Exhibit 10.2
CONTRIBUTION AND PURCHASE/SALE AGREEMENT
among
CARRAMERICA REALTY CORPORATION,
CARRAMERICA REALTY, L.P.,
CARRAMERICA DEVELOPMENT, INC.,
XXXX DEVELOPMENT & CONSTRUCTION, L.P.,
XXXX PARKWAY NORTH I CORPORATION
and
NEW YORK STATE TEACHERS' RETIREMENT SYSTEM
Dated: August __, 2000
Premises:
Panorama Corporate Park, Englewood, Colorado
Parkway North, Deerfield, Illinois
Riata Corporate Park, Austin, Texas
Riata Crossing , Austin, Texas
Royal Ridge, Irving, Texas
TABLE OF CONTENTS
Page
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1. Certain Definitions......................................................................... 2
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2. Contribution of NYSTRS...................................................................... 8
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3. Contribution and Sale by the Xxxx Entities/ Distributions to the Xxxx Entities.............. 8
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4. Closing Date................................................................................ 9
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5. Condition of the Property................................................................... 9
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6. Brokerage................................................................................... 9
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7. Intentionally Omitted....................................................................... 9
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8. Recording Charges and Transfer Taxes........................................................ 9
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9. Representations and Warranties.............................................................. 10
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10. Deliveries to be made on the Closing Date................................................... 17
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11. Payment of Closing Costs; Apportionments; Post-Closing Adjustments.......................... 20
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12. Indemnification............................................................................. 22
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13. Survival.................................................................................... 23
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14. Notices..................................................................................... 23
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15. Amendments.................................................................................. 25
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16. Governing Law; Construction................................................................. 25
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17. Partial Invalidity.......................................................................... 25
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18. Counterparts................................................................................ 25
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19. No Third Party Beneficiaries................................................................ 25
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20. Waiver...................................................................................... 25
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21. Assignment........................................................ 25
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22. Binding Effect.................................................... 25
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23. Entire Agreement.................................................. 26
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24. Further Assurances................................................ 26
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25. Paragraph Headings................................................ 26
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CONTRIBUTION AND PURCHASE/SALE AGREEMENT
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THIS CONTRIBUTION AND PURCHASE/SALE AGREEMENT (this "Agreement"), made as
of the ____ day of August, 2000, among CARRAMERICA REALTY CORPORATION, a
Maryland corporation, having an office at 0000 X Xxxxxx, XX, Xxxxx 000,
Xxxxxxxxxx, XX 00000 (hereinafter "CarrAmerica"), CARRAMERICA REALTY, L.P., a
Delaware limited partnership ("Xxxx X.X."), CARRAMERICA DEVELOPMENT, INC., a
Delaware corporation ("Development Inc."), XXXX DEVELOPMENT & CONSTRUCTION,
L.P., a Delaware limited partnership ("Development LP"), XXXX PARKWAY NORTH I
CORPORATION, a Delaware corporation ("Parkway Corp."), (CarrAmerica, Xxxx X.X.,
Development Inc., Development LP and Parkway Corp. are sometimes hereinafter
individually referred to as a "Xxxx Entity" and collectively as the "Xxxx
Entities"), and NEW YORK STATE TEACHERS' RETIREMENT SYSTEM, a public pension
system created and existing pursuant to Article 11 of the Education Law of New
York and having powers and privileges of a corporation pursuant to Section 502
thereof, having an office at 00 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000
(hereinafter "NYSTRS").
W I T N E S S E T H:
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WHEREAS, the Xxxx Entities collectively own all right, title and interest
in and to the Property (as hereinafter defined);
WHEREAS, CarrAmerica is the sole member of Xxxx Office Park, LLC, a
Delaware limited liability company (the "LLC");
WHEREAS, Xxxx X.X., Parkway Corp. and NYSTRS desire to be admitted as
members of the LLC;
WHEREAS, CarrAmerica, Xxxx X.X. and Parkway Corp. (the "Contributing Xxxx
Entities") desire (i) to contribute to the LLC or an Affiliate thereof all
right, title and interest in and to the portion of the Property owned by them,
(ii) to acquire and/or restate, inter alia, in consideration therefor, thirty-
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five percent (35%) of the membership interests in the LLC (the XXxxx
Interests@), and (iii) to receive from the LLC a distribution of cash equal to
the difference between the value of the portion of the Property contributed by
the Contributing Xxxx Entities as of the Closing Date (the "Contribution Value")
and the value of the Xxxx Interests as of the Closing Date;
WHEREAS, NYSTRS desires to contribute the NYSTRS Contribution (as
hereinafter defined) to the LLC and to acquire, in consideration therefor,
sixty-five percent (65%) of the membership interests in the LLC (the "NYSTRS
Interests");
WHEREAS, Development LP and Development Inc. (the "Selling Xxxx Entities")
desire to convey to the LLC all right, title and interest in and to the portion
of the Property owned by them, and to receive from the LLC a purchase
consideration equal to the value of the portion of
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the Property conveyed by the Selling Xxxx Entities to the LLC as of the Closing
Date (the "Purchase Value"); and
WHEREAS, the Contributing Xxxx Entities, together with NYSTRS, desire to
amend and restate the limited liability company agreement of the LLC;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Xxxx Entities and NYSTRS agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following
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terms shall have the respective meanings set forth below:
"Acquisition Value" means the sum of the Contribution Value and the
Purchase Value.
"Actions" means any claims, actions, suits, proceedings or
investigations, whether at law, in equity or in admiralty or before any court,
arbitrator, arbitration panel or Governmental Authority.
"Advisor" means Xxxxxxx Sachs & Company, advisor to the Xxxx Entities.
"Adjoining Land" means, collectively, any land in the bed of any
street, road, avenue, open or proposed, public or private, in front of or
adjoining the Land or any portion thereof, to the center line thereof, and any
award to be made in lieu thereof and in and to any unpaid award for damage to
the Land or Buildings by reasons of change of grade of any street occurring
after the date of execution and delivery of this Agreement, but only to the
extent, if any, of any Xxxx Entity's interest therein.
"Affiliate" of a party means any Person which, directly or indirectly,
controls, is controlled by or is under common control with, such party.
"Appurtenances" means, collectively, all easements, rights of way,
privileges, appurtenances, strips, gores and other rights pertaining to the
Land, Buildings and Adjoining Land, if any, including, without limitation,
development rights, and all income therefrom.
"Association Documents" has the meaning set forth in Section
9(a)(xxviii).
"Buildings" means, collectively, all buildings and improvements
located on the Land.
"Xxxx Entity Taxes" has the meaning set forth in Section 9(a)(iv).
"Xxxx Interests" means thirty-five percent (35%) of the limited
liability company interests in the LLC which are owned collectively by the
Contributing Xxxx Entities.
"Closing" means the closing of the transactions contemplated hereby,
which shall take place at the offices of Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC,
0000 Xxxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, on the Closing Date at 10:00
A.M., or at such other time or place as the parties may agree upon in writing.
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"Closing Date" means August ____, 2000 (the date of this Agreement).
"Code" means the Internal Revenue Code of 1986, as amended.
"Contributing Xxxx Entities" shall have the meaning set forth in the
recitals to this Agreement.
"Contribution Value" has the meaning set forth in the recitals to this
Agreement and is calculated on Schedule 3(a).
"Court Order" means any judgment, decree, injunction, order, decision,
directive, regulation or ruling of any Governmental Authority that is binding on
any Person or its property under Law.
"Damages" mean losses, liabilities, costs, damages, claims and
expenses (including reasonable attorneys' fees and disbursements).
"Default" means (i) a breach of or default under any contract,
agreement, covenant, document or other instrument, (ii) the occurrence of an
event that with the passage of time or the giving of notice or both would
constitute a breach of or default under any such contract, agreement, covenant,
document or other instrument, or (iii) the occurrence of an event that with or
without the passage of time or the giving of notice or both would give rise to a
right of termination, renegotiation or acceleration under any such contract,
agreement, covenant, document or other instrument.
"Developed Properties" means those Properties identified on Exhibit B-
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1 annexed hereto and made a part hereof.
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"Development Documents" has the meaning set forth in Section
9(a)(xxiii).
"Development Services Agreements" means collectively, those five
certain Development Services Agreements in the form of Exhibit AA attached
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hereto relating to the five Office Parks.
"Documents" means collectively any and all plans, specifications and
drawings related to the Buildings; warranties for the Buildings and Personalty;
current surveys of the Land and Buildings; current booklets, manuals, files,
logs, records, material correspondence with existing tenants and other material
correspondence, current tenant lists, current tenant prospect lists and other
mailing lists, current leasing brochures and materials, current advertising
materials and other items, including without limitation, soil, engineering and
environmental inspections, studies and reports, and similar inspections with
respect to the sale, management, leasing, promotion, ownership, maintenance,
use, occupancy, operation, construction and development of the Premises; all of
the foregoing to the extent that they are in the possession or control of the
Xxxx Entities.
