EXHIBIT 99.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of June ___, 2005, by
and between APTUS OFFICE INVESTMENTS, LLC, a Delaware limited liability company
("Seller") and HARVARD PROPERTY TRUST, LLC, a Delaware limited liability company
("Purchaser").
RECITALS:
A. Seller owns, directly or indirectly, one hundred percent (100%)
of the ownership interests in each of the Subsidiaries (as defined below). The
Subsidiaries collectively own the Projects (as defined below).
B. Seller and the Subsidiaries desire to sell the Projects to
Purchaser or certain Affiliates (as defined in SECTION 17 below) of Purchaser
upon the terms and conditions of this Agreement.
AGREEMENTS:
In consideration of this Agreement, Seller and Purchaser agree as
follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this
Agreement shall have the meanings assigned to them below:
"Alliance Data Project" means the project commonly known as
Alliance Data Systems Business Center located in Collin County, Texas,
owned by Texas Office.
"Borrower" or "Borrowers" means any one or more of the
Transamerica Financial Borrower and the Transamerica Life Borrowers.
"Existing Debt" means, collectively, the Transamerica Financial
Debt and the Transamerica Life Debt
"Gateway" means Aptus Gateway, CA, L.P., a Delaware limited
partnership.
"Gateway 12 Project" means the project commonly known as Gateway
Corporate Center--Lot 12, located in Los Angeles County, California,
owned by Gateway.
"Gateway 22 Project" means the project commonly known as Gateway
Corporate Center--Lot 22, located in Los Angeles County, California,
owned by Gateway
"Gateway 23 Project" means the project commonly known as Gateway
Corporate Center--Lot 23, located in Los Angeles County, California,
Gateway.
"Gateway Projects" means, collectively, the Gateway 12 Project,
the Gateway 22 Project and the Gateway 23 Project.
1
"Lenders" means, collectively, Transamerica Financial and
Transamerica Life.
"Master Lease" means each of the leases listed on SCHEDULE 1
attached hereto and made a part hereof.
"Portfolio" means the entire portfolio consisting of all of the
Projects.
"Projects" means, collectively, the Alliance Data Project, the
Gateway 12 Project, the Gateway 22 Project, the Gateway 23 Project and
the Southwest Project
"Southwest" means Aptus Southwest OR, LLC, a Delaware limited
liability company.
"Southwest Project" means the project commonly known as
Southwest Center, located in Washington County, Oregon, owned by
Southwest.
"Subsidiaries" means, collectively, Texas Office, Gateway and
Southwest.
"Texas Office" means Aptus Dallas TX Office L.P., a Delaware
limited partnership.
"Transamerica Financial" means Transamerica Financial Life
Insurance Company.
"Transamerica Financial Borrower" means Texas Office.
"Transamerica Financial Debt" means the outstanding existing
debt obligations owed by the Transamerica Borrower pursuant to the
Transamerica Financial Loan Documents.
"Transamerica Financial Loan Documents" means, collectively,
the documents evidencing the Transamerica Debt.
"Transamerica Life " means Transamerica Life Insurance and
Annuity Company.
"Transamerica Life Borrowers" means Gateway and Southwest.
"Transamerica Life Debt" means the outstanding existing debt
obligations owed by the Transamerica Life Borrowers pursuant to the
Transamerica Life Loan Documents.
"Transamerica Life Loan Documents" means, collectively, the
documents evidencing the Transamerica Life Debt.
2. SALE OF SUBJECT PROPERTY. Seller agrees to cause each Subsidiary
to sell, transfer and convey to Purchaser and Purchaser agrees to purchase from
the relevant Subsidiary, all of the relevant Subsidiary's right, title and
interest in and to the following property (collectively, "Subject Property")
associated with the Project(s) owned by such Subsidiary, upon the terms and
conditions set forth herein:
2
(a) REAL PROPERTY. Fee simple interest in those certain
parcels of real estate legally described on EXHIBIT A attached hereto
and made a part hereof (the "Land"); together with (i) all building
structures, improvements and fixtures owned by Seller located on the
Land, (the "Improvements"); and (ii) all rights, privileges, servitudes
and appurtenances thereunto belonging or appertaining (the items
described in (i) and (ii) above, collectively, the "Real Property").
(b) PERSONAL PROPERTY AND INTANGIBLES. All of the equipment
and personal property owned by Seller or a Subsidiary, located at or
installed on the Real Property and used solely in the operation of the
Real Property, if any, and, to the extent owned by Seller or any
Subsidiary, all rights to the names of the Projects and other business
or trade names associated with the Subject Property, including
specifically and without limitation, any logos and websites in respect
of the Real Property to the extent the same are assignable
(collectively, "Personal Property").
(c) LEASES. The interest as landlord in and to the leases
described on EXHIBIT B attached hereto and made a part hereof, together
with all amendments or modifications thereto (collectively, "Leases").
(d) PERMITS. The licenses, permits, and certificates of
occupancy described on EXHIBIT D attached hereto and made a part hereof,
to the extent, if any, that the same are in Seller's possession and are
assignable (collectively, "Permits").
(e) SERVICE CONTRACTS. The existing service and maintenance
contracts described on EXHIBIT E attached hereto and made a part hereof,
together with all amendments or modifications thereto ("Service
Contracts").
(f) WARRANTIES. All unexpired warranties and guaranties
given or assigned to, or benefiting, Seller, the Real Property or the
Personal Property regarding the acquisition, construction, design, use,
operation, management or maintenance of the Real Property or the
Personal Property that are described on EXHIBIT F attached hereto and
made a part hereof ("Warranties"), to the extent that the same are in
Seller's or any subsidiary's possession and are assignable without cost
to Seller or such Subsidiary.
(g) PLANS. Plans, specifications and drawings for the
Projects, it being understood and agreed that only a limited license, as
hereinafter described, to review and use a copy of the final plans and
specifications (excluding shop drawings) relating to the construction of
the Improvements in the possession of Seller or the relevant Subsidiary
("Plans") is being assigned hereunder, it being understood and agreed
that (i) Purchaser shall not use the Plans for any purpose other than
the repair, operation, maintenance or restoration of the Improvements
without the prior written consent of ORE IV (as defined below) during
the period of ownership of the relevant Project by Purchaser or an
Affiliate of Purchaser, which obligation shall survive Closing; and (ii)
in the event Purchaser intends to sell the relevant Project and assign
the limited license in the Plans, Purchaser shall expressly limit any
assignment of its interest in the Plans in the same manner as provided
above. Purchaser acknowledges and agrees (i) that Seller purchased the
Projects from Opus Real Estate IV Limited Partnership ("ORE IV") and
affiliates thereof;
3
(ii) that an affiliate of ORE IV created the Plans; and (iii) that ORE
IV reserves the right to use the Plans for any purpose. For the purposes
hereof, the address for ORE IV is as follows: Opus Real Estate IV
Limited Partnership, c/o Opus Corporation, 00000 Xxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxx, 00000, Attention: Xxxx Xxx.
(h) RECORDS. To the extent in the possession of Seller and
subject to SECTION 36 hereof (a) copies of the reports, studies and
other documents pertaining to the Real Property, Personal Property,
Leases and Service Contracts; and (b) copies of the following records of
Seller regarding the Real Property and the Personal Property for the
calendar years 2005, 2004, 2003 and 2002: records regarding management
and leasing, real estate taxes and assessments, insurance (including
insurance loss histories), tenants, maintenance, repairs, capital
improvements and services.
3. PURCHASE PRICE. Purchaser shall pay to Seller, as consideration
for the purchase of the Subject Property, the sum ("Purchase Price") of NINETY
SIX MILLION FIVE HUNDRED THOUSAND and 00/100 U.S. Dollars ($96,500,000.00). The
Purchase Price shall be payable as follows:
(a) INITIAL DEPOSIT. Within two days following the Effective
Date, Purchaser must deposit with Fidelity National Title Insurance
Company of New York, Xxx Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000,
Attention: Xxxx Xxxxxxx, Telephone: (000) 000-0000; Facsimile: (212)
481-1325 ("Escrow Agent") the amount of One Million Five Hundred
Thousand and no/100ths Dollars ($1,500,000.00) (the "Escrow Agent
Deposit") and (ii) with Seller the amount of Five Hundred Thousand and
no/100ths Dollars ($500,000.00) (the "Firm Deposit"). The Escrow Agent
Deposit and the Firm Deposit are collectively the "Initial Deposit".
This Agreement shall automatically terminate if Purchaser does not
deposit the Initial Deposit with Escrow Agent and Seller by such date.
The Firm Deposit will be considered "firm" and non-refundable to
Purchaser except for Purchaser's right to terminate the Agreement upon a
default by Seller and receive the entire Deposit in accordance with the
provisions of SECTION 12 of this Agreement. Seller agrees to hold, apply
and/or disburse the Firm Deposit in accordance with the terms of this
Agreement; provided, however, that Seller will have no obligation to
invest the Firm Deposit in an interest bearing account or otherwise to
pay interest on the Firm Deposit. Seller may commingle such funds with
Seller's own funds. Seller and Purchaser agree to negotiate in good
faith to enter into an Xxxxxxx Money Escrow Agreement with Escrow Agent
substantially in accordance with the form of such agreement attached
hereto as EXHIBIT G.
If the transaction contemplated hereby is consummated in
accordance with the terms and conditions of this Agreement, the Deposit
(as defined in subparagraph (b) below) will be applied to the Purchase
Price at Closing. Purchaser may direct Escrow Agent to invest the Escrow
Agent Deposit and the Additional Deposit (as defined below) in an
interest-bearing account by giving notice to Escrow Agent and satisfying
Escrow Agent's requirements for investing the Escrow Agent Deposit in an
interest-bearing account. Any interest earned on the Escrow Agent
Deposit will become part of the Escrow Agent Deposit and will be paid to
the party that becomes entitled to the Escrow Agent Deposit. In the
event of a default by either party, the Escrow Agent Deposit will be
disbursed by Escrow Agent, and the Firm Deposit will
4
be disbursed or retained by Seller, in accordance with Section 12
hereof.
(b) ADDITIONAL DEPOSIT. If Purchaser has not terminated this
Agreement by the Contingency Date pursuant to SECTION 4, then Purchaser
shall deposit with Escrow Agent an additional amount equal to Two
Million and no/100ths Dollars ($2,000,000.00) (the "Additional Deposit")
by wire transfer made not later than 5:00 p.m., Central Daylight Time on
the second (2nd) business day following the Contingency Date, time being
of the essence. The Initial Deposit, the Additional Deposit and any
interest earned thereon, is collectively referred to as the "Deposit".
(c) BALANCE OF THE PURCHASE PRICE; EXISTING DEBT. Subject to
the adjustments set forth in this Agreement, Purchaser shall deposit the
balance of the Purchase Price to Escrow Agent as confirmed by Escrow
Agent before the close of business on the last business day immediately
before Closing. The deposit shall be made by wire transfer of
immediately available funds in accordance with the terms and conditions
of this Agreement. Purchaser may, at its election, elect to pay the
balance of the Purchase Price or any portion thereof by assuming all or
a portion of the Existing Debt. Should Purchaser elect to so assume all
or any portion of the Existing Debt, Purchaser shall negotiate directly
with Lenders and shall pay all costs of any assumption, including,
without limitation, loan fees, Lenders' legal fees, Lenders' title
insurance premiums, all mortgage taxes and the like. If Purchaser does
not assume all or any portion of the Existing Debt, Purchaser shall be
responsible for the payment of any prepayment premiums payable under
either or both of the Transamerica Financial or the Transamerica Life
Loan documents. To the extent of any assumption, Purchaser shall receive
a credit against the Purchase Price for the outstanding principal amount
of the Existing Debt as of the Closing Date. It shall be a condition
precedent to the assumption by Purchaser or any Affiliate of Purchaser
of all or any portion of the Existing Debt that Borrowers shall be
released and discharged from all liability under that portion of the
Existing Debt assumed accruing from and after the Closing Date. Should
Purchaser fail to obtain the release of the Borrower(s) whose Existing
Debt is being assumed, Purchaser shall not have the right to assume such
Existing Debt and Purchaser shall pay any prepayment premium payable on
such Existing Debt.
(d) ALLOCATION OF PURCHASE PRICE. Purchaser and Seller agree
to allocate the Purchase Price (as adjusted pursuant to this Agreement)
among the Projects delivered at Closing. An allocation shall be prepared
by Purchaser and delivered to Seller within five (5) days prior to the
Closing Date. If Seller disputes the allocation, Purchaser and Seller
shall cooperate in good faith to resolve such dispute but shall not be
obligated to resolve such dispute. If the parties agree to an
allocation, Purchaser and Seller shall not take any position
inconsistent with such treatment and allocation in their respective
income tax returns and other filings. If the parties fail to agree to an
allocation, each of Purchaser and Seller shall use its own allocation.
4. CONDITIONS PRECEDENT TO CLOSING. Purchaser's obligation to
consummate the transaction contemplated by this Agreement shall be subject to
satisfaction or waiver of each of the following conditions ("Conditions
Precedent") on or before the date which is twenty one (21)
5
days following the date of delivery of the last of each of the items set forth
in Section 4(d) below ("Contingency Date"):
(a) TITLE/SURVEY. Within three (3) business days after the
date hereof, Seller will furnish to Purchaser (i) separate current title
commitments ("Commitments") for owner's title policies for each Project
issued by the Title Company showing title in the appropriate Subsidiary
(with copies of all underlying title documents listed in the
Commitments) (which Commitments shall be in nominal amounts, but shall
be increased to the allocated Purchase Price at Closing so that the
total aggregate coverage of the Commitments equals the total Purchase
Price), and (ii) copies of Seller's separate surveys ("Existing
Surveys") for each Project. If any of the Existing Surveys discloses
survey defects or if any of the Commitments show exceptions which
defects or exceptions are not acceptable to Purchaser (collectively,
"Title Objections"), then Purchaser shall notify Seller, in writing (the
"Title Objection Notice") within ten (10) days after receipt of the last
of the Commitments, the underlying title documents and the Existing
Surveys, specifying the Title Objections (the "Title Approval Date"),
time being of the essence. The Title Objection Notice shall state with
specificity the reasons for Purchaser's objection and the curative steps
requested by Purchaser which would remove the basis for Purchaser's
objection. Any objections to matters shown in the Title Commitments, the
underlying documents and the Existing Surveys to which Purchaser has not
objected by the Title Approval Date shall be deemed to be waived by
Purchaser and such matters shall be referred to as "Approved Title
Matters." Seller shall notify Purchaser, in writing, of whether it
intends to cure any or all of Purchaser's Title Objections within five
(5) days after receipt of the Title Objection Notice, it being
understood and agreed that Seller has no obligation to cure any Title
Objection. To the extent Seller elects to cure any Title Objection,
Seller shall have thirty (30) days after receipt of the Title Objection
Notice (the "Title Cure Period") to cure Purchaser's Title Objections,
but has no obligation to do so. Pending such cure, the Closing shall be
postponed to the extent necessary to accommodate such time period. Upon
such cure, the Closing shall be held on the later of (a) the scheduled
Closing Date, or (b) three (3) business days after the date such cure is
completed. If Seller (i) elects not to cure any or all of the Title
Objections; (ii) elects to cure any one or more of the Title Objection
and commences a cure of any of Purchaser's Title Objections and such
cure is not completed within the Title Cure Period; or (iii) if Seller
later notifies Purchaser, in writing, that it cannot or does not intend
to cure any one or more of Purchaser's Title Objections then, by
providing written notice of Purchaser's election within two (2) business
days after the end of the Title Cure Period with respect to subsection
(ii) above or Purchaser's receipt of Seller's notice as to subsections
(i) or (iii) above, whichever is applicable, Purchaser shall elect to do
one of the following as Purchaser's sole remedy:
(i) terminate this Agreement; or
(ii) waive the uncured Purchaser's Title Objection(s)
and proceed to Closing.
If Purchaser does not give notice of its election to terminate
under this subsection (a) by the end of said two (2) business day
period, time being of the essence, Purchaser
6
shall be deemed to have waived Purchaser's Title Objections and elected
to proceed to Closing, without diminution of the Purchase Price.
Notwithstanding anything to the contrary contained in this
Agreement, if at Closing there are any mechanic's or materialmen's liens
or mortgages, deeds of trust or other instruments creating a lien for
borrowed money created by Seller or any Subsidiary other than any
Existing Debt assumed by Purchaser (collectively. "Liens") , Seller
shall discharge same of record and apply such portion of the Purchase
Price or Seller's funds as may be necessary to discharge same.
(b) PERMITTED ENCUMBRANCES. "Permitted Encumbrances" means:
(a) all of the Approved Title Matters; and (b) any Purchaser's Title
Objections that remain uncured as of the Closing Date.
(c) ADDITIONAL TITLE OBJECTIONS/UPDATED SURVEYS. Purchaser
may, at or prior to Closing, notify Seller in writing of any additional
objections to the status of title to the Real Property, (i) raised by
the Title Company between the Title Approval Date and the Closing, and
(ii) not disclosed by the Title Company and not otherwise known to
Purchaser prior to the Title Approval Date, provided that Purchaser must
notify Seller of such new objection to title within two (2) business
days of learning of the existence of such matter. If Purchaser sends
such notice to Seller, Purchaser and Seller shall have the same rights
and obligations with respect to such notice as apply to Purchaser's
Title Objections under subsection (a) above.
Purchaser may obtain an updated or new survey (the "Updated
Survey"), at Purchaser's sole expense and, in such case, will furnish a
copy of same to Seller and Title Company. Provided Purchaser obtains
such updated surveys not later than the Title Approval Date, Purchaser
shall have the right to object to matters shown on such updated surveys
that are not shown on the Existing Surveys (any such matter a "New
Survey Matter"), which New Survey Matter shall be deemed a Title
Objection and treated in accordance with SUBSECTION 4(A) above, it being
understood and agreed that "New Survey Matters" shall not include (i)
any matters revealed on any Existing Survey, (ii) any matters set forth
in the applicable Title Commitment, (iii) any Permitted Encumbrances,
and (iv) zoning, compliance, land use or subdivision matters.
If Purchaser does not expressly object in writing to any New
Survey Matters within the time period set forth in SUBSECTION 4(A)
above, then Purchaser shall be deemed to have approved such New Survey
Matters and same shall be a Permitted Encumbrance. Should Purchaser fail
to obtain updated surveys and make objections thereto in the time frame
specified above, Purchaser shall be deemed to have waived its right to
make objections to New Survey Matters, and Seller shall cause Title
Company provide survey coverage on Purchaser's title policies based on
the Existing Surveys and affidavits of the Subsidiaries that nothing has
changed since the Subsidiaries' acquisitions of the applicable Projects.
(d) DUE DILIGENCE MATERIALS; TESTS. Seller shall, within
three (3) business days following execution of this Agreement, and
subject to SUBSECTION 5(F) and SECTION
7
36 of this Agreement, deliver to Purchaser true and correct copies of
all of the following to the extent in the possession of Seller or any
Subsidiary: the items listed on EXHIBIT M attached hereto and made a
part hereof, all Leases, Permits, Service Contracts, Warranties, Plans
and any environmental assessments and soils reports with respect to the
Subject Property, for Purchaser's review and analysis (collectively, as
well as any other documents or information provided by Seller, the
"Property Documents"). Seller shall allow Purchaser and Purchaser's
officers, employees, agents, attorneys, architects and engineers access
to the Real Property, subject to the rights of the tenants under the
Leases (collectively, "Tenants") without charge and at all reasonable
times, for the purpose of making such inspections, tests and
verifications (collectively, "Tests") as they shall deem reasonably
necessary. On or before the Contingency Date, Purchaser shall be
satisfied, in its sole and absolute discretion, with the results of the
Tests. Purchaser shall pay all costs and expenses of the Tests and shall
defend, indemnify and hold harmless Seller and each Subsidiary, and
their respective agents, employees and contractors, and the Subject
Property, from and against any and all loss, cost, damage, liability,
settlement, cause of action or threat thereof or expense (including,
without limitation, reasonable attorneys' fees and costs) arising from
or relating to the Tests. Purchaser shall promptly repair and restore
any damage to the Subject Property attributable to the conduct of the
Tests, and shall promptly return the Subject Property to substantially
the same condition as existed prior to the conduct of the Tests. No
Tests shall be conducted without Seller's prior written approval as to
the time and manner of such Tests, which approval shall not be
unreasonably withheld or delayed. At Seller's sole option, any such
Tests shall be performed in the presence of a representative of Seller.
All Tests shall be conducted in such a manner so as to minimize
interference with the operation of the Subject Property and the business
of any and all Tenants and occupants thereof. Anything in this Agreement
to the contrary notwithstanding, the indemnity, defense and hold
harmless obligations of Purchaser under this SECTION 4(D) shall survive
Closing and any termination of this Agreement. Notwithstanding anything
in this Agreement to the contrary, Seller shall have no obligation to
make any repairs or improvements to the Subject Property.
