Exhibit 10.26
PURCHASE AND SALE AGREEMENT
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* * * *
SQUARE 711 DEVELOPER, LLC,
AS SELLER,
AND
XXXXXX ACQUISITION HOLDINGS V, L.L.C.,
AS BUYER
* * * *
PROPERTY: XXXXXX 000, XXX 000, XXXXXXXXXX, XX
DATED: NOVEMBER 14, 2005
PURCHASE AND SALE AGREEMENT
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This PURCHASE AND SALE AGREEMENT ("Agreement") is made between SQUARE
711 DEVELOPER, LLC, a Delaware limited liability company ("Seller"), and XXXXXX
ACQUISITION HOLDINGS V, L.L.C., a Delaware limited liability company ("Buyer").
The effective date of this Agreement (the "Effective Date") is November 14,
2005.
RECITALS:
This Agreement is made with reference to the following facts:
A. Seller is the owner of the "Property" (as hereinafter defined),
which includes certain real property located in Washington, D.C., and known as
Square 711, lot 160, which land is more particularly described in Exhibit A
attached hereto (the "Land").
B. Seller has agreed to sell the Property to Buyer, and Buyer has
agreed to purchase the Property from Seller, under all of the terms set forth
herein.
NOW, THEREFORE, for good and valuable consideration, Seller hereby
agrees to sell to Buyer, and Buyer hereby agrees to purchase from Seller, the
"Property" (which, as used herein, means the Land, together with all
improvements thereto, all rights, privileges, easements and appurtenances
thereto, all equipment and personal property, if any, owned by Seller and
located at or used for such Property and all of Seller's right, title and
interest in the "Assigned Properties" defined in the form of Assignment of
Intangible Property attached to this Agreement), under all of the following
terms and conditions:
1. Price and Deposit.
1.01 Purchase Price.
(a) The purchase price for the Property (the "Purchase
Price") shall be One Hundred Twenty-Two Million and No/100 Dollars
($122,000,000.00).
(b) In addition to the Purchase Price set forth above, Buyer
agrees to pay to Seller an additional bonus price (the "Density Bonus") after
Closing in the amount of Twenty-Five Dollars ($25.00) per FAR square foot for
each FAR square foot in excess of 2.2 million FAR square feet that Buyer
"commences to develop" (which, as used herein, means obtaining base building
permits and commencing construction of base building improvements) or, in the
case of a land sale to an unaffiliated third party purchaser, that such
purchaser is entitled to develop (after taking into account any restrictions
imposed by Buyer in connection with such sale or otherwise). This obligation
will survive for ten (10) years after Closing (the "Covenant Period"). Buyer
will execute and deliver at Closing a recordable covenant running with the land
(the "Density Bonus Covenant") that will be recorded in the land records
immediately after the Deed, the form of which will be agreed upon during the
Study Period. The Density Bonus Covenant will be subordinate to any acquisition,
construction or permanent financing or refinancing placed on the Property by
Buyer or its successors and assigns, and will be released upon sale of parcels
or commencement of development prior to reaching the 2.2 million FAR square foot
threshold or upon payment of the applicable Density Bonus. The Density Bonus
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will be payable at such time or times during the Covenant Period as Buyer
commences to develop or completes the sale of development rights (either
currently applicable to the Property or applicable to the Property in the
future) to unaffiliated third parties in excess of 2.2 million FAR square feet
cumulatively (without double-counting). In the event Buyer commences to develop
or sell all or any portion of the Land, then the FAR for any Land Buyer
previously commenced to develop or sold (unless the relevant square footage has
already been taken into account) shall be aggregated with the then current
development or sale, or both, for purposes of calculating the Density Bonus.
1.02 Payment. The Purchase Price shall be paid as follows:
(a) Not later than 3:00 p.m. (Washington, DC time) on
November 16, 2005, Buyer shall deposit with the Title Company (as defined in
Section 2.04 below), which shall also act as escrow agent ("Escrow Agent"), a
deposit (by wire transfer of immediately available federal funds sent in
accordance with the instructions to be provided by the Escrow Agent) in the
amount of Two Million and No/100 Dollars ($2,000,000.00) (the "Initial
Deposit"). Unless Buyer delivers the Study Period Notice (defined in Section
2.02 below), on or before 3:00 p.m. (Washington, DC time) on the Study Period
Expiration Date (defined in Section 2.02 below), Buyer shall deposit with Escrow
Agent an additional deposit (by a wire transfer of immediately available federal
funds) in the amount of Five Million and No/100 Dollars ($5,000,000.00) (the
"Second Deposit"). The Initial Deposit and, if delivered in accordance herewith,
the Second Deposit are collectively referred to as the "Deposit." Failure by
Buyer to deliver the Second Deposit to Escrow Agent on time shall result in a
termination of this Agreement and Buyer receiving a return of the Initial
Deposit. The Deposit shall be held, released or retained by Escrow Agent in
accordance with the terms and provisions of Section 8 of this Agreement. Unless
Buyer terminates this Agreement pursuant to Section 2.02 or 2.04, the Deposit
shall be non-refundable, except upon (x) the occurrence of a default by Seller
in accordance with Section 7.01 hereof or (y) the failure of a condition to
Closing set forth in Section 3.02 hereof.
(b) Upon Closing under this Agreement, the Deposit and the
remainder of the Purchase Price, subject to closing adjustments provided herein,
shall be paid by wire transfer of funds to Escrow Agent's account. If such
payment is received later than 12:00 p.m. (Washington, DC, time) on the Closing
Date, then all pro-rations pursuant to Section 5.05 hereof shall be made as of
the following business day.
2. Review of Property.
2.01 Property Information.
Within two (2) business days after the Effective Date, Seller shall deliver to
Buyer, or make available for review by Buyer, copies of the following documents,
to the extent in the Seller's actual physical possession, unless such materials
were already previously provided to Buyer:
(a) All written leases, licenses or other occupancy
agreements (with any amendments thereto) of any portions of the Property which
are in effect on the Effective Date.
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(b) Seller's most recent survey of the Property.
(c) The bills for real estate taxes and assessments received
by Seller during 2005.
(d) All contracts or agreements (with any amendments thereto)
for maintenance, trash removal, landscaping, snow removal and other ongoing
services provided to Seller in connection with the Property, if any.
(e) A current title insurance commitment related to the
Property, together with copies of all exceptions noted in Schedule B-2 thereof.
(f) A copy of all Environmental Materials (as defined in
ss.3.01 below).
(g) Those items described on Exhibit G hereto.
(h) Copies of all other information and documents that
pertain to the physical condition of the Property.
2.02 Study Period. Buyer shall have a period (the "Study
Period"), commencing upon the Effective Date and ending at 3:00 pm
(Washington, D.C. time) on December 14, 2005 (the "Study Period
Expiration Date") in which to determine in Buyer's discretion whether,
for any reason or for no reason, to proceed to closing of the purchase
of the Property. If Buyer elects not to proceed to closing of the
purchase of the Property, then Buyer shall have the right to terminate
this Agreement upon written notice to Seller delivered prior to 3:00
p.m. Washington, DC, time on the Study Period Expiration Date (the
"Study Period Notice"), in which event the Deposit (less $100, which
shall be paid to Seller as consideration for such termination) shall be
returned to Buyer and the parties shall have no further liability
hereunder (excepting any obligations, covenants and agreements of the
parties hereto which pursuant to the terms of this Agreement survive
termination, including without limitation Buyer's obligations under
Sections 2.03, 8.03, 9.04, 9.07 and 9.08, both parties' obligations
under Sections 8.03, 9.07, 9.08 and 9.16 and the indemnity obligations
of Buyer and Seller under Sections 2.03, 9.04 and 9.07 (collectively
the "Continuing Obligations")). In the event Buyer does not deliver the
Study Period Notice in accordance with this Section 2.02, Buyer shall
be deemed to have automatically waived its right to terminate this
Agreement, and the parties shall proceed to closing in accordance with
the terms set forth herein.
2.03 Right of Entry. During the period commencing on the
Effective Date and expiring at Closing (or, if earlier, the date on
which this Agreement is terminated), Buyer and its agents shall have
the right to enter the Property for the purpose of examining the
environmental, physical, and other conditions of the Property. Such
right of entry shall be governed by the following provisions:
(a) In exercising such right of entry, Buyer or the Buyer's
representatives, attorneys, consultants, engineers, architects, prospective
lenders, prospective partners and other employees and agents, who, because of
their involvement with the proposed transaction, need to know such information
for the purpose of giving advice with respect to, bidding on or consummating the
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proposed transaction (collectively, the "Buyer Parties") are entitled to enter
upon the Property, upon reasonable prior notice to Seller and at times
reasonably agreed upon by Seller, and for the sole purposes, each of which must
be expressly approved in advance by Seller, in Seller's reasonable discretion,
(i) to perform inspections and tests of the Property, including surveys,
environmental studies and examinations, and (ii) to examine the books and
records of Seller relating to the Property, excluding (1) any proprietary
information related to Seller's business, (2) any opinions, appraisals, audits,
internal memoranda or other internal work product or similar documents with
respect to the Property and (3) any information related to the financing of the
Seller or the Property. All such surveys or inspections undertaken by or on
behalf of Buyer shall be conducted in strict accordance with all applicable laws
and regulations and in a manner reasonably acceptable to Buyer and Seller. Buyer
shall not communicate (whether in person or by telephone) with any officials at
environmental, zoning, assessment or other government agencies regarding the
Property or the Seller by name without Seller's prior written consent (which
consent shall not be unreasonably withheld). Seller (and, at Seller's option and
cost, Seller's counsel) shall have the absolute right to be present at any
meetings (including meetings conducted by telephone) with any governmental and
quasi-governmental authorities and officials, including but not limited to any
Advisory Neighborhood Commission members, or CSX Realty Development, LLC, or any
affiliate (or its attorneys), whether at a formal or informal meeting. Buyer
shall provide copies of any correspondence sent to or received from such
officials, or CSX Realty Development, LLC (or its attorneys), within two (2)
business days after receipt or dispatch, as the case may be. Buyer shall not
have the right to make any commitments to any such parties that are in any way
binding on Seller or the Property.
