
Purchaser if Purchaser’s claim is satisfied from such insurance policies,
service contracts or Leases. Seller’s liability for breach of any Seller
Obligations shall be limited as follows: (i) Seller shall have liability
for breach of Seller Obligations only if the valid claims for all such breaches
collectively aggregate more than Fifty Thousand Dollars ($50,000), in which
event the full amount of such claims shall be actionable, and (ii) Seller’s
aggregate liability to Purchaser for breaches of the Seller Obligations shall
not exceed the amount of Two Hundred Fifty Thousand Dollars ($250,000)(the “Cap”),
it being agreed that in no event shall Seller’s aggregate liability for such
breaches exceed the amount of the Cap.


 


5.4                               Covenants
of Seller. Seller hereby covenants as follows:


 


(a)                                  Between
the Effective Date and the Closing Date, Seller shall maintain, or cause to be
maintained, the Property in its present condition, ordinary wear and tear
excepted.


 


(b)                                 Between
the Effective Date and the Closing Date, Seller shall maintain, or cause to be
maintained, all casualty, liability and hazard insurance currently in force
with respect to the Property.


 


(c)                                  Between
the Effective Date and the Closing Date, Seller shall operate, manage and enter
into contracts with respect to the Property (or cause such actions to be done)
in the same manner done by Seller prior to the date hereof, maintaining present
services and sufficient supplies and equipment for the operation and
maintenance of the Property in the same manner as prior to the date hereof;
provided, however, that Seller shall not enter into any service contract that
cannot be terminated within thirty (30) days notice.


 


(d)                                 A
copy of each Lease presented to Seller between the Effective Date and the
Closing Date for its approval and execution will be submitted to Purchaser
prior to execution by Seller. Purchaser agrees to notify Seller in writing
within five (5) business days after its receipt of each such Lease of
either its approval or disapproval thereof. In the event Purchaser informs
Seller that Purchaser does not approve any such Lease, which approval shall not
be unreasonably withheld, Seller shall have the option to cancel this Agreement
by written notice thereof to Purchaser within five (5) business days after
Seller’s receipt of written notice of Purchaser’s disapproval of any such
Lease, and upon refund and payment of the Earnest Money to Purchaser, neither
party shall have any further liability or obligation hereunder. In the event
Purchaser fails to notify Seller in writing of its approval or disapproval of
any such Lease within the five (5) day time period for such purpose set
forth above, such failure shall be deemed the approval by Purchaser of such
Lease. At Closing, Purchaser shall reimburse Seller for any tenant inducements
or leasing commissions incurred by Seller pursuant to a new Lease approved (or
deemed approved) by Purchaser.


 


(e)                                  Seller
is currently in compliance with, and shall at all times during the term of this
Agreement (including any extension thereof) remain in compliance with, the
regulations of the Office of Foreign Asset Control (“OFAC”) of the Department
of the Treasury (including those named on OFAC’s Specially Designated Nationals
and Blocked Persons List) and any statute, executive order


 


11

















 


(including the September 24, 2001, Executive
Order Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism), or other governmental action
relating thereto.


 


5.5                               Actual
Knowledge of Seller. All references in this Agreement to the “actual
knowledge” of Seller shall refer only to the actual knowledge of the Designated
Employee (as hereinafter defined) of the Dallas, Texas office of Seller and
shall not be construed to refer to the knowledge of any other officer, agent or
employee of Seller or any affiliate of Seller or to impose upon such Designated
Employee any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains. As used herein, the term “Designated Employee”
shall refer to Sam Gillespie, an employee of Seller who has responsibility for
overseeing the management of the Property, among other assets of Seller.


 


5.6                               Covenants
of Purchaser. Purchaser hereby covenants as follows:


 


(a)                                  Purchaser
is duly formed and validly existing
under the laws of the jurisdiction of its formation and is qualified under the
laws of such jurisdiction to conduct business therein.


 


(b)                                 If
requested to do so by Seller in writing, at Closing (or upon termination of
this Agreement prior to Closing), Purchaser shall deliver to Seller copies of
any environmental reports, engineering reports, structural reports or other due
diligence materials prepared by third parties obtained by Purchaser with
respect to the Property.


 


(c)                                  Purchaser
is currently in compliance with, and shall at all times during the term of this
Agreement (including any extension thereof) remain in compliance with, the
regulations of OFAC and any statute, executive order (including the September 24,
2001, Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism), or other
governmental action relating thereto.


 


(d)                                 Seller
will remain the “Declarant” (as defined in the Master Declaration) and the “Residential
Declarant” (as defined in the Declaration) after Closing; however, unless and
until the Third Amendment to Declaration is duly executed and recorded in the
Real Property Records of Dallas County, Texas, Purchaser shall assume and be
responsible for the obligation of the Residential Declarant, as set forth in Section 7.5
of the Declaration, to pay any operating expense deficits in respect of the
Residential Condominium (as defined in the Declaration) during the Residential
Declarant Control Period (as defined in the Declaration).


 


5.7                               Condominium
Information Statement. PURCHASER ACKNOWLEDGES RECEIPT OF THE CONDOMINIUM
INFORMATION STATEMENT REQUIRED BY THE ACT. SELLER HEREBY RECOMMENDS THAT
PURCHASER READ THE CONDOMINIUM INFORMATION STATEMENT BEFORE EXECUTING THIS
CONTRACT. Purchaser hereby acknowledges receipt of a copy of the Condominium
Documents attached to the Condominium Information Statement. Purchaser agrees
to be bound by the provisions of the foregoing documents, as amended from time
to time in accordance with the provisions of each document. The budget
contained in the Condominium Information Statement has been prepared in
accordance with generally accepted accounting principles and is based upon
assumptions that, to the best of Seller’s knowledge and belief, are reasonable.
Purchaser acknowledges that such budget does not constitute a representation or
warranty on the part of Seller thereof. The provisions of this Section 5.7
shall survive the Closing.


 


12

















 


5.8                               Conditions
Precedent.


 


(a)                                  It
shall be a condition precedent to the obligations of Seller and Purchaser under
this Agreement that, within ten (10) days after the Effective Date, Seller
and Purchaser shall have agreed upon the parking spaces to be listed on Exhibit A-2
attached hereto and the storage spaces to be listed on Exhibit A-3
attached hereto. In the event that Seller and Purchaser agree upon such parking
spaces and storage spaces prior to the end of such ten (10) day period,
Seller and Purchaser shall enter into an amendment to this Agreement (the “Supplemental
Amendment”) evidencing such agreement. If Seller and Purchaser fail to execute
the Supplemental Amendment within ten (10) days after the Effective Date,
then either Seller or Purchaser may terminate this Agreement by written notice
to the other party, in which event the Earnest Money shall be returned to
Purchaser.


 


(b)                                 It
shall be a condition precedent to the obligations of Seller and Purchaser under
this Agreement that, prior to the expiration of the Inspection Period, Seller
and Purchaser shall have agreed on the structure of the Purchase Money Financing
and shall have agreed upon the documents evidencing and securing the Purchase
Money Financing (the “Purchase Money Financing Documents”). In the event that
Seller and Purchaser agree upon the Purchase Money Financing Documents prior to
the end of the Inspection Period, Seller and Purchaser shall enter into an
amendment to this Agreement (the “Financing Documents Amendment”) evidencing
such agreement. If Seller and Purchaser fail to execute the Financing Documents
Amendment prior to the expiration of the Inspection Period, then either Seller
or Purchaser may terminate this Agreement by written notice to the other party,
in which event the Earnest Money shall be returned to Purchaser.


 


(c)                                  It
shall be a condition precedent to the obligations of Seller and Purchaser under
this Agreement that, prior to the expiration of the Inspection Period, Lender,
Hotel Lender and Kimpton shall have given in writing all approvals (the “Required
Approvals”) to the transaction that is the subject of this Agreement, to the
full extent that such approvals are required pursuant to documents binding upon
Seller. Purchaser agrees that it shall, at its own expense, cooperate with
Seller in order to supply any information required, and use commercially
reasonable efforts to take any actions required of Purchaser, to obtain the
Required Approvals. If all Required Approvals have not been obtained prior to
the expiration of the Inspection Period, then either Seller or Purchaser may
terminate this Agreement by written notice to the other party, in which event
the Earnest Money shall be returned to Purchaser.


 


(d)                                 It
shall be a condition precedent to the obligations of Seller and Purchaser under
this Agreement that, prior to the expiration of the Inspection Period, Lender,
Hotel Lender and Seller shall have agreed upon intercreditor agreements (the “Intercreditor
Agreements”) satisfactory to each such party. If Lender, Hotel Lender and
Seller fail to agree in writing upon the Intercreditor Agreements prior to the
expiration of the Inspection Period, then either Seller or Purchaser may
terminate this Agreement by written notice to the other party, in which event
the Earnest Money shall be returned to Purchaser.