Except as may be otherwise expressly provided in SECTION 6 or in
Seller's Closing Documents or the Joint Closing Documents, Purchaser
acknowledges that the Property Documents are provided or made available
for inspection by Seller with no representations or warranties as to the
truth, accuracy, completeness, methodology of preparation of the
Property Documents, or otherwise, of any kind, including without
limitation any engineering or environment reports or audits or any other
materials, data or other information supplied to Purchaser in connection
with Purchaser's inspection of the Property. Except as may be otherwise
expressly provided in SECTION 6 or in Seller's Closing Documents or the
Joint Closing Documents Seller expressly disclaims any such
representation or warranty. Purchaser acknowledges that the Property
Documents are provided only for Purchaser's convenience as a starting
point for commencing Purchaser's own examination of the Projects. Except
as expressly provided in SECTION 6, Purchaser agrees that it will rely
exclusively on its own independent investigation and evaluation of every
aspect of the Projects and not on the Property Documents supplied by
Seller. Except as otherwise expressly provided in SECTION 6 or in
SECTION 8, Purchaser expressly disclaims any intent and waives any right
to rely on any of the Property
8
Documents provided to it by Seller, and agrees that it shall rely solely
on its own independently developed or verified information.
(e) CONTINGENCY DATE. Purchaser shall, on or before the
Contingency Date, notify Seller in writing if the Conditions Precedent
have not been satisfied or waived by Purchaser, in Purchaser's sole and
absolute discretion, or that the Real Property is otherwise not
satisfactory to Purchaser for any reason or no reason in Purchaser's
sole and absolute discretion, and that Purchaser has elected to
terminate this Agreement. If Purchaser so timely notifies Seller, then
this Agreement shall terminate with respect to the entire Portfolio, as
a whole, Seller shall retain the Firm Deposit and Purchaser shall
receive a return of Escrow Agent Deposit, together with any interest
earned thereon, provided Purchaser shall execute any documents
reasonably required by Seller to evidence such termination including,
without limitation, quit claim deeds. Upon such termination, neither
party will have any further rights or obligations (other than as may be
expressly set forth herein and the indemnity obligations of Purchaser
set forth in SECTIONS 4(D), 15 AND 16, which obligations shall survive
any such termination) regarding this Agreement or the Portfolio. If
Purchaser gives notice that the Conditions Precedent have been satisfied
or waived by Purchaser, or if Purchaser fails to notify Seller on or
prior to the Contingency Date that the Conditions Precedent have not
been satisfied or waived by Purchaser, then Purchaser's termination
right set forth in this SECTION 4 shall be deemed to have been waived by
Purchaser, in which event (i) Purchaser shall deposit the Additional
Deposit with the Title Company within two (2) business days after the
Contingency Date, (ii) all of the Deposit (including the Initial Deposit
and the Additional Deposit) shall become non-refundable as of the
Contingency Date, except as specifically provided otherwise herein, and
(iii) the parties shall proceed to Closing in accordance with the
provisions herein contained.
Purchaser shall maintain a policy of commercial general
liability insurance, with a company licensed to do business in the
states where the Projects are located with a single combined limit of
not less than Three Million Dollars ($3,000,000), insuring all activity
and conduct of Purchaser and its agents, representatives and independent
contractors during any such entry, including contractual liability
coverage. Seller shall be named as additional insured on such commercial
general liability policy, and Purchaser shall provide proof of such
insurance to Seller, in a form reasonably acceptable to Seller, prior to
any such entry.
Whether or not the transaction contemplated by this Agreement
closes, Purchaser shall deliver copies of any third party reports
Purchaser obtains in connection with such inspection to Seller within a
reasonable time after receipt thereof by Purchaser to the extent not
otherwise prohibited under any contract or otherwise subject to any
privilege.
5. COVENANTS BY SELLER. Seller covenants and agrees with Purchaser
that from the date hereof until the Closing Date (as such term is defined in
SECTION 9(A) hereof), Seller shall conduct and cause the Subsidiaries to conduct
their business involving the Subject Property as follows (except as specifically
provided to the contrary herein):
9
(a) TRANSFERS; EASEMENTS. Seller shall refrain from (and
cause the Subsidiaries to refrain from) transferring any of the Subject
Property, or creating on the Real Property any easements; provided,
however, that nothing herein shall preclude Seller from (i) replacing
any equipment, supplies or machinery in the ordinary course of operating
the Subject Property or (ii) entering into any easements or other
documents required by any applicable governmental or quasi-governmental
authority or provider of utility services.
(b) CONTRACTS. Seller shall refrain from (and cause the
Subsidiaries to refrain from) entering into or amending any material
contracts or other agreements other than leases (which are governed by
SECTIONS 5(C) AND (D) below) regarding the Subject Property that would
be binding on Purchaser following consummation of the sale contemplated
by this Agreement (other than agreements or contracts in the ordinary
course of business terminable on thirty (30) days notice without penalty
or payment of a termination fee) without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld or delayed
and which shall be deemed given by Purchaser if Purchaser does not
object to Seller's request for approval within five (5) days.
(c) QUALIFIED LEASES. At any time prior to the Closing Date,
Seller may cause Southwest to enter into one or more Qualified Leases
(as such term is defined in the Master Lease described in SCHEDULE 1
attached hereto and made a part hereof) with respect to any space
covered by the Master Lease in the Southwest Project, upon the terms and
conditions set forth in the Master Lease, without the consent of
Purchaser. In the event that any Acceleration Payment (as such term is
defined in the Master Lease) is due from Seller or a Subsidiary to the
Tenant under the Master Lease with respect to any Qualified Lease, or to
the extent that the landlord under the Master Lease is responsible to
pay a portion of the leasing commissions with respect to a Qualified
Lease that is executed between the date hereof and the Closing Date,
Purchaser shall pay Seller the amount of such payments at Closing. In
the event that any Release Payment (as such term is defined in the
Master Lease) is received by Seller or a Subsidiary from the Tenant
under the Master Lease with respect to any Qualified Lease, Seller shall
provide a credit at closing to Purchaser for such payment to the extent
not in reimbursement of Seller's out-of-pocket costs or other expenses
for which Seller remains responsible. Seller shall furnish Purchaser, on
or before the earlier of (i) three (3) business days following execution
thereof, or (ii) the Closing Date, with a true and complete copy of each
Qualified Lease executed by a Subsidiary and the Tenant under such
Qualified Lease.
(d) OTHER LEASES. Except as expressly provided herein,
Seller shall, and shall cause each Subsidiary to, refrain from amending
any existing Lease without Purchaser's written approval, as provided
below, provided that Purchaser shall have no ability to interfere with
the administration by Seller or a Subsidiary of any existing Lease as
required by the terms of such Lease. In addition, except as expressly
provided herein, neither Seller nor any Subsidiary shall enter into any
new leases (other than Qualified Leases as provided in SUBSECTION (C)
above) with respect to the Real Property (each, a "Proposed New Lease"),
without Purchaser's written approval, as provided below in this Section
5(d). Seller shall furnish Purchaser with a true and complete copy of
any Proposed New Lease into which Seller or a Subsidiary desires to
enter and such financial
10
information with respect to the proposed tenant as Seller or such
Subsidiary may have in its possession. Purchaser shall have three (3)
business days from receipt of such Proposed New Lease to approve or
disapprove the same, which approval shall not be unreasonably withheld.
In the event that Purchaser does not approve any such Proposed New
Lease, Purchaser shall notify Seller, in writing, of such disapproval
prior to expiration of the aforesaid three (3) business day period,
stating in such written notification under what conditions, if any,
Purchaser's approval would be forthcoming and Purchaser's agreement to
approve such Proposed New Lease if such conditions are satisfied. All
costs of tenant improvements and leasing commissions payable after
Closing with respect to any lease with respect to the Real Property
executed between the date of this Agreement and the Closing Date shall
be paid by Purchaser. Notwithstanding anything to the contrary in this
SECTION 5(D), Purchaser shall have no right to approve any Proposed New
Lease until after the Contingency Date and the deposit with Escrow Agent
of the Additional Deposit; provided that Seller shall keep Purchaser
informed of all negotiations with Tenants and prospective tenants
occurring prior to the Contingency Date and provide copies of any
letters of intent, offers to lease or proposed leases to Purchaser
within two (2) business days after receipt thereof.
(e) OPERATIONS. Seller shall, or shall cause its
Subsidiaries to, operate, maintain, repair and insure the Subject
Property in a manner consistent with the existing operation,
maintenance, repair and insurance of the Subject Property.
(f) AUDIT. Purchaser has advised Seller that, after Closing,
Purchaser must cause to be prepared up to three (3) years of audited
financial statements in respect of the Portfolio in compliance with the
policies of Purchaser and certain laws and regulations, including,
without limitation, Securities and Exchange Commission Regulation S-X,
Rule 3-14. Seller shall use reasonable efforts to provide to Purchaser,
or make available to Purchaser at Seller's principal office in Xxxxxxx,
Xxxxxxx, Xxxxxx, such information as Seller has in its possession as
Purchaser or its auditors may require to prepare such audited financial
statements; provided however, that (i) all obligations of Seller under
this subsection (f) shall be limited by the provisions of SECTIONS 33
AND 36 hereof; (ii) Seller's reasonable efforts shall be at no cost to
Seller; and (iii) Seller shall only be obligated to provide to Purchaser
Seller's accounting information at the Project level, and shall not be
obligated to provide any information concerning Seller's capital
structure or debt or any Proprietary Information (as defined below).
In addition to the foregoing, Seller agrees to cooperate with
Purchaser in obtaining financial information from Tenants of all
Projects except Southwest, it being understood and agreed that Tenants
may be under no obligation to provide such information pursuant to their
respective Leases, and Seller's cooperation shall be limited to
requesting such information from Tenants. Seller agrees that Purchaser
and/or its auditors shall have the right to communicate with ORE IV to
request assistance in the preparation of the audited financial
statements. Seller further agrees to use reasonable efforts to cooperate
with Purchaser's auditors in the preparation of such audited financial
statements (it being understood and agreed that the foregoing covenant
shall survive the Closing for a period of ninety (90) days).
11
In furtherance of the foregoing obligations of Seller and
subject to the limitations contained in this SUBSECTION (F), Seller
shall, during normal business hours, and upon at least two (2) business
days' prior notice, allow Purchaser's auditors reasonable access to such
books and records maintained by Seller (and Seller's manager of the
Southwest Project) as necessary to prepare such audited financial
statements.
In addition to the other limitations on the performance of
Seller's obligations under this subsection (f), "reasonable efforts"
shall mean (i) that the information requested by Purchaser or its
auditors is in the possession of Seller or a Subsidiary; (ii) Purchaser
pays for all out-of-pocket copying, long distance telephone, overnight
delivery and other costs associated with providing information to
Purchaser or Purchaser's auditors or other representatives For the
purposes of this Agreement, "Proprietary Information" shall mean (1)
information contained in Seller's credit reports, credit authorizations,
credit or financial analyses or projections, investment analyses,
account summaries or other documents prepared solely for Seller's
internal purposes and not directly related to the operation of the
Projects, including any valuation documents and information regarding
the value of the Projects and the price paid by Seller therefor; (2)
material which is subject to attorney-client privilege or which is
attorney work product; (3) management contracts, sales contracts,
appraisal reports, letters or loan matters; (4) except as provided in
EXHIBIT M, but limited by the provisions of SUBSECTION 4(D) and of this
SUBSECTION (F), financial statements or information relating to Seller,
any Subsidiary or any affiliate of either of them, but property level
financial statements shall not be considered to be Proprietary
Information; (5) Seller's tax returns; or (6) material which Seller is
legally or contractually required to maintain as confidential.
6. REPRESENTATIONS AND WARRANTIES BY SELLER.
(a) REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser as follows:
(i) AUTHORITY. Each of Texas Office and Gateway is a
limited partnership duly organized and validly existing and in
good standing under the laws of the State of Delaware. Each of
Seller and Southwest is a limited liability company duly
organized and validly existing and in good standing under the
laws of the State of Delaware. Each Subsidiary that owns Real
Property is in good standing under the laws of each State where
the Real Property owned by such Subsidiary is located. Each of
Seller and the Subsidiaries has the requisite power and
authority to enter into and perform this Agreement and Seller's
Closing Documents (as such term is defined in SECTION 10(A)
hereof) to which such entity is a party, provided however, that
as to the Alliance Data Project, such authority is contingent
upon Transamerica Financial giving written consent to the
transactions contemplated by this Agreement. This Agreement and
Seller's Closing Documents have been duly authorized by all
necessary action on the part of Seller and the Subsidiaries and
have been or will be duly executed and delivered by Seller or
the appropriate Subsidiary who is party to such Seller's Closing
Documents. Seller's and the Subsidiaries' execution, delivery
and performance of this Agreement and Seller's Closing Documents
will not conflict with or result in
12
a violation of Seller's or the Subsidiaries' organizational
documents, or any contract, judgment, order or decree of any
court or arbiter, to which Seller or any Subsidiary is a party.
This Agreement is a valid and binding obligation of Seller and
is enforceable against Seller in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
creditors' rights and other similar laws.
(ii) UTILITIES. Seller has received no written notice
of actual or threatened reduction or curtailment of any utility
service currently supplied to the Real Property.
(iii) HAZARDOUS SUBSTANCES. Except as disclosed by any
environmental assessment or report delivered to or received by
Purchaser (including, without limitation, any environmental
assessments or reports delivered by Seller to Purchaser listed
on SCHEDULE 2 attached hereto), to the best of Seller's
knowledge, during the period ownership of the Real Property by
any Subsidiary, (A) the Real Property has never been used for
the production, storage, deposit or disposal of hazardous
substances in any reportable quantities under and in violation
of applicable environmental laws; (B) no above or below ground
storage tank is or has been located at the Real Property except
as set forth on SCHEDULE 2; and (C) Seller has not received any
written notice from any applicable governmental authority that
any hazardous substances have been placed or located upon the
Real Property in violation of applicable environmental laws.
(iv) FIRPTA. Neither Seller nor any Subsidiary is a
"foreign person," "foreign partnership," "foreign trust" or
"foreign estate" as those terms are defined in Section 1445 of
the Internal Revenue Code.
(v) PROCEEDINGS. To the best knowledge of Seller,
there is no action, litigation, condemnation, rezoning, building
moratorium or proceeding of any kind pending or threatened
against Seller or any Subsidiary, which would have a material
and adverse affect on the ability of Seller or such Subsidiary
to perform its obligations under this Agreement, or against any
portion of the Real Property.
(vi) CONDITION OF THE REAL PROPERTY. Seller has not
received written notice from any governmental authority having
jurisdiction over the Real Property of any violation of any
applicable law, rule, regulation or code of any such
governmental authority, which has not been cured or remedied.
(vii) LEASES.
(A) EXHIBIT B is a true and complete list of
all of the Leases or other occupancy agreements. Except
as set forth in the Leases, there are no options to
expand, rights of first refusal, options to terminate
without cause of the Subsidiary which is the landlord
under such Lease, options to renew, options to purchase,
or any rent abatements given to any of the Tenants after
the Tenants are in occupancy and paying rent.
13
(B) To the best of Seller's knowledge, each
of the Leases is in full force and effect according to
the terms set forth therein, and has not been modified,
amended, or altered, in writing or otherwise, except as
set forth in EXHIBIT B.
(C) Neither Seller nor any Subsidiary has
received written notice from any Tenant under the Leases
of any unperformed obligation of the landlord under any
of the Leases, including, without limitation, failure of
the landlord to construct any required tenant
improvements. Neither Seller nor any Subsidiary has been
advised in writing of any claims or disputes giving rise
to any setoff by any Tenant under the Leases. To the
best of Seller's knowledge, with respect to the Leases
as of the date hereof, all tenant improvement allowances
have been paid and all tenant improvements have been
completed.
(D) To the best of Seller's knowledge, no
Tenant under any of the Leases is in default under its
Lease (beyond any applicable grace or cure period), and
there are no rent delinquencies of more than thirty (30)
days.
(E) There are no brokers' commissions,
finders' fees, or other charges payable or to become
payable to any third party on behalf of Seller as a
result of or in connection with the Leases, including,
without limitation, any unexecuted options to expand or
renew, except as set forth on EXHIBIT C attached hereto
and made a part hereof, and except as set forth in the
Master Lease.
(F) No Tenant has provided to Landlord a
letter of credit securing such Tenant's obligations
under its Lease.
(viii) SPECIAL ASSESSMENTS. Except as shown on any tax
bills delivered to Purchaser and/or in the Commitments, Seller
has not received any notice, in writing, of any special
assessment which affects the Subject Property.
(ix) EXISTING DEBT. To Seller's knowledge, neither
Seller nor any of the Subsidiaries is in default in the
performance of any of the obligations of Seller or the
Subsidiaries under any document relating to the Existing Debt.
(x) ERISA. Seller represents and warrants that (a)
it is not and has not been an "employee benefit plan" as defined
in Section 3(3) of the Employment Retirement Income Security Act
of 1974, as amended ("ERISA"), which is subject to Title I of
ERISA, and (b) the assets of Seller do not constitute and haven
not constituted "plan assets" of one or more such plans for the
purposes of Title I of ERISA.
(xi) USES OF REAL PROPERTY. To the best of Seller's
knowledge, without investigation, the Real Property is usable
for its current uses without violating any federal, state, local
or other governmental building or zoning law, ordinance or
14
regulation, or any applicable private restriction, and such use
is a legal conforming use.
(xii) RIGHTS CONCERNING THE PROPERTY. To the best of
Seller's knowledge, there are no contracts, unrecorded
easements, covenants or restrictions or agreements of any kind
or description, either written or verbal, which burden the
Projects as of the date hereof, except as disclosed in writing
to Purchaser prior to the Contingency Date.
(xiii) CERTIFICATES OF OCCUPANCY. Seller has received
no notice of actual or threatened cancellation or suspension of
any certificates of occupancy for any portion of the Real
Property.
(xiv) CONTRACTS, WARRANTIES AND PLANS. Seller has made
available to Purchaser a correct and complete copy of all
Service Contracts, Warranties, Plans and their respective
amendments. To the best of each Subsidiary's knowledge, the
Service Contracts and Warranties are in full force and neither
Seller, nor any other party to the Service Contracts or
Warranties, is in default under the Service Contracts or
Warranties.
(xv) PERMITS. Seller has made available to Purchaser
a correct and complete copy of each Permit and its amendments in
the possession of Seller or the relevant Subsidiary. To the best
of each Subsidiary's knowledge, without inquiry, the Permits are
in full force, and no Subsidiary is in default under the
Permits. No Subsidiary has received any notice from any
governmental entity or agency with jurisdiction over such
Subsidiary's Project, that any other permits are required to
operate such Project as now operated.
(xvi) FINANCIAL STATEMENTS. The financial statements
for the Projects that have been supplied by Seller to Purchaser
dated on and after January 1, 2005, are correct and complete in
all material respects and have been prepared on a tax basis.
(xvii) AGENTS AND EMPLOYEES. No management agents or
other personnel employed in connection with the operation of the
Projects have the right to continue such employment after the
Closing Date other than as required herein.
(xviii) TERRORISM. To the best of Seller's knowledge,
Seller and each Subsidiary is in compliance with the
requirements of Executive Order No. 133224, 66 Fed. Reg. 49079
(Sept. 25, 2001) (the "Order") and other similar requirements
contained in the rules and regulations of the Office of Foreign
Assets Control, Department of the Treasury ("OFAC") and in any
enabling legislation or other Executive Orders or regulations in
respect thereof (the Order and such other rules, regulations,
legislation, or orders are collectively called, the "Orders").
Neither Seller nor any Subsidiary is on any list of terrorist or
terrorist organizations or parties to which any United States
person or entity is prohibited
15
from doing business maintained by any governmental agency and
available to the general public.
(b) SELLER'S KNOWLEDGE. For purposes of this Agreement, the
phrase "to the best of Seller's knowledge" or words of similar import
shall mean the current actual knowledge of Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx
and Xxxxx Xxxxxxxxxx, without independent inquiry or investigation.
7. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser
represents and warrants to Seller that Purchaser is a limited liability company
duly organized and validly existing and in good standing under the laws of the
State of Delaware; that Purchaser has the requisite power and authority to enter
into this Agreement and the Purchaser's Closing Documents (as herein defined);
such documents have been duly authorized by all necessary action on the part of
Purchaser and have been or will be duly executed and delivered; that the
execution, delivery and performance by Purchaser of such documents will not
conflict with or result in violation of Purchaser's organizational documents or
any judgment, order or decree of any court or arbiter to which Purchaser is a
party; such documents are valid and binding obligations of Purchaser, and are
enforceable against Purchaser in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, creditor's rights
and other similar laws. Purchaser represents and warrants that (a) it is not and
will not be an "employee benefit plan" as defined in Section 3(3) of ERISA,
which is subject to Title I of ERISA, and (b) the assets of Purchaser do not and
will not constitute "plan assets" of one or more such plans for the purposes of
Title I of ERISA. Purchaser represents and warrants that, to the best of
Purchaser's knowledge, Purchaser and its Affiliates are in compliance with the
Order and other similar requirements contained in the rules and regulations of
OFAC and in any Orders. Neither Purchaser nor any Affiliate of Purchaser is on
any list of terrorist or terrorist organizations or parties to which any United
States person or entity is prohibited from doing business maintained by any
governmental agency and available to the general public.