(b) If Buyer wishes to engage in any testing of any portion
of the Property, Buyer shall obtain Seller's prior written consent thereto,
which may be refused or conditioned as Seller may deem appropriate in its
reasonable discretion. Notwithstanding anything to the contrary contained
herein, Buyer shall not conduct or allow any physically intrusive testing of, on
or under the Property without first obtaining Seller's written consent as to the
timing and scope of the work to be performed, which shall not be unreasonably
withheld, and which consent may contain any additional reasonable requirements
of Seller with respect to such testing. Without limiting the generality of the
foregoing, Seller's written approval (which may be granted, withheld or
conditioned in Seller's reasonable discretion) shall be required prior to
conducting any Phase II environmental survey or any testing or sampling of
surface or subsurface soils, surface water, groundwater or any materials in or
about the Property in connection with Buyer's environmental due diligence. If
any testing is approved by Seller, Buyer agrees to cooperate with any reasonable
request by Seller in connection with the timing of any such inspection or test.
Buyer agrees to provide Seller, upon Seller's request, and without any
representations or warranties, copies of the final versions of any written
inspection or test report or summary prepared by any unrelated third party
(excluding attorneys), and copies of all test results. Buyer agrees that any
inspection, test or other study or analysis of the Property by Buyer shall be
performed at Buyer's expense and in accordance with applicable law. Under no
circumstances shall any of Buyer's inspections or sampling in any way invalidate
or adversely affect Seller's rights under that certain Amended and Restated
Environmental Agreement dated as of December 13, 2002, by and between CSX Realty
Development, LLC, and First & M Street Investing Company, LLC, or that certain
Environmental Escrow Agreement dated December 13, 2002, between CSX Realty
Development, LLC, and First & M Street Investing Company, LLC (collectively, the
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"CSX Environmental Agreements"). Buyer agrees at its own expense to promptly
restore the Property or, at Seller's option, to reimburse Seller for any repair
or restoration costs, if any inspection or test requires or results in any
damage to or alteration of its condition (other than that arising from the
discovery of preexisting conditions).
(c) Buyer agrees that Buyer and Buyer's representatives or
contractors accessing the Property will be covered by not less than $2,000,000
(per occurrence) commercial general liability insurance naming Seller as
insured, issued by a licensed insurance company, and otherwise reasonably
acceptable to Seller.
(d) Buyer agrees that any materials or information provided
or made available to Buyer by Seller or its representatives pursuant to Section
2.01 or otherwise in connection with the Property and any and all information,
studies and tests obtained by Buyer pursuant to Section 2.03 above
(collectively, the "Property Information") is proprietary and confidential,
unless such information is in the public domain or is available to Buyer from
any other source (other than by reason of a breach by Buyer of the
Confidentiality Agreement or a breach by a third party of a confidentiality
agreement with Seller (if Buyer is aware of such confidentiality agreement)).
Buyer further agrees that all such Property Information and any notes regarding
such Property Information ("Notes") will be used solely for the purpose of
evaluating the potential purchase of the Property by Buyer and will not be used
or duplicated for any other purpose. Buyer shall keep all Property Information
and Notes strictly confidential pursuant to the provisions of Section 9.16
hereof. Notwithstanding the foregoing, Buyer may disclose the Property
Information to the Buyer Parties, provided that for any Buyer Parties who do not
sign a confidentiality agreement, Buyer shall inform such Buyer Parties of the
confidential nature of such information and shall direct and cause such Buyer
Parties to keep all such information in the strictest confidence and to use such
information only in connection with the proposed transaction and in accordance
with the terms of this Agreement. If, at any time, either (i) Buyer elects not
to proceed with the purchase of the Property; (ii) this Agreement is terminated
for any reason; or (iii) Seller requests such information following the
termination of this Agreement, Buyer will promptly deliver to Seller all
Property Information and destroy all Notes, and promptly certify to Seller, in
writing, that, to the best of Buyer's knowledge, all Property Information has
been returned and all Notes destroyed. In addition, Buyer shall, concurrently
therewith, deliver to Seller, without any representations or warranties, true
and correct copies of the final versions of all written feasibility studies,
drawings, plans and reports prepared by unrelated third parties (excluding
attorneys) on behalf of Buyer. All obligations of Buyer under this Section
2.03(d) and Section 9.16 shall be referred to as the "Confidentiality
Obligations." The Confidentiality Obligations shall survive Closing until the
earlier of (a) the Closing or (b) one (1) year after the originally scheduled
Closing Date.
(e) Buyer agrees to indemnify, defend with counsel reasonably
acceptable to Seller and hold harmless Seller and all employees, affiliates,
subsidiaries, shareholders, officers, directors, trustees and partners of
Seller, as well as any investment manager and other agents of Seller
(collectively, the "Seller Parties"), from and against any and all actual loss,
injury, damage, claim, lien, liability, suit, cost, including without limitation
reasonable attorneys' fees and costs, or expense (collectively, "Claims"),
caused by or arising from the exercise by Buyer or any of the Buyer Parties or
their respective employees, contractors, consultants, agents or representatives
of the right of access under this Agreement or arising out of damage to persons
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or property caused Buyer or the Buyer Parties in connection with Buyer's
investigations of the Property under this Section 2.03 (other than that arising
from the discovery of pre-existing conditions). The indemnity in this Section
2.03(e) shall survive closing or any termination of this Agreement.
2.04 Legal Review Period. Seller has delivered to Buyer a
title insurance commitment dated March 3, 2005 ("Title Commitment")
with respect to the Property from Tri-State Commercial Closings, Inc.
and a survey of the Property last revised on August 10, 2005 (the
"Survey") prepared by VIKA, Incorporated. All of the matters set forth
on such Title Commitment and Survey shall be deemed to be "Permitted
Exceptions" hereunder (other than the printed exceptions, which shall
not constitute Permitted Exceptions). Buyer has requested Commonwealth
Land Title Insurance Company, c/o Commercial Settlements, Inc. ("Title
Company") prepare a title commitment and to deliver said title
commitment to Buyer not later than November 18, 2005. When issued, such
title commitment shall thereafter constitute the Title Commitment
hereunder. In the event that any matters of title or survey that are
specified in any update of such Title Commitment or Survey with respect
to the Property (a "New Title Matter") were not in the original Title
Commitment, then Buyer shall notify Seller in writing of any such title
or survey matter to which Buyer objects (the "Title Notice") within
five (5) business days after Buyer's receipt of such update. If Buyer
does so notify Seller of a New Title Matter objectionable to Buyer
within the prescribed time set forth above, Seller shall have five (5)
business days in which to determine whether to cure the defect or other
matter so objected to by Buyer and to notify Buyer in writing of
Seller's decision in this regard. Notwithstanding anything to the
contrary in this Agreement, Seller shall not be required or obligated
to expend any amount of money or take any other action to cure any
defect or other matter, except that Seller will cause to be paid off
and released at or prior to Closing any deed of trust encumbering title
to the Property, any other lien securing a monetary obligation and any
matter affecting title caused to be recorded by Seller after the date
of this Agreement that is not expressly permitted by this Agreement
(collectively, the "Seller Encumbrances"). If Seller is unable or
elects not to cure, to the reasonable satisfaction of Buyer, the New
Title Matter (other than a Seller Encumbrance) objected to by Buyer
(and Buyer shall not be required to accept affirmative title insurance
as a cure), then Buyer shall have the right, as its sole remedy on
account thereof, to either (i) waive such New Title Matter and take
title to the Property without any adjustment in the Purchase Price (in
which case such New Title Matter shall be a Permitted Exception
hereunder), or (ii) terminate this Agreement and receive a return of
the Deposit. In the event Buyer elects to terminate this Agreement by
timely notifying Seller of Buyer's election as aforesaid, the Deposit
shall be returned to Buyer and the parties shall have no further
liabilities hereunder except for the Continuing Obligations. In the
event that Buyer fails to initially notify Seller in writing of a
defect or other objectionable matter within five (5) business days
after Buyer's receipt of the Title Commitment update that discloses the
same, or Buyer fails to terminate the Agreement within the prescribed
time upon Seller's failure to cure the defect or other matter to
Buyer's reasonable satisfaction, then such title and survey matters
(other than Seller Encumbrances) shall be deemed to be Permitted
Exceptions and Buyer shall be deemed to have automatically waived any
objection to such title and survey matters.
2.05 CSX Environmental Agreements. The Government of the
District of Columbia, Department of Health ("DOH"), has approved a Work
Plan for remediation of the contaminated soil and groundwater at the
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Property, as set forth in a letter dated December 13, 1999 from
Xxxxxxxx X. Xxxxxx, Chief Deputy for Public Health Assurance, to CSX
Real Property, a copy of which has been provided to Buyer (the "Work
Plan"). Pursuant to the CSX Environmental Agreements, CSX Realty
Development, LLC ("CSX") has agreed, among other things, to exercise
good faith efforts to obtain a Closure Letter from the District of
Columbia Department of Health regarding the presence of contamination
at the Property, to perform certain remediation work with respect to
groundwater at the Property necessary to obtain a Closure Letter, to
establish an escrow fund to cover the cost of the remediation work to
be performed by CSX and to indemnify First & M Street Investing
Company, LLC, and Seller, as successor thereto, and their respective
successors and assigns, against certain claims or losses arising in
connection with the contamination or the remediation work. An escrow
fund in the amount of One Hundred Thousand Dollars ($100,000) has been
established pursuant to an Environmental Escrow Agreement dated
December 13, 2002, among CSX, First & M Street Investing Company, LLC,
and Miles and Stockbridge, as escrow agent, a copy of which has been
provided to Buyer (the "Environmental Escrow Agreement"). At Closing,
Seller shall assign to Buyer all of Seller's rights accruing from and
after the Closing under the Work Plan and the CSX Environmental
Agreements, and Buyer shall assume, pursuant to the Assignment of
Environmental Agreements (as defined below), all of Seller's
obligations, if any, under the Work Plan and the CSX Environmental
Agreements.
2.06 As Is, Where Is. Except as otherwise may be expressly set
forth herein or in any documents executed and delivered by Seller at
Closing (the "Seller Closing Documents"): (a) Seller makes no
representation or warranty as to the truth, accuracy or completeness of
the Property Information, including without limitation the contents of
Seller's or Seller's agents' and representatives' books and records,
contracts, rent rolls, leases or income and expense statements, which
it may make available to Buyer in connection with Buyer's evaluation of
the Property, including without limitation the Property Information, or
that actual results will conform to any projections contained therein;
(b) Seller expressly disclaims any and all liability for
representations, warranties, express or implied, in such materials or
in any other written, oral or other communications transmitted or made
available to Buyer by Seller or its consultants, agents or
representatives including, without limitation, computer disks
containing files with financial data or projections; (c) Buyer
acknowledges and agrees that all materials, data and other information
made available to Buyer are made available as a convenience and
accommodation only; and (d) Buyer shall be responsible for verifying
through Buyer's own due diligence the accuracy and completeness of all
documents and information, provided by Seller to Buyer, and any
reliance by Buyer on such documents and information shall be at Buyer's
own risk.
