Exhibit 10.49
FORM OF
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as this "Purchase
Agreement") is entered into as of June __, 2003, among Xxxxxxx Properties, L.P.,
a Maryland limited partnership ("Buyer"), RECP Library LLC, a Delaware limited
liability company ("Seller") and New BHE, LLC, a Delaware limited liability
company (the "Company"), Bunker Hill Equity, LLC, a Delaware limited liability
company ("Bunker Hill"), Xxxxxxx Partners BGHS, LLC, a Delaware limited
liability company ("BGHS"), Xxxxxxx Partners-Hope Place, Ltd., a California
limited partnership ("Hope Place").
RECITALS
A. Xxxxxx X. Xxxxxxx III, Xxxxxxx Partners and their affiliates are
currently engaged in the process of consolidating the ownership of a portfolio
of office and other properties (the "Participating Properties") located in
Southern California, including the property commonly known as the Library Tower
(the "Property"), through a series of transactions in which Xxxxxx X. Xxxxxxx
III, Xxxxxxx Partners, their affiliates and unrelated third parties shall
contribute the direct or indirect interests in the Participating Properties (the
"Property Interests") or the direct or indirect interests in certain limited
partnerships and certain limited liability companies (collectively, the
"Participating Partnerships"), which currently own, directly or indirectly, the
Participating Properties, to Buyer (the "Formation Transactions"). The Formation
Transactions relate to the proposed initial public offering of the shares of
common stock (the "Offering") of Xxxxxxx Properties, Inc., a Maryland
corporation (the "REIT"), the general partner of Buyer, which intends to operate
as a self-administered and self-managed real estate investment trust.
B. Seller holds a preferred equity interest in the Company (all of
Seller's interest in the Company, including without limitation, all of its
voting rights and interests in the capital, profits and losses of the Company or
any property distributable therefrom are hereinafter collectively referred to as
the "Preferred Equity Interest") pursuant to that certain Limited Liability
Company Agreement of the Company dated _______, 2003 (the "Company Operating
Agreement") between Seller and Bunker Hill. Seller previously held a preferred
equity interest in Bunker Hill pursuant to that certain Limited Liability
Company Agreement of Bunker Hill dated March 27, 2002 (the "Bunker Hill
Operating Agreement," and together with the Company Operating Agreement, the
"Operating Agreements") between Seller, BGHS, Hope Place and Xxx X. Xxxxxxxx, as
a special member. Xxxxxx X. Xxxxxxx III, BGHS, Hope Place and Seller also
entered into that certain Option Agreement dated March 27, 2002 (the "Option
Agreement") in connection with the Bunker Hill Operating Agreement whereby
Seller was granted certain put rights and BGHS and Hope Place were granted
certain call rights with respect to Seller's preferred equity interest in Bunker
Hill. Seller's preferred equity interest in Bunker Hill was redeemed by Bunker
Hill in exchange for the Preferred Equity Interest pursuant to that certain
Redemption Agreement between Bunker Hill and Seller dated ________, 2003 (the
"Redemption Agreement").
C. In connection with the Formation Transactions, Buyer desires to
acquire from Seller, and Seller desires to sell to Buyer, on the terms and
conditions set forth herein, all of Seller's right, title and interest to the
Preferred Equity Interest.
D. Seller acknowledges that Buyer may decide that, rather than
acquiring all of the direct and indirect interests in the entity that owns the
Property or acquiring the Preferred Equity Interest by direct transfer, it is
more desirable for Buyer to acquire the Property by a direct contribution of the
Property from the entity that owns the Property (a "Direct Contribution"), or by
a merger of a partnership with and into Buyer (a "Merger"), or to divide a
partnership into more than one partnership to facilitate the Formation
Transactions (a "Division"); and Seller desires to give Buyer the right, in
Buyer's sole discretion, to engage in any Direct Contribution, Merger or
Division concurrently with or immediately prior to the purchase by Buyer of the
Preferred Equity Interest on the terms and conditions described herein without
the need to seek any further consent or action of the Seller and irrevocably
consents to such action as set forth in Section 5.4.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer, Seller and the Company
agree as follows:
ARTICLE I.