8. OTHER MATTERS RELATED TO REPRESENTATIONS AND WARRANTIES OF
SELLER AND PURCHASER. The respective representations and warranties of Seller
and Purchaser contained in this Agreement shall survive Closing; provided,
however, that (a) any cause of action that Purchaser may have against Seller or
any Subsidiary by reason of a breach or default of any of Seller's or any
Subsidiary's representations and warranties set forth herein shall automatically
expire on the date which is two hundred seventy (270) days after the Closing
Date ("Warranty Expiration Date"), except that the same shall not expire as to
any such breach or default as to which Purchaser has given written notice to
Seller of a claim for any such breach or default prior to the Warranty
Expiration Date; (b) Seller's and all Subsidiaries' total liability for any
breach or breaches of their respective representations and warranties set forth
herein shall in no event exceed $3,000,000 in the aggregate, which liability
limit shall survive closing and (c) neither Seller nor any Subsidiary shall have
any liability whatsoever to Purchaser with respect to any breach or breaches by
Seller or any Subsidiary of their respective representations and warranties set
forth herein, if, prior to Closing, Purchaser obtains knowledge by virtue of a
written document or report received on or prior to the Closing Date of a fact or
circumstance, the existence of which would constitute a breach of Seller's of
any Subsidiary's representations and warranties set forth herein. Among other
things, for purposes hereof, Purchaser shall be deemed to have knowledge of any
fact or circumstance set forth in any environmental assessments,
16
engineering reports, Estoppel Certificates (as defined in SECTION 9(B)(VI)
hereof) or other written materials reviewed or received by Purchaser on or prior
to the Closing Date. Seller's and each Subsidiary's representations and
warranties set forth herein shall be deemed automatically modified to the extent
that any information contained in any environmental assessments or engineering
reports or other written materials reviewed or received by Purchaser prior to
the Closing Date is inconsistent with the matters which are the subject to such
representations and warranties. Notwithstanding the foregoing (a) neither Seller
or any Subsidiary shall have any liability with respect to any breach to the
extent the loss sustained by Purchaser as a result thereof does not exceed
$25,000.00 in the aggregate, provided, further if any such loss exceeds
$25,000.00, Seller shall be liable for the total amount of such loss subject to
the maximum liability provisions herein contained; and (b) subject to the
foregoing limitations, Purchaser agrees that Seller shall be liable only for any
direct or actual damages, but not any consequential or punitive damages,
suffered by Purchaser on account of any breach by Seller.
9. CLOSING.
(a) CLOSING DATE. The closing of the purchase and sale
contemplated by this Agreement ("Closing") shall occur at or before 2:00
p.m. Minnesota time on the date which is fifteen (15) days after the
Contingency Date, or on such earlier or later date as Seller and
Purchaser may mutually agree, in writing ("Closing Date"). The Closing
shall occur at the office of the Title Company or, at Seller's election,
the office of Seller's outside counsel, Fabyanske, Westra, Xxxx &
Thomson, P.A., in Minneapolis, Minnesota or at such other time and place
as the parties may mutually agree, in writing. The parties acknowledge
and agree that Closing may accomplished by delivery of documents to the
Escrow Agent and that neither party need be physically present at the
Closing.
(b) PURCHASER'S CLOSING CONDITIONS PRECEDENT. Purchaser's
obligation to consummate the transaction contemplated by this Agreement
shall be subject to satisfaction or waiver of each of the following
conditions ("Purchaser's Closing Conditions Precedent"); provided,
however, that Purchaser shall have the unilateral right to waive any
Purchaser's Closing Condition Precedent, in whole or in part, by written
notice to Seller:
(i) The representations and warranties of Seller set
forth in SECTION 6(A) hereof shall be, in all material respects,
true and complete.
(ii) Seller shall have performed all of the
obligations required to be performed by Seller under this
Agreement, as and when required by this Agreement, in all
material respects.
(iii) Seller or the relevant Subsidiary shall have
delivered at Closing each of the Seller's Closing Documents, the
Joint Closing Documents, and a "marked-up" title commitment or
pro forma title policy pursuant to SECTION 10(B) hereof.
(iv) There shall not have been instituted and be
pending any action or proceeding before any court, governmental
agency or other regulatory or
17
administrative agency or commission challenging the purchase and
sale of the Subject Property or the transactions related thereto
that seeks to restrain, prevent or change the transactions
contemplated hereby or questions the validity of such
transactions.
(v) Neither the Purchaser nor the Seller shall have
terminated this Agreement as provided herein.
(vi) Purchaser shall have received, at least three
(3) business days before Closing (the "Estoppel Return Date"),
an estoppel certificate substantially in the form of EXHIBIT H
attached hereto and made a part hereof, with such additional
information or modifications reasonably approved by Purchaser or
as otherwise required to conform to any specific requirements in
the applicable Lease (the "Estoppel Certificates") from Tenants
under Leases (A) constituting at least ninety percent (90%) of
the leased square footage of each Project; and (b) each Tenant
that leases more than 5,000 rentable square feet in any Project
(such condition being referred to as the "Tenant Estoppel
Condition"). Seller shall deliver each Estoppel Certificate to
Purchaser (and any other estoppel certificate received by Seller
regardless of whether it complies with this Agreement) promptly
after Seller's receipt thereof. Seller and Purchaser agree that
Seller shall not be in default under this Agreement if Seller is
unable to obtain an Estoppel Certificate from one or more of the
Tenants and that no costs, expenses or other damages shall be
due to Purchaser in such event. Seller shall use reasonable
efforts to obtain such Estoppel Certificates from each Tenant;
provided, however, Seller shall not be required to expend
significant monies or make significant concessions or institute
litigation in order to obtain such Estoppel Certificates.
Purchaser shall accept an Estoppel Certificate from a Tenant
substantially in the form attached to such Tenant's Lease, if
any, in lieu of an Estoppel Certificate substantially in the
form attached as EXHIBIT H attached hereto. In the event that
Purchaser has not received an Estoppel Certificate from each
Tenant under each of the Leases by the Closing Date, Seller may
deliver a certificate or certificates of Seller or the
Subsidiary owning the Project related to such Lease containing
information which was intended to be included in each such
Estoppel Certificate(s) (modified to reflect Seller's best
knowledge as to such matters which would be known to a certainty
only by the Tenant provided that such modifications shall not
vary or increase Seller's representations and warranties under
SECTION 6), which Seller's certificate(s) shall be accepted by
Purchaser in lieu of such Tenant Estoppel Certificate(s) and in
satisfaction of the Tenant Estoppel Condition. Seller may
substitute for a certificate delivered by Seller a Tenant
Estoppel Certificate later received from a Tenant for which such
Seller's certificate was given. However, if the Tenant Estoppel
Condition, including Seller's certificates is not fulfilled as
of the Estoppel Return Date, then, for three (3) business days
thereafter, Purchaser shall have the option either to (i) waive
the Tenant Estoppel Condition, (ii) extend the Closing Date for
up to fourteen (14) days to allow Seller more time to obtain
additional estoppel certificates; or (iii) terminate this
Agreement, in which event the Escrow Agent Deposit shall be
returned to Purchaser and Seller shall retain the Firm Deposit.
If Purchaser elects
18
to extend the Closing Date pursuant to clause (ii) of the
preceding sentence and the Tenant Estoppel Condition is still
not fulfilled on or before the expiration of the fourteen (14)
day extension period, then Purchaser may elect one of the
options set forth in clauses (i) and (iii) of the preceding
sentence.
(vii) To the extent Purchaser has elected to assume
all or any portion of the Existing Debt, the relevant Lender(s)
shall have consented, in a writing satisfactory to Purchaser, in
Purchaser's sole discretion, to Purchaser's (or its Affiliates')
assumption of the Existing Debt and all documents in connection
therewith, without cost to Seller except as may be otherwise
expressly provided in this Agreement, provided that Seller shall
cooperate in good faith with any such assumption, at no cost to
Seller. It is understood and agreed that all costs associated
with any assumption of any Existing Debt by Purchaser shall be
borne solely by Purchaser.
(c) SELLER'S CONDITIONS PRECEDENT. Seller's obligation to
consummate the transaction contemplated by this Agreement shall be
subject to satisfaction or waiver of each of the following conditions
("Seller's Closing Conditions Precedent"); provided, however, that
Seller shall have the unilateral right to waive any Seller's Closing
Condition Precedent, in whole or in part, by written notice to
Purchaser:
(i) The representations and warranties of Purchaser
set forth in SECTION 6 hereof shall be, in all material
respects, true and complete.
(ii) Purchaser shall have performed all of the
obligations required to be performed by Purchaser under this
Agreement, as and when required by this Agreement, in all
material respects.
(iii) Each of the Lenders shall have consented, in a
writing satisfactory to Seller, in Seller's sole discretion, to
the sale of the Projects related to such Lender's loans and, to
the extent Purchaser wishes to assume all or a portion of the
Existing Debt, to the assumption by Purchaser's (or its
Affiliates') assumption of the Existing Debt and all documents
in connection therewith.
(iv) Each Lender shall have executed and delivered on
or before the Closing Date release documents in form and
substance reasonably satisfactory to Seller, releasing the
Borrowers from any and all obligations under the Existing Debt
being assumed by Purchaser; provided that Seller shall have
requested that (i) Lenders deliver such releases by Closing and
the delivery into escrow by the Lenders pending Closing and
receipt of funds and/or assumption documents, as applicable,
shall constitute delivery to Seller hereunder; and (ii) pursuant
to SECTION 3(C) hereof, Seller shall have no obligation to close
the transaction contemplated by this Agreement unless it is
fully released by the applicable Lender(s).
(d) FAILURE OF CONDITION PRECEDENT. In the event that
Purchaser's Closing Conditions Precedent or Seller's Closing Conditions
Precedent, as the case may be, have
19
not been satisfied or waived as of the scheduled Closing Date as the
same may be extended as permitted above, and provided the failure to
satisfy or waive any such condition is not attributable to a breach or
default of this Agreement by Seller or Purchaser, as the case may be (in
which event the provisions of SECTION 12 shall apply), this Agreement
shall terminate (other than the obligations of Purchaser and Seller set
forth in SECTIONS 4(D), 15 and 16 hereof, which obligations shall
survive any such termination) and the Escrow Agent Deposit shall be
returned to Purchaser and Seller shall retain the Firm Deposit,
provided, however, upon such termination Purchaser shall, at the request
of Seller, execute any documents reasonably requested by Seller to
evidence such termination, including, without limitation, quit claim
deeds. Upon such termination, neither party will have any further rights
or obligations (except the obligations of Purchaser and Seller under
SECTIONS 4(D), 15 and 16 hereof, which obligations shall survive any
such termination).
10. CLOSING DELIVERIES.
(a) SELLER'S CLOSING DOCUMENTS. On the Closing Date, Seller
shall execute and/or deliver to Purchaser or cause the Subsidiaries to
execute and/or deliver the following (collectively, "Seller's Closing
Documents"):
(i) DEED. A separate Special Warranty Deed for each
Project conveying the Real Property for such Project to
Purchaser in the form set forth in EXHIBIT I attached hereto and
made a part hereof, subject only to the Permitted Encumbrances
(the "Deeds").
(ii) XXXX OF SALE. A separate Limited Warranty Xxxx
of Sale for each Project transferring the Personal Property for
such Project to Purchaser free and clear of all encumbrances
created by Seller or a Subsidiary (other than the Existing Debt)
in the form set forth in EXHIBIT J attached hereto and made a
part hereof.
(iii) SELLERS' AFFIDAVITS. Affidavits executed by
Seller and each Subsidiary in favor of the Title Company
indicating that on the Closing Date, to the best of the
affiant's knowledge, there are no outstanding, unsatisfied
judgments, tax liens (other than the lien of real estate taxes
not yet due and payable) or bankruptcies against or involving
the Seller or such Subsidiary, as appropriate, or the Real
Property; and that, to the best of the affiant's knowledge,
there are no other unrecorded interests in the Real Property
other than the Leases or any other document shown on the
Commitments.
(iv) FIRPTA AFFIDAVIT. Separate non-foreign
affidavits for each Project properly containing such information
as is required by Section 1445(b)(2) of the Internal Revenue
Code and the regulations promulgated thereunder.
(v) TITLE DOCUMENTS. To the extent not otherwise
provided, affidavits, transfer tax declarations or other
documents reasonably required by the Title Company to issue the
Owner's Policies to Purchaser.
20
(vi) CLOSING CERTIFICATE. A Closing Certificate
executed by Seller certifying that representations and
warranties made by Seller herein are true as of the Closing
Date, as modified in the interim, or indicating any material and
adverse change in any such representations or warranties.
(vii) MANAGEMENT AND LEASING AGREEMENT TERMINATIONS. A
termination of existing management agreements and leasing
brokerage agreements, if any.
(viii) TENANT ESTOPPEL CERTIFICATES. Subject to the
terms of SECTION 9(B)(VI) hereof, Estoppel Certificates from
Tenants meeting the Tenant Estoppel Condition. Notwithstanding
anything herein to the contrary, Seller shall not be in default
under this Agreement if Seller is unable to obtain estoppel
certificates from the requisite number of Tenants, and no
expenses, costs or other damages shall be due to Purchaser for
failure to deliver one or more estoppel certificates.
(ix) EXISTING DEBT DOCUMENTS. To the extent any of
the Existing Debt is assumed by Purchaser, originals where
available and copies of the loan documents relating to that
portion of the Existing Debt certified by Seller to be correct
and complete where originals are not available, and the written
consent of the relevant Lender(s) to the assumption of the that
portion of the Existing Debt to be assumed, if any, it being
understood and agreed that Seller shall have no obligation to
obtain such consents.
(x) FTB FORM 593-C. To the extent required pursuant
to California law, a California FTB Form 593-C duly executed by
Seller.
(xi) MISCELLANEOUS. Other documents reasonably
required to consummate the transaction this Agreement
contemplates.
(b) TITLE POLICY. At Closing, Seller shall cause the Title
Company to deliver to Purchaser its owner's title insurance policies
(the "Owner's Policies") for each of the separate Projects required by
this Agreement, in the full amount of the allocated Purchase Price and
in each case excepting only Permitted Encumbrances, in the form of an
ALTA Form (10/17/92) owner's extended coverage policy of title
insurance, and in the case of the Project located in the State of Texas,
in the form prescribed by the Texas State Board of Insurance, or
marked-up title commitments or pro forma owners policies coupled with
the Title Company's commitment to issue the final title policy in such
form, together with endorsements reasonably requested by Purchaser prior
to the Closing Date, it being understood and agreed that (i) the cost of
the extended coverage and any endorsements shall be paid by Purchaser;
and (ii) to the extent Purchaser is unable to obtain the endorsements it
seeks and makes that determination after the Contingency Date, Purchaser
shall have no right to terminate this Agreement and the parties shall
proceed to Closing with no diminution of the Purchase Price.
(c) PURCHASER'S CLOSING DOCUMENTS. On the Closing Date,
Purchaser shall execute and/or deliver or cause the Purchaser Entities
to execute and/or deliver to Seller the following (collectively,
"Purchaser's Closing Documents"):
21
(i) PURCHASE PRICE. The Purchase Price, plus or
minus prorations and other adjustments, if any, by wire transfer
of immediately available funds to be received in Title Company's
trust account on or before 10:00 a.m. Central Daylight Time on
the Closing Date.
(ii) TITLE DOCUMENTS. Such affidavits of Purchaser
and/or Purchaser's assignees (subject to the limitations set
forth in Section 17 below) and other documents as may be
reasonably required by the Title Company in order to record the
Deeds and issue the title insurance policy required by this
Agreement.
(iii) MISCELLANEOUS. Other documents reasonably
required to consummate the transaction this Agreement
contemplates.
(d) PURCHASER'S AND SELLER'S CLOSING DOCUMENTS. On the
Closing Date, Seller and Purchaser shall jointly execute and deliver,
and/or cause the Subsidiaries and the Purchaser Entities, respectively,
to execute and deliver the following (collectively, the "Joint Closing
Documents"):
(i) CLOSING STATEMENTS. Separate closing statements
for each Project in form and substance reasonably acceptable to
both Seller and Purchaser, and consistent with the terms,
provisions and conditions of this Agreement, showing the
allocated Purchase Price for such Project and all prorations,
adjustments, credits and debits this Agreement describes or
requires.
(ii) ASSIGNMENT AND ASSUMPTION OF LEASES. A separate
Assignment and Assumption of Leases for each Project in the form
of EXHIBIT K hereof.
(iii) ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND
PROJECT DOCUMENTS. A separate Assignment and Assumption
Agreement of Contracts and Project Documents for each Project in
the form of EXHIBIT L hereto.
(iv) NOTICES TO TENANTS. Written notices to the
Tenants under the Leases advising them of the sale of the
Subject Property and directing them to make future lease
payments and to send all notices or other communications to
Purchaser at the place designated by Purchaser.
(v) TAX DECLARATIONS AND AFFIDAVITS. Transfer tax
declarations or affidavits to the extent required by law with
respect to any one or more of the Projects.
(vi) DESIGNATION AGREEMENT. Separate Designation
Agreements for each Project executed by the Subsidiary
transferring such Project, the Affiliates of Purchaser taking
title to such Project and Title Company designating the
"reporting person" for purposes of completing the Internal
Revenue Service Form 1099 and, if applicable, Internal Revenue
Form 8594.
(vii) ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENTS
WITH RESPECT TO EXISTING DEBT. To the extent any of the Existing
Debt is assumed by Purchaser,
22
an Assignment, Assumption and Release Agreement executed by
Borrowers, Purchaser and/or its assigns and the relevant
Lender(s).
(viii) MISCELLANEOUS. Such other documents, instruments
and affidavits as shall be reasonably necessary to consummate
the transaction contemplated by this Agreement.
(ix) CALIFORNIA NATURAL HAZARD DISCLOSURE STATEMENTS.
With respect to each Project located in the State of California,
Natural Hazard Disclosure Statements.
(x) CALIFORNIA CHANGE OF OWNERSHIP FORM. With
respect to each Project located in the State of California, a
Preliminary Change of Ownership Report and a statement of
documentary transfer tax.
(xi) OREGON COUNTY TRANSFER TAX AFFIDAVIT. With
respect to the Southwest Project, a County transfer tax
affidavit.
(e) POST-CLOSING DELIVERIES. Immediately following the
Closing, Seller shall deliver possession of the Projects to Purchaser
and shall deliver or cause to be delivered, the following items to
Purchaser:
(i) ORIGINAL DOCUMENTS. Original copies of the
Leases, the Permits, the Service Contracts, the Warranties and
the Plans, to the extent that the same are in Seller's
possession and have not previously been delivered to Purchaser,
it being understood and agreed that, as to such items, leaving
the same at the relevant Project shall constitute delivery
hereunder.
(ii) KEYS AND MANUALS. All keys and access cards to
locks on the Subject Property and all manuals for equipment with
respect to the Subject Property in the possession or control of
Seller, it being understood and agreed that, as to such items,
leaving the same at the relevant Project shall constitute
delivery hereunder.
(iii) TENANT FILES. All Records and current Tenant
files, including correspondence, notices, financial information,
sales reports and other information directly related to leases
and operation of the Subject Property, to the extent such items
are in the possession of Seller and subject to any
confidentiality restrictions imposed on Seller by the applicable
Tenant, it being understood and agreed that, as to such items,
leaving the same at the relevant Project shall constitute
delivery hereunder.
11. ADJUSTMENT AND PRORATIONS. Seller and Purchaser shall make all
adjustments and apportion all income and expenses with respect to the Subject
Property, including, without limitation, the following:
(a) REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. Seller shall
be responsible for payment to the collecting authorities of all real
estate taxes and installments of special
23
assessments and other assessments of any kind or nature whatsoever
("Taxes") which have been assessed against the Real Property and which
are due and payable as of the date (the "Proration Date") immediately
preceding the Closing Date, and Purchaser shall be responsible for
payment to the collecting authorities of all Taxes which have been or
will be assessed and which become due and payable on and after the
Closing Date, subject to proration as provided herein. With respect to
Taxes which have been assessed against the Real Property but which are
not due and payable as of the day prior to the Closing Date, such Taxes
shall be prorated as of the day prior to the Closing Date on the basis
of the most recent ascertainable Taxes, with Seller providing Purchaser
a credit at Closing for such prorated amount; provided, however, there
shall be no proration of Taxes to the extent that Taxes are or will be
payable by Tenants under Leases, and provided further that Seller
provides Purchaser a credit at closing in an amount equal to the monthly
amounts which Seller has received from Tenants under the Leases for
Taxes which have been assessed against the Real Property but which are
not due and payable. If the real property tax assessment for the fiscal
year in which the Closing occurs has not been issued as of the Closing
Date, real property taxes shall be prorated based on the most recent
assessed value of the Property, multiplied by the current tax rate, and
such tax proration shall be subject to adjustment pursuant to
subparagraph (m) of this Section 11.
(b) TITLE INSURANCE. Seller shall pay all title examination
fees of Title Company and for the cost of the premium for the standard
coverage portion of the Owner's Policies, without extended coverage and
without endorsements. Purchaser shall pay the costs of the extended
coverage portion of the Owner's Policies and all fees Title Company
charged for endorsements to the Owner's Policies. Any so-called
date-down endorsements for the loan title insurance policies with
respect to any existing mortgages and deeds of trust that are assumed by
Purchaser or its Affiliates shall be paid by Purchaser.
(c) SURVEY COSTS. Purchaser shall pay all costs of any
updated surveys, including any recertification required by Purchaser or
any lender, including Lenders.
(d) CLOSING FEE. Seller and Purchaser shall each pay
one-half of the closing fee or escrow fee Title Company charges.
(e) TRANSFER TAX. Seller and Purchaser shall each pay
one-half of all documentation, stamp and transfer taxes payable in
connection with the transfer of the Subject Property.