3. Representations and Warranties.
3.01 Seller's Representations and Warranties. Seller hereby
represents and warrants that:
(a) All of the documents and information required to be
delivered to Buyer pursuant to Section 2.01 have been or will be so delivered
without intentional alteration or omission. The leases, licenses and other
occupancy agreements, contracts and service agreements, including any amendments
thereto, delivered pursuant to Section 2.01 are all the leases, licenses,
occupancy agreements, contracts and service agreements affecting the Property
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and such leases licenses, occupancy agreements and contracts and service
agreements, are true, accurate and complete copies of such agreements.
(b) To Seller's knowledge, there are not pending any special
assessments (with the exception of a special assessment for construction of the
New York Avenue subway stop) or condemnation actions with respect to the
Property. All real estate taxes, due and payable with respect to the Property,
on or before closing (excepting special assessments or benefit charges, which
are payable over a period of years) have been or will be paid in full prior to
closing, subject to pro-ration in accordance with Section 5.05 below.
(c) This Agreement has been, and all the documents to be
delivered by Seller to Buyer at closing pursuant to Section 5.02 will be, duly
authorized, executed and delivered by Seller or will be at Closing binding on
Seller. Seller is a limited liability company, duly organized and validly
existing and in good standing under the laws of Delaware, is qualified to do
business in the District of Columbia. Seller has the capacity and authority to
enter into this Agreement and consummate the transactions herein provided.
Seller has obtained all consents and permissions related to the transactions and
contemplated and required under any covenant, agreement, encumbrance or
applicable laws.
(d) To Seller's knowledge, this Agreement, and the transfer
of the Property by Seller, do not violate any contract, agreement or instrument
to which Seller is a party or by which the Seller is bound or any applicable
law.
(e) The Property is not, or at Closing hereunder will not be,
subject to mechanic's liens or other similar liens for services provided to or
on behalf of the Seller, or other matters of record that evidence, secure or
create a lien upon the Property, for payment of any monetary sum, other than a
lien for real estate taxes, assessments, vault rents or other similar charges
not yet due and payable.
(f) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986.
(g) To Seller's knowledge, there is no court action,
arbitration, mediation, reference, investigation or other legal proceedings (i)
pending or threatened against Seller before any court or administrative agency
that affects or could affect Seller's ability to perform its obligations under
this Agreement or that, if decided adversely to Seller, could have a material
adverse affect on the Property, or (ii) specifically relating to the Property
(other than routine slip and fall claims covered by insurance) that are pending
or threatened or have previously been settled or otherwise concluded since
January 1, 2001.
(h) Except as disclosed in the environmental reports and
other materials listed on Exhibit B attached hereto (the "Environmental
Materials"), Seller has received no written notices related to any Environmental
Laws or any Hazardous Substances pertaining to the Property. To Seller's
knowledge, Seller has no environmental reports or studies relating to the
Property in its possession or control other than the Environmental Materials and
the Environmental Materials delivered to Buyer are true and complete copies
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thereof. For purposes of this Agreement, "Environmental Laws" shall mean all
federal, state and local laws, statutes, ordinances, codes, rules, regulations,
decisions, or decrees, and any judicial interpretation of any of the foregoing,
applicable to the Property that pertains or relates to Hazardous Substances, and
all amendments to any of the foregoing (including, without limitation, the
following: the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986; the Resource Conservation and Recovery Act of 1976; the Solid Waste
Disposal Act; the Clean Water Act; the Clean Air Act; the Federal Insecticide,
Fungicide and Rodenticide Act; the Hazardous Materials Transportation Act; the
Toxic Substances and Control Act of 1976; the Occupational Safety and Health
Act; the Safe Drinking Water Act; and the Underground Storage Tank Management
Act of 1990). For the purposes of this Agreement "Hazardous Substances" shall
mean any "hazardous substance," "hazardous material," "toxic substance" or
"solid waste" as such terms are presently defined in those laws specifically
listed under the definition of Environmental Laws in this Agreement.
(i) There are no due and payable but unpaid leasing
commissions relating to the Property.
(j) Seller has not entered into any agreement or assumed any
obligation which is not of public record with any governmental authority or
agency which would impose on Buyer the obligation to make any contributions of
money, dedications of land, grants of easements or rights of way, or to
construct, install or maintain any improvements, public or private, on or off
the Property, or which otherwise affect, restrict or encumber the development of
the Property, which has not been, or will not be, satisfied or discharged prior
to closing, and to Seller's knowledge no predecessor-in-interest to Seller has
entered into any such agreements or obligations.
(k) Seller has not received any written notice (which shall
not include notices to the general public in news sources, etc.) of any pending
or contemplated Taking (as defined in Section 6 hereof) with respect to the
Property.
(l) Except (i) as provided in certain letter agreements or
proposals with Xxxxx X. Xxxxx Construction Corporation and Xxxxx/Xxxxx Joint
Venture (the "Xxxxx Agreement"), a true and correct copy of which Xxxxx
Agreement has been provided to Buyer, and (ii) as provided in the CSX
Environmental Agreements, true and correct copies of which have been provided to
Buyer (it being understood that the CSX Environmental Agreements permit ongoing
access by CSX Realty Development, LLC to the Property for the purposes set forth
therein), Seller has not granted any other party any rights to use or occupy any
portion of the Property and to Seller's knowledge no predecessor-in-interest to
Seller has granted any such rights.
(m) To Seller's knowledge, the materials described in Section
2.01 include all materials in Seller's possession relating to the physical
condition of the Property, excluding any internal development studies or plans
or any proprietary or confidential information, but including architectural and
engineering studies and drawings in Seller's possession.
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(n) Seller has received no written notice to the effect that
the Property is not in compliance with applicable laws or that there has been or
may be an investigation of the Property by any governmental authority.
(o) Seller is not, and is not acting on behalf of, "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), that is subject to Title I of ERISA,
a "plan" as defined in Section 4975 of the Internal Revenue Code or an entity
deemed to hold the plan assets of any of the foregoing.
Any reference in this Agreement to "knowledge," "actual knowledge" or "best of
knowledge" of Seller, shall be deemed to mean the actual knowledge of Xxxxxxx X.
Xxxxx, Xxxx Xxxxxx and Xxxxxx X. X'Xxxxxx, without inquiry or review of Seller's
books and records. Xxxxxxx X. Xxxxx, Xxxx Xxxxxx and Xxxxxx X. X'Xxxxxx are the
persons employed by Seller or its constituent members who have primary
responsibility for the Property. Any reference in this Agreement to the receipt
of notices or other communications by Seller shall be deemed to mean the
knowledge by Xx. Xxxxx, Xx. Xxxxxx or Xx. X'Xxxxxx of receipt by Seller of such
notice or communication in writing to Seller. Buyer acknowledges and agrees that
neither such party nor any other employee or agent of Seller shall have any duty
or obligation under this Agreement or other law to make any affirmative
investigation of the matters covered by the foregoing provisions in order to
determine the accuracy or truthfulness thereof. Except as expressly set forth in
this Agreement and the Seller Closing Documents: (1) Buyer 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, or
any real estate broker or agent representing or purporting to represent Seller,
or any third party in the form of reports or otherwise, to whomever made or
given, directly or indirectly, orally or in writing; and (2) in addition, Buyer
hereby acknowledges and agrees that the Property is to be conveyed by Seller to
Buyer in "as-is, where-is, with all faults" condition without warranty or
representation, express or implied, as to zoning, physical condition,
environmental condition, suitability for a particular purpose or any other
matter whatsoever.
3.02 Conditions to Buyer's Closing. The sole conditions
precedent to the Buyer's obligation to close hereunder shall be the (i)
continued accuracy as of the Closing Date in all material respects of
the representations and warranties set forth in Section 3.01 above,
(ii) the performance by Seller in all material respects of its
covenants and agreements contained in this Agreement to be performed or
observed by Seller prior to or on the Closing Date, and (iii) the
unconditional and irrevocable agreement in writing by the Title
Company, upon payment by Buyer of the premium therefor, to issue to
Buyer at Closing an ALTA Form B (1970, amended 10/17/70) extended
coverage owner's title insurance policy, effective as of the date and
time of the recordation of the Deed, insuring Buyer as owner of the
Property with coverage in the amount of the Purchase Price (subject,
however, to the Permitted Exceptions), together with all title
endorsements requested by Buyer (and issued by the Title Company in a
pro forma or title commitment delivered to Seller) prior to the Study
Period Expiration Date. If any representation or warranty set forth in
Section 3.01 above shall not be correct in any material respect at or
before Closing, as may be determined by the certificate delivered from
Seller to Buyer at closing (as described in Section 5.02) or otherwise,
or if the Title Company fails upon closing and payment of its premium
to commit to issue a title policy to Buyer as above provided, or if any
other condition above is not satisfied, Buyer may, as its sole remedy
11
on account thereof, terminate this Agreement and receive a return of
its Deposit, in which event the parties shall have no further liability
hereunder (except for the Continuing Obligations and as provided in
Section 7.01 if Seller is in default). Absent any such termination,
upon Closing hereunder the covenants, representations and warranties
set forth in Section 3.01 above, as modified by the certificate
delivered from Seller to Buyer at closing as described in Section 5.02,
shall be deemed remade as of the date of Closing hereunder. However,
notwithstanding anything to the contrary herein, to the extent that (i)
any documents or information regarding the Seller or the Property are
disclosed in writing (which shall include disclosure by email) to Buyer
or brought to Buyer's attention prior to Closing in writing (including
email); or (ii) Buyer otherwise knows about any facts or information
that would cause any of Seller's representations, warranties or
covenants hereunder to be inaccurate or not in compliance with this
Agreement, and Buyer nevertheless closes on purchase of the Property,
Buyer shall be deemed to have accepted and to have waived any objection
to or claim based on such documents or information. Furthermore, except
with respect to the covenants, representations and warranties which are
expressly to survive Closing hereunder pursuant to Section 3.05 below,
all covenants, representations and warranties contained in this
Agreement shall merge in the deed delivered at Closing and shall not
survive closing hereunder.