THE PURCHASE
1.1 Agreement to Purchase. Buyer hereby agrees to purchase, and
Seller hereby agrees to sell, all right, title and interest of Seller in the
Preferred Equity Interest (the "Purchase") upon the terms and conditions set
forth herein.
1.2 Purchase Price. The purchase price for the Preferred Equity
Interest will be [$_________] (the "Purchase Price"). Buyer and Seller agree
that the Purchase Price constitutes full consideration for the Purchase.
1.3 Consent of the Company. The Company hereby consents to the
Purchase by Buyer upon the terms and conditions set forth herein.
1.4 Termination of this Agreement. In the event that the Purchase
does not occur, Seller agrees not to treat this Agreement as a "Call Notice"
under the Option Agreement, and specifically that the events set forth in
Sections 3.1(c)(ii), (iii) and (iv) of the Option Agreement shall not be
triggered; provided, however, that Seller shall remain entitled to payment of
costs as set forth in Section 3.1(c)(i) of the Option Agreement.
ARTICLE II.
PURCHASE AND CLOSING
2.1 Purchase and Sale. Seller hereby sells, transfers, assigns, and
conveys to Buyer, and Buyer hereby purchases, for the Purchase Price all right,
title and interest of Seller in the Preferred Equity Interest free and clear of
all Liens. For purposes of this Purchase Agreement, "Liens" shall mean any lien
(statutory or other), pledge, hypothecation, assignment, preference, priority,
security interest, or any other encumbrance or charge on or affecting the
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Preferred Equity Interest or the preferred equity interest that Seller
previously held in Bunker Hill.
2.2 Closing. The parties are hereby delivering the following closing
documents, (i) an Assignment and Assumption Agreement substantially in the form
attached hereto as Exhibit A, (ii) any other documents reasonably necessary to
assign, transfer and convey the Preferred Equity Interest, and (iii) an
affidavit from Seller, stating under penalty of perjury, Seller's United States
Taxpayer Identification Number and that Seller is not a foreign person pursuant
to Section 1445(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code") and a comparable affidavit satisfying California and any other state
withholding requirements, in the forms attached hereto as Exhibit B. Buyer is
hereby delivering to Seller a cash amount equal to the Purchase Price for the
Preferred Equity Interest in consideration for the sale, transfer, assignment
and conveyance of the Preferred Equity Interest.
2.3 Option Termination. The Option Agreement, if not earlier
terminated, is hereby terminated and of no further force and effect. Bunker
Hill, BGHS, Hope Place and Seller hereby consent to the termination of the
Option Agreement, including the termination of all put and call rights contained
therein with respect to Seller's preferred equity interest in Bunker Hill
contained therein.
2.4 Taxes. Buyer agrees to pay all transfer taxes arising from the
sale of the Preferred Equity Interest pursuant to the transfer of the Preferred
Equity Interest hereunder. Buyer and Seller (or any other transferor as provided
hereunder) each agree and consent to treat this transaction as the sale of the
Preferred Equity Interest (or interests of such other transferor) with the tax
consequences set forth in Section 741 of the Code.