 


(e)                                  It
shall be a condition precedent to the obligations of Seller and Purchaser under
this Agreement that, prior to the expiration of the Inspection Period, Seller
and Purchaser shall agree upon any amendments to the condominium regime or new
easements reasonably necessary, in the opinion of Seller, to afford Seller the
ability to continue to continue to operate the Hotel Unit in the same manner as
currently operated and to develop the Future Development Area Unit. If Seller
and Purchaser fail to agree in writing upon such amendments to the condominium
regime or new easements, then either Seller or Purchaser may terminate this
Agreement by written notice to the other party, in which event the Earnest
Money shall be returned to Purchaser.


 


13

















 


ARTICLE
VI



DEFAULT; REMEDIES


 


6.1                               Default
of Purchaser. If Purchaser fails to perform its obligations pursuant to
this Agreement for any reason except failure by Seller to perform hereunder or
the permitted termination hereof by Purchaser or Seller in accordance with the
express provisions hereof, and if such failure continues for twenty (20) days
after written notice to Purchaser, Seller shall be entitled, as its sole
remedy, to terminate this Agreement and recover the Earnest Money as liquidated
damages and not as a penalty, in full satisfaction of claims against Purchaser
hereunder. Seller and Purchaser agree that Seller’s damages resulting from
Purchaser’s default are difficult, if not impossible, to determine and that the
Earnest Money is a fair estimate of those damages which has been agreed to in
an effort to cause the amount of said damages to be certain. In the event of
Purchaser’s default and notwithstanding anything in this Section 6.1 to
the contrary, Seller shall have all remedies available at law or in equity in
the event Purchaser or any party related to or affiliated with Purchaser is
asserting any claims or right to the Property that would otherwise delay or
prevent Seller from having clear, indefeasible and marketable title to the
Property. Notwithstanding the foregoing, in the event of a termination of this
Agreement which allows Seller to retain the Earnest Money hereunder, if the
total of the Earnest Money and all other deposits made by Purchaser hereunder
(collectively, “Deposits”) exceeds fifteen percent (15%) of the Purchase Price,
then Seller shall refund to Purchaser that portion of the Deposits, if any,
which remains after subtracting from the Deposits the greater of (a) fifteen
percent (15%) of the Purchase Price or (b) the amount of actual damages
incurred by Seller as a result of the default of Purchaser.


 


6.2                               Default
of Seller. If Seller fails to perform its obligations pursuant to this
Agreement for any reason except failure by Purchaser to perform hereunder or
the permitted termination hereof by Purchaser or Seller in accordance with the
express provisions hereof, and if such failure continues for twenty (20) days
after written notice to Seller, Purchaser may terminate this Agreement by
giving Seller timely written notice of such election prior to or at Closing, in
which event Purchaser shall be entitled
to either (a) receive the return of the Earnest Money (together
with all interest earned thereon),
which return shall operate to terminate this Agreement and release Seller from
any and all liability hereunder, or (b) enforce specific performance of
Seller’s obligation to execute the documents required to convey the Property to
Purchaser, it being understood and agreed that the remedy of specific
performance shall not be available to enforce any other obligation of Seller
hereunder. Purchaser expressly waives its rights to seek damages in the event
of Seller’s default hereunder. Purchaser shall be deemed to have elected to
terminate this Agreement and receive back the Earnest Money (together
with all interest earned thereon) if
Purchaser fails to file suit for specific performance against Seller in a court
having jurisdiction in the county and state in which the Property is located,
on or before thirty (30) days following the date upon which Closing was to have
occurred. The remedies set forth in this Section 6.2 shall be the sole and
exclusive remedies available to Purchaser for Seller’s failure to close the
transaction which is the subject of this Agreement in accordance with the
provisions of this Agreement.


 


6.3                               Post-Closing
Remedies. Notwithstanding the provisions of Section 6.1 and Section 6.2
above, in the event that after the termination of this Agreement or after
Closing, as the case may be, a party (the “Defaulting Party”) breaches an
obligation hereunder which is expressly stated herein to survive the
termination of this Agreement or Closing, as the case may be, the Defaulting
Party shall be liable to the other party (the “Non-Defaulting Party”) for the
direct, actual damages incurred by the Non-Defaulting Party as a direct result
of such breach. In no event shall the Non-Defaulting Party be entitled to
recover from the Defaulting Party any punitive, consequential or speculative
damages.


 


14
















 


ARTICLE
VII


 


RISK
OF LOSS


 


7.1                                 Minor
Damage. In the event of loss or damage to the Property or any portion
thereof (the “premises in question”) which is not “major” (as hereinafter
defined), this Agreement shall remain in full force and effect provided Seller
performs any necessary repairs or, at Seller’s option, reduces the cash portion
of the Purchase Price in an amount equal to the cost of such repairs, Seller
thereby retaining all of Seller’s right, title and interest to any claims and
proceeds Seller may have with respect to any casualty insurance policies or
condemnation awards relating to the premises in question. In the event that
Seller elects to perform repairs upon the Property, Seller shall use reasonable
efforts to complete such repairs promptly and the date of Closing shall be
extended a reasonable time in order to allow for the completion of such
repairs.


 


7.2                                 Major
Damage. In the event of a “major” loss or damage, either Seller or
Purchaser may terminate this Agreement by written notice to the other party, in
which event the Earnest Money shall be returned to Purchaser. If neither Seller
nor Purchaser elects to terminate this Agreement within ten (10) days
after Seller sends Purchaser written notice of the occurrence of major loss or
damage, then Seller and Purchaser shall be deemed to have elected to proceed
with Closing, in which event Seller shall, at Seller’s option, either (a) perform
any necessary repairs, or (b) assign to Purchaser all of Seller’s right,
title and interest to any claims and proceeds Seller may have with respect to
any casualty insurance policies or condemnation awards relating to the premises
in question. In the event that Seller elects to perform repairs upon the
Property, Seller shall use reasonable efforts to complete such repairs promptly
and the date of Closing shall be extended a reasonable time in order to allow
for the completion of such repairs. Upon Closing, full risk of loss with
respect to the Property shall pass to Purchaser. For purposes of Sections 7.1
and 7.2, “major” loss or damage refers to the following: (i) loss or
damage to the Property or any portion thereof such that the cost of repairing
or restoring the premises in question to a condition substantially identical to
that of the premises in question prior to the event of damage would be, in the
certified opinion of a mutually acceptable architect, equal to or greater than
ten percent (10%) of the Purchase Price; and (ii) any loss due to a
condemnation which permanently and materially impairs the current use of the
Property.


 


7.3                                 Uniform
Vendor and Purchaser Risk Act Not Applicable. It is the express intent of
the parties hereto that the provisions of Section 7.1 and Section 7.2
govern the rights of the parties in the event of damage to or condemnation of
the Property and that the Uniform Vendor and Purchaser Risk Act (Section 5.007
of the Texas Property Code) not apply to this Agreement.


 


ARTICLE
VIII


 


DISCLAIMERS
AND WAIVERS


 


8.1                                 No
Reliance on Documents. Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness of any
materials, data or information delivered by Seller to Purchaser in connection
with the transaction contemplated hereby (including specifically, without
limitation, the Property Documents). Purchaser acknowledges and agrees that all
materials, data and information delivered by Seller to Purchaser in connection
with the transaction contemplated hereby (including specifically, without
limitation, the Property Documents) are provided to Purchaser as a convenience
only and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser, except as otherwise expressly
stated herein. Without limiting the generality of the foregoing provisions, if
any budget or similar document is delivered by Seller to Purchaser, Seller
makes no representation or warranty as to the accuracy thereof, nor shall any 


 


15

















 


such document be construed to impose upon Seller any duty to spend the
amounts set forth in such budget or other document.