"Employment Liabilities" shall have the meaning set forth in Section
9(a)(xxiv).
"Environmental Laws" mean all federal, state, local and foreign
environmental, health and safety laws, codes and ordinances and all rules and
regulations promulgated thereunder, including, without limitation laws relating
to emissions, discharge, releases or
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threatened releases of pollutants, contaminants, chemicals, or industrial, toxic
or hazardous substances or wastes into the environment (including, without
limitation, air, surface water, ground water, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
chemicals, or industrial, solid, toxic or hazardous substances or wastes. As
used in this Agreement, the term "Hazardous Substances or Wastes" includes,
without limitation, (i) all substances which are designated pursuant to Section
311(b)(2)(A) of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C.
'1251 et seq.; (ii) any element, compound, mixture, solution, or substance which
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is designated pursuant to Section 102 of the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. '9601 et seq.;
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(iii) any hazardous waste having the characteristics which are identified under
or listed pursuant to Section 3001 of the Resource Conservation and Recovery Act
("RCRA"), '6901 et seq.; (iv) any toxic pollutant listed under Section 307(a) of
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the FWPCA; (v) any hazardous air pollutant which is listed under Section 112 of
the Clean Air Act, 42 U.S.C. '7401 et seq.; (vi) any imminently hazardous
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chemical substance or mixture with respect to which action has been taken
pursuant to Section 7 of the Toxic Substance Control Act, 15 U.S.C. '2601 et
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seq.; and (vii) petroleum, petroleum products, petroleum by-products, petroleum
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decomposition by-products, and waste oil; (viii) "hazardous materials" within
the meaning of the Hazardous Materials Transportation Act, 49 U.S.C. ' 1802 et
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seq., (ix) any hazardous substance or material identified or regulated by or
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under any applicable provisions of the laws of the state in which any portion of
the Premises is located; (x) asbestos or any asbestos-containing materials; (xi)
any radioactive material or substance; (xii) all toxic wastes, hazardous wastes
and hazardous substances as defined by, used in, controlled by or subject to all
implementing regulations adopted and publications promulgated pursuant to the
foregoing statutes; and (xiii) any other hazardous or toxic substance or
pollutant identified in or regulated under any other applicable federal, state
or local Laws.
"Escrow Reserves" means the Xxxx Entities' interest in a cash reserve,
loan reserve, tax escrow and insurance escrow maintained by the Existing Lender
pursuant to the Loan Documents.
"Existing Lender" means CBA Conduit, Inc., its successors and assigns,
which is the lender under the Loan Documents.
"Existing Lender's Estoppel Certificate" shall have the meaning set
forth in Section 10(a)(xix).
"Financial Statements" shall have the meaning set forth in Section
9(a)(xxv).
"Funds" means collectively, the Escrow Reserves and all other funds
which the Xxxx Entities shall, at Closing, have on deposit with any person or
entity (including, without limitation, any lender) to be applied to, for or in
connection with the Property or any loan secured by the Premises.
"Governmental Authority" means any agency, instrumentality,
department, commission, court, tribunal or board of any government, whether
foreign or domestic and whether national, federal, state, provincial or local.
"Interim Financial Statements" shall have the meaning set forth in
Section
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9(a)(xxv).
"Land" means all that certain real property underlying the following
Office Parks: (i) Panorama Corporate Park, Englewood, Colorado; (ii) Parkway
North, Deerfield, Illinois (excluding Building 2 therein); (iii) Riata Corporate
Park, Austin, Texas; (iv) Riata Crossing, Austin, Texas; and (v) Royal Ridge,
Irving, Texas, more particularly described in Exhibits X-0, X-0, X-0, X-0 and A-
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5 annexed hereto and made a part hereof.
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"Laws" mean all laws, statutes, rules, regulations, codes, orders,
ordinances, judgments, injunctions and decrees.
"Liabilities" mean debts, liabilities, obligations, guarantees,
indemnities, duties and responsibilities of any kind and description, whether
absolute or contingent, monetary or non-monetary, direct or indirect, known or
unknown or matured or unmatured, or of any other nature.
"LIBOR Rate" means a variable per annum rate equal to the daily London
Interbank Offered Rate for 30-day U.S. Dollar deposits as quoted by Xxxxx
National Bank, N.A. The LIBOR Rate shall change with each change in such rate
as of the date of any such change, without notice.
"Licenses and Permits" means collectively, all assignable licenses,
permits, approvals and certificates issued to any of the Xxxx Entities by any
Governmental Authorities (or assigned to any of the Xxxx Entities) required or
used in or relating to the ownership, use, maintenance, occupancy, development
or operation of any part of the Premises.
"Lien" means any security interest, lien, mortgage, claim, charge,
pledge, restriction, equitable interest, restrictive covenant or encumbrance of
any nature.
"LLC" means Xxxx Office Park, LLC, a limited liability company formed
under the laws of the State of Delaware.
"LLC Agreement" means the amended and restated limited liability
company agreement of the LLC, the form of which is attached hereto as Exhibit Y.
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"LLC Certificate" means the articles of organization or limited
liability company certificate of the LLC, filed with the Secretary of State of
the State of Delaware.
"Loan Documents" means collectively the Mortgage and the note,
assignments and other documents and instruments evidencing and/or securing the
Mortgage, as more particularly described in Exhibit C annexed hereto and made a
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part hereof, and all rights and privileges of the Xxxx Entities thereunder.
"Major Tenants" shall have the meaning set forth in Section
10(a)(xviii).
"Management and Leasing Agreements" means collectively, those five
certain Management and Leasing Agreements in the form of Exhibit Z attached
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hereto relating to the five Office Parks.
"Mortgage" means that certain deed of trust and/or mortgage in favor
of the
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Existing Lender in the original principal amount of $29,250,000 encumbering
Parkway North, Building 1 on the date hereof.
"Names" means all of the Xxxx Entities' right, title and interest in
and to the names "Parkway North," "Panorama Corporate Park," "Royal Ridge,"
"Riata Crossing" and "Riata Corporate Park."
"NYSTRS Contribution" shall have the meaning set forth in Section
2(a).
"NYSTRS Interests" means sixty-five percent (65%) of the limited
liability company interests in the LLC which are owned by NYSTRS.
"Office Park" means any one of Parkway North, Panorama, Royal Ridge,
Riata Crossing or Riata Corporate Park.
"Office Park Association" means each of Parkway North Owners'
Association and Riata Owners' Association, Inc. (hereinafter collectively
referred to as the "Office Park Associations").
"Operating Agreements" means collectively all operating, service and
maintenance agreements and any other contracts and agreements (other than the
Documents, the Development Documents, the Loan Documents and the Tenant Leases)
affecting the Premises to which any Xxxx Entity is a party.
"Panorama" means that certain Office Park located in Englewood,
Colorado, commonly known as Panorama Corporate Park, as the Land relating
thereto is more particularly described in Exhibit A-1 annexed hereto and made a
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part hereof, and the Appurtenances and Adjoining Land, if any, related thereto.
"Parkway North" means that certain Office Park located in Deerfield,
Illinois, commonly known as Parkway North Office Park (excluding Building 2), as
the Land relating thereto is more particularly described in Exhibit A-2 annexed
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hereto and made a part hereof, and the Appurtenances and Adjoining Land, if any,
related thereto.
"Percentage Interest" shall have the meaning set forth in Section
9(a)(xvi).
"Permitted Exceptions" shall have the meaning set forth in Section
10(c)(ii).
"Person" means any natural person, corporation, business trust, joint
venture, association, company, limited liability entity, firm, partnership, or
other entity or government or Governmental Authority.
"Personalty" means, collectively, the fixtures, equipment, machinery,
furniture, furnishings, appliances, supplies and other items of personal
property (and replacements thereof), now owned or leased or hereafter acquired
by the Xxxx Entities and contained in or on the Premises. "Personalty" does not
include any computer hardware or software or other Personalty located in and
used in the operation of any management office in any Building; however,
"Personalty" does include all books and records relating to the operation or
development of the Property located in any management office in any Building,
regardless of medium.
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"Premises" means, collectively, the Land, the Buildings, the
Appurtenances and the Adjoining Land.
"Proceedings" has the meaning set forth in Section 9(a)(xxx).
"Properties Under Development" means those Properties under
development as of the date hereof, as the Land relating thereto is more
particularly described in Exhibit B-2 annexed hereto and made a part hereof.
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"Property" means collectively all of the Xxxx Entities' right, title
and interest in, to and under the following: the Premises, the Personalty, the
Tenant Leases, the Operating Agreements (to the extent the same relate to the
Property), the Documents, the Licenses and Permits, the Funds, the Loan
Documents, the Names, and the Proprietary Rights.