3.03 Buyer's Representations and Warranties. Buyer hereby
represents and warrants to Seller as follows:
(a) This Agreement has been, and all the documents to be
delivered by Buyer at Closing will be, duly authorized, executed and delivered
by Buyer or will be at Closing binding on Buyer. Buyer is a limited liability
company, duly organized and validly existing and in good standing under the laws
of Delaware. Buyer has the capacity and authority to enter into this Agreement
and consummate the transactions herein provided. Buyer has obtained all consents
and permissions related to the transactions and contemplated and required under
any covenant, agreement, encumbrance or applicable laws..
(b) This Agreement, and the acquisition of the Property by
Buyer, shall not violate any contract, agreement or instrument to which Buyer is
a party or by which the Buyer is bound or any applicable laws.
3.04 Conditions to Seller's Closing. If any representation or
warranty set forth in Section 3.03 above shall not be correct in any
material respect at or before Closing and such failure prevents Buyer
from consummating closing hereunder on the Closing Date, Seller may
terminate this Agreement and retain the Deposit as its sole remedy.
3.05 Survival of Representations. All of the covenants,
representations, and warranties of Seller and Buyer expressly made in
this Agreement shall survive Closing hereunder for a period of one
hundred eighty (180) days (the "Survival Period"). If any claim is
initiated within the Survival Period (which may only be initiated by
written notice to Seller), then unless such claim is settled by the
parties, a lawsuit must be initiated within forty five (45) days after
the expiration of the Survival Period, failing which Buyer shall have
no further right to institute a claim or action under this Agreement.
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4. Pre-closing Obligations.
4.01 Operations. Between the Effective Date and Closing
hereunder, Seller shall continue to operate the Property in the normal
course of business and maintain its current insurance.
4.02 Actions Affecting Property. Between the Effective Date
and the Closing Date, Seller shall give Buyer written notice of any
actions taken or notices received, with regard to leases, title or
otherwise, with respect to the Property. Between the Study Period
Expiration Date and Closing hereunder, Seller shall not execute any new
leases without Buyer's prior written approval, which approval may be
withheld, conditioned or delayed in Buyer's sole and absolute
discretion. In addition, during the period between the Study Period
Expiration Date and Closing hereunder, Seller shall not execute any
documents, agreements or instruments affecting the Property, or (to the
extent within Seller's control) otherwise allow or permit the
imposition of any liens or other encumbrances which affect title to the
Property, without the prior written approval of the Buyer. In the event
that Buyer fails to respond within five (5) business days after its
receipt of any written request for approval of a lease or any other
document, then Buyer's approval shall be deemed denied.
4.03 Transferable Development Rights. Pursuant to that certain
Certificate of Transfer of Development Rights (Transfer Number Seven)
dated as of May 6, 2002, by and among Xxxxxxxx Xxxxxxxx McCarrick,
Roman Catholic Archbishop of Washington, First & M Street Investing
Company, LLC, and the District of Columbia Government, recorded as
Instrument Number 2002116594 among the District of Columbia land
records (the "TDR Agreement"), Seller, as successor to First & M Street
Investing Company, LLC, is the owner of 11,538 square feet of
transferable development rights ("TDR"), as defined therein and under
applicable District of Columbia law. Seller shall transfer and convey
to Buyer, at Closing, all right, title and interest in and to the TDR
as set forth in the TDR Agreement, which transfer shall be effected
pursuant to the Deed (as defined below).
5. Closing and Settlement.
5.01 Closing Date. The purchase and sale contemplated herein
shall close (the "Closing") at the offices of DLA Xxxxx Xxxxxxx Xxxx
Xxxx US LLP ("Seller's Counsel"), 0000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX,
at 10:00 am on January 30, 2006 (the "Closing Date"). In addition, at
the request of either party, the parties shall meet at the aforesaid
offices of Seller's Counsel one day prior to the Closing Date in order
to verify compliance with all terms of the Agreement by both parties.
5.02 Seller's Deliveries. At Closing, concurrently with
payment to Seller of the Purchase Price (subject to closing adjustments
in accordance with this Agreement), Seller shall execute and deliver to
Buyer the following documents ("Seller's Deliveries"):
(a) A special warranty deed in the form of Exhibit C attached
hereto.
(b) An assignment of tangible and intangible property rights
in the form of Exhibit D attached hereto (the "Assignment").
13
(c) Evidence, in form reasonably satisfactory to the Title
Company, of Seller's power and authority to enter into this transaction.
(d) A written certificate stating that all representations
and warranties contained in Section 3.01 above remain, as of the date of
closing, correct in all material respects as when first made hereunder or, if
not correct, stating the extent to which any such representations and warranties
are not correct ("Seller's Certificate").
(e) A District of Columbia Form FP-7C (the "FP-7C").
(f) An owner's title affidavit in the form of Exhibit E
attached hereto.
(g) an assignment and assumption of the Work Plan and the CSX
Environmental Agreements in the form attached hereto as Exhibit F (the
"Assignment of Environmental Agreements").
(h) A settlement statement in accordance with the terms of
this Agreement (the "Settlement Statement").
(i) Such additional documents as may be reasonably necessary
or customary to consummate the transactions contemplated by this Agreement.
(j) A FIRPTA certificate.
(k) The Density Bonus Covenant (as defined in Section
1.01(b)).
(l) To the extent they are then in Seller's possession, and
have not theretofore been delivered to Buyer: (i) all architectural and
engineering studies and drawings; and (ii) all correspondence and records
relating to the CSX Environmental Agreements and the on-going operations and
maintenance of the Property.
5.03 Buyer's Deliveries.
(a) At Closing, Buyer shall pay the Purchase Price in
accordance with Section 1.01(a).
(b) At Closing, Buyer shall execute and deliver to Seller the
following documents:
(i) The Settlement Statement.
(ii) The Assignment.
(iii) A written certificate stating that all representations
and warranties contained in Section 3.03 above remain, as of the date of
Closing, correct in all material respects as when first made hereunder or, if
not correct, stating the extent to which any such representations and warranties
are not correct (the "Buyer's Certificate").
(iv) The FP-7C.
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(v) The Assignment of Environmental Agreements.
(vi) The Density Bonus Covenant.
(vii) Such additional documents as may be reasonably
necessary or customary to consummate the transactions contemplated by this
Agreement.
5.04 Possession. Possession of the Property shall be delivered
to the Buyer on the date of Closing.
5.05 Prorations. The following provisions shall apply to the
division of funds, obligations and payments between the parties as of
closing hereunder:
(a) The parties shall adjust and prorate the following items
as of 11:59 p.m. on the day prior to Closing: All real property taxes,
assessments and other governmental impositions of any kind or nature, including
any special assessments or similar charges, accrued or imposed in any connection
with the Property (collectively "Taxes"), which relate to the tax year or other
applicable tax period within which the Closing occurs (whether paid or accrued).
Special assessments imposed by the Washington Metropolitan Area Transit
Authority for the New York Avenue transit stop shall be pro-rated as of the date
of Closing.
(b) The parties agree that in the event the Seller's proceeds
of the Purchase Price are not delivered to Seller's account pursuant to Section
1.02(b) by 2:00 p.m., Washington, DC, time on the day of Closing determined in
accordance with Section 5.01 above, then the prorations described in subsection
(a) above shall be recalculated as of 11:59 p.m., Washington, DC, time on the
day immediately prior to the first day on which Seller has such funds by 2:00
p.m. Eastern Standard Time. Such recalculation shall not diminish or otherwise
affect the parties' obligation to close at the time and at the place required by
the terms of this Agreement.
(c) The obligations under this section shall survive Closing.
In the event that any errors in prorations made at closing are discovered or
additional adjustments to prorations are necessary after closing, the parties
shall promptly re-adjust the subject amounts, with such payments to be made
between the parties as are necessary to correct the errors. In all events, the
parties shall make such adjustments, or confirm in writing that no such
adjustments are necessary, within nine (9) months after the date of Closing.
5.06 Closing Costs. Buyer and Seller shall each pay one-half
of the District of Columbia Transfer Tax and the District of Columbia
Recordation Tax imposed on the recordation of the Deed. Buyer shall pay
all costs of the survey, examination of title and all title insurance
policy premiums. Seller and Buyer shall each pay the costs of its own
attorneys. Seller shall pay any costs to release any deeds of trust or
monetary liens affecting the Property.
6. Condemnation. In the event any governmental or quasi-governmental
authority notifies Seller, or Seller becomes aware, of any permanent or
temporary actual taking or condemnation of all or any portion of the Property
("Taking"), Seller shall promptly notify in writing Buyer of the same. If such
Taking would not materially adversely affect Buyer's intended development or use
15
of the Property (as reasonably determined by Buyer), Buyer shall proceed to
Closing with no reduction in the Purchase Price, and all proceeds of such Taking
less all reasonable costs of collection incurred by Seller shall be delivered or
assigned to Buyer at Closing. If, however, such Taking would materially
adversely affect Buyer's intended development or use of the Property (as
reasonably determined by Buyer), then Buyer shall have the right, at its sole
option, either to (a) proceed to Closing with no reduction in the Purchase
Price, in which event any and all proceeds of such Taking less all reasonable
costs of collection incurred by Seller shall be delivered or assigned to Buyer
at closing, or (b) terminate this Agreement, in which event the Deposit shall be
promptly released to Buyer, and Seller and Buyer thereafter shall be released
from any further liabilities or obligations under this Agreement, except for the
Continuing Obligations. Within ten (10) days after Buyer's receipt of written
notice from Seller regarding the occurrence of any Taking, Buyer shall notify
Seller in writing of Buyer's determination as to whether such Taking would or
would not materially adversely affect Buyer's intended development or use of the
Property (as reasonably determined by Buyer). If Buyer fails to deliver such
written notice to Seller prior to the expiration of said 10-day period, then
Buyer shall be deemed to have made a determination that such Taking shall not
adversely affect Buyer's intended development of the Property, and an election
to proceed to closing with no reduction of the Purchase Price in accordance with
clause (a) above.