 


8.2                                 Disclaimers.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED
THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, 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 PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF THE
PROPERTY DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF SELLER
TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL
FAULTS”, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT.
PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR
BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO
MADE OR FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE
BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER
MADE OR GIVEN, DIRECTLY OR INDIRECTLY, VERBALLY OR IN WRITING, UNLESS
SPECIFICALLY SET FORTH IN THIS AGREEMENT. PURCHASER REPRESENTS TO SELLER THAT
PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS
OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE
CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION
TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED
FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS
ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION
DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE
BEEN REVEALED BY PURCHASER’S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL
BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER FROM AND AGAINST ANY
AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT),
LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND
COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH
PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON
OF OR ARISING OUT OF ANY CONSTRUCTION DEFECTS, PHYSICAL CONDITIONS, VIOLATIONS
OF ANY APPLICABLE LAWS (INCLUDING ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY;
PROVIDED, HOWEVER, THAT THE FOREGOING PROVISION SHALL NOT BE CONSTRUED TO LIMIT
ANY REMEDY PROVIDED TO PURCHASER UNDER SECTION 6.3 OF THIS AGREEMENT.
PURCHASER AGREES THAT SHOULD ANY CLEANUP, REMEDIATION 


 


16

















 


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. PURCHASER ACKNOWLEDGES THAT NO
REPRESENTATIONS HAVE BEEN MADE BY SELLER, KIMPTON, ANY BROKER, OR THEIR
RESPECTIVE AGENTS OR EMPLOYEES OR IN ANY MARKETING OR OTHER MATERIALS IN ORDER
TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, OTHER THAN AS EXPRESSLY
STATED HEREIN. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER
ACKNOWLEDGES THAT NONE OF SELLER, KIMPTON, ANY BROKER, OR THEIR RESPECTIVE
AGENTS OR EMPLOYEES HAVE (I) MADE ANY REPRESENTATION OR STATEMENT TO
PURCHASER OF THE INVESTMENT POTENTIAL OR RESALE AT ANY FUTURE DATE, AT A PROFIT
OR OTHERWISE, OF THE PROPERTY; (II) RENDERED ANY ADVICE OR EXPRESSED ANY
OPINIONS TO PURCHASER REGARDING ANY TAX CONSEQUENCES OF OWNERSHIP OF THE
PROPERTY OR (III) MADE ANY STATEMENT OR REPRESENTATION NOT SET FORTH IN
THIS AGREEMENT, INCLUDING ANY STATEMENT OR REPRESENTATION AS TO THE LENGTH OR
TYPE OF THE SERVICES PROVIDED BY THE HOTEL UNIT TO THE UNITS, THE VIEWS FROM
THE UNITS NOT BEING IMPACTED IN THE FUTURE OR THE TYPE, PERMANENCE OR NATURE OF
THE SPA SERVICES OF THE HOTEL UNIT OR ANY OTHER HOTEL ADJACENT TO THE UNITS.
PURCHASER ACKNOWLEDGES THAT PURCHASER HAS READ AND UNDERSTANDS EACH AND EVERY PART OF
THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 8.2 SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT OR THE CLOSING.


 


8.3                                 Waivers
of Deceptive Trade Practices Act. Purchaser acknowledges and agrees, on its
own behalf and on behalf of its assigns and successors, that the Texas
Deceptive Trade Practices — Consumer Protection Act, Subchapter E of
Chapter 17 of the Texas Business and Commerce Code (the “DTPA”), is not applicable
to this transaction. Accordingly, Purchaser’s rights and remedies with respect
to this transaction, and with respect to all acts or practices of the other,
past, present or future, in connection with this transaction, shall be governed
by legal principles other than the DTPA. In furtherance thereof, Purchaser
agrees as follows:


 


(a)                                  Purchaser
represents that it is a business consumer and that it seeks to acquire by
purchase or lease the goods or services that are the subject of this Agreement
for commercial or business use. Purchaser further represents that it has
knowledge and experience in financial and business matters that enable it to
evaluate the merits and risks of the business transaction that is the subject
of this Agreement. Purchaser also represents that it is not in a significantly
disparate bargaining position in relation to Seller.


 


(b)                                 Purchaser
represents that it has been represented by legal counsel in seeking or
acquiring the goods or services that are the subject of this Agreement and that
the transaction contemplated by this Agreement does not involve the purchase or
lease of a family residence occupied or to be occupied as the residence of
Purchaser. Purchaser shall cause its legal counsel to sign this Agreement in
the space provided below for the purpose of complying with Section 17.42(a)(3) of
the DTPA.


 


(c)                                  Purchaser
agrees, on its own behalf and on behalf of its assigns and successors, that all
of its rights and remedies under the DTPA are WAIVED AND RELEASED, including
specifically, without limitation, all rights and remedies resulting from or
arising out of any and all acts or practices of Seller in connection with this
transaction, whether such acts or practices occur before or after the execution
of this Agreement; provided, however, notwithstanding anything to the contrary
herein, in accordance with Section 17.42 of the DTPA, Purchaser does not
waive Section 17.555 of the DTPA.


 


17

















 


8.4                                 Effect
and Survival of Disclaimers. Seller has informed Purchaser that the
compensation to be paid to Seller for the Property has been decreased to take
into account that the Property is being sold subject to the provisions of this Article VIII.
Seller and Purchaser agree that the provisions of this Article VIII shall
survive Closing.


 


ARTICLE
IX


 


MISCELLANEOUS


 


9.1                                 Broker.
Seller and Purchaser represent each to the other that each has had no dealings
with any broker, finder or other party concerning Purchaser’s purchase of the
Property except Dunhill Partners, Inc. (“Broker”). If (and only if) the
transaction that is the subject of this Agreement is consummated, Seller shall
pay a commission (the “Sales Commission”) to Broker equal to two percent (2%)
of the Purchase Price, payable as follows: (a) Seller shall pay fifty
percent (50%) of the Sales Commission to Broker at Closing, and (b) Seller
shall pay the remaining fifty percent (50%) of the Sales Commission to Broker
no later than two (2) business days after the Purchase Money Financing has
been paid in full. Seller and Purchaser each hereby agree to indemnify and hold
the other harmless from all loss, cost, damage or expense (including reasonable
attorney’s fees) incurred by the other as a result of any claim arising out of
the acts of the indemnifying party (or others on its behalf) for a commission,
finder’s fee or similar compensation made by any broker, finder or any party
who claims to have dealt with such party except Broker. The foregoing
representations and warranties contained in this section shall survive the
Closing. The Texas Real Estate License Act requires written
notice to Purchaser that it should have an attorney examine an abstract of
title to the property being purchased or obtain a title insurance policy.
Notice to that effect is, therefore, hereby given to Purchaser.


 


9.2                                 ERISA.
Purchaser represents that Purchaser is not an employee benefit plan or a
governmental plan or a party in interest of either such a plan, and that the
funds being used to acquire the Property are not plan assets or subject to
state laws regulating investments of and fiduciary obligations with respect to
a governmental plan. As used herein, the terms “employee benefit plan”, “party
in interest”, “plan assets” and “governmental plan” shall have the respective
meanings assigned to such terms in ERISA, and the term “ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as amended, and the
regulations promulgated in connection therewith. Upon the request of Seller,
Purchaser shall deliver to Seller at Closing a certificate stating that the
foregoing representations are true and correct and containing an agreement by
Purchaser to indemnify Seller against any inaccuracy in such representations.
The foregoing covenants shall survive Closing.


 


9.3                                 Assignability.
Purchaser may not assign its rights under this Agreement to anyone other than a
Permitted Assignee (as hereinafter defined) without first obtaining (a) Seller’s
written approval, which may be given or withheld in Seller’s sole discretion,
and (b) the written approval of Lender and Hotel Lender. Subject to the
conditions set forth in this Section 9.3, Purchaser may assign its rights
under this Agreement to a Permitted Assignee without the prior written consent
of Seller. In the event that Purchaser desires to assign its rights under this
Agreement to a Permitted Assignee, Purchaser shall send written notice to
Seller at least five (5) business days prior to the effective date of such
assignment stating the name and, if applicable, the constituent persons or
entities of the Permitted Assignee. Such assignment shall not become effective
until such Permitted Assignee executes an instrument reasonably satisfactory to
Seller in form and substance whereby the Permitted Assignee expressly assumes
each of the obligations of Purchaser under this Agreement, including
specifically, without limitation, all obligations concerning the Earnest Money.
No assignment shall release or otherwise relieve Purchaser from any obligations
hereunder. For purposes of this Section 9.3, the term “Permitted Assignee”
shall mean an (i) a limited liability company or corporation in which
William L. Hutchinson owns or controls a majority of the voting ownership
interests, (ii) a general partnership in which William L. Hutchinson is a
general 


 


18

















 


partner owning a majority of the total partnership
interests therein, or (iii) a limited partnership in which the general
partner is William L. Hutchinson or an entity owned or controlled by William L.
Hutchinson.