(f) RENTS/TENANT EXPENSE CONTRIBUTIONS. Except as described
in SUBSECTION (G) below, Seller and Purchaser shall prorate on an
accrual basis to the Closing Date and on the basis of the most reliable
information available, all current and advance rent payments of each
Tenant under the Leases; all real estate taxes, special assessments,
operating expenses, insurance and other charges and amounts payable by
each Tenant under the Leases (collectively, "Expense Contributions");
all utility deposits made by Seller or a Subsidiary; and all other
accrued and prepaid expenses and income. When actual Expense
Contributions for the year in which Closing occurs are known, Purchaser
24
shall xxxx the Tenants under the Leases for the additional amount, if
any, owed by such Tenants as a result of non-payment or underpayment of
such Tenants' share of Expense Contributions for the year to which such
Expense Contributions apply under the Leases. Upon collection of such
amounts the same shall be reprorated between Seller and Purchaser, and
Purchaser shall pay Seller all amounts due Seller for the period up to
and including the Proration Date. In the event Expense Contributions
collected by Seller for the period up to and including the Proration
Date exceed actual Expense Contributions for such period, Seller shall
pay to Purchaser an amount equal to the excess of Expense Contributions
collected over actual Expense Contributions for such period as soon as
reasonably practical after such actual Expense Contributions are known.
Seller shall have the right, upon five (5) days written notice, to
inspect the books and records of the Subject Property to verify that
Purchaser is remitting to Seller all amounts required to be remitted to
Seller according to the terms of this Agreement.
(g) DELINQUENT RENTS UNDER LEASES. Provided that unpaid rent
of any Tenant (base rent and additional rent) under any Lease is billed
as of the Closing Date and such Tenant is 30 or fewer days delinquent in
the payment of such rent, Seller shall receive a credit on the closing
statement in an amount equal to Seller's proportionate share of such
rent. Seller shall not receive a credit for any such rent that is
delinquent more than 30 days, which delinquent rent Seller may attempt
to collect in the manner described in this SUBSECTION (G). With prior
notice to Purchaser, Seller may take such action as Seller deems
necessary against Tenants under the Leases who are more than 30 days
delinquent in the payment of rent (base rent or additional rent) as of
the Closing Date to collect such unpaid rent; provided, however, that
Seller will not attempt to terminate such Tenant's right to possess its
premises or its lease. If Seller recovers any amount from any such
Tenant, Seller will apply such amount in the following order of
priority: (a) first, to Seller to offset Seller's collection costs and
rent accrued but unpaid prior to the Closing Date; and (b) second, the
balance to Seller up to the amount of any delinquent rent as of the
Closing Date, with any remaining amount relating to delinquent rent on
and after the Closing Date to be paid to Purchaser. If Purchaser
recovers any such delinquent amounts, Purchaser will apply such amounts
in the following order of priority: (a) first, to Purchaser to offset
Purchaser's collection costs and any rent accrued but unpaid after the
Closing Date; (b) second, to any delinquent rent owed Purchaser under
the Lease on and after the Closing Date and (c) the balance to Seller up
to the amount of delinquent rent owed Seller under the applicable Lease
for periods prior to the Closing Date. Purchaser shall hold all
landlord's liens, if any, in the entireties thereof to enforce the
payment of rentals to which Purchaser is entitled, and Seller shall be
deemed to have transferred to Purchaser all of such landlord's liens, if
any.
(h) SECURITY DEPOSITS. Purchaser shall receive a credit
against the Purchase Price in an amount equal to the sum of all
unapplied cash security deposits under the Leases plus, if accrued
interest on such security deposits must be reimbursed to any Tenant that
paid a security deposit, all interest accrued on such security deposits.
(i) RECORDING COSTS. Seller shall pay all of the costs to
record documents necessary for Seller to place record title to the Real
Property in the condition agreed to by the parties pursuant to SECTION
4(A) hereof. Purchaser shall pay the cost of the recording
25
of any amendments to mortgages or deeds of trust. Each of Seller and
Purchaser shall pay one-half of the cost of recording the Deeds and all
other recording costs.
(j) EXISTING LOAN INTEREST AND ESCROWS. Seller shall pay the
Lenders all interest due with respect to the Existing Debt prior to the
Closing Date. To the extent any or all of the Existing Debt is assumed
by Purchaser, Purchaser shall pay the Lenders all such interest due from
and after the Closing Date. If any Lender does not release to Seller all
amounts held in escrow by such Lender for taxes, insurance and all
repairs, replacement and rollover reserves (collectively, the "Impound
Accounts"), Seller shall assign all of its rights and interests in the
Impound Accounts to Purchaser, and Purchaser shall reimburse Seller
therefor at the Closing.
(k) ASSUMPTION AND TRANSFER FEES; OTHER LOAN FEES AND COSTS.
Purchaser shall pay any and all assumption fees due to the Lenders in
connection with the assumption by Purchaser and/or its Affiliates of the
Existing Debt, and shall pay all other loan fees and costs in connection
with such assumption, including, without limitation, Lenders' attorneys
fees and costs. Purchaser shall also pay any transfer fees and other
costs associated with effecting the transfer of any Service Contracts or
Warranties to Purchaser.
(l) OTHER COSTS. All other costs shall be allocated in
accordance with the customs prevailing in similar transactions in the
respective metropolitan areas where the Projects are located.
(m) POST-CLOSING ADJUSTMENTS. Notwithstanding anything to
the contrary contained in this Section 11, (i) if the amount of the real
property taxes and assessments payable with respect to the Property for
any period before Closing is determined to be more than the amount of
such real property taxes and assessments that is prorated herein (in the
case of the current year) or that was paid by Seller (in the case of any
prior year), due to a reassessment of the value of the Property or
otherwise, Seller and Purchaser shall promptly adjust the proration of
such real property taxes and assessments after the determination of such
amounts, and Seller shall pay to Purchaser any increase in the amount of
such real property taxes and assessments applicable to any period before
Closing; provided, however, that Seller shall not be required to pay to
Purchaser any portion of such increase that is payable by tenants under
their respective Leases; and (ii) if the amount of the real property
taxes and assessments payable with respect to the Property for any
period before Closing is determined to be less than the amount of such
real property taxes and assessments that is prorated herein (in the case
of the current year) or that was paid by Seller (in the case of any
prior year), due to an appeal of the taxes by Seller, a reassessment of
the value of the Property or otherwise, Seller and Purchaser shall
promptly adjust the proration of such real property taxes and
assessments after the determination of such amounts, and (A) Purchaser
shall pay to Seller any refund received by Purchaser representing such a
decrease in the amount of such real property taxes and assessments
applicable to any period before Closing; provided, however, that
Purchaser shall not be required to pay to Seller any portion of such
refund which is payable to tenants under their respective Leases, and
(B) Seller shall be entitled to retain any refund received by Seller
representing such a decrease in the amount of such real property taxes
26
and assessments applicable to any period before Closing; provided,
however, that Seller shall pay to Purchaser that portion of any such
refund that is payable to Tenants under their respective Leases.
Except as expressly provided herein, the purpose and intent as to the provisions
of prorations and apportionments set forth in this Section 11 and elsewhere in
this Agreement is that Seller shall bear all expenses of ownership and operation
of the Projects and shall receive all income therefrom accruing through midnight
at the end of the day preceding the Closing and Purchaser shall bear all such
expenses and receive all such income accruing thereafter. Except as otherwise
expressly provided in this Agreement, all prorations provided for herein shall
be final.
12. DEFAULT/REMEDIES. In the event of a breach or default by Seller
in closing the transaction contemplated by this Agreement, Purchaser, as its
sole and exclusive remedy, shall have the right either (i) to terminate this
Agreement and receive a return of the Deposit, together with any interest earned
thereon, Seller expressly hereby acknowledging its obligation to pay the Firm
Deposit to Purchaser in such event, without interest; or (ii) to seek specific
performance of this Agreement, provided that any action for specific performance
be commenced within ninety (90) days of the scheduled Closing Date, as the same
may have been extended pursuant to the provisions hereof, except that such
action, as to the Alliance Data Project, must be commenced within two (2) years
after the scheduled Closing Date. Except as otherwise provided in SECTIONS 4(D),
15 and 16 hereof, which shall survive termination of the Agreement, in the event
of a breach or default by Purchaser in closing the transaction contemplated by
this Agreement, Seller, as its sole and exclusive remedy, shall have the right
to terminate this Agreement and receive the Deposit (together with any interest
earned thereon) as liquidated damages, it being agreed by the Seller and the
Purchaser that the damages to the Seller in case of default by Purchaser may be
impossible to ascertain and that the Deposit constitutes a fair and reasonable
amount of damages in the circumstances. Nothing herein contained shall limit the
rights or obligations of the parties with respect to a default under this
Agreement occurring from and after the Closing Date, and in such case the
parties shall have all rights and remedies available at law, in equity or
otherwise including, without limitation, the right to specific performance,
subject to the conditions and limitations herein set forth including, without
limitation, the provisions of SECTION 8 hereof. Notwithstanding anything herein
to the contrary, neither party shall be entitled to receive special,
consequential, incidental or punitive damages under this Agreement.
13. DAMAGE. If, prior to the Closing Date, all or any part of the
Improvements are substantially damaged by fire or other casualty, Seller shall
promptly give notice to Purchaser of such fact. Thereafter, at Purchaser's
option (to be exercised by Purchaser's written notice to Seller given within
thirty (30) days after Seller's initial notice to Purchaser), this Agreement
shall terminate with respect to only the Project relating to the damaged
Improvements (the "Damaged Project"). In the event of any such termination of
this Agreement with respect to only a Damaged Project, neither party will have
any further obligations under this Agreement with respect to such Damaged
Project (other than the obligations set forth in SECTIONS 4(D), 16 and 17
hereof, which obligations shall survive any such termination), Purchaser shall,
at the request of Seller, execute any document reasonably requested by Seller to
evidence such termination including, without limitation, a quit claim deed, and
the Purchase Price shall be equitably adjusted. If Purchaser fails to elect to
terminate this Agreement with respect to such Damaged Project (in the manner
provided in this SECTION 13) despite such damage, or if the Improvements
27
are damaged but not substantially, Seller shall promptly commence to repair such
damage or destruction and to return the Improvements to substantially their
condition prior to such damage. If such damage shall be completely repaired
prior to the Closing Date, then there shall be no reduction in the Purchase
Price, and Seller shall retain the proceeds of all insurance related to such
damage. If such damage shall not be completely repaired prior to the Closing
Date, but Seller is diligently proceeding to repair, then Seller shall complete
the repair after the Closing Date and shall be entitled to receive the proceeds
of all insurance related to such damage; provided, however, that Purchaser shall
have the right to delay the Closing Date until repair is completed. For purposes
of this SECTION 13, the phrase "substantially damaged" means damage that gives
rise to the ability of the primary Tenant in such Project to terminate such
Tenant's Lease pursuant to the terms and conditions of such Lease and the
primary Tenant actually terminates such Lease. If the damage shall not be
completely repaired prior to the Closing Date and Seller is not diligently
proceeding to repair or notifies Purchaser in its initial notice that it will
not make any repairs and Purchaser nonetheless elects not to terminate this
Agreement with respect to such Damaged Project, then at Closing Seller shall
assign all of Seller's right, title and interest to any claims and proceeds
Seller may have with respect to any casualty, rent loss or other insurance
policies relating to the Property and Purchaser shall receive a credit against
the Purchase Price in the aggregate amount of the deductible under the insurance
policies assigned to Purchaser.
14. CONDEMNATION. If, prior to the Closing Date, eminent domain
proceedings are commenced against all or any substantial part of the Subject
Property, Seller shall immediately give notice to Purchaser of such fact and, at
Purchaser's option (to be exercised within thirty (30) days after Seller's
notice), this Agreement shall terminate with respect to only the Project
relating to the condemnation (the "Condemned Project"). In the event of any such
termination, neither party will have further obligations under this Agreement
with respect to such Condemned Project (other than the obligations set forth in
SECTIONS 4(D), 15 and 16 hereof, which obligations shall survive any such
termination), Purchaser shall, at the request of Seller, execute any document
reasonably requested by Seller to evidence such termination including, without
limitation, a quit claim deed, and the Purchase Price shall be equitably
adjusted. If Purchaser fails to elect to terminate this Agreement with respect
to such Damaged Project in the manner provided in this SECTION 14, then there
shall be no reduction in the Purchase Price, and Seller shall assign to
Purchaser at the Closing Date all of Seller's right, title and interest in and
to any award made or to be made in the condemnation proceedings. Prior to the
Closing Date, Seller shall not designate counsel, appear in, or otherwise act
with respect to the condemnation proceedings without Purchaser's prior written
consent, which consent shall not be unreasonably withheld or delayed; provided,
however, that if any action is necessary with respect to such proceeding to
avoid any forfeiture or material prejudice, Seller shall be entitled to take
such action as and to the extent necessary without obtaining Purchaser's prior
written consent. For purposes of this Section, the words "substantial part"
means that the portion of the Subject Property to be so taken gives rise to the
ability of the primary Tenant in such Project to terminate such Tenant's Lease
pursuant to the terms and conditions of such Lease and the primary Tenant
actually terminates such Lease.
15. BROKER'S COMMISSION. Seller and Purchaser each represent and
warrant to the other party that in connection with the transaction contemplated
hereby, no third party broker or finder has been engaged or consulted by Seller
or Purchaser or is entitled to compensation or
28
commission in connection herewith other than Xxxxxxxx Xxxx Company (the
"Broker"). Seller shall pay to the Broker all commission due to the Broker at
Closing, if the transaction contemplated by the Agreement is consummated. Seller
shall defend, indemnify and hold harmless Purchaser from and against any and all
claims of brokers, finders or any like third party claiming any right to
commission or compensation by or through acts of Seller in connection herewith,
other than the Broker. Purchaser represents and warrants to Seller that in
connection with the transaction contemplated hereby, no third party broker or
finder has been engaged or consulted by Purchaser or is entitled to compensation
or commission in connection herewith other than the Broker. Purchaser shall
defend, indemnify and hold harmless Seller from and against any and all claims
of brokers, finders or any like party claiming any right to commission or
compensation by or through acts of Purchaser in connection herewith, including
without limitation claims of the Broker. The indemnity obligations hereunder, in
favor of both Seller and Purchaser, shall include, without limitation, all
damages, losses, risks, liabilities and expenses (including, without limitation,
reasonable attorneys' fees and costs) arising from and related to matters being
indemnified hereunder; provided, however, that the total liability of Seller
with respect to the foregoing shall be subject to the conditions and limitations
set forth in SECTION 8 hereof. No broker, finder or like party shall be entitled
to rely (as a third-party beneficiary or otherwise) on the provisions herein in
claiming any right to commission or compensation or otherwise. This SECTION 15
shall survive the expiration or termination of this Agreement or the Closing for
one (1) year following the date of Closing.
16. MUTUAL INDEMNIFICATION. Seller and Purchaser agree to indemnify
each other against and hold each other harmless from all liabilities (including
reasonable attorneys' fees and costs in defending against claims) arising out of
the ownership, operation or maintenance of the Subject Property for their
respective periods of ownership; provided, however, nothing herein shall
diminish the defense, indemnity and hold harmless obligations of Purchaser set
forth in SECTION 4(D) hereof with respect to matters arising from or related to
the Tests. The provisions of this section shall survive Closing and execution
and delivery of the Deed, and are subject to the conditions and limitations set
forth in SECTION 8 of this Agreement.
17. ASSIGNMENT. Purchaser may assign its rights under this Agreement
to one or more Affiliates of Purchaser without the prior written consent of
Seller, but with written notice to Seller not later than three (3) business days
prior to Closing. Neither Purchaser nor any assignee of Purchaser shall
otherwise assign this Agreement to any other party without Seller's prior,
written consent. Any assignment shall be subject to all the provisions, terms,
covenants and conditions of this Agreement, and the assignor shall, in any
event, continue to be and remain liable under this Agreement, as it may be
amended from time to time, as a principal and not as a surety. The approved
assignee of Purchaser or any other approved assignee shall execute and deliver
to Seller an assumption of this Agreement. Any such assignment and assumption
shall be evidenced by a written agreement in form and substance reasonably
acceptable to Seller. Any assignment of this Agreement made other than in
compliance with this SECTION 17 shall be null and void and of no further force
or effect. For purposes of this Agreement, the term "Affiliate" shall mean: (a)
an entity that controls, is controlled by, or is under common control with
Purchaser; or (b) any partnership in which Purchaser or Purchaser's controlling
member is the general partner; or (c) any fund or entity in which Purchaser has
an ownership interest.
29
18. NON-RECOURSE TO MEMBERS OF SELLER. Seller and Purchaser agree
that the none of the members or partners of Seller or any Subsidiary of Seller
or any of their respective shareholders, members, partners, officers, managers,
governors, directors, employees or agents shall be personally liable for any
obligations under this Agreement or any document executed in connection
herewith.
19. PORTFOLIO PURCHASE. It is the intent of the Seller and Purchaser
that the Subject Property, including all of the Projects, is to be sold by
Seller and the Subsidiaries and purchased by Purchaser as the entire Portfolio,
upon the terms and conditions herein. Any termination of this Agreement pursuant
to the terms and conditions hereof shall be a termination with respect to the
entire Portfolio, except as may be expressly provided in either SECTION 13 or
SECTION 14.
20. SPECIFIC STATE PROVISIONS AND NOTICES.
(a) CALIFORNIA NATURAL HAZARD DISCLOSURES. As used herein,
the term "Natural Hazard Area" means those areas identified as natural
hazards in the Natural Hazard Disclosure Act, California Government Code
Sections 8589.3, 8589.4 and 51183.5, and California Public Resources
Code Sections 2621.9, 2694, and 4136, and any successor statutes or laws
(the "Act"). Before the Closing, Seller or Gateway shall provide
Purchaser with a Natural Hazard Disclosure Statement ("Disclosure
Statement") with respect to each Project located in the State of
California. Purchaser acknowledges that Seller has retained the services
of Fidelity National Title Insurance Company of New York (the "Natural
Hazard Expert") to examine the maps and other information made available
to the public by government agencies for the purpose of enabling Seller
and Gateway to fulfill their disclosure obligations with respect to the
Act and to prepare written reports of the result of its examination (the
"Natural Hazards Reports"). Purchaser acknowledges that the Natural
Hazard Reports will fully and completely discharge Seller and Gateway of
their disclosure obligations under the Act, and, for the purpose of this
Agreement, the provisions of Civil Code Section 1103.4 regarding the
non-liability of Seller and Gateway for errors or omissions not within
their personal knowledge shall be deemed to apply and the Natural Hazard
Expert shall be deemed to be an expert dealing within the scope of its
expertise with respect to the examination and the Natural Hazards
Reports. In no event shall Seller or Gateway have any responsibility for
matters not actually known to Seller or Gateway. Purchaser acknowledges
and agrees that nothing contained in any Disclosure Statement shall
release Purchaser from its obligation to fully investigate the condition
of the Subject Property. Purchaser further acknowledges and agrees that
the matters set forth in any Disclosure Statement or the Natural Hazard
Reports may change on or prior to the Closing Date and that neither
Seller nor Gateway has any obligation to update, modify, or supplement
any Disclosure Statement or the Natural Hazard Reports. Purchaser shall
be solely responsible for preparing and delivering its own Natural
Hazard Disclosure Statement(s) to subsequent prospective purchasers of
the Subject Property.
(b) CALIFORNIA REMEDIES. With respect to each Project
located in the State of California, as a condition precedent to
Purchaser's right to pursue the remedy of specific performance,
Purchaser shall file a LIS PENDENS against the relevant Project.
30
(c) PURCHASER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
("SECTION 1542"), WHICH IS SET FORTH BELOW:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
BY INITIALING BELOW, PURCHASER HEREBY WAIVES THE PROVISIONS OF SECTION
1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE
WAIVERS AND RELEASES SET FORTH IN SECTION 27 OF THIS AGREEMENT OR
ELSEWHERE IN THIS AGREEMENT. PURCHASER'S WAIVERS APPLY TO ALL CLAIMS OF
ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, ABSOLUTE OR CONTINGENT, AND WHETHER OR NOT DISCOVERABLE BY
PURCHASER, THAT PURCHASER NOW HOLDS OR MAY HOLD AND ANY TIME IN THE
FUTURE.
PURCHASER'S INITIALS _________
(d) OREGON NOTICE. WITH RESPECT TO THE SOUTHWEST PROJECT,
THE SUBJECT PROPERTY LOCATED IN THE STATE OF OREGON (THE "OREGON
PROPERTY") DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE
PROTECTION DISTRICT PROTECTING STRUCTURES. THE OREGON PROPERTY IS
SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST
ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH
LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS
30.930 IN ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE
PERSON ACQUIRING FEE TITLE TO THE OREGON PROPERTY SHOULD CHECK WITH THE
APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES
AND EXISTENCE OF FIRE PROTECTION FOR STRUCTURES.
(e) WAIVER FOR TEXAS PROJECTS. PURCHASER HEREBY WAIVES ANY
RIGHTS THAT IT MAY HAVE UNDER THE TEXAS DECEPTIVE TRADE PRACTICES AND
CONSUMER PROTECTION ACT (SECTION 17.41 ET SEQ. OF THE TEXAS BUSINESS AND
COMMERCE CODE), A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS, EXCEPT SECTION 17.555 THEREOF. PURCHASER WARRANTS AND
REPRESENTS TO SELLER THAT PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE
BARGAINING POSITION, THAT IT IS REPRESENTED BY LEGAL COUNSEL OF ITS OWN
SELECTION, THAT IT IS A BUSINESS CONSUMER WITH ASSETS OF $25,000,000 OR
MORE ACCORDING TO ITS MOST RECENT FINANCIAL STATEMENT PREPARED IN
ACCORDANCE WITH
31
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND THAT PURCHASER HAS
KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE
IT TO EVALUATE THE MERITS AND RISKS OF A TRANSACTION, AND THAT IT
VOLUNTARILY CONSENTS TO THIS WAIVER AFTER CONSULTATION WITH AN ATTORNEY
OF ITS OWN SELECTION.