7. Default/Remedies.
7.01 Default by Seller. If the closing fails to occur due to
Seller's default in its obligations to be performed on the Closing
Date, then Buyer shall have, as its sole option and remedy on account
thereof, the right to either (a) enforce this Agreement by specific
performance, or (b) terminate this Agreement and receive a return of
the Deposit.
7.02 Default by Buyer. If the Closing fails to occur due to
Buyer's default in its obligations to be performed on the Closing Date
(all conditions to Buyer's obligation to close having been satisfied or
waived in writing), then Seller shall have the right to terminate this
Agreement and to retain the full amount of the Deposit hereunder, as
Seller's sole remedy and liquidated damages on account of the Buyer's
default. Notwithstanding the foregoing, this provision shall not limit
the Seller's right to pursue and recover on a claim with respect to any
Continuing Obligations of Buyer. The parties agree that the Seller's
actual damages would be difficult to ascertain and that the total
Deposit is the parties' best and good faith estimate of such damages
and not a penalty.
8. Deposit.
8.01 Disbursement of Deposit. Escrow Agent shall hold the
Deposit in an interest bearing account at a federally insured financial
institution in the Washington metropolitan area or a U.S. Treasury
money market fund. Any interest earned on the Deposit shall be and
become part of the Deposit. Escrow Agent shall retain or return the
Deposit, as appropriate, as provided in this Agreement. If by 6:00
p.m., Washington, DC, time, on the expiration date of the Study Period,
Buyer has delivered the Study Period Notice, terminating the Agreement,
then Escrow Agent shall return the Deposit to Buyer.
16
8.02 Disputes. In the event of any dispute between Seller and
Buyer regarding the disbursement of the Deposit, Escrow Agent shall
hold the Deposit until (i) Seller and Buyer agree with respect to the
disbursement of the Deposit or (ii) Escrow Agent receives a final,
non-appealable, unstayed order binding upon it from a court of
competent jurisdiction with respect to the disbursement of the Deposit.
Notwithstanding the foregoing, in the event this Agreement is
terminated by Buyer by delivery of the Study Period Notice within the
Study Period, then the Deposit shall be disbursed promptly to Buyer.
8.03 Attorneys' Fees and Interest. In the event there exists a
dispute between Seller and Buyer as to the disbursement of the Deposit
in accordance with Section 8.01, and a court of competent jurisdiction
determines that the Deposit should have been disbursed to either Seller
or to Buyer, then in addition to all other amounts payable under this
Agreement, and notwithstanding any limitation set forth in this
Agreement on the liability of any party, the non-prevailing party in
such litigation or proceeding shall pay all fees and expenses
(including, without limitation, court costs and reasonable attorneys'
fees) incurred by the other party in obtaining the release of the
Deposit.
9. Miscellaneous.
9.01 Assignment. Buyer represents to Seller that Buyer intends
to purchase the Property for Buyer's own investment purposes. Likewise,
Buyer shall not assign or transfer this Agreement or any interest
herein or in the Property to any third party without the prior written
consent of the Seller. However, Buyer shall have the right, upon
written notice to Seller but without Seller's consent, to assign this
Agreement prior to or at closing to any entity in which an entity
controlled by or under common control with Xxxxxx Street Capital, LLC
and an entity controlled by or under common control with
StonebridgeCarras, LLC have direct or indirect interests. Likewise,
Seller may withhold its consent to, and Buyer hereby agrees to not
undertake, any other assignment for the purpose of transferring
directly or indirectly the rights to purchase the Property in return
for monetary consideration. Upon any assignment, the original named
Buyer herein shall not be released but shall remain primarily
responsible for all duties, obligations and liabilities of the Buyer
hereunder. This Agreement shall inure to the benefit of, and be binding
upon, the successors and assigns of the parties hereto.
9.02 No Personal Liability. No constituent member in or agent
of either party, nor any present or future partner, member, manager,
trustee, beneficiary, director, officer, shareholder, employee,
advisor, affiliate or agent of any partnership, limited liability
company, corporation, trust or other entity that has or acquires a
direct or indirect interest in either party or in any affiliate of
either party shall have any personal liability, directly or indirectly,
under or in connection with this Agreement or any agreement made or
entered into under or in connection with the provisions of this
Agreement, or any amendment or amendments to any of the foregoing made
at any time or times, heretofore or hereafter, and each party and its
successors and assigns and, without limitation, all other persons and
entities, shall look solely to the other party's interest in the
Property (and the proceeds therefrom) for the payment of any claim or
for any performance, and each party on behalf of itself and its
successors and assigns hereby waives any and all such personal
liability. For purposes of this Section 9.02, no negative capital
account or any contribution or payment obligation of any partner or
17
member in either party shall constitute an asset of such party. The
limitations of liability contained in this Section shall survive the
termination of this Agreement or the Closing Date, as applicable, and
are in addition to, and not in limitation of, any limitation on
liability applicable to either party provided elsewhere in this
Agreement or by law or by any other contract, agreement or instrument.
9.03 Limitation of Liability. To the extent that Seller has
obligations or liabilities of any kind after closing under this
Agreement, recourse for enforcement of such obligations or liabilities
(if any) shall be limited to an amount of Two Million and No/100
Dollars ($2,000,000.00), and no action may be taken with respect to any
greater amounts or other assets of Seller; however, the foregoing shall
not include or limit any amounts payable under Section 9.08 or other
collection costs or interest on any judgments. However, this provision
shall not be construed or interpreted as creating any such obligations
or liabilities of Seller, which shall be determined by other provisions
of this Agreement. Seller shall not dissolve, liquidate or wind up its
activities prior to the expiration of the Survival Period. This Section
9.03 shall survive the Closing.
9.04 Limitation of Claims. Except as set forth in this
Agreement or in the Seller Closing Documents: (1) this sale and
conveyance is made on an as-is where-is basis and Seller makes no
warranty or representation, express or implied, as to merchantability,
suitability or fitness for a particular purpose of the Property, the
state of repair of the Property, or with respect to soil conditions or
the presence or release of Hazardous Substances; (2) Buyer hereby
agrees to release Seller and each of Seller's partners, members,
trustees, directors, officers, employees, asset managers, attorneys,
affiliates and related entities, heirs, successors, and assigns
(collectively, the "Releasees") from and against any and all
liabilities, losses, claims (including third party claims), demands,
damages (of any nature whatsoever), causes of action, costs, penalties,
fines, judgments, attorneys' fees, consultants' fees and costs and
experts' fees (collectively, the "Claims") with respect to any and all
claims, whether direct or indirect, known or unknown, foreseen or
unforeseen, that may arise on account of or in any way be connected
with the Property, including, without limitation, the physical,
environmental and structural condition of the Property or any law or
regulation applicable thereto, including, without limitation, any claim
or matter (regardless of when it first appeared) relating to or arising
from (i) the presence of any environmental problems, or the use,
presence, storage, release, discharge, or migration of Hazardous
Substances on, in, under or around the Property regardless of when such
Hazardous Substances were first introduced in, on or about the
Property, (ii) any patent or latent defects or deficiencies with
respect to the Property or any portion thereof, (iii) any and all
matters related to the Property or any portion thereof, including
without limitation, the condition and/or operation of the Property and
each part thereof, and (iv) the presence, release and/or remediation of
asbestos and asbestos containing materials in, on or about the Property
regardless of when such asbestos and asbestos containing materials were
first introduced in, on or about the Property; (3) Buyer hereby waives
and agrees not to commence any action, legal proceeding, cause of
action or suits in law or equity, of whatever kind or nature, directly
or indirectly, against the Releasees or their agents in connection with
any claims described above; (4) in this connection and to the greatest
extent permitted by law, Buyer hereby acknowledges that factual matters
now known to it may have given or may hereafter give rise to causes of
action, claims, demands, debts, controversies, damage, costs, losses
and expenses which are presently unknown, unanticipated and
18
unsuspected, and Buyer further agrees, represents and warrants that the
waivers and releases herein have been negotiated and agreed upon in
light of that realization and that Buyer nevertheless hereby intends to
release, discharge and acquit Seller from any such unknown claims,
debts, and controversies which might in any way be included as a
material portion of the consideration given to Seller by Buyer in
exchange for Seller's performance hereunder other than the excluded
claims. This release shall be given full force and effect according to
each of its expressed terms and provisions, including those relating to
unknown and unsuspected claims, damages and causes of action. The
provisions of this Section 9.04 shall survive any termination of this
Agreement and shall survive the Closing and shall not be deemed merged
into any instrument or conveyance delivered at the Closing.
9.05 Notices. All notices given in connection with this
Agreement shall be in writing and may be delivered (a) personally, (b)
by United States registered or certified mail, postage prepaid, (c) by
Federal Express or other reputable courier service regularly providing
evidence of delivery (with charges paid by the party sending the
notice), or (d) by facsimile, provided that such telecopy shall be
immediately followed by delivery of such notice pursuant to clause (a),
(b) or (c) above. Any such notice to a party shall be addressed at the
respective address set forth below (subject to the right of a party to
designate a different address for itself by notice similarly given):
IF TO SELLER:
c/o Leucadia International Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. X'Xxxxxx
Facsimile: 212.598.4869
c/x Xxxxxxx Real Estate Services
000 Xxxxxxxxxx Xxxxxx, XX, Xxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: 202.347.8043
with a copy to:
DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxx
Facsimile: 202.689.7455
IF TO BUYER:
x/x Xxxxxx Xxxxxx Xxxxxxx, X.X.X.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Facsimile: 312.915.2881
19
with a copy to:
c/o StonebridgeCarras, LLC
Two Bethesda Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Facsimile: 312.664.6705
with a copy to:
Pircher, Xxxxxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Real Estate Notices (SAC/APJ)
Facsimile: 310.201.8922
If to Escrow Agent:
Commercial Settlements, Inc.
0000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
Facsimile: 202.737.4108
Service of any such notice or other communications so made shall be deemed
effective on the day of actual delivery (whether accepted or refused) as
evidenced by confirmed answerback if by facsimile; provided, however, that if
such actual delivery occurs on a non-business day, then such notice or demand so
made shall be deemed effective on the first business day after the day of actual
delivery. No communications via electronic mail shall be effective to give any
notice, request, direction, demand, consent, waiver, approval or other
communications hereunder.
9.06 Entire Agreement. This Agreement contains all agreements
of the parties with respect to the Property and supersedes any prior
discussions, contracts or other agreements with respect thereto. No
modifications to this Agreement or waivers of any rights or benefits
provided herein shall be binding unless signed by the party against
whom such modification or waiver is sought to be enforced.