 


9.4                                 Confidentiality.
The information supplied to or made available to Purchaser by Seller pursuant
to this Agreement shall not be released or disclosed to any other parties
unless and until this transaction has closed without the prior written consent
of Seller. Seller shall not withhold its consent to disclosure of such
information to Purchaser’s attorney or to any prospective lender. In the event
that this transaction is not closed for any reason, then (a) Purchaser
shall refrain, and shall cause its agents, representatives and accountants to
refrain, from disclosing all such information to any other party, (b) Purchaser
shall promptly return to Seller any statements, documents, schedules, exhibits
or other written information obtained from Seller in connection with this
Agreement or the transaction contemplated herein, and (c) notwithstanding
anything to the contrary contained elsewhere in this Agreement, the covenant
set forth in the foregoing clauses (a) and (b) shall survive any
termination of this Agreement. It is understood and agreed that, with respect
to any provision of this Agreement which refers to the termination of this
Agreement and the return of the Earnest Money to Purchaser, such Earnest Money
shall not be returned to Purchaser unless and until Purchaser has fulfilled its
obligation to return to Seller the materials described in clause (b) of
the preceding sentence. In the event of a breach or threatened breach by
Purchaser or its agents or representatives of this Section 9.4, Seller
shall be entitled to an injunction restraining Purchaser or its agents or
representatives from disclosing, in whole or in part, such confidential
information. Nothing herein shall be construed as prohibiting Seller from
pursuing any other available remedy at law or in equity for such breach or
threatened breach.


 


9.5                                 Notice.
All notices required or permitted hereunder shall be in writing and shall be
served on the parties at the following address:


 


If to Seller:                                                                                    Behringer
Harvard Mockingbird Commons, LLC

Attention: Sam Gillespie

15601 Dallas Parkway, Suite 600

Addison, Texas 75001


 


With a copy to:                                                             Powell
Coleman & Arnold LLP

Attention: Pat Arnold

8080 North Central Expressway, Suite 1380

Dallas, Texas 75001


 


If to Purchaser:                                                               Les
Sallay

3850 Point Grey Road

Vancouver, B.C.

Canada V6R 1B4

Phone (604)739-9155

Fax (604)739-9516

Email: lsallay@telus.net


 


With a
copy to:                                                             Kevin
M. Kerr, P.C.

Attorney at Law 

1700 Alma Drive, Suite 405

Plano, Texas 75075

Phone: 972-424-7394

Fax: 972-424-7322

Email: kevin@kkerrlaw.com


 


19

















 


Any such notices shall be either (a) sent by
certified mail, return receipt requested, in which case notice shall be deemed
delivered upon deposit, postage prepaid in the U.S. mail, or (b) sent by a
nationally recognized overnight courier, in which case it shall be deemed
delivered one business day after deposit with such courier, or (c) delivered
by hand delivery, in which case it shall be deemed delivered upon receipt, or (d) sent
by facsimile, in which case it shall be deemed delivered upon verified
transmission.. The above addresses may be changed by written notice to the
other party; provided, however, that no notice of a change of address shall be
effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice.


 


9.6                                 Time
of Essence. Time is of the essence of this Agreement.


 


9.7                                 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.


 


9.8                                 Captions.
The captions in this Agreement are inserted for convenience of reference and in
no way define, describe or limit the scope or intent of this Agreement or any
of the provisions hereof.


 


9.9                                 Binding
Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives, successors and
permitted assigns.


 


9.10                           Entire
Agreement; Modifications. This Agreement contains the entire agreement
between the parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representations or
statements, oral or written, are superseded hereby. No waiver, modification
amendment, discharge or change of this Agreement shall be valid unless the same
is in writing and signed by the party against which the enforcement of such
modification, waiver, amendment discharge or change is sought.


 


9.11                           Partial
Invalidity. Any provision of this Agreement which is unenforceable or
invalid or the inclusion of which would affect the validity, legality or
enforcement of this Agreement shall be of no effect, but all the remaining
provisions of this Agreement shall remain in full force and effect.


 


9.12                           Discharge
of Obligations. Except as otherwise expressly provided herein, the
acceptance of the Deed by Purchaser at Closing shall be deemed to be a full
performance and discharge of every representation, warranty and covenant made
by Seller herein and every agreement and obligation on the part of Seller to be
performed pursuant to the provisions hereof, and such representations,
warranties and covenants shall be deemed to merge into the documents delivered
at Closing.


 


9.13                           No
Relationship with Kimpton. Seller and Kimpton have entered into a licensing
agreement and a hotel management agreement that, while such agreements are in
effect, respectively (i) permit Seller to use certain trademarks, trade
names, service marks and copyrights associated with the name “Hotel Palomar”
(collectively, the “Kimpton Intellectual Property”) in connection with
the initial sale and marketing of the Units, and (ii) provide for Kimpton
to manage the Hotel Unit. Purchaser acknowledges and agrees that the Property
has been marketed to, and is being sold to, Purchaser solely by Seller and not
by Kimpton, and that Kimpton shall not have any liability or obligation in
connection with the marketing and sale of the Property to Purchaser. Purchaser
releases Kimpton from any liability with respect to any representations or
defects, and waives any claim whatsoever against Kimpton in relation to the
marketing, sale or construction of the Property. Purchaser further acknowledges
and agrees that (A) Kimpton is not part of or an agent for Seller or the
declarant under the Condominium Documents and has not acted as a broker, finder
or agent in connection with the sale of the Property; (B) Kimpton has not
acted as the developer, architect, engineer, contractor, sales representative,
sponsor or in any similar 


 


20

















 


capacity in connection with the development of the
Property or the marketing or sale of the Property to Purchaser and (C) Kimpton
(including any representative or agent thereof) has not made any representation
or warranty of any nature whatsoever (express or implied) in connection with
the sale of the Property to Purchaser. Purchaser further acknowledges and
agrees that Purchaser is not a third-party beneficiary of any agreement between
Seller and Kimpton and that there are no guarantees that the Hotel Unit will be
operated as a Hotel Palomar or that Kimpton will manage the Hotel Unit at the
Closing or for any period following the Closing. Purchaser further acknowledges
and agrees that Purchaser, by acquiring the Property, will not acquire any
right or interest in the Kimpton Intellectual Property, which shall at all
times remain the sole and exclusive property of Kimpton. Purchaser further
acknowledges and agrees that Purchaser shall not use any Kimpton Intellectual
Property, including the name “Hotel Palomar” when leasing or reselling the
Property. Purchaser further acknowledges and agrees that if Kimpton no longer
manages the Hotel Unit, then all use of the Kimpton Intellectual Property will
in all likelihood cease at and be removed from the property comprising the
condominium regime of which the Property is a part (including the removal of
all signs or other materials bearing any trademarks, trade names, service marks
and copyrights associated with the name “Hotel Palomar”) and certain hotel
services (such as room service, housekeeping, etc.) may no longer be available
to the Units. There is no assurance that the Hotel Unit at all times will be
Hotel Palomar or an operating hotel. Seller does not and will not have any
liability to Purchaser regarding the cessation of operation of the Hotel Unit
as a hotel managed by Kimpton or for the cessation of the operation of the
Hotel Unit as a hotel. Kimpton is a third party beneficiary of the applicable
portions of Article VIII hereof for (1) asserting the disclaimers,
waivers and/or releases contained in such section as a defense in any action in
which Kimpton is a party and (2) enforcing the applicable indemnification
provision against Purchaser. Purchaser acknowledges and agrees that no optional
hotel rental program has been or will be established by Seller under which
program the Units may be rented as guest rooms at the Hotel Unit. If such a
program is established, Purchaser agrees and acknowledges that a purchase, or
offer to purchase, of any of the Units to be included in a rental program is
not an investment or a security under any applicable security laws. The
provisions of this Section 9.13 shall survive the Closing.


 


9.14                           Resale
Certificate. Purchaser acknowledges that Texas Property Code Section 82.157
requires Purchaser, before executing a contract for the resale of any of the
Units, to furnish certain information regarding the Property, including a
resale certificate issued by the Residential Association, to the prospective
purchaser.


 


9.15                           Limited
Liability. Purchaser agrees that it does not have and will not have any
claims or causes of action against any disclosed or undisclosed officer,
director, employee, trustee, shareholder, member, partner, principal, parent,
subsidiary or other affiliate of Seller, or any officer, director, employee,
trustee, shareholder, member, partner or principal of any such parent,
subsidiary or other affiliate (collectively, “Sellers’ Affiliates”), arising
out of or in connection with this Agreement or the transactions contemplated
hereby. Purchaser agrees to look solely to Seller and its assets for the
satisfaction of any liability or obligation arising under this Agreement or the
transactions contemplated hereby, or for the performance of any of the
covenants, warranties or other agreements contained herein, and further agrees
not to sue or otherwise seek to enforce any personal obligation against any of
Sellers’ Affiliates with respect to any matters arising out of or in connection
with this Agreement or the transactions contemplated hereby. Notwithstanding
anything to the contrary contained in this Agreement, neither the negative
capital account of any constituent partner or member in Seller, nor any
obligation of any constituent partner or member in any entity owning an
interest (directly or indirectly) in Seller to restore a negative capital
account or to contribute capital to Seller (or any entity owning an interest,
directly or indirectly, in any other constituent partner or member of Seller),
shall at any time be deemed to be the property or an asset of Seller or any
such other partner or member. Accordingly, neither Purchaser nor any of its
successors or assigns shall have any right to collect, enforce, or proceed
against or with respect to (a) the negative capital account of any
constituent partner or member in Seller, or (b) any 


 


21

















 


obligation of any constituent partner or member in any
entity owning an interest (directly or indirectly) in Seller to restore a
negative capital account or to contribute capital to Seller (or any entity
owning an interest, directly or indirectly, in any other constituent partner or
member of Seller. The provisions of this Section 9.15 shall survive the
termination of this Agreement and the Closing.