"Proprietary Rights" means collectively all trade names, trademarks,
service marks, patents or copyrights and any applications for any of the
foregoing and all internet web sites and intellectual property rights relating
to the Property.
"Purchase Value" shall have the meaning set forth in the recitals to
this Agreement and is calculated on Schedule 3(b).
"Reports" shall have the meaning set forth in Section 9(a)(xiv).
"Riata Corporate Park" means the Office Park located in Austin, Texas,
commonly known as Riata Corporate Park, as the Land relating thereto is more
particularly described in Exhibit A-3 annexed hereto and made a part hereof, and
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the Appurtenances and Adjoining Land, if any, related thereto.
"Riata Crossing" means the Office Park located in Austin, Texas,
commonly known as Riata Crossing, as the Land relating thereto is more
particularly described in Exhibit A-4 annexed hereto and made a part hereof, and
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the Appurtenances and Adjoining Land, if any, related thereto.
"Royal Ridge" means the Office Park located in Irving, Texas, commonly
known as Royal Ridge, as the Land relating thereto is more particularly
described in Exhibit A-5 annexed hereto and made a part hereof, and the
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Appurtenances and Adjoining Land, if any, related thereto, which constitutes the
portion being contributed or sold pursuant hereto by a Xxxx Entity of a larger
office park development.
"Selling Xxxx Entities" shall have the meaning set forth in the
recitals to this Agreement.
"Taxes" mean all taxes, charges, fees, levies or other assessments,
including, without limitation, income, gross receipts, excise, real and personal
property, sales, transfer, recordation, deed, stamp, license, payroll and
franchise taxes, imposed by any Governmental Authority and shall include any
interest, penalties or additions to tax attributable to any of the foregoing.
"Tenants" means the tenants under the Tenant Leases (each,
individually, a "Tenant").
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"Tenant Estoppel Certificates" shall have the meaning set forth in
Section 10(a)(xviii).
"Tenant Leases" means all leases, licenses or occupancy agreements
(written or oral) to which any Xxxx Entity is a party and all amendments,
modifications, supplements, additions, extensions, renewals and side letters
thereof or thereto, and any guaranties thereof, and, except as expressly
provided herein, security and other deposits held by or on behalf of the Xxxx
Entities thereunder, affecting the Property (each, individually, a "Tenant
Lease").
"Undeveloped Properties" means those undeveloped parcels of land
comprising a portion of the Land and identified on Exhibit B-3 annexed hereto
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and made a part hereof.
2. Contribution of NYSTRS.
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(a) Based upon and subject to the terms, agreements, warranties,
representations and conditions of this Agreement, at the Closing NYSTRS shall
contribute a cash amount equal to sixty-five percent (65%) of the Acquisition
Value (the "NYSTRS Contribution") to the LLC, and in consideration therefor,
NYSTRS shall be admitted as a member of the LLC and shall acquire the NYSTRS
Interests.
(b) The NYSTRS Contribution shall be paid to the LLC on the Closing
Date by wire transfer of immediately available federal funds to an account or
accounts as mutually agreed by the Xxxx Entities and NYSTRS.
3. Contribution and Sale by the Xxxx Entities/ Distributions to the Xxxx
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Entities.
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(a) Based upon and subject to the terms, agreements, warranties,
representations and conditions of this Agreement, the Contributing Xxxx Entities
shall collectively contribute the portion of the Property set forth on Schedule
3(a) owned by them (to the extent assignable, as provided herein) to the LLC
(or, if directed by the LLC, to an Affiliate or Affiliates of the LLC), and in
consideration therefor, Xxxx X.X. and Parkway shall be admitted as members of
the LLC, and Xxxx X.X. and Parkway shall acquire the Xxxx Interests, and the
interest of CarrAmerica in the LLC shall be restated, all as set forth in the
LLC Agreement. The Contribution Value of the portion of the Property contributed
by the Contributing Xxxx Entities is calculated and set forth on Schedule 3(a).
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(b) Based upon and subject to the terms, agreements, warranties,
representations and conditions of this Agreement, the Selling Xxxx Entities
shall collectively convey the portion of the Property set forth on Schedule 3(b)
owned by them to the LLC or an Affiliate thereof, and in consideration therefor,
the Contributing Xxxx Entities and NYSTRS shall cause the LLC and/or its
Affiliates to distribute to the Selling Xxxx Entities by wire transfer a sum
equal to the Purchase Value, as that sum is calculated and set forth on Schedule
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3(b). The calculation of the Purchase Value, to the extent based on estimates,
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or as necessary to correct manifest error, shall be subject to readjustment
pursuant to Section 11(a).
(c) On the Closing Date, the Xxxx Entities and NYSTRS shall cause the
LLC to distribute to the Contributing Xxxx Entities by wire transfer the sum of
money as calculated and set forth on Schedule 3(c), so that the resulting
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proportion of ownership of the member interests in the LLC shall be sixty-five
percent (65%) vested in NYSTRS and thirty-five percent
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(35%) vested in the Contributing Xxxx Entities. The calculation of the
Contribution Value, to the extent based on estimates, or as necessary to correct
manifest error, shall be subject to readjustment pursuant to Section 11(a).
4. Closing Date. The Closing shall take place on the Closing Date at
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10:00 A.M.
5. Condition of the Property. Except for (i) the Xxxx Entities'
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representations and warranties set forth in this Agreement, (ii) the warranties
of title in the deeds and (iii) any warranties expressly set forth in the
assignments delivered at Closing ((i), (ii) and (iii) collectively, the "Xxxx
Entities' Warranties"), the contribution or sale of the Property is made without
representation, covenant, or warranty of any kind (whether express, implied, or,
to the maximum extent permitted by applicable law, statutory) by the Xxxx
Entities. As a material part of the consideration for this Agreement, NYSTRS and
the LLC shall accept the Property on an "As is" and "Where is" basis, with all
faults and any and all latent and patent defects, and without any representation
or warranty, all of which NYSTRS and the LLC hereby disclaim, except for the
Xxxx Entities' Warranties. No other warranties whatsoever are made by the Xxxx
Entities except for the Xxxx Entities' Warranties. NYSTRS acknowledges that it
has entered into this Agreement with the intention of making and relying upon
its own investigation of the physical, environmental, economic use, compliance,
and legal condition of the Property and that NYSTRS is not now relying, and will
not later rely, upon any representations or warranties made by the Xxxx Entities
or anyone acting or claiming to act, by, through or under or on the Xxxx
Entities' behalf concerning the Property, except for the Xxxx Entities'
Warranties.
6. Brokerage. The Xxxx Entities on one hand, and NYSTRS on the other,
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each represents and warrants to the other that it has not dealt with any broker
or other intermediary in connection with or relating to the sale and purchase
which is the subject of this Agreement, except that the Xxxx Entities have dealt
with the Advisor as an advisor. The Xxxx Entities and NYSTRS shall each defend,
indemnify and hold the other harmless from and against any and all Damages
incurred by the other as a result of any breach by the indemnitor of the
foregoing representation. The Xxxx Entities shall defend, indemnify and hold
harmless NYSTRS from and against any claims of the Advisor and shall pay the
Advisor pursuant to a separate agreement between the Xxxx Entities and the
Advisor.
7. Intentionally Omitted.
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8. Recording Charges and Transfer Taxes. The LLC shall pay all state and
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local deed taxes, real property transfer taxes, if any (other than any of the
Xxxx Entities' franchise or income taxes which shall be paid by the Xxxx
Entities), title insurance premiums for title insurance (including, without
limitation, the cost of reinsurance and endorsements) in the amounts set forth
on Exhibit G, survey costs, and all recording charges and fees (the "Charges").
The LLC shall pay for any assumption costs associated with the LLC's assumption
of the Mortgage (including, without limitation, any transfer fees, processing
fees, legal fees, Existing Lender's costs or any other expense payable to the
Existing Lender as a result of the transactions contemplated hereunder). The
Xxxx Entities and NYSTRS shall each pay the costs and expenses of its legal
counsel, accountants, experts and Representatives incurred in connection with
the transactions contemplated by this Agreement. NYSTRS shall pay the costs and
expenses of its due diligence investigations.
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9. Representations and Warranties.
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(a) Each of the Xxxx Entities severally, with respect to itself and
to the portion of the Property contributed or sold by it pursuant to this
Agreement, represents and warrants to NYSTRS that, as of the date hereof:
(i) Due Organization, Etc. Each of the Xxxx Entities is a
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limited partnership or corporation, as appropriate, duly organized, validly
existing and in good standing under the laws of the state of its formation, and
is qualified to do business in the State(s) in which that portion of the
Property it owns is located. Each of the Xxxx Entities has the full power and
authority to own, lease and operate its assets and properties and to conduct its
business as now being conducted. The Xxxx Entities have delivered to NYSTRS
true, complete and correct copies of the organizational documents of each of the
Xxxx Entities, as amended or modified and as in effect on the date hereof.