9.07 Broker. Each of Seller and Buyer represents and warrants
to the other that it has not dealt with any broker or finder in
connection with the transaction contemplated by this Agreement, except
for Xxxxxxx & Xxxxxxx on behalf of Seller (the "Broker"). Seller shall
pay a commission to the Broker at Closing according to separate
agreement. Furthermore, each of Seller and Buyer indemnifies and holds
the other harmless from and against any losses, damages, costs or
expenses (including attorneys' fees) incurred by such other party due
20
to a breach of the foregoing warranty and representation. The foregoing
indemnity shall survive closing or any termination of this Agreement.
9.08 Attorney's Fees. If any action is brought by either party
hereto against the other party, the party in whose favor a final
judgment shall be entered shall be entitled to recover court costs and
reasonable attorneys' fees incurred in connection therewith.
9.09 Perpetuities. If the rule against perpetuities would
invalidate this Agreement or any portion hereof, due to the potential
failure of an interest in property created herein to vest within a
particular time, then notwithstanding anything to the contrary herein,
each such interest in property must vest, if at all, before the passing
of 21 years from the date of this Agreement, or this Agreement shall
become null and void upon the expiration of such 21 year period and the
parties shall have no further liability hereunder.
9.10 Severability. No determination by any court, governmental
body or otherwise that any provision of this Agreement or any amendment
hereof is invalid or unenforceable in any instance shall affect the
validity or enforceability of any other such provision or such
provision in any circumstance not controlled by such determination.
Each such provision shall be valid and enforceable to the fullest
extent allowed by, and shall be construed wherever possible as being
consistent with, applicable law.
9.11 Recording. This Agreement may not be recorded among the
land records or among any other public records without the Seller's
prior written consent (which consent may be withheld for any reason).
9.12 Counterparts. This Agreement may be signed in
counterparts, and by facsimile, and shall be fully enforceable when
signed in such manner.
9.13 Timing. The phrase "business days" as used herein shall
mean the days of Monday through Friday, excepting only Federal
holidays. The phrase "calendar days" as used herein shall mean all days
of the week, including all holidays. The term "days" without reference
to calendar or business days shall mean calendar days. Time is of the
essence of this Agreement. However, whenever action must be taken
(including the giving of notice or the delivery of documents) under
this Agreement during a certain period of time (or by a particular
date) that ends or occurs on a non-business day, then such period (or
date) shall be extended until the immediately following business day.
9.14 Soil Disclosure. The characteristics of soil on the
Property as described by the Soil Conservation Service of the United
States Department of Agriculture in the Soil Survey of the District of
Columbia and as shown on the Soil Maps of the District of Columbia is
Urban soil. For further information, Buyer may contact a soil-testing
laboratory, the District of Columbia Department of Environmental
Services or the Soil Conservation Service of the Department of
Agriculture. The foregoing information is provided pursuant to
applicable law and shall not be deemed a representation or warranty.
9.15 Underground Storage Tanks. Buyer acknowledges that,
except as otherwise described in the Environmental Reports, pursuant to
the District of Columbia Underground Storage Tank Management Act of
1990 and Amendment of 1992 (the "UST Act"), prior to the Date of this
21
Agreement, Seller has informed Buyer in writing that Seller has no
knowledge of the existence or removal of underground storage tanks. The
disclosure of Seller's lack of knowledge was made solely for the
purpose of complying with the disclosure requirements of the UST Act
and no representation or warranty of any nature whatever is made with
respect to the possibility of the existence or removal of any
underground storage tank(s) that may have existed or been removed prior
to Seller's ownership of the Property.
9.16 Confidentiality. During the period commencing on the date
hereof and ending on the earlier to occur of (a) the Closing, or (b)
one (1) year after the originally scheduled Closing Date hereunder,
Seller and Buyer agree that the terms of the transaction contemplated
by this Agreement (including without limitation, the Purchase Price and
the other material economic terms of this transaction, and any
documents or materials delivered by Seller to Buyer in connection with
Buyer's due diligence) shall be maintained in strict confidence and no
disclosure, whether through press releases or any other means of
publication (oral or written), of such documentation and information
will be made or permitted (excluding information available from other
sources other than by reason of a breach of this Section 9.16), except
to such brokers, attorneys, lenders, consultants, engineers,
architects, partners and others as are involved in the negotiation and
consummation of this transaction (collectively, the "Representatives")
and except to the extent any disclosure is required by law, including
any federal and state securities laws. In furtherance of the foregoing,
Seller and Buyer agree as follows: (i) Seller and Buyer shall advise
each of its respective Representatives of the confidential nature of
any documentation and information disclosed to them and of the parties'
obligations under this Section 9.16; (ii) each party shall be liable
for any Representative's breach of this Section 9.16 (except for a
Representative who has executed a confidentiality agreement), Seller
and Buyer acknowledging that there may be no adequate remedy at law and
that Buyer and Seller shall each have the right to seek injunctive
relief; and (iii) Seller and Buyer shall defend, indemnify and hold the
other party harmless from and against any and all claims, damages,
liabilities and expenses, including reasonable attorneys' fees, arising
out of or resulting from a breach of this Section by either party or
such party's Representatives. Notwithstanding any terms or conditions
in this Agreement or any related agreement to the contrary, but subject
to restrictions reasonably necessary to comply with federal or state
securities laws, any person may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of
the transaction and all materials of any kind (including opinions or
other tax analyses) that are provided relating to such tax treatment
and tax structure. The parties are also permitted to disclose any
information otherwise deemed confidential under this paragraph in
connection with the performance of its obligations hereunder and any
litigation relating to the Property or this transaction, and as may be
required in connection with filings required by the parties, or their
respective affiliates, to comply with securities laws. The provisions
of this Section 9.16 shall survive any termination of this Agreement,
but shall not survive Closing.
9.17 Interpretation. Words used in the singular shall include
the plural, and vice-versa, and any gender shall be deemed to include
the other. Whenever the words "including", "include" or "includes" are
used in this Agreement, they shall be interpreted in a non-exclusive
manner. The captions and headings of the Sections of this Agreement are
for convenience of reference only, and shall not be deemed to define or
22
limit the provisions hereof. Except as otherwise indicated, all Exhibit
and Section references in this Agreement shall be deemed to refer to
the Exhibits and Sections in this Agreement.
9.18 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE DISTRICT OF
COLUMBIA (WITHOUT REGARD TO CONFLICTS OF LAW).
9.19 No Third Party Beneficiaries. Except as otherwise
expressly provided in this Agreement, Seller and Buyer do not intend by
any provision of this Agreement to confer any right, remedy or benefit
upon any third party, and no third party shall be entitled to enforce
or otherwise shall acquire any right, remedy or benefit by reason of
any provision of this Agreement.
9.20 Further Instruments. Each party will, whenever and as
often as it shall be requested so to do by the other, cause to be
executed, acknowledged or delivered any and all such further
instruments and documents as may be necessary or proper, in the
reasonable opinion of the requesting party, in order to carry out the
intent and purpose of this Agreement.
9.21 Consents and Approvals. Except as otherwise expressly
provided herein, any approval or consent provided to be given by a
party hereunder must be in writing to be effective and may be given or
withheld in the sole and absolute discretion of such party.
9.22 Exclusivity. During the term of this Agreement, Seller
shall not solicit, negotiate or enter into any agreement for the sale
or conveyance of any portion of the Property or enter into any other
communications concerning or related to the sale of the Property to any
third party.
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates set forth below.
SELLER:
-------
SQUARE 711 DEVELOPER, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By:
----------------------------------------------
Xxxxxx X. X'Xxxxxx
Executive Manager
Date of Execution: , 2005
BUYER:
------
XXXXXX ACQUISITION HOLDINGS V, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Xxxxxx Street Real Estate Fund V, L.P.,
a Delaware limited partnership
its Managing Member
By: Xxxxxx Street Managers V, L.P.,
a Delaware limited partnership
its General Partner
By: WSC Managers V, Inc.,
a Delaware corporation
its General Partner
By:
-----------------------------------
Name:
Title:
Date of Execution: , 2005
24
The undersigned, Commercial Settlements, Inc., agrees to serve
as the Escrow Agent and to hold and disburse the Deposit as
provided in this Agreement.
COMMERCIAL SETTLEMENTS, INC.
By:
---------------------------------------------------
Name:
Title:
Exhibits
--------
Exhibit A - Description of Property
Exhibit B - Environmental Materials
Exhibit C - Deed
Exhibit D - Assignment of Tangible and Intangible Property
Exhibit E - Owner's Affidavit
Exhibit F - Assignment and Assumption of Environmental Agreements
Exhibit G - Due Diligence Materials
25
EXHIBIT A
DESCRIPTION OF PROPERTY
All that certain lot or parcel of land situate and lying in the District of
Columbia, and more particularly described as follows:
Lot 160 in the subdivision made by First & M Street Investing Company, LLC, in
Square 711, as shown on plat recorded among the Records of the Office of the
Surveyor for the District of Columbia in Book 196 at page 43.
TOGETHER WITH certain transferable rights described in that certain Certificate
of Transfer of Development Rights, Transfer Number Seven, dated as of May 6,
2002, by and between Xxxxxxxx Xxxxxxxx McCarrick, Roman Catholic Archbishop of
Washington, and his successors in office, a corporation sole, a Federally
created corporation, the District of Columbia and First and M Street Investing
Company, LLC, recorded in the Land Records of the District of Columbia on
October 8, 2002, as Instrument Number 2002116594.
EXHIBIT B
ENVIRONMENTAL MATERIALS
1. Full sized surveys - Topographic and Utility, prepared by Xxxxx Xxxxxx,
dated March 3, 2004.
2. Phase I Environmental Site Assessment, June 10, 2003, Prepared by
Advantage Environmental Consultants ("AEC").
3. Corrective Action Plan, June 18, 2003, Prepared by AEC.
4. Contaminated Soil Management Plan, June 18, 2003, Prepared by AEC.
5. Subsurface Investigation Report, June 17, 2003, Prepared by AEC.
6. Letter titled Summary of Environmental Cost Estimates from AEC to
Xxxxxxx, Xxxx 12, 2003.
7. Letter titled Summary of Remediation Environmental Cost Estimates from
AEC to Akridge, December 1, 2003.