 


9.16                           No
Third Party Rights. Nothing in this Agreement, express or implied, is intended
to confer upon any person, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this
Agreement.


 


9.17                           Further
Assurances. Both Seller and Purchaser agree that it will without further
consideration execute and deliver such other documents and take such other
action, whether prior or subsequent to Closing, as may be reasonably requested
by the other party to consummate more effectively the transactions contemplated
hereby.


 


9.18                           Construction.
The parties acknowledge that the parties and their counsel have reviewed and
revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any exhibits or
amendments hereto.


 


9.19                           Calculation
of Time Periods. Unless otherwise specified, in computing any period of
time described in this Agreement, the day of the act or event after which the
designated period of time begins to run is not to be included and the last day
of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday under the laws of the State of Texas, in
which event the period shall run until the end of the next day which is neither
a Saturday, Sunday or legal holiday. The final day of any such period shall be
deemed to end at 5 p.m., Dallas, Texas time.


 


9.20                           Applicable
Law. THIS AGREEMENT IS PERFORMABLE IN DALLAS COUNTY, TEXAS, AND SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE
FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF TEXAS. PURCHASER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN DALLAS COUNTY, TEXAS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE
OR FEDERAL COURT SITTING IN DALLAS COUNTY, TEXAS. IF EITHER PARTY SHALL EMPLOY
AN ATTORNEY TO ENFORCE OR DEFINE THE RIGHTS OF SUCH PARTY HEREUNDER, THE
PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE NONPREVAILING PARTY ALL
OF ITS REASONABLE EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES. PURCHASER AND
SELLER AGREE THAT THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING
OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.


 


9.21                           Municipal
Utility District Notices. Purchaser agrees that if the Property or any
portion thereof is located in a municipal utility district, Purchaser will,
within five (5) days after request by Seller, execute any and all notices
which, in the opinion of counsel for Seller, are required by law to be given to
Purchaser with respect to the Property.


 


9.22                           Exhibits
and Schedules. The following schedules or exhibits attached hereto (herein
sometimes being referred to as “Exhibit”) shall be deemed to be an integral
part of this Agreement:


 


A                                      Legal
Description;

B                                        Property
Documents


 


22

















 


C                                        Special
Warranty Deed

D                                       FIRPTA
Affidavit

E                                         Agreement
Regarding Disclaimers

F.                                      Third
Amendment to Declaration


 


9.23                           Tender
of Offer. Upon execution of this Agreement by Purchaser and delivery of
same to Seller, this Agreement shall constitute an offer which has been
submitted by Purchaser to Seller for Seller’s approval. By executing this
Agreement and submitting same to Seller, Purchaser acknowledges and agrees as
follows: (a) this Agreement may be approved or disapproved by Seller in
its sole and unfettered discretion, with Seller having the right to disapprove
this Agreement for any reason whatsoever, and (b) Seller’s approval of
this Agreement shall be evidenced only by Seller’s execution of this Agreement
and delivery of a counterpart hereof executed by both Seller and Purchaser to
the Title Company. Purchaser acknowledges that Purchaser has not, will not and
cannot rely upon any other statement or action of Seller or its representatives
as evidence of Seller’s approval of this Agreement.


 


9.24                           Like Kind Exchange. In the event that Seller elects to sell the
Property as part of a like kind exchange pursuant to Section 1031 of the
Internal Revenue Code, Purchaser agrees to cooperate with Seller in connection
therewith and to execute and deliver all documents which reasonably may be
required to effectuate such exchange as a qualified transaction pursuant to Section 1031
of the Code; provided that: (a) the Closing shall not be delayed; (b) Purchaser
incurs no additional cost or liability in connection with the like-kind
exchange; (c) Seller pays all costs associated with the like-kind
exchange; and (d) Purchaser is not obligated to take title to any property
other than the Property.


 


9.25                           Back-Up Contracts. Notwithstanding the execution of this
Agreement, Seller shall have the right to enter into one or more “back-up”
contracts, pursuant to which Seller agrees to sell the Property or any portion
thereof to another party in the event that this Agreement is terminated. Seller
shall be under no obligation to disclose any such “back-up” contracts or the
terms thereof to Purchaser.


 


9.26                           Effective
Date. The offer by Purchaser herein contained shall automatically be
withdrawn and become of no force or effect unless this Agreement is executed by
Seller and delivered to the Title Company on or before 5 p.m., Dallas,
Texas time, on November 15, 2008. The “Effective Date” of this Agreement
shall be the date of delivery to the Title Company of a fully executed
counterpart of this Agreement, as evidenced by the Title Company’s notation in
the space set forth below.


 


9.27                           INSULATION. THE INFORMATION RELATING TO
INSULATION INSTALLED IN THE PROPERTY, AS REQUIRED BY THE FEDERAL TRADE
COMMISSION REGULATIONS, IS AS SET FORTH IN THIS SECTION 9.27:


 


(a)                                  THE EXTERIOR WALLS OF IMPROVED
LIVING AREAS ARE INSULATED WITH FIBERGLASS BATT AND/OR CONTINUOUS INSULATION TO
A THICKNESS OF 3.5 INCHES. THE THROUGH WALL R-VALUE EQUALS 11.


 


(b)                                  THE PARTY WALLS ARE INSULATED
WITH ONE LAYER OF 6 INCH FIBERGLASS BATT INSULATION. THE THROUGH WALL R-VALUE
EQUALS 19.


 


(c)                                  THE CORRIDOR WALLS ARE INSULATED
WITH ONE LAYER OF 3.5 INCH FIBERGLASS BATT INSULATION. THE THROUGH WALL R-VALUE
EQUALS 11.


 


(d)                                  THE MIDFLOORS ARE NOT INSULATED.
THE THROUGH FLOOR R-VALUE EQUALS 4 TO 6 BY USE OF THE 10 INCH CONCRETE SLAB.


 


23

















 


(e)                                  THE ROOF ABOVE THE IMPROVED
LIVING AREAS OF THE TOP FLOOR ONLY IS INSULATED WITH 1-1/2 INCH RIGID ROOF
INSULATION. THE THROUGH CEILING R-VALUE EQUALS A MINIMUM OF 19.


 


(R VALUE
MEANS RESISTANCE TO HEAT FLOW; THE HIGHER THE R VALUE, THE GREATER THE
INSULATING POWER.)


 


THE
INSULATION INFORMATION WAS FURNISHED TO SELLER BY THE INSTALLER AND/OR
MANUFACTURER OF THE INSULATION AND IF THERE IS A CHANGE OF THE INSULATION
INFORMATION, SELLER WILL FURNISH TO PURCHASER A WRITTEN STATEMENT OF SUCH
INFORMATION.


 


9.28                           RCLA Notice. This
Agreement is subject to Chapter 27 of the Texas Property Code. The provisions
of that chapter may affect your right to recover damages arising from a
construction defect. If you have a complaint concerning a construction defect
and that defect has not been corrected as may be required by law or by
contract, you must provide the notice required by Chapter 27 of the Texas
Property Code to the Seller by certified mail, return receipt requested, not
later than the 60th day before the date you file suit to recover
damages in a court of law or initiate arbitration. The notice must refer to
Chapter 27 of the Texas Property Code and must describe the construction
defect. If requested by the Seller, you must provide the Seller an opportunity
to inspect and cure the defect as provided by Section 27.004 of the Texas
Property Code. Copies of any notices given by Purchaser directly to any
contractor under Chapter 27 of the Texas Property Code must also be
contemporaneously sent to Seller.


 


24
















 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement to be effective as of the Effective
Date.


 


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD
  MOCKINGBIRD COMMONS, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  JEL INVESTMENTS, LTD.,

  
	
   

  	
  a Canadian corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature Pages


 

















 


ACKNOWLEDGMENT
BY TITLE COMPANY


 


The Title Company hereby acknowledges receipt of (a) a
counterpart of this Agreement executed by Seller and Purchaser on the
         day of
                              
2008 (the “Effective Date”), and (b) Earnest Money from Purchaser in the
amount of One Hundred Thousand and No/100 Dollars ($100,000.00) on the
         day of
                              
2008.