(ii) Liabilities. Except as otherwise disclosed in Exhibit T to
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this Agreement, and except for (a) obligations under the Tenant Leases,
Operating Agreements, Development Documents, the Permitted Exceptions or the
Loan Documents, or (b) any other matter specifically disclosed in this Agreement
(including the Exhibits), there are no material contractual Liabilities
affecting the Property. For purposes of this Section 9(a)(ii), the term
"material" means an obligation in excess of $10,000.00.
(iii) Ownership. Except for the Permitted Exceptions, the
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Mortgage, those matters disclosed on Exhibit E to this Agreement, and any other
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matters specifically disclosed in this Agreement (including the Exhibits), (a)
the Xxxx Entities have not sold, conveyed, transferred, given, pledged,
mortgaged or otherwise disposed of, encumbered or granted in any manner any
interest in the Property, and (b) there are no outstanding rights (including,
without limitation, options, rights of first refusal, rights of first offer or
other agreements) relating to or providing for the sale, conveyance, transfer,
net lease, gift, pledge, mortgage or other disposition of or encumbrance on the
Property or any portion thereof.
(iv) Taxes. Each Xxxx Entity has paid all Taxes due and payable
-----
by it prior to delinquency for all periods ending on or prior to the Closing
Date with respect to that portion of the Property owned by it (the "Xxxx Entity
Taxes"). The Xxxx Entities have not received from any Governmental Authority any
written notice (i) of underpayment of any Xxxx Entity Taxes, (ii) that any
Actions relating to the Xxxx Entity Taxes or tax status of any of the Xxxx
Entities are pending or (iii) that the institution of any such Action is
contemplated by any authority. No Xxxx Entity has waived restrictions on
assessment or collection of the Xxxx Entity Taxes or consented to the extension
of any statute of limitations with respect to the Xxxx Entity Taxes.
(v) Authority. This Agreement constitutes the legal, valid and
---------
binding obligation of each Xxxx Entity, enforceable against each Xxxx Entity in
accordance with its terms. Each Xxxx Entity has taken all necessary action to
authorize and approve the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement.
(vi) No Violation of Laws. The execution and delivery of this
--------------------
Agreement
10
and the performance by the Xxxx Entities of their respective obligations
hereunder do not and will not conflict with or violate any Laws of any
Governmental Authority with jurisdiction over any Xxxx Entity or the Property,
including, without limitation, the United States of America, the state of
formation of each respective Xxxx Entity, the state in which any portion of the
Property is located or any political subdivision of any of the foregoing, or any
decision or ruling of any arbitrator to which any Xxxx Entity is a party or by
which any Xxxx Entity or any portion of the Property is bound or affected.
(vii) No Conflict. To the Xxxx Entities' knowledge, and except
-----------
as disclosed in the Exhibits to this Agreement, neither the Property nor any
Xxxx Entity is a party to, or is subject to or bound by, any agreement (other
than the Loan Documents and agreements requiring the consent of third parties
where such consent has been obtained), or Laws of any Governmental Authority,
that could prevent the performance of all or any of the terms of this Agreement.
(viii) Eminent Domain, Etc. The Xxxx Entities have no knowledge
--------------------
of any plans of any Governmental Authority to change the highway or road system
in the vicinity of the Property or to restrict or change access from any such
highway or road to the Property or of any pending, or threatened in writing,
condemnation or eminent domain proceedings relating to or affecting the
Property.
(ix) Insolvency, Etc. Neither the Xxxx Entities, nor any of the
----------------
general partners of Xxxx Entities that are limited partnerships, has (i) made a
general assignment for the benefit of its creditors, (ii) admitted in writing
its inability to pay its debts as they mature, (iii) had an attachment,
execution or other judicial seizure of any property interest which remains in
effect, (iv) taken, failed to take or submitted to any action indicating a
general inability to meet its financial obligations as they accrue, or (v)
received written notice of the pending or threatened bankruptcy of any of the
Tenants (except as set forth on Exhibit M attached hereto and made a part
---------
hereof). There is not pending any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
recomposition of the Xxxx Entities, or any of the general partners of Xxxx
Entities that are limited partnerships, or any of its or their debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking appointment of a receiver, trustee, custodian or other similar official
for it for all or any substantial part of its or their property.
(x) Leasing Commissions. No leasing commission is now or will
-------------------
hereafter become due or owing by the owner of the Property (or any portion
thereof) in connection with any of the Tenant Leases, including, without
limitation, in connection with any renewals or extensions of the term thereof,
except as disclosed on Exhibit I attached hereto. All leasing commissions due
---------
and payable as of the date hereof with respect to leases executed prior to March
1, 2000 have been paid.
(xi) Zoning; Use. To the Xxxx Entities knowledge, the existing
-----------
zoning approvals would permit the projected development as proposed by the Xxxx
Entities of the Properties Under Development and Undeveloped Properties. Except
as disclosed on Exhibit U, the Xxxx Entities have not received any notice of
---------
noncompliance with, or violation or default of, the deed restrictions and other
title covenants or restrictions, site plan approvals, zoning and
11
subdivision regulations and redevelopment plans constituting Permitted
Exceptions hereunder. All current assessments, dues, charges and other payments
required under any such Permitted Exceptions have been paid in full and the Xxxx
Entities are not in arrears with respect to any such payments.
(xii) Assessments. Except as set forth on the current tax bills,
-----------
true and complete copies of which have been provided to NYSTRS, to the knowledge
of the Xxxx Entities, there are no special assessments which have been levied
against the Property, and the Xxxx Entities do not know of any pending, or
threatened in writing, special assessments affecting the Property.
(xiii) Management. Except for the Management and Leasing
----------
Agreements, there are no contracts or agreements with any third party for the
management of the Property or any portion thereof which will be binding on the
LLC as of the Closing Date.
(xiv) Environmental Reports. (1) Except as set forth in the
---------------------
final environmental reports in the Xxxx Entities' possession or control, all of
which are listed in Exhibit K annexed hereto and made a part hereof (the
---------
"Reports"), to the Xxxx Entities' knowledge, the Xxxx Entities (with respect to
the Premises) and the Premises are not in violation of any applicable
Environmental Laws.
(2) The Xxxx Entities have delivered or made readily
available to NYSTRS, true and complete copies of the Reports.
(3) Except as set forth in the Reports, to the knowledge
of the Xxxx Entities, there is no pending, or threatened in writing, Action,
demand, hearing, notice of violation, notice or demand letter that affects or
applies to the Premises relating in any way to any Environmental Laws.
(4) Except as set forth in the Reports, to the Xxxx
Entities' knowledge, there has been no emission, spill, release or discharge
from the Premises into or upon (i) the air, (ii) soils or improvements, (iii)
surface water or ground water, or (iv) the sewer, septic system or waste
treatment, storage or disposal system servicing the Premises of any toxic or
Hazardous Substances or Wastes in violation of Environmental Laws. To the
knowledge of the Xxxx Entities, no Xxxx Entity or Tenant has stored, generated,
transported, released, disposed of or used any toxic or Hazardous Substances or
Wastes in, at, on, about or under the Property, in violation of Environmental
Laws.
(5) To the Xxxx Entities' knowledge, neither the Premises
nor any portion thereof is now or has ever been a Superfund site. Except as set
forth in the Reports, to the Xxxx Entities' knowledge, there are no underground
storage tanks located on the Premises.
(xv) Operating Agreements. Exhibit L annexed hereto and made a
--------------------
part hereof sets forth each of the material Operating Agreements. To the Xxxx
Entities' knowledge, each of the Operating Agreements is a valid and subsisting
Operating Agreement of all of the parties thereto in full force and effect
without modification, except as set forth in Exhibit L. To the Xxxx Entities'
---------
knowledge, each Xxxx Entity has performed all material obligations required to
be performed by it and is not in material Default under any Operating Agreement.
To the
12
knowledge of the Xxxx Entities, no other party is in material Default under any
such Operating Agreement. The Xxxx Entities have delivered or made readily
available to NYSTRS copies of the Operating Agreements which are true, correct
and complete in all material respects.