2.5 Further Assurances. Seller and Buyer will, from time to time,
execute and deliver to the other party all such other and further instruments
and documents and take or cause to be taken all such other and further action as
Seller and Buyer may reasonably request in order to effect the transactions
contemplated by this Purchase Agreement, including instruments or documents
reasonably necessary to effect and evidence the conveyance of the Preferred
Equity Interest in accordance with the terms of this Purchase Agreement. Seller
has represented herein that it has no equity interest, either direct or
indirect, in the Property, the Company or Bunker Hill, except for the Preferred
Equity Interest which is the subject of this Purchase Agreement. In the event
that this representation is at any time determined to be inaccurate, Seller
agrees to execute and deliver to Buyer all such other and further instruments
and documents and take or cause to be taken all such other and further action as
Buyer may reasonably request in order to document the transfer hereof of the
Preferred Equity Interest to the Buyer.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER
Seller hereby makes to Buyer each of the following representations
and warranties:
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3.1 Organization; Authority. Seller (A) is duly formed, validly
existing and in good standing (to the extent applicable) under the laws of the
jurisdiction of its formation, and (B) has all requisite power and authority to
enter this Purchase Agreement, each agreement contemplated thereby and to carry
out the transactions contemplated thereby, and own, lease or operate its
property and to carry on its business as presently conducted and, to the extent
required under applicable law, is qualified to do business and is in good
standing in each jurisdiction in which the nature of its business or the
character of its property make such qualification necessary. The signatory to
this Purchase Agreement on behalf of Seller has the authority to sign this
Purchase Agreement on behalf of Seller.
3.2 Due Authorization. The execution, delivery and performance of
this Purchase Agreement by the Seller has been duly and validly authorized by
all necessary action of the Seller. This Purchase Agreement and each agreement,
document and instrument executed and delivered by or on behalf of Seller
pursuant to this Purchase Agreement constitutes, or when executed and delivered
will constitute, the legal, valid and binding obligation of Seller each
enforceable against the Seller in accordance with its terms.
3.3 Title to Preferred Equity Interest. Seller is the sole owner of
the Preferred Equity Interest and owns beneficially and of record free and clear
of any Liens and has full power and authority to convey free and clear of any
Liens, the Preferred Equity Interest and, upon payment for the Preferred Equity
Interest, Buyer will acquire good and valid title thereto, free and clear of any
Liens except Liens created in favor of Buyer by the transactions contemplated
hereby. Seller does not have any equity interest, either direct or indirect, in
the Property, the Company or Bunker Hill, except for the Preferred Equity
Interest which is the subject of this Purchase Agreement.
3.4 Consents and Approvals. Seller has full right, authority, power
and capacity, and no consent, waiver, approval or authorization of any
governmental entity, lender or other third party is required for Seller: (i) to
enter into this Purchase Agreement and each agreement, document and instrument
to be executed and delivered by or on behalf of Seller pursuant to this Purchase
Agreement; (ii) to carry out the transactions contemplated hereby and thereby;
and (iii) to transfer, sell and deliver all of the Preferred Equity Interest to
Buyer upon payment therefor in accordance with this Purchase Agreement.
3.5 No Violation. None of the execution, delivery or performance of
this Purchase Agreement, any agreement contemplated hereby and the transactions
contemplated hereby and thereby does or will, with or without the giving of
notice, lapse of time, or both, (i) violate, conflict with, result in a breach
of, or constitute a default under or give to others any right of termination,
acceleration or cancellation of (A) the organizational documents, including the
charter and bylaws, partnership agreement, or other governing documents, if any,
of the Seller, (B) any material agreement, document or instrument to which the
Seller is a party or by which the Seller is bound or (C) any term or provision
of any judgment, order, writ, injunction, or decree of any governmental or
regulatory authority binding on the Seller, or by which the Seller or any of its
assets or properties are bound or subject or (ii) result in the creation of any
Liens upon any of the Preferred Equity Interest.
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3.6 Non-Foreign Status. The Seller is a United States person (as
defined in Section 7701(a)(30) of the Code), and is, therefore, not subject to
the provisions of the Code relating to the withholding of sales proceeds to
foreign persons, and is not subject to any state withholding requirements.
Seller shall provide affidavits to this effect in accordance with Section
2.2(iii) of this Purchase Agreement.
3.7 Withholding. The Seller shall execute such certificates or
affidavits reasonably necessary to document the inapplicability of any federal
or state withholding provisions, including without limitation those referred to
in Section 3.6 above. If Seller fails to provide such certificates or
affidavits, Buyer may withhold a portion of the Purchase Price as required by
the Code or applicable state law.