 


	
   

  	
  FEDERAL TITLE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Signature Pages


 

















 


EXHIBIT A


 


LEGAL DESCRIPTION OF PROPERTY


 


The Property consists of:
(a) the Units listed on Exhibit A-1 attached hereto (the “Units”),
of the M Central Residences, a Condominium, created pursuant to the Residential
Condominium Declaration recorded in Volume 2005182, Page 00204 of the Real
Property Records of Dallas County, Texas, and all amendments thereto (the “Residential
Declaration”), and located within the Residential Unit of the M Central
Master Condominium, created pursuant to the Master Condominium Declaration for
the M Central Master Condominium, recorded in Volume 2005182, Page 00111
of the Real Property Records of Dallas County, Texas, and all amendments
thereto (the “Master Declaration”), covering a building built on land
located in Dallas County, Texas; together with the undivided interests,
appurtenant to the Units, in and to the Common Elements in the percentages
designated for the Units on Exhibit “C” attached to the Residential
Declaration; (b) the exclusive right to use the Parking Spaces listed on Exhibit A-2
attached hereto, as limited common elements appurtenant to the Units; and (c) the
exclusive right to use the Storage Spaces listed on Exhibit A-3
attached hereto, as limited common elements appurtenant to the Units.


 


1

















 


Exhibit A-1


 


Units to be Sold


 


	
  Unit #

  
	
  4A #406

  
	
  5A #506

  
	
  6A #606

  
	
  7A #706

  
	
  8A #806

  
	
  5B #505

  
	
  6B #605

  
	
  7B #705

  
	
  8B #805

  
	
  3C #304 Mod

  
	
  5C #504

  
	
  6C #604

  
	
  7C #704

  
	
  8C #804

  
	
  2D #203

  
	
  3D #303

  
	
  4D #403

  
	
  5D #503

  
	
  6D #603

  
	
  7D #703

  
	
  8D #803

  
	
  2E #202 Mod

  
	
  3E #302

  
	
  4E #402

  
	
  5E #502

  
	
  6E #602

  
	
  7E #702

  
	
  8E #802

  
	
  2F #201

  
	
  3F #301

  
	
  4F #401

  
	
  5F #501

  
	
  6F #601

  
	
  7F #701

  
	
  8F #801

  
	
  2G #200 Mod

  
	
  4G #400

  
	
  6G #600

  
	
  7G #700

  
	
  8G #800

  
	
  2H #206

  
	
  3H #306

  
	
  2I #205

  
	
  3I #305

  
	
  1A #103

  
	
  1B #102

  
	
  1C #103

  
	
  1D #104

  
	
  9A #903

  
	
  9B #902

  
	
  9C #901

  
	
  9D #900

  



 


1

















 


Exhibit A-2


 


Parking Spaces


 


1

















 


Exhibit A-3


 


Storage Spaces


 


1

















 


EXHIBIT B


 


PROPERTY DOCUMENTS


 


Seller shall deliver the following to Purchaser to the
extent in Seller’s possession:


 


1.             Copies of the Condominium
Documents.


 


2.             Copies of the Loan Documents.


 


3.             Copies of all vendor and service
contracts to which Seller is a party that are currently in effect with respect
to the Property, including, but not limited to, all agreements for the
provision of janitorial, maintenance, trash removal, landscaping and security
services, to the extent in Seller’s possession.


 


4.             Operating statements for the
Property for the most recent twelve (12) months (or the period of Seller’s
ownership of the Property, if less) in the format customarily prepared for
Seller by the current manager of the Property.


 


5.             An inventory of the Personal
Property, if any, to be conveyed to Purchaser at Closing.


 


6.             Copies of the ad valorem and
personal property tax statements covering the Property for the current tax year
(if available) and for the previous two (2) years (or the period of Seller’s
ownership of the Property, if less).


 


7.             All Governmental licenses and
permits issued to Seller with respect to the Property to the extent in Seller’s
possession, including specifically, without limitation, building permits,
certificates of occupancy, and special or conditional use permits in Seller’s
possession.


 


8.             Plans and specifications for the
Improvements, to the extent in Seller’s possession.


 


9.             Copies of all guaranties and
warranties covering the Property, to the extent in Seller’s possession.


 


10.           Any environmental, soil, or
engineering reports prepared with respect to the Property which are in Seller’s
possession.


 


1

















 


EXHIBIT C


 


SPECIAL WARRANTY DEED


 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
  KNOW ALL MEN BY
  THESE PRESENTS:

  
	
  COUNTY OF DALLAS

  	
  §

  	
   

  



 


THAT, Behringer Harvard Mockingbird Commons, LLC, a
Delaware limited liability company, the owner of certain Residential Units in
that certain condominium created by the master declaration for the M Central
Master Condominium, recorded in Volume 2005182, Page 00111 of the Real
Property Records of Dallas County, Texas (whether one or more, “Grantor”)
(and under which Grantor is the Declarant), and pursuant to that certain
Condominium Declaration for the M Central Residences, a Condominium, recorded
in Volume 2005182, Page 00204 of the Real Property Records of Dallas
County, Texas, for and in consideration of good and valuable consideration paid
by
                                                                              ,
a                                                             
(whether one or more, “Grantee”), the receipt and sufficiency of which
are hereby acknowledged and confessed, and the further
consideration of the execution and delivery by Grantee of one certain
promissory note (“Note”) of even date herewith in the principal sum of
                                        
and     /100 Dollars
($                            )
payable to the order of Grantor, as therein provided and bearing interest at
the rates therein specified, the payment of which Note is secured by the vendor’s
lien herein retained by Grantor (“Vendor’s Lien”) and is additionally secured
by a deed of trust of even date herewith to
                        ,
as Trustee, for the benefit of Grantor, subject to the exceptions,
liens, encumbrances, terms and provisions hereinafter set forth and described,
has GRANTED, BARGAINED, SOLD and CONVEYED and by these presents does hereby
GRANT, BARGAIN, SELL and CONVEY unto Grantee the Subject Property situated in
Dallas County, Texas, and being described in Exhibit “A” attached
hereto and incorporated herein by reference for all purposes.


 


TOGETHER WITH, all and singular, the rights, benefits,
privileges, easements, tenements, hereditaments, appurtenances and interests
thereon or in anywise appertaining thereto (said rights, benefits, privileges,
easements, tenements, hereditaments, appurtenances and interests being
hereinafter referred to as the “Subject Property”).


 


This conveyance is made subject and subordinate to the
encumbrances and exceptions (“Permitted Exceptions”) described in Exhibit B
attached hereto and incorporated herein by reference for all purposes, but only
to the extent they affect or relate to the Subject Property and without
limitation or expansion of the scope of the special warranty herein contained.


 


TO HAVE AND TO HOLD the Subject Property, subject to
the Permitted Exceptions as aforesaid, unto Grantee and Grantee’s heirs,
executors, administrators, personal representatives, successors and assigns
forever; and Grantor does hereby bind Grantor and Grantor’s heirs, executors,
administrators, personal representatives, successors and assigns to WARRANT and
FOREVER DEFEND, all and singular, the Subject Property, subject to the
Permitted Exceptions, unto Grantee and Grantee’s heirs, executors,
administrators, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming or to claim the same or any part thereof
by, through or under Grantor, but not otherwise.


 


Grantee, by its acceptance hereof, does hereby assume
and agree to pay any and all ad valorem taxes and special assessments
pertaining to the Subject Property for the calendar year in which this special
warranty deed is executed and delivered and all subsequent years, there having
been a proper proration of ad valorem taxes for the current calendar year
between Grantor and Grantee.


 


1

















 


The Vendor’s Lien, together with the superior title to
the Subject Property, is retained herein for the benefit of Grantor until the
Note is fully paid according to its terms, at which time this Special Warranty
Deed shall become absolute.


 


EXECUTED as of the
              
day of
                              ,
20    .


 


	
   

  	
  GRANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ,

  
	
   

  	
  a

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY OF

  	
  §

  	
   

  



 


This
instrument was ACKNOWLEDGED before me, on the
           day of
                      ,
20      , by                                       ,
the                               
of
                                                                    ,
a
                                    ,
on behalf of said
                                  .