(f) NOTICE UNDER TEXAS REAL ESTATE LICENSE ACT. The Texas
Real Estate License Act requires written notice to Purchaser that it
should have an attorney examine an abstract of title to a Texas Property
or obtain a title insurance policy. Notice to that effect is, therefore,
hereby given to Purchaser.
(g) NOTICE REGARDING TEXAS PROPERTY IN UNINCORPORATED AREA.
Pursuant to the requirements of Section 5.011 of the Texas Property
Code, Seller hereby notifies Purchaser that, with respect to any Project
located in the State of Texas, if the Real Property is located outside
the limits of a municipality, such Real Property may now or later be
included within the extra-territorial jurisdiction of a municipality and
may now or later be subject to annexation by the municipality. Each
municipality maintains a map that depicts its boundaries and
extra-territorial jurisdiction. To determine if such Real Property is
located within a municipality's extra-territorial jurisdiction, contact
all municipalities located in the general proximity of such Real
Property for further information.
(h) TEXAS MUNICIPAL UTILITIES DISTRICT NOTICE. With respect
to any Project located in the State of Texas, if the Subject Property is
situated in utility or other statutorily created district providing
water, sewer, drainage or flood control facilities and services, the
Texas Water Code requires Seller or Texas Office to deliver and
Purchaser to sign and acknowledge, at the closing, the statutory notice
relating to the tax rate, bonded indebtedness or standby fee of the
district prior to the final execution of this Agreement. Such notice
shall be recorded in the real property (deed) records of the county in
which the Subject Property is located.
(i) INDEPENDENT CONSIDERATION FOR TEXAS PROJECTS. Seller and
Purchaser agree that the Deposit shall be deemed to include the amount
of One Hundred and No/100 Dollars ($100.00) (the "INDEPENDENT
Consideration") for the Alliance Data Project located in Texas. Such
Independent Consideration is paid by Purchaser to Seller on the date
hereof as consideration for Seller's execution and delivery of this
Agreement and for Purchaser's right to inspect and evaluate the Alliance
Data Project. The Independent Consideration is independent of any other
consideration or payment provided for in this Agreement and,
notwithstanding anything to the contrary herein, is non-refundable in
all events, including any refund of the balance of the Deposit.
21. NOTICES. Any notice or other communication required or desired
to be given in connection with this Agreement shall be in writing and shall be
deemed given, effective and received on the earliest of (a) the date of personal
delivery; (b) ten (10) days after deposit in the United States mail, postage
prepaid, return receipt requested; (c) one business day after deposit with a
national overnight courier; or (d) by facsimile transmission with machine
confirmation by
32
the sender's machine (provided that such notice sent by facsimile is also sent
via nationally recognized overnight courier for next business day delivery)
addressed as follows:
If to Seller: APTUS OFFICE INVESTMENTS, LLC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, XXXXXX X0X 0X0
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to: Cargill Value Investment Management, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
And a copy to: Fabyanske, Westra, Xxxx & Xxxxxxx, P.A.
000 XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxxxxxx
Facsimile No. (000) 000-0000
If to Purchaser: HARVARD PROPERTY TRUST, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx and Xxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Attorneys for each party shall be authorized to give notices for each such
party. Any notice party may change its address for the service of notice by
giving written notice of such change to the other parties, in any manner above
specified. For the purposes of this Agreement, a "business day" shall mean a day
which is not a Saturday, a Sunday or a legal holiday of the State of Minnesota.
22. CAPTIONS. The section headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement, and are
not to be considered in interpreting this Agreement.
23. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter herein
contained, and all prior negotiations, discussions, writings and agreements
between the parties with respect to the subject matter herein contained are
superseded and of no further force and effect. No covenant, term or
33
condition of this Agreement shall be deemed to have been waived by either party,
unless such waiver is in writing signed by the party charged with such waiver.
24. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
25. CONTROLLING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota, without giving
effect to conflicts of law principles.
26. SEVERABILITY. The unenforceability or invalidity of any
provisions hereof shall not render any other provision herein contained
unenforceable or invalid.
27. "AS IS" SALE. PURCHASER ACKNOWLEDGES THAT EXCEPT AS SET FORTH IN
THIS AGREEMENT OR IN THE DOCUMENTS SET FORTH IN SUBSECTIONS (I), (II), (III),
(IV), (V), (VI), and (VII) OF SECTION 10(A) (A) NEITHER SELLER, NOR ANY OWNER,
PRINCIPAL, AGENT, ATTORNEY, EMPLOYEE, BROKER, OR OTHER REPRESENTATIVE OF SELLER,
HAS MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO ANY OF THE SUBJECT PROPERTIES OR ANY MATTER RELATED
THERETO, AND (B) PURCHASER IS NOT RELYING ON ANY WARRANTY, REPRESENTATION, OR
COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OF THE SUBJECT
PROPERTY, AND THAT PURCHASER IS ACQUIRING THE SUBJECT PROPERTIES IN THEIR
"AS-IS" CONDITION WITH ALL FAULTS. IN PARTICULAR, BUT WITHOUT LIMITATION, EXCEPT
AS SET FORTH IN THIS AGREEMENT OR THE DOCUMENTS SET FORTH IN SUBSECTIONS (I),
(II), (III), (iv), (V), (VI), and (VII) OF SECTION 10(A), SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE, CONDITION, OCCUPATION OR
MANAGEMENT OF ANY OF THE SUBJECT PROPERTIES, COMPLIANCE OF THE SUBJECT
PROPERTIES WITH APPLICABLE STATUTES, LAWS, CODES, ORDINANCES, REGULATIONS OR
REQUIREMENTS OR COMPLIANCE OF THE SUBJECT PROPERTIES WITH COVENANTS, CONDITIONS,
AND RESTRICTIONS, WHETHER OR NOT OF RECORD.
28. TIME OF ESSENCE. Time is of the essence of this Agreement.
29. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile are binding on the party sending the facsimile signatures. The
original of any signature sent by facsimile shall be sent to the receiving party
via overnight courier sent the same day the facsimile signature is sent.
30. INTERPRETATION. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
31. WAIVER OF JURY TRIAL; JURISDICTION. EACH OF SELLER, EACH
SUBSIDIARY AND PURCHASER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
34
ACTION RELATING TO THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREUNDER.
This Agreement may be enforced in any United States District Court for the
District of Minnesota or state court of the State of Minnesota sitting in
Hennepin County, Minnesota, or any United States District Court for the (a)
Central District of California, or state court sitting in Los Angeles County,
California; (b) District of Oregon or state court sitting in Washington County,
Oregon; or (c) Eastern District of Texas or state court sitting in Collin
County, Texas. Both parties consent to the jurisdiction and venue of any of the
above-described courts and waive any argument that venue in such forums is not
proper or convenient.
32. TAX DEFERRED EXCHANGE. Purchaser and Seller (or any Subsidiary,
as appropriate), or their permitted assigns, have the right to structure the
sale of the Subject Property as part of one or more deferred exchanges in
accordance with the provisions of Section 1031 of the Internal Revenue Code.
Purchaser and Seller will make reasonable efforts to cooperate with any such
exchange requested by the other, including without limitation executing consents
to assignments and other documents reasonably requested by the exchanging party;
provided that: (i) the Closing Date hereunder will not thereby be delayed, (ii)
the cooperating Purchaser or Seller, as the case may be, does not incur any
additional expense or liability, nor assume any personal liability in connection
with a request by the other party to cooperate with said exchange, (iii) the
exchanging party shall not be released from its obligations under this Agreement
if the exchanging party's exchange fails for any reason, and the exchanging
party shall remain obligated under this Agreement, (iv) the cooperating party
shall not be required to acquire title to any other real property (other than
the Real Property), and (v) the exchanging party shall indemnify, defend and
hold the cooperating party harmless from and against all expenses, losses, costs
(including, without limitation, reasonable attorneys' fees), damages and claims
resulting from the exchanging party's exchange or attempted exchange. The
cooperating party hereby disclaims any responsibility for the qualification of
the transactions contemplated by this Agreement as a tax-deferred exchange under
Internal Revenue Code Section 1031, as amended, and the exchanging party agrees
that the cooperating party shall not be liable for any tax liability, interest
or penalties arising thereunder by virtue of the cooperating party's cooperation
in the consummation of any such exchange or attempted exchange.
33. RETURN OF DOCUMENTS; CONFIDENTIALITY; EXCLUSIVITY. In the event
that this Agreement is terminated or cancelled without Purchaser or any
Affiliate(s) of Purchaser acquiring the Subject Property pursuant to the terms
hereof, Purchaser shall, within five (5) business days thereafter, deliver to
Seller all due diligence materials delivered by Seller to Purchaser. In addition
to the foregoing, (a) all information provided by Seller to Purchaser or
obtained by Purchaser relating to the Projects in the course of Purchaser's
inspection, including, without limitation, any environmental assessment or
audit, (b) the identities of Seller and Purchaser, and the fact that they have
entered into this Agreement, and (c) the terms of this Agreement (collectively,
the "Information") shall be treated as confidential by Purchaser. Purchaser
agrees to transmit the Information only to such of its attorneys, accountants,
consultants, equity investors, lenders and other persons assisting Purchaser in
connection with the transactions that are the subject of this Agreement
("Representatives") who need to know the Information for the sole purpose of
Purchaser's review and closing of the proposed transactions and who agree to
maintain the confidentiality of such Information. Seller and Purchaser agree not
to make any public announcements or disclosures with respect to the subject
matter hereof, except by Seller to tenants at the premises, without the written
consent of the other party. In the
35
event that this transaction is not closed for any reason, then Purchaser shall
return to Seller all copies of all Information in its possession or in the
possession of any of its Representatives, shall maintain the confidentiality of
the Information, and shall require all Representatives not to disclose any
Information to any other party. Notwithstanding the foregoing provisions,
however (i) the foregoing covenant of confidentiality shall not be applicable to
any information published by Seller as public knowledge or otherwise available
in the public domain; and (ii) Purchaser shall be permitted to disclose such
information as may be recommended by Purchaser's legal counsel in order to
comply with all financial reporting, securities laws and other legal
requirements applicable to Purchaser, including any required disclosures to the
Securities and Exchange Commission. The provisions of this Section shall survive
the termination of this Agreement.
34. IRS REPORTING REQUIREMENTS. Seller and Purchaser acknowledge and
agree that Section 6045(e) of the Internal Revenue Code of 1986 requires that
notice of the sale and purchase of the Subject Property described in this
Agreement, be provided to the Internal Revenue Service (the "IRS") by
preparation of and filing with the IRS of one or more IRS Form 1099-B; and
further, Seller and Purchaser agree to furnish and provide, or cause the
Subsidiaries and the Purchaser Entities, respectively, to furnish and provide,
to the Title Company any and all information and documentation, including
without limitation the Designation Agreements, that the Title Company may
require in order for the Title Company to (a) comply with all instructions to
the IRS Forms 1099-B in the preparation thereof, and (b) prepare and timely file
with the IRS said IRS Forms 1099-B with respect to this transaction.
35. ATTORNEYS' FEES. If either party commences an action against the
other to enforce this Agreement or because of the breach by either party of this
Agreement, the prevailing party in such action shall be entitled to recover
reasonable attorney fees, costs, and expenses (including expert fees and costs)
incurred in connection with the prosecution or defense of such action, including
any appeal, in addition to all other relief.
36. LIMITATION. Notwithstanding anything to the contrary in this
Agreement, or in any Exhibit or schedule attached hereto, Purchaser acknowledges
and agrees that each Subsidiary has owned its Project since December 30, 2004.
Therefore, to the extent Seller or any Subsidiary provides information in its
possession as to any Project which information predates December 30, 2004, said
information was provided to Seller and the Subsidiaries by ORE IV and Seller and
each Subsidiary delivers such information to Purchaser without any
certification, representation, covenant or warranty that any such information is
true, correct or complete.
37. EXHIBITS AND SCHEDULES. The following schedules and exhibits are
made a part hereof, with the same force and effect as if specifically set forth
herein:
Schedule 1 - List of Master Leases
Schedule 2 - Environmental Reports
Exhibit A - Legal Description
Exhibit B - Schedule of Leases
Exhibit C Schedule of Broker Commissions
Exhibit D - Schedule of Permits
36
Exhibit E - Schedule of Service Contracts
Exhibit F - Schedule of Warranties
Exhibit G - Form of Xxxxxxx Money Escrow Agreement
Exhibit H - Forms of Tenant Estoppel Certificate
Exhibit I - Forms of Special Warranty Deed
Exhibit J - Form of Special Warranty Xxxx of Sale
Exhibit K - Form of Assignment and Assumption of Leases
Exhibit L - Form of Assignment and Assumption of Contracts
and Project Documents
Exhibit M - Documents to be delivered
[signature pages follow]
37
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER:
APTUS OFFICE INVESTMENTS, LLC
By: Diversified Magnettawan Office, LLC
Its Manager
By: __________________________
Name: ___________________
Title: ___________________
38
PURCHASER
HARVARD PROPERTY TRUST, LLC,
a Delaware limited liability company
By: __________________________
Name: ___________________
Title: ___________________
39
JOINDER OF SUBSIDIARIES
Each of the Subsidiaries hereby joins this Agreement with respect to the
obligations, representations, warranties and indemnities of Seller to Purchaser
only to the extent related to (i) the status of such Subsidiary or its authority
to enter into any documents related to this Agreement, (ii) the Project owned by
such Subsidiary and/or (iii) the portion of the Existing Debt for which such
Subsidiary is an obligor; provided that the liability of the Subsidiaries and
the Seller, in the aggregate, under this Agreement shall be limited as provided
in SECTION 8 hereof.
Aptus Dallas TX Office, L.P.
By: Aptus Office GP I, LLC
Its General Partner
By: Aptus Office Investments, LLC
Its Manager
By: Diversified Magnettawan Office, LLC
Its Manager
By: ___________________________
Name: ___________________
Title: ___________________
Aptus Gateway CA, L.P.
By: Aptus Office GP I, LLC
Its General Partner
By: Aptus Office Investments, LLC
Its Manager
By: Diversified Magnettawan Office, LLC
Its Manager
By: ___________________________
Name: ___________________
Title: ___________________
Aptus Southwest OR, LLC
By: Aptus Office GP I, LLC
Its General Partner
By: Aptus Office Investments, LLC
Its Manager
By: Diversified Magnettawan Office, LLC
Its Manager
By: ___________________________
Name: ___________________
Title: ___________________
SCHEDULE 1
Multi-Tenant Office Lease Agreement by and between Opus Real Estate
Oregon IV, L.L.C., as landlord, and Opus Northwest, L.L.C., as tenant, relating
to a portion of the Southwest Project, as landlord's interest has been assigned
to Aptus Southwest OR, LLC.
Schedule 1-1
SCHEDULE 2
ENVIRONMENTAL REPORTS
See Xxxxxxxx Xxxx website
Schedule 2-1
EXHIBIT A
LEGAL DESCRIPTIONS
ALLIANCE DATA
Xxx 0, Xxxxx X/0000, of ALLIANCE DATA SYSTEMS ADDITION, an Addition to the City
of Dallas, Collin County, Texas according to the plat thereof recorded in Volume
K, Page 535, Map Records of Collin County, Texas. Correction plat filed in
Volume L, Page 791, Map Records, Collin County, Texas.
SOUTHWEST
PARCEL I:
Beginning at the Northeast corner of the Xxxx Xxxxxx Donation Land Claim; thence
running South along said claim line 80 rods; thence East 40 rods; thence North
to the center of Fanno Creek; thence up stream along the center of Fanno Creek
to the center of the County Bridge across Fanno Creek; thence in a Northwesterly
direction along the center of the county road to the section line between
Sections 12 and 13, in Township 2 South of Range 1 West of the Willamette
Meridian; thence West 40 rods on said section line to the place of beginning,
all being in Section 13, Township 2 South, Range 1 West, of the Willamette
Meridian in the County of Washington and State of Oregon.
EXCEPTING THEREFROM however, the lands heretofore conveyed to the Oregon
Electric Railway Co. by Deed recorded in Book 75, page 35, the lands heretofore
conveyed to Xxxxx and Xxxxxxxxx Xxxxxxx by Deed recorded in Book 118, page 158,
the lands heretofore conveyed to Xxxx X. Xxxx by Deed recorded in Book 143, page
343, and corrected by Book 150, page 454 and the lands heretofore conveyed to
Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx by Deed recorded in Book 150, page 452. ALSO
EXCEPT that portion conveyed to Portland General Electric Company by Deed
recorded March 22, 1974 in Book 967, page 562.
ALSO EXCEPT that portion conveyed to Unified Sewerage Agency by Deed recorded
May 1, 1974 in Book 972, page 292.
ALSO EXCEPT that portion conveyed to Tigard School District No. 23J by Deed
recorded August 15, 1988 as Fee No. 88-35795.
ALSO EXCEPT that portion lying West of the West line of the Northeast
one-quarter of the Northwest one-quarter of Section 13, Township 2 South, Range
1 West, of the Willamette Meridian.
ALSO EXCEPT that portion conveyed to Xxxx X. Xxxxxx and Xxxxx Xxxxx Xxxxxx by
Deed recorded in Book 232, page 587.
A-1
ALSO EXCEPT:
A tract of land in the Northeast quarter and Northwest quarter of Section 13,
Township 2 South, Range 1 West, of the Willamette Meridian, in the City of
Tigard, County of Washington and State of Oregon, more particularly described as
follows:
Beginning at the Southwesterly corner of that tract of land conveyed to Xxxxx
Xxxxxxx in the Deed recorded as Document Number 98139624, Washington County Deed
Records; thence South 88(0)36'44" East, 119.59 feet to a point on the Southerly
extension of the Easterly line of said tract per Document Number 98139624;
thence Northerly along said Southerly extension North 01(0)29'08" East, 10.89
feet to the Southeasterly corner of said Xxxxxxx Tract; thence along the
Southerly line thereof South 86(0)11'03" West, 120.10 feet to the point of
beginning.
ALSO EXCEPT:
A tract of land in the Northeast quarter and Northwest quarter of Section 13,
Township 2 South, Range 1 West, of the Willamette Meridian, in the City of
Tigard, County of Washington and State of Oregon, more particularly described as
follows:
Commencing at the Southwesterly corner of that tract of land conveyed to Xxxxx
Xxxxxxx in the Deed recorded as Document Number 98139624, Washington County Deed
Records; thence South 88(0)36'44" East, 119.59 feet to the true point of
beginning; thence continuing South 88(0)36'44" East, 233.53 feet to the
Southerly extension of the Easterly line of the tract conveyed to Xxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxxxx in the Deed recorded as Document Number 83008504;
thence Northerly along said Southerly extension line North 01(0)25'11" East,
32.16 feet to the Southeasterly corner of said tract per Document Number
83008504; thence along the Southerly line thereof South 86(0)11'03" West, 234.50
feet to the Southeasterly corner of the tract per Document Number 98139624;
thence South 01(0)29'08" West, 10.89 feet to the true point of beginning.
ALSO KNOWN AS :
A tract of land being a portion of those lands conveyed to Opus Northwest L.L.C.
by Warranty Deed recorded as Document Xx. 000000000, Xxxxxxxxxx Xxxxxx Deed
Records, in the Northwest Quarter of Section 13, Township 2 South, Range 0 Xxxx
xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxx xx Xxxxxx, Xxxxxx of Washington and State of
Oregon, more particularly described as follows:
Commencing at the Northwest corner of Section 13, hereinabove described; thence
South 88(degree)42'31" East, 1584.61 feet to a point at the intersection of the
North line of the Northwest 1/4 of said Section 13 with the Northerly extension
of the West line of that certain tract of land conveyed to Xxxxxxx Ventures LLC
by Quitclaim Deed recorded as Document No. 0000000000, said Deed Records; thence
along said Northerly extension and West line of said Xxxxxxx Ventures LLC tract
South 01(degree)16'02" West, 367.35 feet to the Southwest corner thereof and the
True Point of Beginning of the herein described tract of land; thence along the
South line of
A-2
those lands conveyed to Xxxxx X. Xxxxxxx by Quitclaim Deed recorded as Document
No. 2001021233 and to Xxxxxxx Ventures LLC by Quitclaim Deed recorded as
Document No. 2001021234, said Deed Records, South 88(degree)36'44" East, 353.12
feet to a point 10.00 feet West of the West line of that certain tract of land
conveyed to Xxxxx Xxxxxxx by Deed Recorded in Book 118, Page 158, said Deed
Records; thence parallel with said West line South 01(degree)25'11" West, 202.89
feet to an iron pipe; thence North 88(degree)34'49" West, 149.30 feet; thence
South 64(degree)07'11" West, 168.50 feet to the beginning of a tangent 150.80
foot radius curve to the left; thence along the arc of said curve 12.66 feet
through a central angle of 04(degree)48'42" (the long chord bears South
61(degree)42'50" West, 12.66 feet) to the East line of that certain tract of
land conveyed to Portland General Electric Company by Warranty Deed recorded in
Book 967, Page 562, said Deed Records; thence along said East line North
01(degree)16'02" East, 104.19 feet to the Northeast corner thereof; thence along
the North line of said Portland General Electric Company tract North
88(degree)43'58" West, 42.33 feet to the Southeast corner of that certain tract
of land conveyed to Tigard School District No. 23J by Warranty Deed recorded as
Document No. 88-35795, said Deed Records; thence along the East line thereof
North 01(degree)16'02" East, 182.17 feet to the True Point of Beginning.
