SALE AGREEMENT
BETWEEN
TRIZEC 250 X. XXXXX, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
AS SELLER
AND
BEHRINGER HARVARD OPERATING PARTNERSHIP I LP,
A TEXAS LIMITED PARTNERSHIP
AS PURCHASER;
AS OF AUGUST 16, 2004
SALE AGREEMENT
THIS SALE AGREEMENT (this "AGREEMENT") is made as of August 16, 2004
(the "EFFECTIVE DATE"), by and between TRIZEC 250 X. XXXXX, LLC, A DELAWARE
LIMITED LIABILITY COMPANY ("SELLER"), and BEHRINGER HARVARD OPERATING
PARTNERSHIP I LP, a Texas limited partnership ("PURCHASER").
W I T N E S S E T H:
- - - - - - - - - -
ARTICLE I
PURCHASE AND SALE
1.1 AGREEMENT OF PURCHASE AND SALE. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, the following:
(a) those certain tracts or parcels of land situated in
Baltimore, Maryland, more particularly described in EXHIBIT A attached
hereto and made a part hereof, together with all rights and
appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or
rights-of-way (the property described in clause (a) of this Section 1.1
being herein referred to collectively as the "LAND");
(b) office building commonly known as 000 Xxxx Xxxxx Xxxxxx
(the "BUILDING") and all other structures, fixtures and other
improvements affixed to or located on the Land, excluding fixtures owned
by tenants (the property described in clause (b) of this Section 1.1
being herein referred to collectively as the "IMPROVEMENTS");
(c) any and all of Seller's right, title and interest in and
to all tangible personal property located upon the Land or within the
Improvements, including, without limitation, any and all appliances,
furniture, carpeting, draperies and curtains, tools and supplies, and
other items of personal property owned by Seller (excluding cash,
computers, any software and the personal property described in EXHIBIT B
hereto), located on and used exclusively in connection with the
operation of the Land and the Improvements (the property described in
clause (c) of this Section 1.1 being herein referred to collectively as
"PERSONAL PROPERTY");
(d) any and all of Seller's right, title and interest in and
to the leases, licenses and occupancy agreements covering all or any
portion of the Real Property, to the extent they are in effect on the
date of the Closing (as such term is defined in Section 4.1 hereof) (the
property described in clause (d) of this Section 1.1 being herein
referred to collectively as the "LEASES"), together with all rents and
other sums due thereunder for periods from and after the Closing (the
"RENTS") and any and all refundable security deposits in connection
therewith (the "SECURITY DEPOSITS"); and
(e) any and all of Seller's right, title and interest in and
to (i) all assignable contracts and agreements (collectively, the
"OPERATING AGREEMENTS") listed and described on EXHIBIT C attached
hereto and made a part hereof, relating to the upkeep, repair,
maintenance or operation of the Land, Improvements or Personal Property,
and (ii) all assignable existing warranties and guaranties (express or
implied) issued to Seller in connection with the Improvements or the
Personal Property, and (iii) all assignable existing permits, licenses,
approvals and authorizations issued by any governmental authority in
connection with the Property and (iv) the non-exclusive right to the
name "250 WEST XXXXX STREET", but excluding any right to use the name
"TRIZEC," "TRIZECHAHN," "TRIZEC PROPERTIES" or any derivation thereof
(the property described in clause (e) of this Section 1.1 being
sometimes herein referred to collectively as the "INTANGIBLES").
1.2 PROPERTY DEFINED. The Land and the Improvements are hereinafter
sometimes referred to collectively as the "REAL PROPERTY." The Land, the
Improvements, the Personal Property, the Leases and the Intangibles are
hereinafter sometimes referred to collectively as the "PROPERTY."
1.3 PURCHASE PRICE. Seller is to sell and Purchaser is to purchase
the Property for the amount of Fifty-Two Million Seven Hundred Fifty Thousand
and No/100 Dollars ($52,750,000.00) (the "PURCHASE PRICE"); provided, however,
if (a) Purchaser exercises the Equity Transfer Election (as defined in Section
4.8), (b) the parties agree upon the terms of an Equity Transfer, as defined in
and contemplated by Section 4.8 hereof, (c) the parties close the transaction as
an Equity Transaction and (d) if as a result thereof, there is no transfer tax
or similar tax payable in connection with the transaction contemplated in this
Agreement, then the Purchase Price shall be Fifty-Two Million Six Hundred
Thousand and No/100 Dollars ($52,600,000.00).
1.4 PAYMENT OF PURCHASE PRICE. The Purchase Price, as increased or
decreased by prorations and adjustments as herein provided, shall be payable in
full at Closing in cash by wire transfer of immediately available funds to a
bank account designated by Seller in writing to Purchaser prior to the Closing.