(xvi) Tenant Leases. The Xxxx Entities have delivered or made
-------------
readily available to NYSTRS copies of all of the Tenant Leases, such copies
being true, correct and complete in all material respects. Exhibit M sets forth
---------
all Tenant Leases to which any Xxxx Entity is a party. The representations in
the remainder of this subparagraph are made only with respect to Tenant Leases
for which a Tenant Estoppel Certificate has not been delivered to NYSTRS, and
shall remain in effect, subject to the time limit prescribed in Section 13, with
respect to each such Tenant Lease until a Tenant Estoppel Certificate with
respect to such Tenant Lease is delivered to NYSTRS in connection with this
transaction (either at or after the Closing). To the Xxxx Entities' knowledge,
the Tenant Leases are in full force and effect and there are no parties in
possession of the Premises, except the Tenants and any subtenants disclosed in
Exhibit M. Except as set forth in Exhibit M, all material tenant improvements
--------- ---------
required under the Tenant Leases to be completed by the date hereof by the
landlord thereunder have been completed and all tenant allowances required under
the Tenant Leases to be paid in full as of the date hereof have been paid in
full; except as set forth in Exhibit M, there are no unsatisfied "Take-Over"
---------
space obligations or "Take-Back" space obligations ("Take-Over" space
obligations means rent obligations of the Tenant in other buildings assumed by
the landlord and "Take-Back" space obligations means obligations imposed upon
the landlord to sublet or otherwise be responsible for the obligations of a
Tenant under a Tenant Lease); except as set forth in Exhibit M or Exhibit N, to
--------- ---------
the Xxxx Entities' knowledge there are no disputes with Tenants as to the amount
of their rent or other charges (including, without limitation, charges for
operating costs) under any Tenant Lease; to the Xxxx Entities' knowledge, except
as set forth in the Tenant Leases, no Tenant has any option to cancel its Tenant
Lease; except as set forth on Exhibit M, to the Xxxx Entities' knowledge there
---------
is no Default by the landlord under any Tenant Lease and the Xxxx Entities have
not received from any Tenant any written notice claiming any Default by the
landlord under its Tenant Lease; except as set forth in Exhibit M, the Xxxx
---------
Entities have not delivered to any Tenant any written notice claiming a Default
by Tenant under its Tenant Lease; except as set forth on Exhibit M or Exhibit N,
--------- ---------
or otherwise specifically disclosed in this Agreement (including the Exhibits),
to the Xxxx Entities' knowledge no Tenant has asserted in writing, or has any
rights to, offsets or claims against rental payable or obligations under any
Tenant Lease; and to the Xxxx Entities' knowledge, no guarantor of any Tenant
Lease has been released or discharged voluntarily from any obligation related to
such Tenant Lease. To the Xxxx Entities' knowledge, the Percentage Interest for
each Tenant has been and is currently calculated accurately and correctly in
accordance with the method of calculation prescribed in such Tenant's Tenant
Lease. For purposes of this Agreement, "Percentage Interest" means the
percentage interest or pro-rata share for each Tenant under its Tenant Lease
with respect to that portion of the Premises for which such Tenant is
responsible for operating costs or any other charge payable to the landlord
under such Tenant Lease. Exhibit M-1 sets forth a true, correct and complete
-----------
list of all security deposits held under Tenant Leases. Exhibit M-1 also sets
-----------
forth (1) annual percentage rent payable and percentage rent break point for
each Tenant required to pay percentage rent under its Tenant Lease; and (2)
frequency rent is payable under each Tenant Lease (if other than monthly).
13
(xvii) Rent Roll. Attached hereto as Exhibit N is a rent roll
--------- ---------
(the "Rent Roll") for all Tenant Leases in effect as of the date of the Rent
Roll. The Rent Roll contains the following information with respect to each
Tenant Lease: (1) name of Tenant, (2) rentable space (as specified in the
related Tenant Lease), (3) base annual rent payable, (4) amounts of operating
expenses and real property taxes payable, (5) commencement date, (6) expiration
date, and (7) rent per square foot.
(xviii) Litigation. Except as set forth on Exhibit O attached
---------- ---------
hereto (the "Litigation List"), there are no pending, or to the Xxxx Entities'
knowledge threatened in writing, Actions affecting all or any portion of the
Property or the Xxxx Entities (with respect to the Property) which are not
otherwise covered by insurance.
(xix) No Violations. Except as set forth on Exhibit U attached
------------- ---------
hereto, the Xxxx Entities have not received any written notice of any material
violation of any Laws of any Governmental Authority affecting the Property
(collectively, "Violations"), and the Xxxx Entities have not received any
written notice that an investigation has been commenced respecting any such
possible Violations.
(xx) Insurance. To the Xxxx Entities' knowledge, all pending
---------
Actions, if any, against the Property which are covered by insurance are being
defended by the appropriate insurance companies. None of the Xxxx Entities has
received any written notice from any insurance company which has issued a policy
with respect to the Premises or from the holder of any mortgage encumbering the
Premises requesting or requiring performance of any structural or other major
repairs or alterations to the Premises which has not been complied with.
(xxi) Licenses and Permits. The Xxxx Entities have delivered or
--------------------
made readily available to NYSTRS copies of all Licenses and Permits held by the
Xxxx Entities with respect to the Property. The Xxxx Entities have received no
written notice of any pending or threatened modification or cancellation of any
of the Licenses and Permits, any notice that they lack any License or Permit, or
any notice of the violation of any of the Licenses or Permits.
(xxii) Personalty. The list of Personalty set forth in Exhibit R
---------- ---------
annexed hereto and made a part hereof is, in all material respects, a true,
accurate and complete list of all Personalty having a fair market value (per
item) of $10,000 or more. In those instances where the Xxxx Entity has leasehold
title (rather than fee title) to any Personalty listed in Exhibit R, the leases
---------
related thereto (including all amendments thereof) are described on Exhibit R.
---------
The Personalty listed in Exhibit R is located on the Premises and is the
---------
Personalty used in the ownership, use, operation, leasing, maintenance,
development and construction of the Premises.
(xxiii) Development Documents. Exhibit S attached hereto sets
--------------------- ---------
forth, in all material respects, a true and complete list of all material
construction contracts, development contracts, engineering and other third-party
professional contracts relating to the Properties Under Development and
Undeveloped Properties (collectively, the "Development Documents"), and all
Licenses and Permits relating to the Properties Under Development. Except as set
forth on Exhibit S, the Xxxx Entities have not received from any party to the
---------
Development Documents or such Licenses and Permits any written notice claiming
any Default by the Xxxx Entities; except as set forth in Exhibit S, the Xxxx
---------
Entities have not delivered to any party any written notice claiming a Default
by such party under the Development Documents. Exhibit S-1 contains a
-----------
14
schedule, true and correct in all material respects, of all construction costs
incurred to date in connection with the development of the Properties Under
Development. The information set forth in Exhibit S-1 shall be superseded to the
-----------
extent that such information is provided in estoppels or in consents and
acknowledgments delivered by contractors, architects and other consultants to
the Xxxx Entities in connection with the transactions contemplated in this
Agreement.
(xxiv) Employees. Except as set forth on Exhibit Q attached
--------- ---------
hereto, there are no union or employment contracts or agreements (written or
oral) affecting the Premises and, to the knowledge of the Xxxx Entities, there
are no employees of the Xxxx Entities, at the Premises or otherwise, who, by
reason of any Federal, State, County, municipal or other law, ordinance, order,
requirement or regulation, or by reason of any union or other employment
contract, written or otherwise, or any other reason whatsoever, would become
employees of the LLC or NYSTRS as a result of the transactions contemplated in
this Agreement. By the execution of this Agreement, NYSTRS is neither expressly
nor implicitly assuming any liability, obligation, cost or expense whatsoever
with respect to any employment contract, employee benefit plan or arrangement,
employment policy or practice, collective bargaining agreement, union contract,
employment related claims whether based on statute, common law, tort or
otherwise or any other liability relating in any way to employees (collectively,
"Employment Liabilities").
(xxv) Financial Statements for Developed Properties. Annexed
---------------------------------------------
hereto as Exhibit T and made a part hereof is a list of the financial statements
---------
relating to the Developed Properties for the two years ended December 31, 1999,
consisting of balance sheets and income statements (collectively, the "Financial
Statements"), together with a list of any operating statements relating to the
Developed Properties covering the period from January 1, 2000 through June 30,
2000 (collectively, the "Interim Financial Statements"). The Financial
Statements and Interim Financial Statements have been delivered to NYSTRS, and
in each case are true and complete in all material respects and fairly present
the financial position and results of operations of the Developed Properties as
at, or for the periods ended on, such dates. The budgets for the Developed
Properties covering the period from January 1, 2000 through June 30, 2000 have
been delivered to NYSTRS and were prepared with customary and ordinary
thoroughness and in a manner consistent with the Xxxx Entities' past business
practices.
(xxvi) Loan Documents. The Xxxx Entities have provided true and
--------------
correct copies of, or have readily made available, to NYSTRS all Loan Documents
in the possession or control of the Xxxx Entities. To the knowledge of the Xxxx
Entities, each of the Loan Documents is in full force and effect and has not
been modified or amended, except as indicated on Exhibit C. None of the Xxxx
---------
Entities has received any written notice claiming that a Default exists under
the Loan Documents.