Containing therein 1.78 acres, more or less.
PARCEL II:
Beginning at an iron in the center of County Road No. 23, said beginning point
being 1871.4 feet South 89(0)58' East and 127.0 feet South 58(0)48' East from
the corner of Sections 11, 12, 13 and 14, Township 2 South, Range 1 West, of the
Willamette Meridian, in the City of Tigard, County of Washington and State of
Oregon; running thence South 671.0 feet, more or less, to the center of Fanno
Creek; thence up the center of said creek with the meanderings thereof in a
Northeasterly direction 850 feet, more or less, to the center of said County
Road No. 23; thence North 58(0)48' West 548 feet, more or less, to the place of
beginning.
EXCEPT that portion taken in Decree of Condemnation entered April 29, 1997 in
Washington County Circuit Case No. C95-1061CV for road purposes.
PARCEL III:
Beginning at the same beginning point as in Parcel II above; thence South 671.0
feet, more or less, to the center of Fanno Creek; thence down the center of said
creek with the meanderings thereof in Southwesterly direction 32.2 feet; thence
North 683 feet to the center of said County Road No. 23; thence South 58(0)48'
East 37.86 feet to the place of beginning.
EXCEPT that portion taken in Decree of Condemnation entered April 29, 1997 in
Xxxxxxxxxx Xxxxxx Xxxxxxx Xxxx Xx. X00-0000XX for road purposes.
A-3
PARCEL IV:
Being a part of the Northwest quarter of Section 13, Township 2 South, Range 1
West, of the Willamette Meridian, in the City of Tigard, County of Washington
and State of Oregon, and being more particularly described as follows:
Beginning at a point on the West line of that certain second tract in Xxxxxxx
00, Xxxxxxxx 0 Xxxxx, Xxxxx 1 West, of the Willamette Meridian, conveyed to
Xxxxx Xxxxxxx by Deed recorded in Book 118, page 158 of the Washington County
Deed Records, said beginning point being South 89(0)58' East 1871.4 feet South
58(0)48' East 89.1 feet and South 283.8 feet from the Northwest corner of said
Section 13; and running thence South 398.2 feet to the center of Fanno Creek at
the Southwest corner of said Hamback land; thence following up the center of
said creek Easterly a distance of 32.3 feet to a point on the East line of the
Xxxx land; thence South along the East line of said Xxxx land a distance of
354.8 feet to an iron pipe on the Northerly boundary of the Oregon Electric
Railway right of way; thence South 57(0)49' West along said railway right of way
boundary a distance of 205.6 feet to an iron pipe; thence North 37(0)29' West
265.0 feet to an iron pipe; thence North 27(0)40' West 151.7 feet to an iron
pipe; thence along a 150.8 foot radius curve right a distance of 237.9 feet to
an iron pipe, the long chord of said curve being North 17(0)31' East 213.6 feet;
thence North 62(0)42' East 168.5 feet to an iron pipe; thence East 149.3 feet to
an iron pipe which is 10.0 feet West from the West line of the said Hamback
land; thence North and always 10.0 feet West from the said Hamback line a
distance of 236.9 feet to the South boundary of that certain tract conveyed to
Xxxx Xxxx by Deed recorded in Book 143, page 343 of the said record of deeds;
thence East 10.0 feet to the place of beginning.
EXCEPT that portion conveyed to Portland General Electric Company by Deed
recorded March 22, 1974 in Book 967, page 562.
ALSO EXCEPT that portion conveyed to Unified Sewerage Agency by Deed recorded
May 1, 1974 in Book 972, page 292.
FURTHER EXCEPTING THEREFROM a tract of land in the Northwest quarter of Section
13, Township 2 South, Range 1 West, of the Willamette Meridian, in the City of
Tigard, County of Washington and State of Oregon, more particularly described as
follows:
Beginning at a 5/8" iron rod, set in Survey Number 22455, Washington County
Survey Records, at the intersection of the Northwesterly right of way line of
the Oregon Electric Railroad (now the Burlington Northern Railroad) with a line
drawn north and south parallel and 1980 feet (30 chains) East of the West line
of said Section 13; thence North 01(0)34'45" East, 358.11 feet to the centerline
of Fanno Creek; thence along said centerline South 77(0)41'16" East, 3.23 feet;
thence South 01(0)25'11" West, 354.87 feet to the aforementioned Northwesterly
right of way line of the Oregon Electric Railroad; thence along said right of
way line South 59(0)14'16" West, 4.93 feet to the point of beginning.
PARCEL V:
Beginning at a point in the center of County Road No. 23 which beginning point
is South 89(0)58' East 1871.4 feet and South 58(0)48' East 89.1 feet from the
Northwest corner of said Section 13, said beginning point being also at the
Northwest corner of second tract conveyed to Xxxxx Xxxxxxx by Deed recorded at
page 158 of Book 118 of the record of deeds for City of Tigard,
A-4
County of Washington and State of Oregon, and running thence South 283.8 feet to
the South line of that certain tract conveyed to Xxxx Xxxx by Deed recorded at
page 343 of Book 143 of said record of deeds; thence West 10.0 feet; thence
North 289.0 feet to a point in the center of said road; thence South 58(0)48'
East 11.7 feet to the place of beginning.
GATEWAY 12
REAL PROPERTY IN THE CITY OF DIAMOND BAR, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
XXX 00 XX XXXXX 00000, AS PER MAP RECORDED IN BOOK 1083 PAGES 14 TO 21 INCLUSIVE
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY
TIME HEREAFTER SITUATED THEREIN AND THEREUNDER, TOGETHER WITH THE EXCLUSIVE
RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE AND MINE THEREFROM, SUCH OIL, GAS AND
OTHER HYDROCARBONS AND MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID
LAND, OR BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON
THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND MINERALS WHICH MAY
BE PRODUCED FROM OTHER LAND, WITH THE RIGHT OF ENTRY THEREON FOR SAID PURPOSES
AND WITH THE RIGHT TO CONSTRUCT, USE, MAINTAIN, ERECT, REPAIR, REPLACE AND
REMOVE THEREON AND THEREFROM ALL PIPE LINES, TELEPHONE AND TELEGRAPH LINES,
TANKS, MACHINERY, BUILDINGS AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND
REQUISITE TO CARRY ON OPERATION ON SAID LAND, WITH THE FURTHER RIGHT TO ERECT,
MAINTAIN, OPERATE AND REMOVE A PLANT WITH ALL NECESSARY APPURTENANCES FOR THE
EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHT NECESSARY OR CONVENIENT
THERETO, AS RESERVED IN DEED FROM TRANSAMERICA DEVELOPMENT COMPANY, A
CORPORATION, RECORDED MARCH 29, 1968 IN BOOK D 3955 PAGE 185, OFFICIAL RECORDS
AS INSTRUMENT NO. 2456, AND RE-RECORDED JUNE 19, 1969 IN BOOK D 4407 PAGE 591,
AS INSTRUMENT NO. 1776, OFFICIAL RECORDS.
BY QUITCLAIM DEED RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 00-0000000,
TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION FORMERLY CAPITAL COMPANY, A
CORPORATION RELEASED AND SURRENDERED TO THE DIAMOND BAR DEVELOPMENT CORPORATION,
A CORPORATION, THE SURFACE RIGHT TO SAID LAND FOR A DISTANCE OF NOT MORE THAN
500 FEET IN DEPTH, AND NOTHING THEREIN CONTAINED SHALL IN ANY WAY BE CONSTRUED
TO PREVENT, HINDER OR DELAY THE FREE AND UNLIMITED RIGHT TO MINE, DRILL, BORE,
OPERATE AND REMOVE FROM BENEATH THE SURFACE OF SAID LAND OR LANDS, AT ANY LEVEL
OR LEVELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PURPOSE OF
DEVELOPMENT OR REMOVAL OF ALL OIL, GAS, MINERALS AND OTHER
A-5
HYDROCARBONS SITUATED THEREIN OR THEREUNDER, OR PRODUCIBLE THEREFROM, TOGETHER
WITH ALL WATER NECESSARY IN CONNECTION PRODUCIBLE THEREFROM TOGETHER WITH ALL
WATER NECESSARY IN CONNECTION WITH ITS DRILLING OR MINING OPERATION THEREUNDER.
ALSO EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE BOUNDARIES OF THE
LAND DESCRIBED IN THE DEED FROM UNIVERSITY OF REDLANDS, ET AL., RECORDED
DECEMBER 28, 1950, IN BOOK 35179 PAGE 74, OFFICIAL RECORDS, AN AGGREGATE OF
ONE-FOURTH OF ALL OIL, GAS AND CASINGHEAD GAS AND OTHER HYDROCARBON SUBSTANCES
AND MINERALS IN, ON OR UNDER THE SURFACE OF SAID PREMISES, IT BEING THE
INTENTION THAT EACH GRANTOR THEREBY RESERVES IN SEVERALTY, A FRACTIONAL PART OF
SAID ONE-FOURTH CORRESPONDING EXACTLY WITH THE RESPECTIVE INTERESTS OF THE
GRANTORS SET FORTH FOLLOWING THEIR NAMES IN THE DEED, AS RESERVED IN THE DEED
FROM UNIVERSITY OF REDLANDS, A CORPORATION, ET AL., TO XXXXXXXXXXX CORPORATION,
A CORPORATION, RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 74, OFFICIAL
RECORDS.
ALSO EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT
ANY TIME HEREAFTER SITUATED IN SAID LAND OR THEREUNDER OR PRODUCIBLE THEREFROM,
TOGETHER WITH THE FREE AND UNLIMITED RIGHT TO MINE, STORE, DRILL AND BORE
BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL OR LEVELS FIVE HUNDRED (500) FEET
OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPING OR REMOVAL
OF SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF SUCH WELL AND ALL OTHER
SURFACE FACILITIES SHALL BE LOCATED ON LAND OTHER THAN THAT DESCRIBED HEREIN AND
SHALL NOT PENETRATE ANY PART OR PORTION OF THE ABOVE DESCRIBED REAL PROPERTY
WITHIN FIVE HUNDRED (500) FEET OF THE SURFACE THEREOF, AND ALL OF THE RIGHTS SO
TO REMOVE SUCH SUBSTANCES ARE HEREBY SPECIFICALLY RESERVED, INCLUDING THE RIGHT
TO DRILL FOR, PRODUCE AND USE WATER FROM SAID REAL PROPERTY IN CONNECTION WITH
SUCH OPERATIONS, AS EXCEPTED AND RESERVED BY TRANSAMERICA DEVELOPMENT COMPANY, A
CORPORATION, FORMERLY CAPITAL COMPANY, A CORPORATION, DEED RECORDED JUNE 30,
1965 AS INSTRUMENT NO. 1027 IN BOOK D 2959 PAGE 114, OFFICIAL RECORDS.
GATEWAY 22
Real property in the State of California, County of Los Angeles, and is
described as follows:
Xxx 00 xx Xxxxx 00000, as per map recorded in Book 1083 pages 14 to 21 inclusive
of maps, in the Office of the County Recorder of said county.
Except therefrom all oil, gas, and other hydrocarbons and minerals now or at any
time hereafter situated therein and thereunder, together with the exclusive
right to drill for, produce, extract, take and mine therefrom, such oil, gas and
other hydrocarbons and minerals, and to store the
A-6
same upon the surface of said land, or below the surface of said land, together
with the right to store upon the surface of said land, oil, gas and other
hydrocarbons and minerals which may be produced from other land, with the right
of entry thereon for said purposes and with the right to construct, use,
maintain, erect, repair, replace and remove thereon and therefrom all pipe
lines, telephone and telegraph lines, tanks, machinery, buildings and other
structures, which may be necessary and requisite to carry on operation on said
land, with the further right to erect, maintain, operate and remove a plant with
all necessary appurtenances for the extraction of gasoline from gas, including
all right necessary or convenient thereto, as reserved in deed from Transamerica
Development Company, a corporation, recorded March 29, 1968 in Book D 3955 page
185, official records as Instrument No. 2456, and re-recorded June 19, 1969 in
Book D 4407 page 591, as Instrument No. 1776, official records.
By Quitclaim Deed recorded October 9, 1981 as Instrument No. 00-0000000,
Transamerica Development Company, a corporation formerly Capital Company, a
corporation released and surrendered to the Diamond Bar Development Corporation,
a corporation, the surface right to said land for a distance of not more than
500 feet in depth, and nothing therein contained shall in any way be construed
to prevent, hinder or delay the free and unlimited right to mine, drill, bore,
operate and remove from beneath the surface of said land or lands, at any level
or levels 500 feet or more below the surface of said land, for the purpose of
development or removal of all oil, gas, minerals and other hydrocarbons situated
therein or thereunder, or producible therefrom, together with all water
necessary in connection producible therefrom together with all water necessary
in connection with its drilling or mining operation thereunder.
Also except from that portion of said land included within the boundaries of the
land described in the Deed from University of Redlands, et al., recorded
December 28, 1950, in Book 35179 page 74, official records, an aggregate of
one-fourth of all oil, gas and casinghead gas and other hydrocarbon substances
and minerals in, on or under the surface of said premises, it being the
intention that each grantor thereby reserves in severalty, a fractional part of
said one-fourth corresponding exactly with the respective interests of the
grantors set forth following their names in the Deed, as reserved in the Deed
from University of Redlands, a corporation, et al., to Xxxxxxxxxxx Corporation,
a corporation, recorded December 28, 1950 in Book 35179 page 74, official
records.
Also except therefrom all oil, gas and other hydrocarbons and minerals now or at
any time hereafter situated in said land or thereunder or producible therefrom,
together with the free and unlimited right to mine, store, drill and bore
beneath the surface of said land at any level or levels five hundred (500) feet
or more below the surface of said land, for the purpose of developing or removal
of such substances, provided that the surface opening of such well and all other
surface facilities shall be located on land other than that described herein and
shall not penetrate any part or portion of the above described real property
within five hundred (500) feet of the surface thereof, and all of the rights so
to remove such substances are hereby specifically reserved, including the right
to drill for, produce and use water from said real property in connection with
such operations, as excepted and reserved by Transamerica Development Company, a
corporation, formerly Capital Company, a corporation, Deed recorded June 30,
1965 as Instrument No. 1027 in Book D 2959 page 114, official records.
A-7
GATEWAY 23
REAL PROPERTY IN THE CITY OF DIAMOND BAR, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
XXX 00 XX XXXXX 00000, AS PER MAP RECORDED IN BOOK 1083 PAGES 14 TO 21 INCLUSIVE
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS, AND OTHER HYDROCARBONS AND MINERALS NOW OR AT ANY
TIME HEREAFTER SITUATED THEREIN AND THEREUNDER, TOGETHER WITH THE EXCLUSIVE
RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE AND MINE THEREFROM, SUCH OIL, GAS AND
OTHER HYDROCARBONS AND MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID
LAND, OR BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON
THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND MINERALS WHICH MAY
BE PRODUCED FROM OTHER LAND, WITH THE RIGHT OF ENTRY THEREON FOR SAID PURPOSES
AND WITH THE RIGHT TO CONSTRUCT, USE, MAINTAIN, ERECT, REPAIR, REPLACE AND
REMOVE THEREON AND THEREFROM ALL PIPE LINES, TELEPHONE AND TELEGRAPH LINES,
TANKS, MACHINERY, BUILDINGS AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND
REQUISITE TO CARRY ON OPERATION ON SAID LAND, WITH THE FURTHER RIGHT TO ERECT,
MAINTAIN, OPERATE AND REMOVE A PLANT WITH ALL NECESSARY APPURTENANCES FOR THE
EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHT NECESSARY OR CONVENIENT
THERETO, AS RESERVED IN DEED FROM TRANSAMERICA DEVELOPMENT COMPANY, A
CORPORATION, RECORDED MARCH 29, 1968 IN BOOK D 3955 PAGE 185, OFFICIAL RECORDS
AS INSTRUMENT NO. 2456, AND RE-RECORDED JUNE 19, 1969 IN BOOK D 4407 PAGE 591,
AS INSTRUMENT NO. 1776, OFFICIAL RECORDS.
BY QUITCLAIM DEED RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 00-0000000,
TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION FORMERLY CAPITAL COMPANY, A
CORPORATION RELEASED AND SURRENDERED TO THE DIAMOND BAR DEVELOPMENT CORPORATION,
A CORPORATION, THE SURFACE RIGHT TO SAID LAND FOR A DISTANCE OF NOT MORE THAN
500 FEET IN DEPTH, AND NOTHING THEREIN CONTAINED SHALL IN ANY WAY BE CONSTRUED
TO PREVENT, HINDER OR DELAY THE FREE AND UNLIMITED RIGHT TO MINE, DRILL, BORE,
OPERATE AND REMOVE FROM BENEATH THE SURFACE OF SAID LAND OR LANDS, AT ANY LEVEL
OR LEVELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PURPOSE OF
DEVELOPMENT OR REMOVAL OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBONS SITUATED
THEREIN OR THEREUNDER, OR PRODUCIBLE THEREFROM, TOGETHER WITH ALL WATER
NECESSARY IN CONNECTION PRODUCIBLE THEREFROM TOGETHER WITH ALL WATER NECESSARY
IN CONNECTION WITH ITS DRILLING OR MINING OPERATION THEREUNDER.
A-8
ALSO EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE BOUNDARIES OF THE
LAND DESCRIBED IN THE DEED FROM UNIVERSITY OF REDLANDS, ET AL., RECORDED
DECEMBER 28, 1950, IN BOOK 35179 PAGE 74, OFFICIAL RECORDS, AN AGGREGATE OF
ONE-FOURTH OF ALL OIL, GAS AND CASINGHEAD GAS AND OTHER HYDROCARBON SUBSTANCES
AND MINERALS IN, ON OR UNDER THE SURFACE OF SAID PREMISES, IT BEING THE
INTENTION THAT EACH GRANTOR THEREBY RESERVES IN SEVERALTY, A FRACTIONAL PART OF
SAID ONE-FOURTH CORRESPONDING EXACTLY WITH THE RESPECTIVE INTERESTS OF THE
GRANTORS SET FORTH FOLLOWING THEIR NAMES IN THE DEED, AS RESERVED IN THE DEED
FROM UNIVERSITY OF REDLANDS, A CORPORATION, ET AL., TO XXXXXXXXXXX CORPORATION,
A CORPORATION, RECORDED DECEMBER 28, 1950 IN BOOK 35179 PAGE 74, OFFICIAL
RECORDS.
ALSO EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS NOW OR AT
ANY TIME HEREAFTER SITUATED IN SAID LAND OR THEREUNDER OR PRODUCIBLE THEREFROM,
TOGETHER WITH THE FREE AND UNLIMITED RIGHT TO MINE, STORE, DRILL AND BORE
BENEATH THE SURFACE OF SAID LAND AT ANY LEVEL OR LEVELS FIVE HUNDRED (500) FEET
OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPING OR REMOVAL
OF SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF SUCH WELL AND ALL OTHER
SURFACE FACILITIES SHALL BE LOCATED ON LAND OTHER THAN THAT DESCRIBED HEREIN AND
SHALL NOT PENETRATE ANY PART OR PORTION OF THE ABOVE DESCRIBED REAL PROPERTY
WITHIN FIVE HUNDRED (500) FEET OF THE SURFACE THEREOF, AND ALL OF THE RIGHTS SO
TO REMOVE SUCH SUBSTANCES ARE HEREBY SPECIFICALLY RESERVED, INCLUDING THE RIGHT
TO DRILL FOR, PRODUCE AND USE WATER FROM SAID REAL PROPERTY IN CONNECTION WITH
SUCH OPERATIONS, AS EXCEPTED AND RESERVED BY TRANSAMERICA DEVELOPMENT COMPANY, A
CORPORATION, FORMERLY CAPITAL COMPANY, A CORPORATION, DEED RECORDED JUNE 30,
1965 AS INSTRUMENT NO. 1027 IN BOOK D 2959 PAGE 114, OFFICIAL RECORDS.
A-9
EXHIBIT B
SCHEDULE OF LEASES
ALLIANCE DATA PROJECT
TENANT: ALLIANCE DATA SYSTEMS, INC.
1. Build-To-Suit Net Lease dated January 29, 1998
2. Lease Guaranty dated January 29, 1998
3. First Amendment to Build-To-Suit Net Lease dated February 16,
2000
4. Second Amendment to Build-To-Suite Net Lease dated December 4,
2000
5. Third Amendment to Build-To-Suite Net Lease dated September 10,
2001
6. Sublet Consent dated June 23, 2003
7. Memorandum of Lease dated January 29, 1998
8. First Amendment to Memorandum of Lease dated January 14, 2000
9. Second Amendment to memorandum of Lease dated November 30, 2000
10. Third Amendment to Memorandum of Lease dated September 10, 2001
11. Rent Commencement Certificate dated May 26, 1999
12. Final Agreement Concerning Rent Commencement and Construction
Costs and Liquidated Damages dated May 28, 1999
13. Landlord Agreement dated January 5, 2001
SOUTHWEST PROJECT
TENANT: UNITED HEALTHCARE SERVICES, INC.
1. Multi-Tenant Office Lease Agreement dated April 5, 2001
2. Commencement Date Memorandum dated August 28, 2001
TENANT: OPUS NORTHWEST, L.L.C.