1.5 DEPOSIT. Within three (3) business days after the execution and
delivery of this Agreement, Purchaser shall deposit with Partners Title Company
(the "ESCROW AGENT" or the "TITLE COMPANY"), having its office at 000 Xxxx
Xxxxxx, Xxxxx 0000X, Xxxxxxx, Xxxxx 00000-0000 (Attention: Xxxxx Xxxxxxxxx) the
sum of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) (the
"INITIAL DEPOSIT") in good funds, either by certified bank or cashier's check or
by federal wire transfer. Purchaser agrees that Three Hundred Thousand and
No/100 Dollars ($300,000.00) of the Initial Deposit shall be non-refundable
except as otherwise provided herein. On or prior to September 9, 2004, Purchaser
shall deposit with Escrow Agent the sum of One Million and
No/100 Dollars ($1,000,000.00) (the "FIRST ADDITIONAL DEPOSIT") in good funds,
either by certified bank or cashiers check or by federal wire transfer. On or
prior to October 11, 2004, Purchaser shall deposit with Escrow Agent the sum of
One Million and No/100 Dollars ($1,000,000.00) (the "SECOND ADDITIONAL DEPOSIT")
in good funds, either by certified bank or cashiers check or by federal wire
transfer. On or prior to November 9, 2004, Purchaser shall deposit with Escrow
Agent the sum of One Million and No/100 Dollars ($1,000,000.00) (the "THIRD
ADDITIONAL DEPOSIT") in good funds, either by certified bank or cashiers check
or by federal wire transfer. The Initial Deposit, together with the First
Additional Deposit, the Second Additional Deposit and the Third Additional
Deposit, and all interest earned thereon is collectively called the "DEPOSIT").
The Escrow Agent shall hold the Deposit in an interest-bearing account
reasonably acceptable to Seller and Purchaser, in accordance with the terms and
conditions of this Agreement. All interest on such sum shall be deemed income of
Purchaser, and Purchaser shall be responsible for the payment of all costs and
fees imposed on the Deposit account. The Deposit shall be delivered to Seller
and applied against the Purchase Price at Closing or otherwise distributed in
accordance with the terms of this Agreement. The failure of Purchaser to timely
deliver any Deposit hereunder shall be a material default, and shall entitle
Seller, at Seller's sole option, to exercise the remedies provided in Section
6.1 hereof, including without limitation to receive the Initial Deposit as
liquidated damages. Prior to expiration of the Inspection Period, the escrow
established pursuant to the Agreement shall be deemed to be a "sole order"
escrow, and Escrow Agent shall disburse the Deposit to Purchaser upon Escrow
Agent's receipt of any notice of termination prior to expiration of the
Inspection Period, without liability to Seller and notwithstanding any objection
by Seller to such disbursement.
1.6 ESCROW AGENT. Escrow Agent shall hold and dispose of the Deposit
in accordance with the terms of this Agreement. Seller and Purchaser agree that
the duties of the Escrow Agent hereunder are purely ministerial in nature and
shall be expressly limited to the safekeeping and disposition of the Deposit in
accordance with this Agreement. Escrow Agent shall incur no liability in
connection with the safekeeping or disposition of the Deposit for any reason
other than Escrow Agent's willful misconduct or gross negligence. In the event
that Escrow Agent shall be in doubt as to its duties or obligations with regard
to the Deposit, or in the event that Escrow Agent receives conflicting
instructions from Purchaser and Seller with respect to the Deposit, Escrow Agent
shall not be required to disburse the Deposit and may, at its option, continue
to hold the Deposit until both Purchaser and Seller agree as to its disposition,
or until a final judgment is entered by a court of competent jurisdiction
directing its disposition, or Escrow Agent may interplead the Deposit in
accordance with the laws of the state in which the Property is located.
Escrow Agent shall not be responsible for any interest on the Deposit
except as is actually earned, or for the loss of any interest resulting from the
withdrawal of the Deposit prior to the date interest is posted thereon.
Escrow Agent shall execute this Agreement solely for the purpose of
being bound by the provisions of Sections 1.5 and 1.6 hereof.
ARTICLE II
TITLE AND SURVEY
2.1 TITLE REVIEW PERIOD. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) on August
27, 2004 (hereinafter referred to as the "TITLE REVIEW PERIOD"), Purchaser shall
have the right to review (a) a current preliminary title report on the Real
Property prepared by the Title Company which title report shall be obtained by
Purchaser and provided to Seller within five (5) days after the Effective Date;
and (b) Seller's existing survey of the Real Property (the "SURVEY"), which
Seller has delivered to Purchaser prior to the Effective Date. Purchaser may
obtain an updated survey of the Real Property (the "UPDATED SURVEY"). Purchaser
shall provide a copy of any Updated Survey to Seller upon Purchaser's receipt of
same.