(xxvii) Court Orders. None of the Xxxx Entities has received
------------
notice of any Court Order issued against, or binding on, the Property which do
or may affect, limit or control the Property or the LLC's method or manner of
doing business. No Xxxx Entity has received written notice that it is in Default
with respect to any Court Order.
(xxviii) Office Park Associations. Exhibit V attached hereto sets
------------------------ ---------
forth a true and complete (in all material respects) list of all material
documents relating to the Office
15
Park Associations to which any Xxxx Entity is a party and which bind the
Premises or the Xxxx Entity, its successors or assigns (the "Association
Documents"). Except as set forth on Exhibit V, the Xxxx Entities have not
---------
received written notice claiming any Default by the Xxxx Entities under any
Association Documents; except as set forth in Exhibit V, the Xxxx Entities have
---------
not delivered to any party any written notice claiming a Default by such party
under the Association Documents.
(xxix) Tax Parcels. The Property is assessed for real estate tax
-----------
purposes as one or more wholly independent tax lots, and when contributed or
conveyed to the LLC and/or Affiliates thereof, neither the Property nor any
portion thereof will be assessed or taxed together with any property that is not
contributed or conveyed to the LLC and/or Affiliates thereof pursuant to this
Agreement.
(xxx) Assessed Value. No proceedings for the correction of
--------------
the assessed valuation of the Premises (the "Proceedings") have been filed on
behalf of any Xxxx Entity and is pending, other than as set forth in Exhibit W
---------
annexed hereto and made a part hereof.
(xxxi) Certificates of Occupancy. The Xxxx Entities have made
-------------------------
readily available to NYSTRS all certificates of occupancy in the Xxxx Entities'
possession or control issued for the Buildings and all tenant spaces.
(xxxii) Development Budgets. True, correct and complete copies
-------------------
of the summary pages of the development budgets for the Property, prepared in
the ordinary course of business of the Xxxx Entities, have been delivered to
NYSTRS [and the Xxxx Entities have no knowledge of any state of facts which
would cause construction costs to deviate materially from such development
budgets].
(xxxiii) ERISA. None of the Contributing Xxxx Entities holds
-----
Plan Assets within the meaning of 29 C.F.R. (S) 2510.3-101.
(b) Whenever reference is made in this Section 12 to the "Xxxx
Entities' knowledge" or similar term, the "Xxxx Entities' knowledge" or similar
term shall mean the actual knowledge, without independent inquiry, of the
following individuals: Xxxxx X. Xxxxxxx, Xxx Xxxx, Xxxxxxx Xxxxx, and the
personnel with respect to each Office Park listed on Exhibit BB.
----------
(c) NYSTRS represents and warrants to the Xxxx Entities that:
(i) Due Organization, Etc. NYSTRS is duly organized, validly
----------------------
existing and in good standing under the laws of the state of its formation, and
has the full power and authority to own, lease and operate its assets and
properties and to conduct its business as now being conducted.
(ii) Authority. This Agreement constitutes the legal, valid and
---------
binding obligation of NYSTRS, enforceable against NYSTRS in accordance with its
terms. NYSTRS has taken all necessary action to authorize and approve the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement.
(iii) No Violation of Laws. The execution and delivery of this
--------------------
Agreement and the performance by NYSTRS of its obligations hereunder do not and
will not conflict with or
16
violate any law, rule, judgment, regulation, order, writ, injunction or decree
of any court or governmental or quasi-governmental entity with jurisdiction over
NYSTRS, including, without limitation, the United States of America and the
state of formation of NYSTRS, or any political subdivision of any of the
foregoing, or any decision or ruling of any arbitrator to which NYSTRS is a
party or by which NYSTRS is bound or affected.
(iv) No Conflict. To NYSTRS' knowledge, NYSTRS is not a party
-----------
to, or subject to or bound by, any agreement, judgment, order, writ, injunction
or decree of any Governmental Authority that could prevent the performance of
all or any of the terms of this Agreement.
(d) The Xxxx Entities and NYSTRS will undertake commercially
reasonable efforts to inform the other party upon obtaining actual knowledge
that the other party has breached any representation or warranty contained in
this Agreement.
10. Deliveries to be made on the Closing Date.
-----------------------------------------
(a) The Xxxx Entities' Deliveries: The Xxxx Entities shall deliver or
-----------------------------
cause to be delivered to NYSTRS on the Closing Date the following documents
(collectively, the "Xxxx Entities' Deliveries"):
(i) Deeds. Special Warranty deeds, duly executed and
-----
acknowledged by the appropriate Xxxx Entities, conveying fee simple title to the
Premises and the Buildings to the LLC or an Affiliate thereof;
(ii) Bills of Sale. Bills of Sale duly executed by the
-------------
appropriate Xxxx Entities, transferring to the LLC or an Affiliate thereof all
of the Xxxx Entities' right, title and interest in and to the Personalty;
(iii) Assignments and Assumptions of Tenant Leases. Assignments
--------------------------------------------
and assumptions of all Tenant Leases, duly executed and acknowledged by the
appropriate Xxxx Entities, in a form reasonably acceptable to NYSTRS;
(iv) Assignments and Assumptions of the Development Documents.
--------------------------------------------------------
Assignments and assumptions of all assignable Development Documents, duly
executed and acknowledged by the appropriate Xxxx Entities, in a form reasonably
acceptable to NYSTRS;
(v) Assignments of Licenses and Permits. Assignments of all
-----------------------------------
assignable Licenses and Permits, duly executed and acknowledged by the
appropriate Xxxx Entities, in a form reasonably acceptable to NYSTRS;
(vi) Assignments and Assumptions of Operating Agreements.
---------------------------------------------------
Assignments and assumptions (to the extent that such agreements relate to the
Property being contributed or sold pursuant hereto) of all assignable Operating
Agreements, duly executed and acknowledged by the appropriate Xxxx Entities, in
a form reasonably acceptable to NYSTRS;
(vii) Assignment and Assumption of Loan Documents. Assignment and
-------------------------------------------
Assumption Agreement relating to the Loan Documents, duly executed and
acknowledged by the
17
appropriate Xxxx Entities and the Existing Lender, in a form reasonably
acceptable to NYSTRS;
(viii) Assignment of Warranties and Intangibles. Assignments of
----------------------------------------
all assignable warranties and intangibles, duly executed and acknowledged by the
appropriate Xxxx Entities, in a form reasonably acceptable to NYSTRS, assigning
to the LLC or an Affiliate thereof the Xxxx Entities' interests in the Names,
the Proprietary Rights, the Funds and other intangibles relating to the
Property.
(ix) Assignments of Declarant Rights and Estoppel Certificates.
---------------------------------------------------------
Assignments of all rights of the Declarant under those Association Documents in
which a Xxxx Entity is the Declarant, in a form reasonably acceptable to NYSTRS,
and estoppel certificates from all associations and/or architectural committees
formed under recorded declarations (in a form reasonable acceptable to NYSTRS).
(x) FIRPTA Affidavit. The affidavit referred to in Section
----------------
1445 of the Code with all pertinent information confirming that each Xxxx Entity
is not a foreign person, trust, estate, corporation or partnership.
(xi) Termination Agreements. Executed termination agreements or
----------------------
other evidence reasonably satisfactory to NYSTRS that any existing management
agreements for the Premises have been duly and validly terminated effective upon
the Closing and at no cost to NYSTRS or the LLC.
(xii) The Xxxx Entities' Authority. Such proof and evidence of
----------------------------
the Xxxx Entities' authority and authorization to enter into the transactions
contemplated hereby, and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of any entity to act for and bind such entity, as may be
reasonably required by the Title Company or NYSTRS, including, without
limitation, any and all consents of any directors, shareholders, partners,
limited partners or other persons whose consent to the transactions contemplated
hereby is required in accordance with the Xxxx Entities' respective internal
organizational structures.
(xiii) LLC Agreement. A duly executed LLC Agreement in the form
-------------
of Exhibit Y annexed hereto and made a part hereof, and any certificates
---------
required by the law of the State of Delaware in connection with the formation of
the LLC.
(xiv) Good Standing Certificates. Good standing Certificates (or
--------------------------
analogous documents) with respect to each Xxxx Entity, the LLC, Xxxx XX One, LLC
and Xxxx Texas OP, LP (and its general partner) from the Secretary of State or
state taxing authority of the state in which each such entity is organized and
authorized to conduct business.
(xv) Management and Leasing Agreements. Five Management and
---------------------------------
Leasing Agreements (one for each Office Park), in the form of Exhibit Z annexed
---------
hereto and made a part hereof.