3.8 Litigation. To the best of Seller's knowledge, there is no
litigation or proceeding, either judicial or administrative, pending or
threatened, affecting all or any portion of the Preferred Equity Interest or
Seller's ability to consummate the transactions contemplated hereby.
3.9 No Other Agreements to Sell. Except for this Agreement and the
Option Agreement, Seller has made no agreement and has no obligation (absolute
or contingent) to sell, transfer or in any way encumber any of the Preferred
Equity Interest or not to sell the Preferred Equity Interest.
3.10 No Brokers. Neither Seller nor any of its officers, directors
or employees, to the extent applicable, has employed or made any agreement with
any broker, finder or similar agent or any person or firm which will result in
the obligation of the Buyer or any of his affiliates to pay any finder's fee,
brokerage fees or commission or similar payment in connection with the
transactions contemplated by this Purchase Agreement.
3.11 Knowledge of Properties. Seller is a sophisticated real estate
investor. Seller is relying upon its own independent analysis and assessment,
and the advice of such Seller's advisors, and not upon that of Buyer or any of
Buyer's affiliates, for purposes of evaluating, entering into, and consummating
the transactions contemplated by this Purchase Agreement.
ARTICLE IV. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF BUYER
Buyer hereby makes to Seller each of the following representations
and warranties:
4.1 Organization; Authority. Buyer (A) is duly formed, validly
existing and in good standing (to the extent applicable) under the laws of the
jurisdiction of its formation, and (B) has all requisite power and authority to
enter this Purchase Agreement, each agreement contemplated thereby and to carry
out the transactions contemplated thereby, and own, lease or operate its
property and to carry on its business as presently conducted and, to the extent
required under applicable law, is qualified to do business and is in good
standing in each jurisdiction in which the nature of its business or the
character of its property make such qualification
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necessary. The signatory to this Purchase Agreement on behalf of Buyer has the
authority to sign this Purchase Agreement on behalf of Buyer.
4.2 Due Authorization. The execution, delivery and performance of
this Purchase Agreement by the Buyer has been duly and validly authorized by all
necessary action of the Buyer. This Purchase Agreement and each agreement,
document and instrument executed and delivered by or on behalf of Buyer pursuant
to this Purchase Agreement constitutes, or when executed and delivered will
constitute, the legal, valid and binding obligation of Buyer each enforceable
against the Buyer in accordance with its terms.
4.3 Consents and Approvals. Subject to any consent, waiver, approval
or authorization in connection with the Public Offering and the Formation
Transactions, Buyer has full right, authority, power and capacity, and no
consent, waiver, approval or authorization of any governmental entity, lender or
other third party is required for Buyer: (i) to enter into this Purchase
Agreement and each agreement, document and instrument to be executed and
delivered by or on behalf of Buyer pursuant to this Purchase Agreement; and (ii)
to purchase the Preferred Equity Interest upon satisfaction or waiver of the
conditions set forth in this Purchase Agreement.
4.4 No Violation. Other than any consents, waivers, approvals or
authorizations required in connection with the Public Offering and the Formation
Transactions, none of the execution, delivery or performance of this Purchase
Agreement, any agreement contemplated hereby and the purchase of the Preferred
Equity Interest by Buyer upon satisfaction or waiver of the conditions set forth
in this Purchase Agreement does or will, with or without the giving of notice,
lapse of time, or both, violate, conflict with, result in a breach of, or
constitute a default under or give to others any right of termination,
acceleration or cancellation of (A) the organizational documents, including the
partnership agreement of Buyer, (B) any material agreement, document or
instrument to which the Buyer is a party or by which the Buyer is bound or (C)
any term or provision of any judgment, order, writ, injunction, or decree of any
governmental or regulatory authority binding on Buyer or by which Buyer or any
of its assets or properties are bound or subject.