1. Multi-Tenant Office Lease Agreement dated November 15, 2002
***Note: the following subtenant has subleased a portion of the
space covered by the Opus Northwest, L.L.C. Master Lease and is
listed here for notice to the Purchaser, but for purposes of the
representations, delivery of tenant estoppels and other
requirements of the Seller regarding Leases under this
Agreement, the sublease shall not be considered a "Lease":
TENANT: SUBLEASE (MASTER LEASE) - ROCKWELL AUTOMATION
1. Multi-Tenant Office Lease Agreement dated November 15,
2002
2. Consent to Sublease dated November 15, 2002
3. Commencement Date Memorandum dated April 11, 2003
B-1
TENANT: ALLSTATE INSURANCE COMPANY
1. Multi-Tenant Office Lease Agreement dated May 16, 2001
2. Commencement Date Memorandum dated August 31, 2001
3. Letter Agreement dated October 11, 2001 signed October 19, 2001
4. First Amendment to Multi Tenant Office Lease Agreement dated October 31,
2003
GATEWAY 12 PROJECT
TENANT: XXXXX WESTERN, INC.
1. Industrial lease Agreement dated December 29, 2000
2. Guaranty of Lease dated December 29, 2000
3. Commencement Date Memorandum dated December 18, 2001
4. First Amendment to Industrial lease Agreement dated October 8,
2001
5. Consent to Assignment and Assumption dated October 2, 2002
GATEWAY 22 PROJECT
TENANT: ALLSTATE INSURANCE COMPANY
1. Lease dated February 18, 1999
2. First Amendment to Lease dated March 29, 1999
3. Lease Memorandum of Commencement Date dated December 22, 1999
4. Second Amendment to Lease dated October 29, 2001
GATEWAY 23 PROJECT
TENANT: ALLSTATE INSURANCE COMPANY
1. Lease dated October 29, 1998
2. Lease Memorandum of Commencement Date dated December 22, 1999
3. Amended and Restated Lease dated February 18, 1999
4. First Amendment to Amended and Restated Lease dated March 29,
1999
5. Second Amendment to Amended and Restated Lease dated October 29,
2001
B-2
EXHIBIT C
SCHEDULE OF BROKER COMMISSIONS
See Leases
C-1
EXHIBIT D
SCHEDULE OF PERMITS
ALLIANCE DATA PROJECT
------------------------------------------ -----------------------
DESCRIPTION ORIGINAL ISSUE DATE
Elevator Operating Permit - Phase I 1/9/2003
Elevator Operating Permit - Phase II 11/2/2002
C of O - Phase I 11/10/1998
C of O - Phase II 10/23/2000
------------------------------------------ -----------------------
GATEWAY 12 PROJECT
------------------------------------------ -----------------------
DESCRIPTION ORIGINAL ISSUE DATE
C of O 12/23/1999
------------------------------------------ -----------------------
GATEWAY 22 PROJECT
------------------------------------------ -----------------------
DESCRIPTION ORIGINAL ISSUE DATE
C of O 12/14/1999
------------------------------------------ -----------------------
GATEWAY 23 PROJECT
------------------------------------------ -----------------------
DESCRIPTION ORIGINAL ISSUE DATE
C of O - Shell 12/14/1999
C of O - Parking Structure 12/14/1999
Underground Storage Tank Permit 2/6/2004
------------------------------------------ -----------------------
SOUTHWEST PROJECT
------------------------------------------ -----------------------
DESCRIPTION ORIGINAL ISSUE DATE
Letter certifying completion (shell) 8/17/2001
Certificate of Substantial Completion 5/30/2001
Permit To Operate Elevator 1/29/2004
------------------------------------------ -----------------------
D-1
EXHIBIT E
SCHEDULE OF SERVICE CONTRACTS
GATEWAY 12, 22, 23 PROJECTS
VENDOR START DATE END DATE SERVICE
------ ---------- -------- -------
Commercial Roof Management, Inc. 3/1/2005 2/28/2006 Roof Inspections and Maintenance
--------------------------------------------- ----------------- --------------------------- --------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
SOUTHWEST CENTER PROJECT
----------------------------------------------------------------------------------------------------------------------------------
VENDOR SCOPE OF WORK TERM
------------------------------------------- ----------------------------------- --------------------------------------------------
American Heating HVAC Maintenance 9/1/01-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
Capitol Electric Exterior Lighting Maintenance 6/1/02-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
Columbia Cross Connections Backflow Assembly Tests 4/1/04-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
Delta Fire Sprinkler/Fire Pump Tests 11/1/01-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
First Response Security Patrols 10/01/01-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
Initial Tropical Plants Interior Plant Maintenance 2/1/04-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
Millennium Building Services, Inc. Janitorial, Day Xxxxxx & Window 8/20/01-7/31/05
Washing
------------------------------------------- ----------------------------------- --------------------------------------------------
Monitoring Services, Inc., HIS Security Fire Alarm & Elevator monitoring 4/30/01-7/31/05
Systems
------------------------------------------- ----------------------------------- --------------------------------------------------
National Fire Fighter Corp. Extinguisher Testing 4/1/04-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
Pacific Landscape Mgt. Exterior Landscape Maintenance 9/1/02-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
Xxxxxx Roofing Roof Inspections/Maintenance 1/1/04-7/31/05
------------------------------------------- ----------------------------------- --------------------------------------------------
ThyssenKrupp Elevator Corp. Elevator Inspections/Maintenance 9/1/01-1/31/06
------------------------------------------- ----------------------------------- --------------------------------------------------
E-1
EXHIBIT F
SCHEDULE OF WARRANTIES
ALLIANCE DATA PROJECT
-------------------------------------------------------------------------
VENDOR SUBJECT EXPIRATION
Xxxxx Xxxxxxxx Roof - Phase I 7/23/2008
Xxxxx Xxxxxxxx Roof - Phase II 10/17/2010
-------------------------------------------------------------------------
GATEWAY 12 PROJECT
-------------------------------------------------------------------------
VENDOR SUBJECT EXPIRATION
Xxxxx Xxxxxxxx Roof 11/27/2009
-------------------------------------------------------------------------
GATEWAY 22 PROJECT
-------------------------------------------------------------------------
VENDOR SUBJECT EXPIRATION
Xxxxx Xxxxxxxx Roof 9/24/1999
-------------------------------------------------------------------------
GATEWAY 23 PROJECT
-------------------------------------------------------------------------
VENDOR SUBJECT EXPIRATION
Xxxxx Xxxxxxxx Roof 9/9/2009
-------------------------------------------------------------------------
SOUTHWEST PROJECT
-------------------------------------------------------------------------
VENDOR SUBJECT EXPIRATION
Xxxxx Xxxxxxxx Roof System 7/17/2011
-------------------------------------------------------------------------
F-1
EXHIBIT G
FORM OF XXXXXXX MONEY ESCROW AGREEMENT
THIS XXXXXXX MONEY ESCROW AGREEMENT ("Agreement") is made as of
______________________, 2005, by and among APTUS OFFICE INVESTMENTS, LLC, a
Delaware limited liability company ("Seller"), HARVARD PROPERTY TRUST, LLC, a
Delaware limited liability company ("Purchaser") and FIDELITY NATIONAL TITLE
INSURANCE COMPANY OF NEW YORK, a ______________ corporation ("Escrow Agent").
RECITALS:
A. By that certain Purchase Agreement dated as of _________________
("Purchase Agreement"), between Seller and Purchaser, Seller has agreed to cause
the Subsidiaries to sell to Purchaser or its Affiliates, and Purchaser to
purchase or cause its Affiliates to purchase from then Subsidiaries all of the
Subsidiaries' right, title and interest in and to the Subject Property, upon and
subject to the terms and provisions set forth in the Purchase Agreement.
B. Seller and Purchaser desire that Escrow Agent act as escrowee to
receive, hold and disburse funds in the manner hereinafter set forth.
C. Unless otherwise provided herein, all capitalized words and
terms used herein shall have the same meanings ascribed to such words and terms
as in the Purchase Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Within two (2) business days following the execution of the
Purchase Agreement, Purchaser shall deposit with Escrow Agent the sum of One
Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00 as the Escrow
Agent Deposit ("Escrow Agent Deposit"). Within two (2) days after the
Contingency Date, Purchaser shall deposit Two Million and 00/100 Dollars
($2,000,000.00) as Additional Deposit. Upon receipt by Escrow Agent, the Escrow
Agent Deposit and the Additional Deposit shall be considered the "Deposit" and
invested in Escrow Agent's customary money market account. Purchaser shall be
entitled to the interest accrued on the Deposit and the Deposit shall include
such accrued interest. Escrow Agent shall acknowledge to Seller, in writing,
receipt of the Escrow Agent Deposit and Additional Deposit when it is delivered
to Escrow Agent.
2. Purchaser's Tax Identification Number is ___________________.
3. Escrow Agent is hereby released and exculpated of all liability
whatsoever arising out of or in connection with its activities as Escrow Agent
hereunder, except to the extent of loss or damage caused by its negligence,
breach of fiduciary duty, failure to comply with the terms of this Xxxxxxx Money
Escrow Agreement or willful misconduct. Purchaser and Seller hereby jointly
indemnify and hold Escrow Agent harmless from and against any and all claims,
liabilities, judgments, attorney's fees and other expenses of every kind or
nature arising out of this Xxxxxxx Money Escrow Agreement, other than such
claims, liabilities, judgments, attorney's
G-1
fees and other expenses resulting from the negligence, breach of fiduciary duty
or willful misconduct of Escrow Agent or Escrow Agent's failure to comply with
the terms of this Xxxxxxx Money Escrow Agreement.
4. In the event Escrow Agent receives written notice of default,
non-performance, dispute or exercise of right under the Purchase Agreement from
Seller or Purchaser accompanied by a demand for delivery to such party of the
Deposit, Escrow Agent is immediately to give written notice to the other party
of such claim and accompanying demand. In the event the other party fails to
dispute or object to such claim and demand within five (5) business days from
the date of Escrow Agent's written notice, Escrow Agent is authorized to deliver
the Deposit to the party making such claim and demand. In the event the other
party disputes or objects to the aforesaid claim and demand within the
5-business day period prescribed herein, Escrow Agent is not to deliver the
Deposit deposited hereunder without receipt of a mutual agreement of the
parties, in writing, or appropriate court order. In such an event, Escrow Agent
shall either hold the same, or at Escrow Agent's election, deposit the same with
a court of competent jurisdiction to determine how the Deposit should be
disbursed. Notwithstanding the foregoing, in the event Escrow Agent receives
written notice from the Purchaser on or before the Contingency Date that
Purchaser is terminating the Purchase Agreement, such notice shall not be the
subject of a dispute notice and Escrow Agent shall immediately refund the Escrow
Agent Deposit together with any interest thereon to Purchaser. Escrow Agent
shall be entitled to rely on the decision of such court with respect to the
disposition of the Deposit. In the event of any dispute regarding disposition of
any portion of the Deposit, Escrow Agent shall be entitled to consult with its
counsel and receive reimbursement for all reasonable expenses of such
consultation with respect to its duties as Escrow Agent. All such expenses shall
be paid from the Deposit deposited herein to the extent such funds are
sufficient, with an amount equal to the same being promptly paid to the
recipient of the Deposit, whether Purchaser or Seller, by the non-prevailing
party in the dispute, whether Purchaser or Seller. Subject to the foregoing,
this Agreement shall at all times be subject to the joint order of Seller and
Purchaser and upon such joint order Escrow Agent shall deliver the Deposit as
instructed by such joint order.
5. There shall be no escrow or investment fee.
6. Any notice or other communication required or desired to be
given in connection with this Agreement shall be in writing and shall be deemed
given, effective and received on the earliest of (a) the date of personal
delivery; (b) ten (10) days after deposit in the United States mail, postage
prepaid, return receipt requested; (c) one business day after deposit with a
national overnight courier; or (d) by facsimile transmission with machine
confirmation by the sender's machine (provided that such notice sent by
facsimile is also sent via nationally recognized overnight courier for next
business day delivery) addressed as follows:
If to Seller: APTUS OFFICE INVESTMENTS, LLC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, XXXXXX X0X 0X0
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
G-2
With a copy to: Cargill Financial Services Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
And a copy to: Fabyanske, Westra, Xxxx & Thomson, P.A.
000 XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx or
Xxxxxxx X. Xxxxxxxxx
Facsimile No. (000) 000-0000
If to Purchaser: HARVARD PROPERTY TRUST, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx and Xxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
If to Escrow Agent: Fidelity National Title Insurance Company of
New York
Xxx Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Attorneys for each party shall be authorized to give notices for each such
party. Any notice party may change its address for the service of notice by
giving written notice of such change to the other parties, in any manner above
specified. For the purposes of this Agreement, a "business day" shall mean a day
which is not a Saturday, a Sunday or a legal holiday of the State of Minnesota.
7. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns under
the Purchase Agreement.
8. This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota. In the event that any provision hereof
shall be deemed illegal or unenforceable, said provision shall be severed
herefrom and the remainder of this Agreement shall be enforced in accordance
with the intentions of the parties as herein expressed.
9. This Agreement may not be amended or altered except by an
instrument in writing executed by all the parties hereto.
G-3
10. If any party shall bring suit against the other to enforce the
terms of this Agreement, the losing party shall pay to the prevailing party the
prevailing party's costs and expenses (including, without limitation, reasonable
attorneys' fees and costs) incurred in enforcing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER:
APTUS OFFICE INVESTMENTS, LLC
By: Diversified Magnettawan Office, LLC
Its Manager
By: __________________________
Name: ___________________
Title: ___________________
G-4
PURCHASER
HARVARD PROPERTY TRUST, LLC
By: ______________________________
Name: ______________________
Title: ______________________
G-5
ESCROW AGENT:
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK
By: ______________________________
Name: ______________________
Title: ______________________
G-6
EXHIBIT H
FORM OF TENANT ESTOPPEL CERTIFICATE
TO: Harvard Property Trust, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
TO: Aptus __________________
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, XXXXXX X0X 0X0
RE:
Property Address:
Lease Date:
Between ___________________________________________________, Landlord
and _______________________________________________________, Tenant
Square Footage Leased:
Suite No.:
Floor:
The undersigned, Tenant under the above-referenced lease ("Lease"),
certifies to ____________________ and Aptus ______________, the following:
1. A true and correct copy of the Lease is attached hereto and the
undersigned is Tenant under the Lease. The Lease is in full force and effect and
has not been canceled, modified, assigned, extended or amended except as
provided in Schedule 1.
6. There is no prepaid rent, except $ __________ and the amount of
security deposit is $ __________________, of which $_____________ has been
applied. [The obligations of Tenant are guaranteed by __________, in accordance
with the terms of the guaranty dated _____________.] Tenant has no claim against
Landlord for any other security, rental, cleaning, access card, key or other
deposits or any prepaid rentals.
7. The Lease commenced on ____________, _____, and the current
monthly Base Rent is _______________________. Base Rent was last paid on
_____________, 2005 and has been paid through ________________, 2005. All
rentals, charges, additional rent and other obligations on the part of the
undersigned have been paid to and including ____________, 200_. No rental, other
than for the current month, has been paid in advance. The undersigned has
accepted possession and now occupies the Premises and is currently open for
business. In addition to the fixed minimum Base Rent, the Tenant pays its
pro-rata share of real estate taxes and operating expenses in excess of a base
stop of _________________.
8. The lease terminates on _______________, _______, and we have
the following renewal option (s): . Tenant has no expansion option, no right of
first offer or right of first refusal and no other similar right to renew or
extend the term of the Lease or expand the property demised thereunder except as
may be expressly set forth in the Lease. Tenant has no right to lease or occupy
any parking
H-1
spaces within the Property except as set forth in the Lease. Tenant is entitled
to no free rent nor any credit, offsets or deductions in rent, nor other leasing
concessions other than those specified in the Lease.
9. Landlord is not in any respect in default in the performance of
the terms and provisions of the Lease, nor does any state of facts or condition
exist which, with the giving of notice or the passage of time, or both, would
result in such a default. All conditions under the Lease to be performed by
Landlord have been satisfied. Without limiting the generality of the foregoing,
all improvements to be constructed in the Premises by Landlord have been
completed to the satisfaction of Tenant and accepted by Tenant and any tenant
construction allowances have been paid in full, and all duties of an inducement
nature required of Landlord in the Lease have been fulfilled to Tenant's
satisfaction. Tenant has no claim against Landlord by reason of any restriction,
encumbrance or defect in title of the Premises of which Tenant has actual
knowledge.
10. There currently is no defense, offset, lien, claim or
counterclaim by or in favor of Tenant against Landlord under the Lease or
against the obligations of Tenant under the Lease (including, without
limitation, any rentals or other charges due or to become due under the Lease)
and Tenant is not contesting any such obligations, rentals or charges. To
Tenant's knowledge, all leasing commissions due in respect of the current term
of the Lease have been paid.
11. The undersigned has not assigned its interest in the Lease or
sublet the premises or any thereof or pledged or hypothecated its interest on
the Lease, except .
12. That the premises as let are being used for the purpose as
described in said Lease.
13. The data in the heading of this Certificate are true and
correct.
14. There are no understandings, contracts, agreement or commitments
of any kind whatsoever with respect to the Premises, except as expressly
provided in the Lease.
15. The undersigned has not entered into any agreement with any
broker relating to the premises, pursuant to which any brokerage commission is
due.
16. Tenant is not in any respect in default in the performance of
the terms and provisions of the Lease nor does any state of facts or condition
exist which, with the giving of notice or the passage of time, or both, would
result in such a default. Without limiting the generality of the foregoing,
Tenant is current in its rental obligation under the Lease.
17. The undersigned has not received notice of a prior transfer,
assignment, hypothecation or pledge by Landlord of any of Landlord's interest in
the Lease other than to the holder of any first mortgage on the captioned
property.
18. There are no liens recorded against the Premises with respect to
work performed by or on behalf of Tenant or materials supplied to the demised
property.
19. Tenant acknowledges and agrees that if any of the Benefited
Parties acquire title to the Property, such Benefited Party shall have
responsibility as landlord under the Lease to the
H-2
extent set forth in the Lease or other writing executed between such Benefited
Party and Tenant, but such Benefited Party will have no obligation under any
other document executed between Landlord and Tenant, including, specifically,
without limitation, any agreement pertaining to the development, construction or
financing of the Building and related property. Tenant agrees to look solely to
Landlord for the performance of Landlord's obligations under such other
agreements.
20. Landlord has fulfilled any obligations to Tenant with respect to
the development, construction or financing of the Building and related property,
whether arising under the Lease or otherwise.
21. Tenant is not currently subject of any bankruptcy proceeding and
is not insolvent.
The above certifications are made to the Benefited Parties knowing that
the Benefited Parties will rely thereon in making an investment in the Building
and the Premises. For purposes hereof, the term "Benefited Parties" means the
addressees of this letter and all of the following: (a) Harvard Property Trust,
LLC, a Delaware limited liability company and its successors, assigns, and
designees (including, without limitation, any tenant in common purchasers); and
(b) any lender to which any party described in the foregoing clause (a) grants a
deed of trust, mortgage or other lien upon the Building or Premises.
The undersigned individual is duly authorized to execute and deliver
this certificate. The undersigned understands that you and your successors and
assigns will rely on this certificate in purchasing the subject property.
Dated this ____________ day of __________________, 2005.
TENANT:
By:_______________________________
Its:______________________________
H-3
EXHIBIT I
FORMS OF SPECIAL WARRANTY DEED
I-1
PROJECTS LOCATED IN THE STATE OF TEXAS
SPECIAL WARRANTY DEED
STATE OF TEXAS ss.
ss.
COUNTY OF ___________ ss.
THAT Aptus Dallas TX Office, L.P., a Delaware limited partnership
("Grantor"), for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, has granted, bargained, sold, and conveyed and by these
presents does grant, bargain, sell, and convey unto __________________, a
____________________ (hereinafter referred to as "Grantee"), whose mailing
address is ______________________, that certain tract(s) or parcel(s) of land
located in Collin County, Texas, more particularly described in EXHIBIT "A"
attached hereto and incorporated herein by this reference (the "Land"), together
with all improvements, rights, benefits, privileges, easements, tenements, and
appurtenances thereon or pertaining thereto, including, without limitation, all
of the right, title and interest of Grantor in and to (i) any land lying in or
under the bed of any street, alley, road or right-of-way open or proposed,
abutting or adjacent to the Land; (ii) rights-of-way and easements; (iii)
riparian rights; (iv) rights of ingress or egress or other interests in, on or
to any land, highway, street, road or avenue, open or proposed in, on, across,
in front of, abutting or adjoining the Land; and (v) any oil, gas or other
minerals lying under the Land, together with all permits, governmental
approvals, utility rights, development rights and similar rights relating to the
Land, whether granted by governmental authorities or private persons (the Land,
together with such rights, appurtenances, interests, improvements, benefits,
privileges, easements, tenements, and hereditaments being hereinafter referred
to collectively as the "Property").
This Special Warranty Deed and the conveyance hereinabove set forth is
executed by Grantor and accepted by Grantee subject only to those exceptions and
encumbrances set forth on EXHIBIT "B" attached hereto and incorporated herein by
this reference (said exceptions and encumbrances being referred to herein as the
"Permitted Exceptions").
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
together with all and singular the rights and appurtenances thereunto in anywise
belonging, unto Grantee, his successors and assigns forever, and Grantor hereby
binds itself, its successors and assigns, to WARRANT AND FOREVER DEFEND all and
singular the title to the Property unto the said Grantee, his successors and
assigns against every person whomsoever lawfully claiming or to claim the same
or any part thereof, by, through, or under Grantor, but not otherwise.