8. WMATA Lease for Real Property, dated July 16, 2003 - Lease #OB3030.754.
9. Deed of Gift, dated July 16, 2003 by 1st & M to WMATA.
10. Application for Voluntary Remediation Action Program (VRAP) Plan (A
through H), September 11, 2003, Prepared by AEC.
11. VRAP Authorization Letter, October 22, 2003, Prepared by DC Dept. of
Health.
12. VRAP Approval Letter, July 11, 2005, Prepared by DC Dept. of Health.
13. Risk Based Closure Evaluation, Volume 1, July 22, 1999, XXX Xxxxxxx
Xxxxxxxx Xxxxx.
14. Risk Based Closure Evaluation, Volume 2, July 22, 1999, XXX Xxxxxxx
Xxxxxxxx Xxxxx.
15. Phase I Environmental Site Assessment, October 7, 2002, EBI
Consultants.
16. 2 - 11x17 Color Aerials of the site.
17. 2 - 11x17 Alta Surveys, prepared by AMT, dated October 22, 2002.
18. 2 - Full sized Alta Surveys, prepared by AMT, dated October 22, 2002.
19. Amended and Restated Environmental Agreement, dated December 13, 2002
(CSX, 1st M).
20. Environmental Escrow Agreement, dated December 13, 2002 (CSX, 1st & M,
Miles & Stockbridge).
21. Groundwater Monitoring Report, January 2, 2003, AMEC Earth &
Environment, Inc.
22. Memo-Summary of Limited Subsurface Investigation, January 2003, AMEC.
23. Memo-Summary of Gauging and LNAPL Extraction Events, May 2004, AMEC.
24. EMG Letter Report, August 4, 1999: discussion of site conditions,
recent investigations and proposed development activities.
25. Meeting Minutes, August 19, 1999: from meeting between CSX, Xxxxxxx,
XXX Xxxxxxx Xxxxxxxx-Xxxxx and EMG on August 11, 1999.
26. EMG Letter Report, September 9, 1999: Site Reconnaissance and sampling
for suspect Asbestos in Bluestone aggregate.
27. Letter titled Environmental Document Review from EMG to Xxxxxxx Group,
August 4, 1999.
28. Letter titled Estimated Soil Disposal Costs from EMG to Xxxxxxx Group,
August 4, 1999.
29. Letter to Xxxxxxxx Xxxxxxxx, CSX, dated December 13, 1999 from District
of Columbia Dept. of Health.
30. Work Plan for Hydrogeologic Investigation, November 23, 1988, Wapora,
Inc.: initial remediation plans for CSX property.
31. Environmental Assessment, March 1, 1989, Wapora, Inc.: environmental
investigation conducted by Wapora on CSX property.
32. DRAFT Work Plan, November 13, 1989, Xxxxxxxx-Xxxxx: Suggested
remediation strategies for CSX property, and summary of environmental
to date.
33. Summary of Findings for Site Investigation, December 10, 1989, Dames &
Xxxxx: summary of the investigation conducted by Dames & Xxxxx December
3-9, 1989. Included soil borings and sampling and ground water
sampling.
34. DRAFT Report, Biofeasibility Study of Soil and Ground-Water
Contaminated with Petroleum Hydrocarbon Compounds, December 28, 1989,
Hunter Biosciences Inc.: study to determine if bioremediation would be
an effective remediation choice.
35. Investigation of Salt Pile Runoff in the Groundwater at M Street
Maintenance Facility, (prepared for Department of Public Works), March
9, 1990, Geo Trans, Inc. (letter report): investigation of the impact
of a chloride plume on the CSX property.
2
36. Additional Site Information (5 Appendices), April 23, 1990,
Xxxxxxxx-Xxxxx (submitted to D. C. Environmental Control Division):
revised schedule of activities, summary of bench-scale biofeasibility
studies, sample locations and abbreviations, base neutrallacid
extractable data in soil, and metal data in soil.
37. Additional Site Information (5 Appendices), May 16, 1990,
Xxxxxxxx-Xxxxx (submitted to D. C. Environmental Control Division): TPH
soil data, VOC soil data, groundwater metal data, WCC proposed outline
for May 17, 1990 meeting.
38. Site History, July 1990, Xxxxxxxx-Xxxxx: history of past site uses,
underground storage tanks and aboveground storage tanks.
39. Indications of Off-site Petroleum Contamination Source(s), July 10,
1990, Xxxxxxxx-Xxxxx: report of data to indicate impact from off-site
sources.
40. Results of TCLP Analysis, August 30, 1990, Xxxxxxxx-Xxxxx: soil data to
determine any hazardous nature of the on-site contaminated soils.
41. Result of Conductivity & Soil Gas Analysis, October 30, Xxxxxxxx-Xxxxx.
42. Results of Conductivity & Soil Gas Analysis, November 15, 1990,
Xxxxxxxx-Xxxxx.
43. Progress Reports on Bimonthly Bailing & Monitoring of Monitor Xxxxx and
Piezometers, Xxxxxxxx-Xxxxx: February 18, 1992, March 16, 1992, April
10, 1992.
44. Progress Report on Monthly Bailing & Sampling of Monitor Xxxxx and
Piezometers, Xxxxxxxx-Xxxxx: March 17, 1992.
45. "Fingerprinting" Report on Monthly Bailing & Sampling of Monitor Xxxxx
and Piezometers, Xxxxxxxx-Xxxxx: April 14, 1992, May 27, 1992, July 1,
1992, July 23, 1992, October 9, 1992 (also includes discussion of
related issues).
46. Status Report & Request for Approval to Continue Remediation
Activities, October 30, 1995, Xxxxxxxx-Xxxxx Consultants.
47. Dept. of Consumer & Regulatory Affairs - Second Notice of Proposed
Rulemaking - Underground Storage Tank Regulations.
48. Draft Chronology of Events - November 1987 to July 1993, Mount Clare
Properties, Inc., First and M Streets, N. E., Washington, D.C.
49. November and December 1994 PetroTrap Results, Letter to Xx. Xxxxxxxxx,
dated January 4; 1995.
50. Cap and VRAP prepared for Archstone, dated March 28, 2005.
51. Phase I ESA, dated March 22, 2005, Prepared by Blackstone for
Archstone.
52. March 31, 2005 Geo Evaluation prepared by Xxxxxx.
3
53. Geotechnical Engineering Analysis prepared by ECS, dated May 4, 2004.
54. July 8, 2004 Letter from Xxxxxxx Xxxxxxx of Xxxxxx & Xxxxxx to Xx. X.
Xxxxxxxxx of the Bureau of Hazardous Materials & Toxic Substances.
55. June 2, 2005 Letter from Xxxxxxx Xxxxx of DLA Xxxxx Xxxxxxx Xxxx Xxxx
to Xxxxxxx Xxxxxxx. June 28, 2005 Letter from Xxxxxxx Xxxxxxx to
Xxxxxxx Xxxxx.
56. Environmental Site Assessment prepared by Environ International
Corporation dated October, 2005.
57. Xxxxxxxx-Xxxxx transmittals of reports to District of Columbia dated as
follows:
October 7, 1993 for September 1993
September 8, 1993 for August 1993
January 3, 1995 for December 1994
February 8, 1995 for January 1995
February 27, 1995 for February 1995
March 27, 1995 for March 1995
April 19, 1995 for April 1995
May 22, 1995 for May 1995
July 27, 1995 for June 1995
August 18, 1995 for July 1995
November 7, 1995 for October 1995
December 11, 1995 for November 1995
February 12, 1996 for December 1995 & January 1996
April 4, 1996 for March 1996
June 27, 1996 for April & May 1996
August 29, 1996 for June & July 1996
Adjacent Property Reports
1. Environmental Assessment, Xxxxxxxx & Xxxxxxx Warehouse, January 24,
1989, ATEC Environmental Consultants [prepared for Xxxxxxxx & Xxxxxxx].
2. Plan of Action for Removal of Contaminated Soils and Free Product,
00-00 X Xxxxxx, X.X. June 28, 1991.
3. Xxxxxx Environmental Sampling at 000 0 Xxxxxx, X. E., October 8, 1991,
Washington, D.C. Dept. of Public Works (letter report).
4
4. Summary of Remedial Activities, 00/00 X Xxxxxx, Xxxxxxxx 00, 0000,
Xxxxxx Associates [prepared for 30/60 M St. Limited Partnership].
5. Quarterly Progress Reports by ATEC Environmental Consultants [prepared
for Xxxxxxxx & Xxxxxxx].
9/1/89 - 10/15/89
10/16/89 - 11/30/89
2/1/90 - 3/31/90
4/90 - 5/31/90
6. Quarterly Progress Reports by ATEC Environmental Consultants [prepared
for Xxxxxxxx & Xxxxxxx].
10/1/90 - 2/31/90
1/1/91 - 3/31/91
4/1/91- 6/30/91
5
EXHIBIT C
FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made as of this ________ ___, 200___, by
and between SQUARE 711 DEVELOPER, LLC, a Delaware limited liability company (the
"Grantor"), having an address of x/x Xxx Xxxx Xxxxxxx Xxxxxxx, Xxxxx 000 North,
000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, and, __________________, a
________________, having an address of _______________________________ (the
"Grantee").
WITNESSETH:
THAT, for and in consideration of the sum of Ten Dollars ($10.00), cash
in hand paid, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor does hereby grant,
bargain, sell and convey, with Special Warranty of Title, unto Grantee, its
successors and assigns, fee simple title to that certain parcel of land situate
in the District of Columbia (the "Real Estate"), and being more particularly
described in Schedule A attached hereto and made a part hereof.
TO HAVE AND TO HOLD the Real Estate, together with all improvements,
rights, privileges, and appurtenances thereunto belonging or pertaining to the
Grantee, its successors and assigns, forever.
TOGETHER WITH all of Grantor's right, title and interest in and to
those certain Transferable Development Rights more particularly described in
Schedule B attached hereto and made a part hereof, but only to the extent such
rights constitute real property rights.
This conveyance is made subject to the covenants, restrictions,
conditions, easements, reservations, agreements and rights-of-way, which
encumber the Real Estate and are of record.
WITNESS their hand and seals the day and year above written.
GRANTOR:
Witness
____________________, a ___________
By (SEAL)
Name:
---------------------------------------
Title:
--------------------------------------
DISTRICT OF COLUMBIA ) SS:
The foregoing Special Warranty Deed was acknowledged before me on this
_____ day of ___________, 200_, by ______________, as the
________________________ of _______________________, for the purpose therein
contained.