 


 


	
  [SEAL]

  	
   

  	
   

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
  My Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Printed
  Name of Notary Public

  
	
   

  	
   

  	
   

  
	
  GRANTEE’S ADDRESS FOR
  TAX NOTICES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


2

















 


Exhibit A
to Special Warranty Deed


 


Property
Description


 


3
















 


Exhibit B to Special
Warranty Deed


 


Permitted Exceptions


 


4

















 


EXHIBIT D



FIRPTA AFFIDAVIT


 


	
  THE
  STATE OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


Section 1445 of the Internal Revenue Code
provides that a transferee of a U.S. real property interest must withhold tax
if the transferor is a foreign person. To inform
                                        ,
a
                                        
corporation (Transferee”), that withholding of tax is not required upon the
disposition of a U.S. real property interest by Behringer Harvard
                          ,
a                               
(“Transferor”), the undersigned hereby certifies as follows:


 


1.                                       Transferor
is not a foreign corporation, foreign partnership, foreign trust or foreign
estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations);


 


2.                                       Transferor’s
U.S. employer identification number is:
#                    ;


 


3.                                       Transferor’s
office address is 15601 Dallas Parkway, Suite 600, Addison, Texas 75001.


 


Transferor understands that this certification may be
disclosed to the Internal Revenue Service by the Transferee and that any false
statement contained herein could be punished by fine, imprisonment, or both.


 


Under penalties of perjury, the undersigned, in the
capacity set forth below, hereby declares that he has examined this
certification and to the best of his knowledge and belief it is true, correct,
and complete, and the undersigned further declares that he has authority to
sign this document in such capacity.


 


EXECUTED to be effective
as of the          day of
                              
200    .


 


	
   

  	
  BEHRINGER HARVARD  

  	
   

  	
  ,

  
	
   

  	
  a

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


SWORN TO AND SUBSCRIBED
BEFORE ME this          day of
                              
200    .


 


	
   

  	
   

  
	
   

  	
  Notary Public

  	
   

  



 


1

















 


EXHIBIT E



AGREEMENT REGARDING DISCLAIMERS


 


This Agreement Regarding Disclaimers (this “Agreement”)
is made to be effective as of the         
day of
                              
200    , by
                                        ,
a
                                        
(“Purchaser”), for the benefit of Behringer Harvard
                          ,
a                               
(“Seller”).


 


RECITALS


 


A.                                   Seller
and Purchaser executed that certain Purchase Agreement (herein so called) dated
to be effective as of the   day of
                              
200    , regarding the sale and purchase of certain
property more specifically described therein (the “Property”).


 


B.                                     The
Purchase Agreement requires that at Closing (as defined in the Purchase
Agreement) Purchaser and its counsel shall execute this Agreement;


 


NOW THEREFORE, Purchaser does hereby confirm and agree
as follows:


 


1.                                       No
Reliance. Purchaser acknowledges and agrees that Purchaser has had ample
opportunity to review documents concerning the Property and to conduct physical
inspections of the Property, including specifically, without limitation,
inspections regarding the environmental condition of the Property, the
structural condition of the Property, and the compliance of the Property with
the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq. Purchaser
hereby represents, warrants and agrees that (a) Purchaser has examined the
Property and is familiar with the physical condition thereof and has conducted
such investigations of the Property (including without limitation the
environmental condition thereof) as Purchaser has deemed necessary to satisfy
itself as to the condition of the Property and the existence or nonexistence,
or curative action to be taken with respect to, any hazardous or toxic
substances on or discharged from the Property, (b) except as expressly set
forth in Section 5.1 of the Purchase Agreement, neither Seller nor Broker
(as defined in the Purchase Agreement), nor any affiliate, agent, officer,
employee or representative of any of the foregoing has made any verbal or
written representations, warranties, promises or guarantees whatsoever to
Purchaser, express or implied, and in particular, that no such representations,
warranties, guarantees or promises have been made with respect to the physical
condition, operation, or any other matter or thing affecting or related to the
Property or the offering or sale of the Property, and (c) Purchaser has
not relied upon any representations, warranties, guarantees or promises or upon
any statements made or any information provided concerning the Property
provided or made by Seller or Broker, or their respective agents and
representatives, and Purchaser has elected to purchase the Property after
having made and relied solely on its own independent investigation, inspection,
analysis, appraisal and evaluation of the Property and the facts and circumstances
related thereto. Without limiting the generality of the foregoing, Purchaser
acknowledges and agrees that neither Seller nor Broker has any obligation to
disclose to Purchaser, and shall have no liability for its failure to disclose
to Purchaser, any information known to it relating to the Property. Purchaser
acknowledges and agrees that all materials, data and information delivered to
Purchaser by or through Seller or Broker in connection with the transaction
contemplated herein have been provided to Purchaser as a convenience only and
that any reliance on or use of such materials, data or information by Purchaser
shall be at the sole risk of Purchaser.


 


2.                                       Disclaimers.
PURCHASER ACKNOWLEDGES AND AGREES THAT THE PROPERTY HAVE BEEN SOLD AND CONVEYED
TO PURCHASER AND PURCHASER HAS ACCEPTED THE PROPERTY “AS IS, WHERE IS, WITH ALL
FAULTS”. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5.1
OF THE PURCHASE 


 


1

















 


AGREEMENT AND THE LIMITED
WARRANTY OF TITLE EXPRESSLY SET FORTH IN THE DEED FROM SELLER TO PURCHASER,
SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF
ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY.
WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE OR ANY OTHER
DISCLAIMER SET FORTH HEREIN, SELLER AND PURCHASER HEREBY AGREE THAT SELLER HAS
NOT MADE AND IS NOT MAKING ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, AS TO (A) THE NATURE OR CONDITION, PHYSICAL OR
OTHERWISE, OF THE PROPERTY OR ANY ASPECT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF HABITABILITY, SUITABILITY, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR USE OR PURPOSE, (B) THE NATURE OR QUALITY OF
CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE IMPROVEMENTS OR THE STATE
OF REPAIR OR LACK OR REPAIR OF ANY OF THE IMPROVEMENTS, (C) THE QUALITY OF
THE LABOR OR MATERIALS INCLUDED IN THE IMPROVEMENTS, (D) THE SOIL
CONDITIONS, DRAINAGE CONDITIONS, TOPOGRAPHICAL FEATURES, ACCESS TO PUBLIC
RIGHTS-OF-WAY, AVAILABILITY OF UTILITIES OR OTHER CONDITIONS OR CIRCUMSTANCES
WHICH AFFECT OR MAY AFFECT THE PROPERTY OR ANY USE TO WHICH PURCHASER MAY PUT
THE PROPERTY, (E) ANY CONDITIONS AT OR WHICH AFFECT OR MAY AFFECT THE
PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE, USE, DEVELOPMENT POTENTIAL OR
OTHERWISE, (F) THE AREA, SIZE, SHAPE, CONFIGURATION, LOCATION, CAPACITY,
QUANTITY, QUALITY, CASH FLOW, EXPENSES, VALUE, MAKE, MODEL, COMPOSITION,
AUTHENTICITY OR AMOUNT OF THE PROPERTY OR ANY PART THEREOF, (G) EXCEPT
FOR THE LIMITED WARRANTY OF TITLE EXPRESSLY SET FORTH IN THE DEED, THE NATURE
OR EXTENT OF TITLE TO THE PROPERTY, OR ANY EASEMENT, RIGHT-OF-WAY, LEASE,
POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONTRACT, CONDITION OR
OTHERWISE THAT MAY AFFECT TITLE TO THE PROPERTY, (I) ANY
ENVIRONMENTAL, GEOLOGICAL, METEOROLOGICAL, STRUCTURAL, OR OTHER CONDITION OR
HAZARD OR THE ABSENCE THEREOF HERETOFORE, NOW OR HEREAFTER AFFECTING IN ANY
MANNER THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE ABSENCE OF ASBESTOS OR
ANY ENVIRONMENTALLY HAZARDOUS SUBSTANCE ON, IN, UNDER OR ADJACENT TO THE
PROPERTY, (I) THE COMPLIANCE OF THE PROPERTY OR THE OPERATION OR USE OF
THE PROPERTY WITH ANY APPLICABLE RESTRICTIVE COVENANTS, OR WITH ANY LAWS,
ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL BODY (INCLUDING SPECIFICALLY,
WITHOUT LIMITATION, ANY ZONING LAWS OR REGULATIONS, ANY BUILDING CODES, ANY
ENVIRONMENTAL LAWS, AND THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C.
12101 ET SEQ. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, VIOLATIONS OF ANY APPLICABLE LAWS,
CONSTRUCTION DEFECTS, AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT
HAVE BEEN REVEALED BY PURCHASER’S INVESTIGATIONS, AND PURCHASER, UPON CLOSING,
SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF
ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING
ATTORNEYS’ FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR
UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY
TIME BY REASON OF OR ARISING OUT OF ANY VIOLATIONS OF ANY APPLICABLE LAWS
(INCLUDING ANY ENVIRONMENTAL LAWS), CONSTRUCTION DEFECTS, PHYSICAL CONDITIONS,
AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS
REGARDING THE PROPERTY. PURCHASER AGREES THAT SHOULD ANY WORK BE REQUIRED TO
PUT THE PROPERTY IN COMPLIANCE WITH ANY APPLICABLE LAWS, OR SHOULD ANY CLEANUP,
REMEDIATION 


 


2

















 


OR REMOVAL OF HAZARDOUS
SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER
THE DATE OF CLOSING, SUCH WORK, CLEAN-UP, REMOVAL OR REMEDIATION SHALL BE THE
RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE COST AND EXPENSE OF
PURCHASER.