Ad valorem taxes for the current year have been prorated between Grantor
and Grantee as of the date of delivery of this Special Warranty Deed, and by
Grantee's acceptance of this Special Warranty Deed, Grantee assumes and agrees
to pay all ad valorem taxes for the current
I-1-1
year, and all ad valorem taxes for subsequent years (except for any "rollback"
taxes due to a sale or a change in use of the Property or a special use
valuation on the Property claimed by Grantor, for which Grantor shall remain
liable).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
I-1-2
EXECUTED this the _____ day of _________, 2005.
GRANTOR:
APTUS DALLAS TX OFFICE, L.P.,
a Delaware limited partnership
By: Aptus Office GP I, LLC, a Delaware limited
liability company
Its General Partner
By: Aptus Office Investments, LLC, a
Delaware limited liability company
Its Manager
By: Diversified Magnettawan Office,
LLC, a Delaware limited liability
company
Its Manager
By: _____________________
Name: ____________
Title: ____________
PROVINCE OF ONTARIO ss.
ss.
COUNTY OF _____________ ss.
This instrument was acknowledged before me this ____ day of
__________________, 2005, by __________________, the of Diversified Magnettawan
Office, LLC, a Delaware limited liability company, the manager of Aptus Office
Investments, LLC, a Delaware limited liability company, the manager of Aptus
Office GP I, LLC, a Delaware limited liability company, the general partner of
Aptus Dallas TX Office, L.P., a Delaware limited partnership, on behalf of the
limited liability companies and the partnership.
__________________________________
Notary Public
My Commission Expires:
___________________________________
I-1-3
EXHIBIT "A"
LEGAL DESCRIPTION
I-1-4
EXHIBIT "B"
Permitted Exceptions
I-1-5
I-2
FORM OF DEED
FOR
PROJECTS LOCATED IN THE STATE OF OREGON
-------------------------------
AFTER RECORDING RETURN TO; AND
UNTIL A CHANGE IS REQUESTED,
ALL TAX STATEMENTS SHALL BE
SENT TO:
-------------------------------
-------------------------------
STATUTORY SPECIAL WARRANTY DEED
Aptus Southwest OR, LLC, a Delaware limited liability company, as
Grantor, conveys and specially warrants to ________________, a________________,
as Grantee, the real property described in Schedule A hereto free of
encumbrances created or suffered by Grantor except as specifically set forth in
Schedule B hereto.
THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT
IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR
ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES
AS DEFINED IN ORS 30.930.
The true consideration for this conveyance is $_____________.
Dated this ___th day of _________, 200_.
Aptus Southwest OR, LLC
By: Aptus Office GP I, LLC, a Delaware limited
liability company
Its General Partner
By: Aptus Office Investments, LLC, a
Delaware limited liability company
Its Manager
By: Diversified Magnettawan Office,
LLC, a Delaware limited liability
company
Its Manager
By: _____________________
Name: ____________
Title: ____________
I-2-1
PROVINCE OF ONTARIO ss.
ss.
COUNTY OF _____________ ss.
This instrument was acknowledged before me this ____ day of
__________________, 2005, by __________________, the of Diversified Magnettawan
Office, LLC, a Delaware limited liability company, the manager of Aptus Office
Investments, LLC, a Delaware limited liability company, the manager of Aptus
Office GP I, LLC, a Delaware limited liability company, the manager of Aptus
Southwest OR, LLC, a Delaware limited liability company, on behalf of the
limited liability companies.
__________________________________
Notary Public for Oregon
My Commission Expires:
__________________
I-2-2
SCHEDULE A
TO
SPECIAL WARRANTY DEED
DESCRIPTION OF LAND
I-2-3
SCHEDULE B
TO
SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
I-2-4
I-3
FORM OF DEED
FOR
PROJECTS LOCATED IN THE STATE OF CALIFORNIA
GRANT DEED
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
[Insert name and
address of Purchaser]
--------------------------------------- ----------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
--------------------------------------------------------------------------------
DOCUMENTARY TRANSFER TAX TO BE BY SEPARATE STATEMENT PURSUANT TO
CALIFORNIA REVENUE AND TAXATION CODE SECTION 11932
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, APTUS
GATEWAY CA, L.P., a Delaware limited partnership, hereby GRANTS to
__________________________, a ________________, the real property in the City of
Diamond Bar, County of Los Angeles, State of California, described as:
See Exhibit "A" attached hereto and incorporated herein.
THE REAL PROPERTY CONVEYED HEREIN BY GRANTOR TO GRANTEE IS CONVEYED AND ACCEPTED
SUBJECT TO THE ITEMS DESCRIBED ON EXHIBIT B ATTACHED HERETO AND INCORPORATED
HEREIN.
I-3-1
--------------------------------------- ----------------------------------------
Dated: _________________, 0000 XXXXX XXXXXXX XX, L.P.,
By: Aptus Office GP I, LLC
PROVINCE OF ONTARIO ) Its General Partner
) ss: By: Aptus Office Investments, LLC
COUNTY OF ___________ ) Its Manager
By: Diversified Magnettawan Office,
LLC
Its Manager
On _________________, 2005, before me
____________________________________,
personally appeared ________________,
personally known to me (or proved to By: _______________________
me on the basis of satisfactory Name: _________________
evidence) to be the persons whose Title: ________________
name is subscribed to the within
instrument and acknowledged to me (This area for official notarial seal)
that he executed the same in his
authorized capacity, and that by his
signature on this instrument the
person or the entity upon behalf of
which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature _________________________
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
MAIL TAX STATEMENTS TO:
[Insert name and address of Purchaser]
I-3-2
EXHIBIT "A"
LEGAL DESCRIPTION
REAL PROPERTY in the City of Diamond Bar, County of Los Angeles, State of
California, described as follows:
I-3-3
EXHIBIT "B"
PERMITTED EXCEPTIONS
I-3-4
EXHIBIT J
FORM OF XXXX OF SALE
XXXX OF SALE
This Xxxx of Sale ("Xxxx of Sale") is executed this ____ day of
_______________, 2003, by __________________________, a _____________ created
and existing under and by virtue of the laws of the State of Delaware
("Seller"), in favor of __________________________, a _____________
("Purchaser").
1. REFERENCE TO PURCHASE AGREEMENT. Reference is made to that
certain Purchase Agreement dated as of _____________________, by and between
Aptus Office Investments, LLC, an affiliate of Seller, and ___________________,
an Affiliate of Purchaser, pursuant to which Seller has agreed to sell to
Purchaser, and Purchaser has agreed to purchase from Seller, the improved real
property and other assets described therein ("Purchase Agreement").
2. SALE. For good and valuable consideration received by Seller,
the receipt and sufficiency of which are hereby acknowledged, Seller hereby
sells, assigns and transfers to Purchaser the Personal Property related to the
Project (as defined in the Purchase Agreement) defined as ________________ in
the Purchase Agreement (the "______________ Personal Property").
TO HAVE AND TO HOLD the Personal Property to Grantee, its successors and
assigns, forever; and Grantor binds itself, its successors and assigns, to
WARRANT AND FOREVER DEFEND all and singular the Personal Property to Grantee,
its successors and assigns, against every person whomsoever lawfully claiming or
to claim the Personal Property or any part thereof, by, through, or under
Grantor, but not otherwise.
3. WARRANTIES. Except as expressly provided in Paragraph 2 above,
Seller makes no warranties or representations as to the _______________ Personal
Property. AMONG OTHER THINGS, ALL WARRANTIES OF QUALITY, FITNESS FOR A
PARTICULAR PURPOSE OR MERCHANTABILITY ARE HEREBY EXPRESSLY EXCLUDED.
In witness whereof Seller has executed this Xxxx of Sale the day and
year first above written.
Seller:
_______________________________, a
__________________________________
By_______________________________________
Its____________________________________
J-1
EXHIBIT K
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is made as of
____________, _____ ("Effective Date"), by and between
_________________________, a ______________ ("Assignor"), and
_______________________, a __________________ ("Assignee").
RECITALS:
A. Assignee has acquired from Assignor title to that certain real
property, and any improvements situated thereon owned by Assignor, more
particularly described on EXHIBIT "A" attached hereto ("Property") pursuant to a
Purchase Agreement dated as of _____________________, 2004 by and between Aptus
Office Investments, LLC, an affiliate of Assignor, and Harvard Property Trust,
LLC, an Affiliate of Assignee (the "Purchase Agreement").
B. In connection with the conveyance of the Property from Assignor
to Assignee, Assignor and Assignee intend and agree that, except as provided
below, all of Assignor's rights as lessor under the leases, together with all
amendments or modifications thereto, including the rights to all security
deposits, delinquent rents and charges, prepaid rents and all guaranties
thereof, as set forth on EXHIBIT "B" attached hereto (each a "Lease," and
collectively, the "Leases"), shall be assigned to Assignee.
C. Assignee has agreed to assume all of the obligations of Assignor
under the Leases as set forth herein.
AGREEMENT:
In consideration of the foregoing recitals and other good and valuable
consideration, Assignor and Assignee agree as follows:
1. ASSIGNMENT BY ASSIGNOR. Assignor hereby assigns and transfers to
Assignee all right, title and interest of Assignor in and to each of the Leases
together with any rights relating thereto, including without limitation all
rents, issues, profits therefrom, all guaranties thereof and all security
deposits relating thereto. Notwithstanding the foregoing, Assignor reserves the
right to enforce against the tenants under the Leases all obligations or duties
of such tenants that arose or accrued prior to the Effective Date, provided,
however, in no event shall Assignor terminate any Lease or disturb any tenant's
right to occupy its respective premises as a result of Assignor's enforcement of
such reserved rights or have any right to exercise any landlord's lien under any
Lease.
2. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts the assignment
of the Leases and assumes and agrees to keep, perform and fulfill all of the
duties, covenants, provisions, conditions and obligations of the landlord in the
Leases which arise or are incurred or are related to events occurring from and
after the Effective Date.
K-1
3. INDEMNIFICATION BY ASSIGNOR. Assignor will indemnify, defend and
hold harmless Assignee and Assignee's employees, partners, directors, officers,
Affiliates, subsidiaries, shareholders, agents and representatives from any and
all liabilities, claims, damages, costs or expenses (including reasonable
attorneys' fees) arising under the Leases as a result of any obligations and
duties of the landlord thereunder arising from December 30, 2004, through and
including the day prior to the Effective Date.
4. INDEMNIFICATION BY ASSIGNEE. Assignee will indemnify, defend and
hold harmless Assignor and Assignor's employees, partners, directors, officers,
affiliates, subsidiaries, shareholders, agents and representatives from any and
all liabilities, claims, damages, costs or expenses (including reasonable
attorneys' fees) arising under the Leases as a result of any obligations and
duties of landlord thereunder arising on or after the Effective Date.
5. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of the parties hereto and their successors and assigns.
6. AUTHORITY. Each of the parties signing this Assignment hereby
warrants and represents that it has the full legal power, authority and right to
execute, deliver and perform the obligations under this Assignment, that this
Assignment has been duly authorized by all requisite actions on the part of such
warranting party, and that no remaining action or third party action is required
to make this Assignment binding upon such party.
7. GOVERNING LAW. This Assignment shall be construed and enforced
in accordance with the laws of the State in which the Property is located.
8. ATTORNEYS' FEES. If either party commences litigation against
the other for the specific performance of this Assignment, the interpretation of
this Assignment, for damages for the breach hereof or otherwise for enforcement
of any remedy hereunder, the parties hereto agree, in the event of any such
commencement of litigation, the prevailing party shall be entitled to recover
from the other party such costs and reasonable attorneys' fees as may have been
incurred. Any attorneys' fees incurred in enforcing any right of indemnity set
forth in this Assignment shall be recoverable and deemed to be within the scope
of such indemnity and/or this attorneys' fees provision.
9. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which, when so executed and when delivered, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
K-2
Assignor and Assignee have executed this Assignment as of the Effective
Date.
ASSIGNOR:
____________________________, a
___________________
By_______________________________________
Its____________________________________
ASSIGNEE:
____________________________, a
___________________
By_______________________________________
Its____________________________________
K-3
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF LEASES
(LEGAL DESCRIPTION)
K-4
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION OF LEASES
(SCHEDULE OF LEASES)
K-5
EXHIBIT L
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PROJECT DOCUMENTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND PROJECT DOCUMENTS
("Assignment") is made as of _____________, 2005 ("Effective Date"), by and
between ______________________, a _________________("Assignor"), and
________________, a _____________________ ("Assignee").
RECITALS:
A. Assignee has acquired from Assignor title to that certain real
property, and any improvements situated thereon owned by Assignor, more
particularly described on EXHIBIT "A" attached hereto ("Property").
B. In connection with the conveyance of the Property from Assignor
to Assignee, Assignor and Assignee intend and agree that Assignor's right, title
and interest in the agreements set forth on EXHIBIT "B" attached hereto and any
other Service Contracts, Permits, Warranties and Plans (as such terms are
defined in the Purchase Agreement dated as of ______________, 2005 (the
"Purchase Agreement"), by and between APTUS Office Investments, LLC, an
affiliate of Seller and Harvard Property Trust, LLC, as an affiliate of
Purchaser) and all other licenses, authorizations, approvals, permits,
entitlements, warranties, guaranties, approvals, certificates of occupancy,
certificates, surveys and reports, including, without limitation, any hazardous
materials reports, engineering and soils reports and any ALTA surveys, if any,
in the possession of Assignor, relating to the acquisition, construction,
design, use, operation, management or maintenance of the Property (collectively,
the "Contracts and Project Documents"), to the extent assignable, shall inure to
the benefit of and be assigned and transferred to Assignee.
AGREEMENT:
In consideration of the foregoing recitals and other good and valuable
consideration, Assignor and Assignee agree as follows:
1. ASSIGNMENT BY ASSIGNOR. To the extent assignable, Assignor
hereby assigns and transfers to Assignee all right, title and interest of
Assignor in the Contracts and Project Documents, together with any rights owned
by Assignor relating thereto. Notwithstanding the foregoing, Assignor reserves
the right to (a) enforce the provisions of the Contracts and Project Documents
in respect to all obligations or duties of the other party thereto that arose or
accrued prior to the Effective Date, and (b) exercise such rights under the
Contracts and Project Documents as are necessary in order for Assignor to
fulfill its obligations under the Purchase Agreement; provided, however, in no
event shall Assignor terminate any of the Contracts and Project Documents as a
result of Assignor's enforcement of such reserved rights.
2. LIMITED LICENSE. Assignor grants to Assignee a limited license
to use the plans and specifications relating to the construction of the
improvements on the Property in Assignor's possession for the purposes and
subject to the conditions and indemnifications as set forth in the Agreement.
L-1
3. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts the assignment
of the Contracts and Project Documents, and Assignee assumes and agrees to keep,
perform and fulfill all of the duties, covenants, provisions, conditions and
obligations of Assignor contained therein which arise or are incurred or are
related to events occurring from and after the Effective Date.
4. INDEMNIFICATION BY ASSIGNOR. Assignor will indemnify, defend and
hold harmless Assignee and Assignee's employees, partners, directors, officers,
Affiliates, subsidiaries, shareholders, agents and representatives from any and
all liabilities, claims, demands, damages, losses, costs or expenses (including
reasonable attorneys' fees) arising under the Contracts and Project Documents as
a result of any obligations and duties of Assignor thereunder arising or
accruing prior to the Effective Date.
5. INDEMNIFICATION BY ASSIGNEE. Assignee will indemnify, defend and
hold harmless Assignor and Assignor's employees, partners, directors, officers,
affiliates, subsidiaries, shareholders, agents and representatives from any and
all liabilities, claims, demands, damages, losses, costs or expenses (including
reasonable attorneys' fees) arising under the Contracts and Project Documents as
a result of any obligations and duties of Assignor thereunder arising or
accruing from and after the Effective Date, except for those matters described
in Section 3 hereof which are Assignor's responsibility.
6. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon
and inure to the benefit of the parties hereto and their successors and assigns.
7. AUTHORITY. Each of the parties signing this Assignment hereby
warrants and represents that it has the full legal power, authority and right to
execute, deliver and perform the obligations under this Assignment, that this
Assignment has been duly authorized by all requisite actions on the part of such
warranting party, and that no remaining action or third party action is required
to make this Assignment binding upon such party.
8. GOVERNING LAW. This Assignment shall be construed and enforced
in accordance with the laws of the State in which the Property is located.
9. ATTORNEYS' FEES. If either party commences litigation against
the other for the specific performance of this Assignment, the interpretation of
this Assignment, for damages for the breach hereof or otherwise for enforcement
of any remedy hereunder, the parties hereto agree, in the event of any such
commencement of litigation, the prevailing party shall be entitled to recover
from the other party such costs and reasonable attorneys' fees as may have been
incurred. Any attorneys' fees incurred in enforcing any right of indemnity set
forth in this Assignment shall be recoverable and deemed to be within the scope
of such indemnity and/or this attorneys' fees provision.
10. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which, when so executed and when delivered, shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
L-2
Assignor and Assignee have executed this Assignment as of the Effective
Date.
ASSIGNOR:
____________________________, a
___________________
By_______________________________________
Its____________________________________
ASSIGNEE:
____________________________, a
___________________
By_______________________________________
Its____________________________________
L-3
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND
PROJECT DOCUMENTS
(LEGAL DESCRIPTION)
L-4
EXHIBIT "B" TO ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND
PROJECT DOCUMENTS
(CERTAIN ASSIGNED AGREEMENTS)
SERVICE CONTRACTS:
WARRANTIES:
L-5
EXHIBIT M
ADDITIONAL PROPERTY DOCUMENTS
To the extent in Seller's possession and subject to limitations set forth in
SUBSECTION 5(F) and SECTION 36 hereof, Seller shall provide the following items
to Purchaser:
1) Rent roll in form and content reasonably acceptable to Purchaser ("Rent
Roll"), certified to be true and correct in all material respects by
Seller, dated no earlier than five (5) days prior to the date Seller
delivers same.
2) Copies of all structural, water or other tests or studies (collectively,
the "Reports") in Seller's possession with respect to the Project, which
Reports shall be delivered "AS IS"; and without any representations or
warranties.
3) Copies of ad valorem tax statements for tax years 2002, 2003 and 2004
with respect to the Real Property.
4) Financial statements showing income and expense for the year-to-date
2005, certified true, correct and complete in all material respects by
an authorized representative of Seller Financial statements showing
income and expense for 2002, 2003, 2004 and year to date for 2005 (on a
monthly basis with respect to the Projects)
5) All written reports of any inspection of the Projects and conducted by
any governmental instrumentality or insurance carrier.
6) A list of all claims filed by Seller under insurance policies covering
the Projects and any loss histories related to the Projects from
Seller's insurers.
7) Copies of all utility bills from January 1, 2002 through the most recent
statement for each utility. 8) Bank statements relating to the Projects
for the most recent three (3) months for which such statements have been
received.
9) A schedule of all Personal Property.
10) ADA Compliance, studies/reports
11) Advertising Agreements
12) Aerial Photos
13) Building/Capital Improvements Projects, Current
14) Building Permits - not applicable (nothing being built)
M-1
15) Capital Improvements, historical/projected, 3 years - check with Xxxxx
to ensure, but none
16) Certificates of Occupancy:
17) Emergency/Life Safety Systems, Operating Manual
18) Environmental Site Assessment, Existing
19) Financial Items:
Aging Reports, Current and past 6 months
Balance Sheet, to date
Budget & Narrative, Current Year
Operating Expense Reconciliations (3 previous years) - Southwest only
Operating Statements for property, including a general ledger (at the
property, not the entity level only) for each year - 3 yrs
20) Security Deposit Listing, Current, Guaranties to be transferred
21) Flooding Info, Historical
22) Floor Plans, as leased
23) Geotechnical Report, if any
24) Insurance Certificate, Current, of Seller and Tenants
25) Intellectual Property Documents, if any - none
26) Lease Commission Schedule, 3 previous years
27) Litigation - Pending
28) Management & Leasing Agreement - Southwest only
29) Occupancy/Vacancy History, 3 previous years - Southwest only
30) O & M Reports (Asbestos, Mold, etc.) - Gateway
31) Parking Garage Lease/Operating Agreement
32) Parking Space Configuration (Surface and Garage if applicable)
33) Permits & Licenses - Alarm - Southwest only
34) Permits & Licenses - Construction - Southwest only
M-2
35) Permits & License - Elevator - Southwest only
36) Permits & License - Engineering
37) Photos of the Building
38) Property Condition Report, existing
39) Property Taxes land/improvements current year
40) Property Tax Statements, Personal, Current & Prior 3 yrs
41) Roof Reports (may be included in Property Condition Reports)
42) Security Incident Reports, for prior 24 months
43) Seismic Reports
44) Site Plans
45) Stacking Plan - Southwest only
46) Survey, existing - you have
47) Tenant Contact Information
48) Tenant Financial Statements, if available
49) Tenant Improvement projects, currently under construction (copy of
contract(s))
50) Tenant Improvement Schedule, 3 previous years
51) Utility Agreements
52) Utilities, prior 2 years/invoices/summary
53) Utility Security Deposits
54) Warranty, Elevator if applicable
55) Warranty, HVAC Equipment, if applicable
56) Warranty, Mechanical, if applicable
57) Warranty, Roof, if applicable
M-3
58) Work Order Systems & Operating Manuals (available only in Seller's
offices)
59) Zoning Report, existing if available
M-4