WITNESS my hand and seal this ________ day of _______________, 200_.
--------------------------
NOTARY PUBLIC
My Commission expires: _______________________
2
SCHEDULE A
LEGAL DESCRIPTION OF REAL PROPERTY
All that certain lot or parcel of land situate and lying in the District of
Columbia, and more particularly described as follows:
Lot 160 in the subdivision made by First & M Street Investing Company, LLC, in
Square 711, as shown on plat recorded among the Records of the Office of the
Surveyor for the District of Columbia in Book 196 at page 43.
SCHEDULE B
DESCRIPTION OF TRANSFERABLE DEVELOPMENT RIGHTS
Certain transferable rights described in that certain Certificate of Transfer of
Development Rights, Transfer Number Seven, dated as of May 6, 2002, by and
between Xxxxxxxx Xxxxxxxx McCarrick, Roman Catholic Archbishop of Washington,
and his successors in office, a corporation sole, a Federally created
corporation, the District of Columbia and First and M Street Investing Company,
LLC, recorded in the Land Records of the District of Columbia on October 8,
2002, as Instrument Number 2002116594
EXHIBIT D
FORM OF ASSIGNMENT OF INTANGIBLE PROPERTY
ASSIGNMENT OF TANGIBLE AND INTANGIBLE PROPERTY
THIS ASSIGNMENT OF TANGIBLE AND INTANGIBLE PROPERTY (this
"Assignment"), is executed on this _________, 2005, by SQUARE 711 DEVELOPER,
LLC, a Delaware limited liability company ("Seller"), for the benefit of
_______________, a __________________ ("Buyer"), under the following
circumstances:
A. Contemporaneously herewith, Buyer is acquiring from Seller certain
real property located in the District of Columbia, and described in Exhibit A
hereto (the "Property"), pursuant to that certain Purchase and Sale Agreement,
dated as of November 14, 2005, between Buyer and Seller (the "Purchase
Agreement").
B. In connection with the foregoing acquisition, Seller desires to
transfer and assign to Buyer all of Seller' right, title and interest in and to
the certain property and rights herein described.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
1. Assignment. Seller hereby transfers and assigns to Buyer, to the
extent assignable, all of Seller's right, title and interest in and to the
following (the "Assigned Properties"):
(a) all tangible personal property, if any, located on the
Property and used in connection with Seller's ownership, use or contemplated
development of the Property; and all architectural and engineering studies and
drawings in connection with Seller's ownership, use or contemplated development
of the Property;
(b) all permits, licenses, certificates, development rights,
governmental approvals, entitlements, development agreements, utility agreements
with any governmental or quasi-governmental entities or agencies with respect to
the providing of utility services to the Property and sanitary or storm sewer
capacity or reservations relating to the Property, or the right to develop the
Property;
(c) all agreements with or applications to any governmental
authority with respect to any zoning modification, variance, exception, platting
or other matter relating to the zoning, use, development, subdivision or
platting of the Property;
(d) all agreements, studies, reports, correspondence and other
documents relating to the presence or absence of any endangered species or
environmentally sensitive areas on the Property;
(e) all claims, demands or causes of action Seller has or may
have arising out of or relating to or caused by any defects in any of the
studies or reports prepared for Seller and hereby assigned to Buyer;
(f) all of Seller's right, title and interest in those certain
transferable rights described in that certain Certificate of Transfer of
Development Rights, Transfer Number Seven, dated as of May 6, 2002, by and
between Xxxxxxxx Xxxxxxxx XxXxxxxxx, Xxxxx Catholic Archbishop of Washington,
and his successors in office, a corporation sole, a Federally created
corporation, the District of Columbia and First and M Street Investing Company,
LLC, recorded in the Land Records of the District of Columbia on October 8,
2002, as Instrument Number 2002116594; and
(g) all other rights, privileges and appurtenances owned by
Seller and in any way related to the Property.
2. Assumption. Buyer hereby accepts such assignment, and assumes all of
Seller's obligations under such agreements and documents specified in Exhibit
"___" arising from and after the date hereof.
3. Seller's Representation. Seller represents and warrants to Buyer
that Seller has not assigned, transferred, or hypothecated its interest in the
above-described property to any other person or entity. Except as set forth in
the immediately preceding sentence or the Purchase Agreement, Seller makes no
representation or warranty with respect to the Assigned Properties.
IN WITNESS WHEREOF, Seller has executed this Assignment as of the date
first set forth above.
SELLER:
SQUARE 711 DEVELOPER, LLC,
a Delaware limited liability company
By:
------------------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Executive Manager
BUYER:
--------------------------------,
a ______________________________
2
By:
-----------------------------
Name:
Title:
3
EXHIBIT E
OWNER'S AFFIDAVIT
The undersigned, solely in his capacity as Executive Manager of SQUARE
711 DEVELOPER, LLC, a Delaware limited liability company ("Owner"), and not
personally, deposes and say that:
1. Owner is the owner of the premises known as Xxxxxx 000, xxx
000, Xxxxxxxxxx, X.X. (the "Property").
2. No person other than the Owner is in possession or has a right
to possession of Property except as set forth in the
agreements attached as Exhibit "A".
3. Owner has no actual knowledge of any unrecorded easement, or
claim of easement, affecting the Property.
4. Any repair or improvement of the Property commissioned by or
on behalf of Owner within the last 90 days was either
completed and paid for in full or will be completed and paid
for in full in the ordinary course of business.
5. To the best of Owner's knowledge, there are no unpaid real
estate taxes or assessments affecting the Property except
those currently due and payable and Owner has received no
written notice regarding future or pending special
assessments, except for assessments related to the
construction of the WMATA transit station adjoining the
Property as set forth in Sections 47-881 et seq. of the
District of Columbia Code.
6. Owner has delivered no unrecorded mortgage or other lien
affecting the Property.
THIS AFFIDAVIT is made for the purpose of inducing ______________ TITLE
INSURANCE COMPANY ("Title Company") to issue a title insurance policy or other
title evidence, and if acting as escrow or closing agent, then to disburse any
funds held as escrow or closing agent. Affiant hereby indemnifies and agrees to
save harmless the Title Company against any damages or expense, including
attorney's fees, sustained as a result of any of the foregoing matters not being
true and accurate.
SQUARE 711 DEVELOPER, LLC
By: __________________________________
Executive Manager
Sworn to and subscribed before me
this ___________, 2005.
Notary Public
EXHIBIT F
ASSIGNMENT AND ASSUMPTION
OF ENVIRONMENTAL AGREEMENTS
THIS ASSIGNMENT AND ASSUMPTION OF ENVIRONMENTAL AGREEMENTS (this
"Assignment"), is executed by SQUARE 711 DEVELOPER, LLC, a Delaware limited
liability company ("Seller"), for the benefit of ______________, a
__________________ ("Buyer"), as of the ___ day of __________, 200__ under the
following circumstances:
A. Contemporaneously herewith, Buyer is acquiring from Seller certain
real property located in the District of Columbia, and described in Exhibit A
hereto (the "Property"), pursuant to that certain Purchase and Sale Agreement,
dated as of November 14, 2005, between Buyer and Seller (the "Purchase
Agreement").
B. Seller purchased the Property from First & M Street Investing
Company, LLC ("Prior Owner"). In connection with the purchase of the Property,
Prior Owner assigned to Seller, and Seller assumed, the rights and obligations
set forth in that certain Amended and Restated Environmental Agreement dated
December 13, 2002, between Prior Owner and CSX Realty Development, LLC ("CSX"),
a copy of which is attached hereto as Exhibit B, that certain Environmental
Escrow Agreement dated December 13, 2002, between Prior Owner and CSX, a copy of
which is attached hereto as Exhibit C, and that certain letter dated December
13, 1999 from Xxxxxxxx X. Xxxxxx, Chief Deputy for Public Health Assurance, to
CSX Real Property, a copy of which is attached hereto as Exhibit D (collectively
the "Environmental Agreements").
C. In connection with the foregoing acquisition, Seller has agreed to
assign, transfer and convey to Buyer, and Buyer has agreed to take and accept
all of Seller's right, title and interest in and to the Environmental
Agreements, and to assume all of Seller's obligations under the Environmental
Agreements.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
1. Assignment. Seller hereby transfers and assigns to Buyer all of
Seller's right, title and interest in and to the Environmental Agreements.
2. Assumption. Buyer hereby accepts such assignment, and assumes all of
Seller's obligations under the Environmental Agreements arising from and after
the date hereof. Nothing herein shall obligate Buyer to perform CSX's
obligations thereunder.
3. Seller's Representation. Seller represents and warrants to Buyer
that Seller has not assigned, transferred, or hypothecated its interest in the
Environmental Agreements, except in connection with Seller's existing mortgage
financing which is being released as of the date hereof. Except as set forth in
the immediately preceding sentence and the Purchase Agreement, Seller makes no
representation or warranty with respect to the Environmental Agreements.
IN WITNESS WHEREOF, Buyer and Seller have executed this Assignment as
of the date first set forth above.
SELLER:
SQUARE 711 DEVELOPER, LLC,
a Delaware limited liability company
By:
--------------------------------------
Name: Xxxxxx X. X'Xxxxxx
Title: Executive Manager
BUYER:
_________________________, a
-------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
2
EXHIBIT G
ADDITIONAL DUE DILIGENCE MATERIALS
1) Boundary & Top prepared by Kidde Consultants, dated Nov 1998
2) NOMA letter dated August 9, 2005
3) Public Space Permit - 11-16-04
4) Proposal from Potomac Construction for sidewalk construction
5) Assignment of Lease and Other Rights, dated September 15th, 2003
6) Certificate of Transfer of Development Rights, dated May 6th 2002
7) WASA Water and Sewer Availability Letter, dated April 4, 2004
8) Fireflow test letter to Xxxxx Xxxxxx, dated March 24, 2005
9) June 30, 2005 Zoning Opinion - Holland & Knight
10) NOMA Letter to Xxxx Xxxxxx dated July 29, 2005
11) Xxxxx / Xxxxx letter dated August 2, 2004
12) Xxxxx / Xxxxx letter dated, April 6, 2005
13) Council of the District of Columbia Notice DC Law 14-44
14) Real Property Tax Bills from the last 2 years
15) Full sized VIKA surveys
16) Archstone Due Diligence binder