4.5 Litigation. To the best of Buyer's knowledge, there is no
litigation or proceeding, either judicial or administrative, pending or
threatened, affecting Buyer's ability to purchase the Preferred Equity Interest
upon satisfaction or waiver of the conditions set forth in this Purchase
Agreement.
4.6 No Brokers. Other than in connection with the Public Offering
and the Formation Transactions, Buyer has not employed or made any agreement
with any broker, finder or similar agent or any person or firm which will result
in the obligation of Seller or any of its affiliates to pay any finder's fee,
brokerage fees or commission or similar payment in connection with the
transactions contemplated by this Purchase Agreement. Buyer does hereby agree to
indemnify, defend, protect and hold Seller harmless from and against any
charges, complaints, claims, liabilities, damages, actions, causes of action,
losses and costs arising from any finders' fee, brokerage fees or commission or
similar payment in connection with the Public Offering and the Formation
Transactions and any other finders' fees, brokerage fees or commission or
similar
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payments arising from Buyer's acts or conduct in connection with the
transactions contemplated by this Purchase Agreement.
4.7 Knowledge of Properties. Buyer is a sophisticated real estate
investor. Buyer is relying upon its own independent analysis and assessment, and
the advice of such Buyer's advisors, and not upon that of Seller or any of
Seller's affiliates, for purposes of evaluating, entering into, and consummating
the transactions contemplated by this Purchase Agreement.
ARTICLE V.
WAIVER AND INDEMNITY
Each of the waiver and indemnity enumerated in this Article 5 shall
become effective upon the purchase and sale of the Preferred Equity Interest
pursuant to Article 2 herein.
5.1 Consents With Respect to the Preferred Equity Interest. Seller
hereby grants any consent that may be required of it under the Operating
Agreements to the sale or contribution by Bunker Hill of its membership interest
in the Company to Buyer or any direct or indirect subsidiary of an entity
affiliated with Buyer.
5.2 Final Year Allocations. To the extent the Company Operating
Agreement does not provide for final year tax allocations, the parties hereto
agree to use the "interim closing of the books" method as provided in Section
706 of the Code to allocate income and loss for the year.
5.3 Indemnification of Seller. Each of the Buyer and the Company
shall indemnify Seller against any all charges, complaints, claims, liabilities,
damages, actions, causes of action, losses and costs of any nature whatsoever
arising out of or relating to the Company, except for matters arising from the
breach by Seller of any representation, warranty, covenant or obligation under
this Purchase Agreement, the Company Operating Agreement or any agreement
contemplated by this Purchase Agreement or from Seller's gross negligence or
willful misconduct.
ARTICLE VI.
MISCELLANEOUS
6.1 Amendment. Any amendment hereto shall be effective only against
those parties who have acknowledged in writing their consent to such amendment.
No waiver of any provisions of this Purchase Agreement shall be valid unless in
writing and signed by the party against whom enforcement is sought.
6.2 Entire Agreement; Counterparts; Applicable Law. This Purchase
Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof, (b) may be executed in one or more
counterparts, each of which will be deemed an original and all of which shall
constitute but one and the same instrument and (c) shall be governed in all
respects by the laws of New York without giving effect to the conflict of law
provisions thereof.
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6.3 Consent to Jurisdiction. To the fullest extent permitted by law,
each of the parties hereto hereby irrevocably consents and agrees, for the
benefit of each party, that any legal action, suit or proceeding against it with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with this Purchase Agreement shall be brought in any city,
state or federal court located in the Borough of Manhattan, the City of New York
(a "New York Court") and hereby irrevocably accepts and submits to the
jurisdiction of each such New York Court with respect to any such action, suit
or proceeding. Each party hereto also hereby irrevocably consents and agrees,
for the benefit of the other party, that any legal action, suit or proceeding
against it shall be brought in any New York Court, and hereby irrevocably
accepts and submits to the exclusive jurisdiction of each such New York Court
with respect to any such action, suit or proceeding. Each party hereto waives
any objection which it may now or hereafter have to the laying of venue of any
of the aforesaid actions, suits or proceedings brought in any such New York
Court and hereby further waives and agrees not to plead or claim in any such New
York Court that any such action, suit or proceeding brought therein has been
brought in an inconvenient forum. Each party agrees that (i) to the fullest
extent permitted by law, service of process may be effectuated hereinafter by
mailing a copy of the summons and compliant or other pleading by certified mail,
return receipt requested, at its address set forth below and (ii) all notices
that are required to be given hereunder may be given by the attorneys for the
respective parties.