 


3.                                       DTPA
Waiver. Purchaser acknowledges and agrees, on its own behalf and on behalf
of its assigns and successors, that the Texas Deceptive Trade Practices —
Consumer Protection Act, Subchapter E of Chapter 17 of the Texas
Business and Commerce Code (the “DTPA”), is not applicable to this transaction.
Accordingly, Purchaser’s rights and remedies with respect to this transaction,
and with respect to all acts or practices of the other, past, present or
future, in connection with this transaction, shall be governed by legal
principles other than the DTPA. In furtherance of the foregoing, Seller and
Purchaser agree as follows:


 


(a)                                  Purchaser
represents that it is a business consumer and that it is acquiring the Property
for commercial or business use. Purchaser further represents that it has
knowledge and experience in financial and business matters that enable it to
evaluate the merits and risks of the business transaction that is the subject
of the Purchase Agreement (including the acquisition of the Property).
Purchaser also represents that it is not in a significantly disparate
bargaining position in relation to Seller.


 


(b)                                 Purchaser
represents that it has been represented by legal counsel in seeking or
acquiring the Property and that the transaction contemplated by the Purchase
Agreement does not involve the purchase or lease of a family residence occupied
or to be occupied as the residence of Purchaser. Concurrently with the execution
of this Agreement, Purchaser shall cause its legal counsel to sign a copy of
this Agreement in the space provided below for the purpose of complying with Section 17.42(a)(3) of
the DTPA.


 


(c)                                  Purchaser
agrees, on its own behalf and on behalf of its assigns and successors, that all
of its rights and remedies under the DTPA are WAIVED AND RELEASED, including
specifically, without limitation, all rights and remedies resulting from or
arising out of any and all acts or practices of Seller in connection with the
business transaction that is the subject of the Purchase Agreement (including
the acquisition of the Property) whether such acts or practices occur before or
after the execution of this Agreement; provided, however, notwithstanding
anything to the contrary herein, in accordance with Section 17.42 of the
DTPA, Purchaser does not waive Section 17.555 of the DTPA.


 


4.                                       Survival
of Disclaimers. Seller and Purchaser agree that the provisions of this
Agreement shall survive Closing.


 


	
   

  	
  [Name of Purchaser]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3

















 


EXHIBIT F



THIRD AMENDMENT TO DECLARATION


 


THIS DOCUMENT AMENDS CERTAIN PROVISIONS OF THE
DOCUMENT RECORDED ON SEPTEMBER 16, 2005 AS INSTRUMENT NO. 200503511369 IN THE REAL
PROPERTY RECORDS OF DALLAS COUNTY, TEXAS, AS SUCH DOCUMENT HAS BEEN PREVIOUSLY
AMENDED.


 


THIRD AMENDMENT TO RESIDENTIAL CONDOMINIUM DECLARATION 

FOR

M CENTRAL RESIDENCES, A CONDOMINIUM


 


THIS
THIRD AMENDMENT TO RESIDENTIAL CONDOMINIUM DECLARATION FOR M CENTRAL
RESIDENCES, A CONDOMINIUM (this “Amendment”) is made to be effective as
of the            day of
                                      ,
2008 (the “Effective Date”).


 


RECITALS:


 


A.                                   Behringer
Harvard Mockingbird Commons LP, a Texas limited partnership, as
predecessor-in-interest to Behringer Harvard Mockingbird Commons, LLC, a
Delaware limited liability company (the “Residential Declarant”),
previously created M Central Residences, a Condominium, pursuant to that
certain Residential Condominium Declaration for M Central Residences, a
Condominium, filed on September 16, 2005, as Instrument No. 200503511369
in the Real Property Records of Dallas County, Texas, as amended by that
certain First Amendment to Residential Condominium Declaration for M Central
Residences, a Condominium, filed on December 29, 2006, as Instrument No. 200600480562
in the Real Property Records of Dallas County, Texas, and as amended by that
certain Second Amendment to Residential Condominium Declaration for M Central
Residences, a Condominium, filed on January 24, 2007, as Instrument No. 20070028529
in the Real Property Records of Dallas County, Texas (collectively, the “Residential
Declaration”) and covering the Land described therein.


 


B.                                     [Recite
Member approval of Amendment – Section 12.3 of the Residential Declaration
requires 67% approval; Section 6.7 of the Residential Bylaws allows action
by written ballot.]


 


C.                                     Credit
Union Liquidity Services, LLC constitutes more than 51% of the Mortgagees and
has approved this Amendment as evidenced by its consent attached hereto.


 


NOW THEREFORE, for and in
consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Residential
Declaration is hereby amended as follows:


 


1.                                       Capitalized
Terms. Each capitalized term used but not otherwise defined herein shall
have the meaning ascribed to such term in the Residential Declaration.


 


2.                                       Sales
Restriction Period. The Residential Declaration is hereby amended by deleting
the definition of “Sales Restriction Period” set forth in Section 1.1
in its entirety, and replacing it with the following:


 


1

















 


“A period commencing on the
date that a Residence is conveyed to a Residence Owner by Residential Declarant
and ending on the earlier of (i) one year after the date of the conveyance
of such Residence to the Residence Owner by Residential Declarant, or (ii) the
date on which 95% of the Residences have been conveyed to a Residence Owner by
the Residential Declarant.”


 


3.                                       Working
Capital Contribution. The Residential Declaration is hereby amended to add
the following language as Section 10.3(c) thereof:,


 


“Notwithstanding the
foregoing, the provisions set forth in Sections 10.3(a) and (b) above
shall not apply to any conveyance of Residences to a Successor Residential
Declarant or with respect to any transaction in which a Residence Owner
purchases or acquires more than twenty five (25) Residences, and no Residential
Working Capital Contribution shall be due in connection therewith.”


 


4.                                       Residential
Declarant Control. The Residential Declaration is hereby amended by
deleting the definition of “Residential Declarant Control” set forth in Section 1.1
in its entirety, and replacing it with the following:


 


“The period commencing on
the date of this Residential Declaration and continuing until the earlier to
occur of: (i) the date which is three years from the date that the first
deed from Residential Declarant to a Residence Owner is recorded in the Real
Property Records, or (ii) the date on which deeds to not less than 75% of
the Residences have been recorded in the Real Property Records.”


 


5.                                       No
Further Changes. Except as expressly modified herein, the Residential
Declaration remains unmodified and in full force and effect in accordance with
its terms.


 


[The
Remainder of this Page is Intentionally Left Blank]


 


2

















 


IN WITNESS WHEREOF, the
undersigned has caused this Amendment to be effective as of the Effective Date.


 


 


	
   

  	
  RESIDENTIAL ASSOCIATION

  	
  :

  
	
   

  	
   

  
	
   

  	
  M CENTRAL RESIDENCES CONDOMINIUM

  ASSOCIATION, INC.,

  
	
   

  	
  a Texas non-profit corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


 


	
  THE
  STATE OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was acknowledged before me on the
           day of
                                  ,
2008, by
                                                                ,
the                                                                 
of the M CENTRAL RESIDENCES CONDOMINIUM ASSOCIATION, INC., a Texas non-profit
corporation, on behalf of said corporation.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public - State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  
				



 


3

















 


CONSENT BY
MORTGAGEE


 


The
undersigned, beneficiary under that certain Amended and Restated Deed of Trust,
Security Agreement, Financing Statement and Assignment of Rental, recorded October 4,
2005, as Instrument No. 200503532798, in the Real Property Records of
Dallas County, Texas (the
“Deed of Trust”), hereby executes this
Third Amendment to Residential Condominium Declaration for M Central
Residences, a Condominium to evidence its consent thereto.


 


	
   

  	
  CREDIT UNION LIQUIDITY SERVICES, LLC,

  
	
   

  	
  a Texas limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF

  	
  §

  



 


 


This instrument was acknowledged
before me on this           
day of
                                          ,
2008, by
                                                                    ,
the
                                                                
of CREDIT UNION LIQUIDITY SERVICES, LLC, a Texas limited liability company, on
behalf of said limited liability company.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public - State of Texas

  
	
   

  	
  My Commission Expires:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


4