(xvi) Development Services Agreements. Five Development Services
-------------------------------
Agreements, in the form of Exhibit AA annexed hereto and made a part hereof.
----------
(xvii) Notices to Tenants and Service Providers. A notice to each
----------------------------------------
tenant
18
and service provider at each Office Park informing such tenant or service
provider as to the sale of such Office Park, signed by the current manager of
such Office Park or if required by NYSTRS, jointly by such manager and the
appropriate Xxxx Entity, in form reasonably acceptable to NYSTRS;
(xviii) Tenant Estoppel Certificates. Original executed tenant
----------------------------
estoppel certificates ("Tenant Estoppel Certificates") from all Tenants
occupying no less than an aggregate of 25,000 square feet of net rentable space
("Major Tenants"), and from Tenants (including Major Tenants) occupying no less
than eighty-five percent (85%) of the total rented space in the Premises, or
such lesser percentage as NYSTRS may deem satisfactory at Closing.
(xix) Existing Lender's Estoppel Certificate. An estoppel
--------------------------------------
certificate from the Existing Lender in form and substance satisfactory to
NYSTRS (the "Existing Lender's Estoppel Certificate").
(xx) Other Documents and Deliveries. Such other documents,
------------------------------
instruments and deliveries customarily delivered by sellers of property similar
to the Property, as may be reasonably required by the Title Company.
(b) NYSTRS' Deliveries. NYSTRS shall deliver or cause to be delivered
------------------
on the Closing Date the following:
(i) The NYSTRS Contribution. On the Closing Date, NYSTRS
-----------------------
shall make the NYSTRS Contribution to the LLC pursuant to Section 2 hereof;
(ii) LLC Agreement. NYSTRS shall counterexecute the LLC
-------------
Agreement; and
(iii) NYSTRS' Authority. Such proof and evidence of NYSTRS'
-----------------
authority and authorization to enter into the transactions contemplated hereby,
and such proof of the power and authority of the individual(s) executing and/or
delivering any instruments, documents or certificates on behalf of NYSTRS to act
for and bind such entity, as may be reasonably required by the Title Company or
the Xxxx Entities, including, without limitation, any and all consents of any
managers, members or other persons whose consent to the transactions
contemplated hereby is required in accordance with NYSTRS' internal
organizational structure.
(c) Other Deliveries. The Xxxx Entities and NYSTRS shall have
----------------
obtained the following additional items on or prior to the Closing Date:
(i) LLC Signatures. The execution of all documents
--------------
contemplated in this Agreement that require execution by the LLC, including, but
not limited to, the Management and Leasing Agreements and the Development
Services Agreements.
(ii) Title Policies. Title policies insuring title of the LLC
--------------
in the Premises, subject only to Tenant Leases, real estate taxes not yet due
and payable, zoning laws and regulations, and other exceptions reasonably
acceptable to NYSTRS (collectively, the "Permitted Exceptions").
(d) Deemed ApProval. For each delivery in this Section 10 required to
---------------
be "reasonably acceptable" or "satisfactory" (or words of similar import) to a
party, such
19
acceptability or satisfaction shall be deemed to have been met if the Closing
actually occurs.
11. Payment of Closing Costs; Apportionments; Post-Closing Adjustments.
------------------------------------------------------------------
(a) Except as expressly set forth herein to the contrary in this
Section 11, all items of income and expense at the Property shall be apportioned
between the Xxxx Entities and the LLC on a per diem basis in the manner
specified in clause (f) below. The parties, by no later than ninety (90) days
subsequent to the Closing, agree to make such adjustments to the calculation of
Purchase Value and/or Contribution Value as may be required to correct manifest
error, in which event appropriate payments shall be made as between the Xxxx
Entities and NYSTRS to reflect such adjustments. To the extent that all
information, bills and invoices are not available at Closing to allow for the
apportionment of any items of income and expense, the Xxxx Entities and NYSTRS
agree to readjust the apportionment within ninety (90) days after Closing or
such later time pursuant to clause (c) below.
(b) The following items shall be apportioned as of 11:59 PM of the
day immediately preceding the Closing Date:
1. Fixed rents, additional rents, percentage rents and all
other sums and credits due or payable under the Tenant Leases, as and when
collected, subject to the provisions of clause (g) of this Section 11 (it being
understood that final calculation of all tenant pass-through payments on account
of operating expenses shall not be apportioned at Closing but as between the
Xxxx Entities and the LLC no later than April 1, 2001);
2. Real estate taxes on the Premises, on the basis of the
fiscal year for which the same are levied, imposed or assessed, subject to the
provisions of clause (e) of this Section 11;
3. Charges for water, sewer rents, electricity, steam, gas and
telephone at the Premises, which are not metered or otherwise charged directly
to Tenants under the Tenant Leases; provided that if the consumption of any of
such utilities is measured by meters, the Xxxx Entities at the Closing shall
furnish a current reading of each meter; and further provided that if there is
not a meter or if the current xxxx for any of such utilities has not been issued
prior to the Closing Date, the charges therefor shall be adjusted at the Closing
on the basis of the charges for the prior period for which bills were issued and
shall be further adjusted when the bills for the current period are issued;
4. Fuel at the Premises, if any, at the Xxxx Entities' cost
therefor (as determined by the Xxxx Entities' fuel suppliers);
5. Amounts paid or payable under transferable Operating
Agreements (it being understood that such apportionment shall be made within 45
days after Closing);
6. Premiums on insurance policies or renewals of those expiring
prior to the Closing;
7. Interest under the Mortgage; and
8. Any other items of income, operating expenses or other items
pertaining to the Property which are customarily prorated between a purchaser
and seller of
20
property similar in character to the Property in the areas in which the Property
is located.
(c) If, on the Closing Date, any items of additional rent or
percentage rent under the Tenant Leases shall not have been ascertained, then
such items shall be adjusted retroactively as and when the same are ascertained.
(d) The Xxxx Entities shall maintain and make available to NYSTRS any
books or records necessary for the retroactive adjustment of any item pursuant
to clause (c) of this Section.
(e) If the Closing shall occur before the real estate tax rate is
fixed, the apportionment of real estate taxes shall be based upon the tax rate
for the next preceding year applied to the latest assessed valuation.
(f) All apportionments made under this Agreement shall be calculated
(1) as between the Xxxx Entities and the LLC to reflect that the Xxxx Entities
are contributing or conveying their interests in the Property to the LLC on the
Closing Date and then (2) the Contributing Xxxx Entities and NYSTRS shall share
in the credits and debits of the LLC in proportion to their respective interests
in the LLC immediately following the Closing.
(g) If any existing Tenant is in arrears in the payment of rent on
the Closing Date, the Contributing Xxxx Entities and NYSTRS shall cause the LLC
to use reasonable efforts to collect any such rent arrearages and any and all
rents received from such Tenant after the Closing shall be applied in the
following order of priority: (i) first to the month in which the Closing
occurred; (ii) then to any month or months following the month in which the
Closing occurred (provided, however, that no rent received shall be applied to
rent due for any month subsequent to the month in which it is received); and
(iii) then to the months preceding the month in which the Closing occurred. If
rents or any portion thereof received by the LLC or a Xxxx Entity after the
Closing are payable to the other by reason of this allocation, the appropriate
sum, less a proportionate share of any reasonable attorneys' fees, costs and
expenses of collection thereof, shall be promptly paid to the other, which
obligation shall survive the Closing.
(h) All costs of Closing (including, without limitation, transfer
taxes) shall be shared by the Xxxx Entities and NYSTRS ratably in the following
proportions: (1) the Xxxx Entities -- 35% and (ii) NYSTRS -- 65%.
(i) The Xxxx Entities and NYSTRS shall each pay for their own
counsel.
(j) The LLC shall pay, or cause to be paid, all costs associated with
the assumption of the loan from the Existing Lender.
(k) Any tax refund or the savings for any year or years prior to the
tax year in which the Closing occurs, to the extent not payable to any Tenants
pursuant to the terms of any Tenant Leases, shall belong solely to the Xxxx
Entities. Any refund or the savings for the tax year in which the Closing
occurs, to the extent not payable to any Tenants pursuant to the terms of any
Tenant Leases, shall be prorated as of the Closing Date between the Xxxx
Entities and the LLC. Any refund or the savings for any period after the tax
year in which the Closing occurs shall belong solely to the LLC. From and after
the Closing, the LLC shall have the right to receive any refund payable to any
Tenant and to distribute such refunds to such Tenants in
21
accordance with the terms of their respective Tenant Leases. In the event the
Xxxx Entities shall receive any refund from any Governmental Authority which
refund is payable to a Tenant under its Tenant Lease or to the LLC in accordance
with the terms hereof, the Xxxx Entities agree to promptly deliver such funds to
the LLC. NYSTRS and the Xxxx Entities shall each execute, and cause the LLC to
execute, all consents, receipts, assignments, instruments and documents which
may reasonably be requested in order to facilitate settling such proceedings and
collecting the amount of any refund or tax savings.