6.4 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (B) IN ANY WAY CONNECTED OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM (AS
NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF
THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL
BY JURY.
6.5 Assignability. This Purchase Agreement shall be binding upon,
and shall be enforceable by and inure to the benefit of, the parties hereto and
their respective heirs, legal representatives, successors and assigns. If a
party's rights under this Purchase Agreement have been assigned in accordance
with the terms of this Purchase Agreement, all references to such party shall be
treated as a reference to the assignee. Neither this Purchase Agreement nor any
of the rights or obligations hereunder may be assigned by Seller without the
prior written consent of Buyer, and any attempted assignment without such
consent shall be void and of no effect. Buyer may assign all or a portion of its
rights and obligations under this Purchase Agreement, provided that such
assignment(s) shall not affect Buyer's obligations hereunder.
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6.6 Severability. If any provision of this Purchase Agreement, or
the application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Purchase Agreement and application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Purchase Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision and to
execute any amendment, consent or agreement deemed necessary or desirable by
Buyer to effect such replacement.
6.7 Reliance. Each party to this Purchase Agreement acknowledges and
agrees that it is not relying on tax advice or other advice from the other party
to this Purchase Agreement, and that it has or will consult with its own
advisors.
6.8 Equitable Remedies. Seller agrees that irreparable damage would
occur to Buyer in the event that any of the provisions of this Purchase
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that Buyer shall be entitled to an
injunction or injunctions to prevent breaches of this Purchase Agreement by
Seller and to enforce specifically the terms and provisions hereof in any
federal or state court located in California (as to which the parties agree to
submit to jurisdiction for the purposes of such action), this being in addition
to any other remedy to which Buyer is entitled under this Purchase Agreement or
otherwise at law or in equity.
6.9 Notices. Any notice or demand which must or may be given under
this Purchase Agreement or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), or (ii) three business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (iii) one business day after being deposited with a
nationally known commercial courier service providing next day delivery service
(such as Federal Express).
Any such notice shall be addressed and delivered or telecopied (a)
in the case of a notice to Buyer at the following address and facsimile number:
c/o Maguire Partners
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx III and Xxxx Lammas
and (b), in the case of a notice to Seller, to the address and facsimile number
set forth on the Purchase Agreement Signature Page hereof.
6.10 Survival. It is the express intention and agreement of the
parties hereto that the representations, warranties and covenants of Seller set
forth in this Purchase Agreement shall survive the consummation of the
transactions contemplated hereby.
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6.11 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Purchase Agreement are included for convenience of reference
only and shall have no effect on the construction or meaning of this Purchase
Agreement.
6.12 Third Party Beneficiary. No provision of this Purchase
Agreement is intended, nor shall it be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any customer,
affiliate, stockholder, partner, member, director, officer or employee of any
party hereto or any other person or entity.
6.13 Expenses. Buyer shall pay all of Seller's out-of-pocket
expenses (including legal fees and expenses) incurred in connection with this
Purchase Agreement and the transactions contemplated hereby.
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PURCHASE AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has executed this
Purchase Agreement as of this ____ day of June, 2003.
SELLER
RECP Library LLC,
a Delaware limited liability company,
By: ___________________________
Xxxxxx X. Xxxxxxxxx
Treasurer
SELLER'S NOTICE ADDRESS
c/o DLJ Real Estate Capital Partners, Inc.
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
BUYER
XXXXXXX PROPERTIES, L.P.
a Maryland limited partnership
By: Xxxxxxx Properties, Inc.
a Maryland corporation
Its general partner
By: _________________________________
Xxxxxxx X. Xxxxxxxxx
President and Co-Chief Executive Officer
S-1
THE COMPANY
NEW BHE, LLC,
a Delaware limited liability company
By: RECP Library LLC,
a Delaware limited liability company,
By: _________________________
Xxxxxx X. Xxxxxxxxx
Treasurer
BUNKER HILL
BUNKER HILL EQUITY, LLC
a Delaware limited liability company
By: Xxxxxxx Partners BGHS, LLC
a California limited liability company
By: Xxxxxxx Partners SCS, Inc.
a California corporation
Its Manager
By: ___________________________
Xxxxxx X. Xxxxxxx III
President
BGHS
XXXXXXX PARTNERS BGHS, LLC
a California limited liability company
By: Xxxxxxx Partners SCS, Inc.
a California corporation
Its Manager
By: _____________________________
Xxxxxx X. Xxxxxxx III
President
S-2
HOPE PLACE
XXXXXXX PARTNERS-HOPE PLACE, LTD.
a California limited liability company
By: Xxxxxxx Partners BGHS, LLC
a California limited liability company
Its Managing General Partner
By: Xxxxxxx Partners SCS, Inc.
a California corporation
Its Manager
By: ____________________________
Xxxxxx X. Xxxxxxx III
President
S-3
EXHIBIT A
TO
PURCHASE AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the undersigned hereby assigns, transfers, sells
and conveys to Xxxxxxx Properties, L.P., a Maryland limited partnership, its
entire legal and beneficial right, title and interest in and to New BHE, LLC, a
Delaware limited liability company (the "Company"), including, without
limitation, all right, title and interest, if any, of the undersigned in and to
the assets of the Company and the right to receive distributions of money,
profits and other assets from the Company, presently existing or hereafter at
any time arising or accruing (such right, title and interest are hereinafter
collectively referred to as the "Preferred Equity Interest"), TO HAVE AND TO
HOLD the same unto Xxxxxxx Properties, L.P., its successors and assigns,
forever.
The undersigned hereby reaffirms the accuracy of all representations
and warranties and the satisfaction of all covenants made by the undersigned in
that certain Purchase Agreement dated as of _________, 2003 (including any
exhibit thereto or agreement contemplated thereby) and if such reaffirmation
cannot be made, hereby identifies those representations, warranties and
covenants with respect to which circumstances have changed.
Upon the execution and delivery hereof, Xxxxxxx Properties, L.P., or
its assignee assumes all obligations in respect of the Preferred Equity
Interest.
Executed: ______________, 200_
RECP LIBRARY LLC,
a Delaware limited liability company,
By: ______________________________
Xxxxxx X. Xxxxxxxxx
Treasurer
Exhibit A
EXHIBIT B
TO
PURCHASE AGREEMENT
CERTIFICATION OF NON-FOREIGN STATUS(1)
Section 1445 of the Internal Revenue Code of 1986, as amended provides that a
transferee of a United States real property interest must withhold tax if the
transferor is a foreign person. To inform Xxxxxxx Properties, L.P., a Maryland
limited partnership ("Buyer") that the withholding of tax is not required upon
the sale of the Preferred Equity Interest by RECP Library LLC, a Delaware
limited liability company (the "Seller") to the Buyer in exchange for the
Purchase Price, the undersigned hereby certifies the following on behalf of the
Seller:
1. The Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the Code and
the Treasury Regulations promulgated thereunder);
2. The Seller's employer identification number is ______________; and
3. The Seller's office address is:
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
The undersigned understands that this certification may be disclosed to
the Internal Revenue Service by the Buyer and that any false statement contained
herein could be punishable by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certification and, to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of the Seller.
By:__________________________
Its:__________________________
Date:________________________
________________
1 Capitalized terms which are used but not otherwise defined herein shall
have the meanings ascribed to them in that certain Purchase Agreement,
dated ___________, 2003.