12. Indemnification.
---------------
(a) Indemnification by the Xxxx Entities. From and after the Closing,
------------------------------------
each Xxxx Entity hereby agrees, severally, to defend, indemnify and hold NYSTRS
harmless from and against, and reimburse NYSTRS for, any and all Damages which
NYSTRS may sustain at any time by reason of the breach or inaccuracy of or
failure to comply with any of the warranties, representations, conditions,
covenants or agreements of such Xxxx Entity contained in this Agreement or in
any agreement or document delivered pursuant thereto or in connection therewith.
(b) Indemnification by NYSTRS. From and after the Closing, NYSTRS
-------------------------
shall defend, indemnify and hold the Xxxx Entities harmless from and against,
and reimburse the Xxxx Entities for, any and all Damages which the Xxxx Entities
may sustain at any time by reason of the breach or inaccuracy of or failure to
comply with any warranties, representations, conditions, covenants or agreements
of NYSTRS contained in this Agreement or in any agreement, certificate or
document delivered pursuant thereto or in connection therewith.
(c) Procedures for Indemnification. In the event that any claim is
------------------------------
asserted against any party hereto, or any party hereto is made a party defendant
in any action or proceeding, and such claim, action or proceeding involves a
matter which is the subject of this indemnification, then such party (an
"Indemnified Party") shall give written notice to the other party hereto (the
"Indemnifying Party") of such claim, action or proceeding, and such Indemnifying
Party shall have the right to join in the defense of said claim, action or
proceeding at such Indemnifying Party's own cost and expense and, if the
Indemnifying Party agrees in writing to be bound by and to promptly pay the full
amount of any final judgment from which no further appeal may be taken, then at
the option of the Indemnifying Party, such Indemnifying Party may take over the
defense of such claim, action or proceeding, except that, in such case, the
Indemnified Party shall have the right to join in the defense of said claim,
action or proceeding at its own cost and expense.
(d) Limitation on Liability. NYSTRS, on the one hand, and the Xxxx
-----------------------
Entities, on the other hand, shall not be entitled to bring a claim against the
other on account of a breach of any covenant, indemnity, representation or
warranty under this Agreement or any agreement, certificate or document
delivered pursuant hereto unless such claim or series of claims exceeds
$250,000.00 in the aggregate. The aggregate liability for each of (i) the Xxxx
Entities (collectively) and (ii) NYSTRS for any claim or series of claims
arising out of such covenants, indemnities, representations and warranties under
this Agreement or any agreement, certificate or document delivered pursuant
hereto, shall not exceed ten percent (10%) of the Acquisition Value.
13. Survival. The parties hereto agree that all representations,
--------
warranties and
22
indemnifications contained herein, or in any instrument or other document
delivered pursuant to this Agreement shall survive the execution and delivery of
this Agreement, and the consummation of the transactions contemplated hereby for
a period of fourteen (14) months from the Closing Date, within which time
written notice of any claim must be given, in which event, any claim asserted
prior to the expiration of such fourteen (14) month period shall survive the
expiration of such fourteen (14) month period. The provisions of Section 11
shall survive for such length of time as any obligations or potential
obligations of any party may exist thereunder.
14. Notices. All demands, requests or other communications (collectively,
-------
"notices") required to be given or which may be given hereunder shall be in
writing and shall be sent by (a) certified or registered mail, return receipt
requested, postage prepaid, or (b) national prepaid overnight delivery service,
or (c) telecopy or other facsimile transmissions (followed with hard copy sent
by national prepaid overnight delivery service), or (d) personal delivery with
receipt acknowledged in writing, directed to:
Each Xxxx Entity: c/o CarrAmerica Realty Corporation
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Fax Number: 202/000-0000
With a copy to: Xxxxx Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxx, Esq.
Fax Number: 312/000-0000
NYSTRS: New York State Teachers' Retirement System
c/o X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxxx
Fax Number: 212/000-0000
with a copy to: New York State Teachers' Retirement System
00 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Attn: Xx. Xxxx Xxxxxxxx
23
Fax Number: 518/000-0000
with a copy to: Xxxxxx X. Xxxxx, Esq.
Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Fax Number: (000) 000-0000
Any notice so sent by certified or registered mail shall be deemed given on the
date of receipt or refusal as indicated on the return receipt. All other notices
shall be deemed given when actually received or refused by the party to whom the
same is directed. A notice may be given either by a party or by such party's
attorney. The Xxxx Entities and NYSTRS may designate by not less than five (5)
business days' notice given to the other in accordance with the terms of this
Section, additional or substituted parties to whom notices should be sent
hereunder.
15. Amendments. This Agreement may not be modified or terminated orally or
----------
in any manner other than by an agreement in writing signed by all the parties
hereto or their respective successors in interest.
16. Governing Law; Construction. This Agreement (a) shall be governed by
---------------------------
and construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law and (b) shall be given a fair
and reasonable construction in accordance with the intentions of the parties
hereto and without regard to, or aid of, any rules of construction requiring
construction against any party drafting this Agreement. Each party hereto
acknowledges that it has participated in the drafting of this Agreement, and any
applicable rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in connection with the
construction or interpretation hereof. Each party has been represented by
independent counsel in connection with this Agreement. For purposes of
construction of this Agreement, provisions which are deleted or crossed out and
initialed by the parties shall be treated as if never included herein.
17. Partial Invalidity. If any provision of this Agreement is held to be
------------------
invalid or unenforceable as against any person or under certain circumstances,
the remainder of this Agreement and the applicability of such provision to other
persons or circumstances shall not be affected thereby. Each provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
18. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall constitute an original, but all of which,
taken together, shall constitute but one and the same instrument. This Agreement
may be executed by facsimile, which shall be deemed an original for all
purposes. In the event this Agreement is executed by the exchange of facsimile
copies, the parties agree to exchange ink-signed counterparts promptly after the
execution and delivery of this Agreement.
19. No Third Party Beneficiaries. The warranties, representations,
----------------------------
agreements and undertakings contained herein shall not be deemed to have been
made for the benefit of any
24
person or entity other than the parties hereto.
20. Waiver. No failure or delay of either party in the exercise of any
------
right given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit (unless the time specified herein for exercise of such
right, or satisfaction of such condition, has expired) shall constitute a waiver
of any other or further right nor shall any single or partial exercise of any
right preclude other or further exercise thereof or any other right. The waiver
of any breach hereunder shall not be deemed to be waiver of any other or any
subsequent breach hereof.
21. Assignment. Neither NYSTRS nor the Xxxx Entities may assign this
----------
Agreement or any of their rights hereunder, except to a permitted assignee of
its membership interest in the LLC, and any purported unpermitted assignment
shall be null and void.
22. Binding Effect. Subject to Section 21, this Agreement is binding upon,
--------------
and shall inure to the benefit of, the parties and each of their respective
successors and permitted assigns, if any.
23. Entire Agreement. This is the entire agreement between the parties and
----------------
there are no other terms, obligations, covenants, representations, statements or
conditions, oral or otherwise, of any kind whatsoever. Any agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of this Agreement in whole or in part unless such agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
24. Further Assurances. Both prior to and after the Closing Date, NYSTRS
------------------
and the Xxxx Entities shall execute and deliver each to the other such documents
and instruments and take such further actions as may be reasonably necessary or
required to consummate the transactions contemplated by this Agreement. The
provisions of this Section 24 shall survive the Closing.
25. Paragraph Headings. The headings of the various sections of this
------------------
Agreement have been inserted only for the purpose of convenience and are not
part of this Agreement and shall not be deemed in any manner to modify, expand,
explain or restrict any of the provisions of this Agreement.
[Signatures Begin on the Next Page]
25
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first above written.
The Xxxx Entities:
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Managing Director/Capital Markets and Investments
CARRAMERICA REALTY, L.P., a Delaware limited
partnership
By: CARRAMERICA REALTY GP HOLDINGS, INC., a Delaware
corporation, its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Executive Vice President
CARRAMERICA DEVELOPMENT, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Executive Vice President
26
XXXX DEVELOPMENT & CONSTRUCTION, L.P., a Delaware
limited partnership
By: CDC TEXAS HOLDINGS, INC., a Delaware corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
Executive Vice President
XXXX PARKWAY NORTH I CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Xxxxx X. Xxxxxxx
Executive Vice President
27
NYSTRS:
NEW YORK STATE TEACHERS' RETIREMENT SYSTEM, a public
pension system created and existing pursuant to Article
11 of the Education Law of the State of New York and
having powers and privileges of a corporation pursuant
to Section 502 thereof
By: /s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx
Executive Director
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
Associate Real Estate Officer
28