2.2 TITLE EXAMINATION. Purchaser shall notify Seller in writing (the
"TITLE NOTICE") prior to the expiration of the Title Review Period which
exceptions to title (including survey matters), if any, will not be accepted by
Purchaser. If Purchaser fails to notify Seller in writing of its disapproval of
any exceptions to title by the expiration of the Title Review Period, Purchaser
shall be deemed to have approved the condition of title to the Real Property. If
Purchaser notifies Seller in writing that Purchaser objects to any exceptions to
title, Seller shall have three (3) days after receipt of the Title Notice to
notify Purchaser (a) that Seller will remove such objectionable exceptions from
title on or before the Closing; provided that Seller may extend the Closing for
such period as shall be required to effect such cure, but not beyond thirty (30)
days; or (b) that Seller elects not to cause such exceptions to be removed;
provided that Seller shall pay or discharge any monetary liens created, assumed
or consented to by Seller. The procurement by Seller of a commitment for the
issuance of the Title Policy (as defined in Section 4.6 hereof) or an
endorsement thereto insuring Purchaser against any title exception which was
disapproved pursuant to this Section 2.2 shall be deemed a cure by Seller of
such disapproval subject to Purchaser's reasonable approval thereof. If Seller
gives Purchaser notice under clause (b) above, Purchaser shall have until the
expiration of the Title Review Period in which to notify Seller that Purchaser
will nevertheless proceed with the purchase and take title to the Property
subject to such exceptions, or that Purchaser will terminate this Agreement. If
Purchaser shall fail to notify Seller of its election on or before the
expiration of the Title Review Period, Purchaser shall be deemed to have elected
to terminate this Agreement. If this Agreement is terminated or deemed
terminated pursuant to the foregoing provisions of this paragraph, then neither
party shall have any further rights or obligations hereunder (except for those
obligations of either party that expressly survive the termination of this
Agreement pursuant to the other provisions of this Agreement), Three Hundred
Thousand and no/100 Dollars ($300,000.00) of the Deposit shall be paid to Seller
and the balance of the Deposit shall be returned to Purchaser and each party
shall bear its own costs incurred hereunder.
2.3 PRE-CLOSING "GAP" TITLE DEFECTS. Between the expiration of the
Title Review Period and prior to Closing, Purchaser may notify Seller in writing
(the "GAP NOTICE") of any objections to title (a) that did not exist prior to
the expiration of the Title Review Period and are not due to acts done or
suffered by or through Purchaser and (b) are raised by the Title Company between
the expiration of the Title Review Period and the Closing. provided that
Purchaser must notify Seller of such objection to title within two (2) business
days of being made aware of the existence of such exception. If Purchaser sends
a Gap Notice to Seller, Purchaser and Seller shall have the same rights and
obligations with respect to such notice as apply to a Title Notice under Section
2.2 hereof, unless such new matter was created by Seller or with Seller's
consent, in which case, Seller shall satisfy Purchaser's objections relating
thereto at or prior to Closing.
ARTICLE III
REVIEW OF PROPERTY
3.1 RIGHT OF INSPECTION. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) on September
8, 2004 (hereinafter referred to as the "INSPECTION PERIOD"), Purchaser shall
have the right to make a physical inspection of the Real Property, including an
inspection of the environmental condition thereof pursuant to the terms and
conditions of this Agreement, and to examine at the Property (or the property
manager's office) all documents and files concerning the leasing, maintenance
and operation of the Property, including expense budgets and accounting and tax
records to the extent related to the operation of the Property, but excluding
Seller's partnership or corporate records, internal memoranda, operating and
revenue budgets, accounting and tax records, appraisals, financial projections
and similar proprietary, confidential or privileged information (collectively,
the "CONFIDENTIAL DOCUMENTS"). Purchaser has advised Seller that Purchaser must
cause to be prepared three (3) years of audited financial statements in respect
of the Property in accordance with the policies of Purchaser and certain laws
and regulations including, without limitation, Securities and Exchange
Commission Regulation S-X, 3-14. Seller agrees to use reasonable efforts to
provide to Purchaser such financial statements and supporting documentation as
are necessary for Purchaser's auditors to prepare such audited financial
statements, provided such cooperation on the part of Seller shall impose no
liability on Seller.
Purchaser understands and agrees that any on-site inspections of the
Property shall occur at reasonable times agreed upon by Seller and Purchaser
after reasonable prior written notice to Seller and shall be conducted so as not
to interfere unreasonably with the use of the Property by Seller or its tenants.
Seller reserves the right to have a representative present during any such
inspections. If Purchaser desires to do any invasive testing at the Property,
Purchaser shall do so only after notifying Seller and obtaining Seller's prior
written consent thereto, which consent may be subject to any terms and
conditions imposed by Seller in its sole discretion. Purchaser shall promptly
restore the Property to its condition prior to any such inspections or tests, at
Purchaser's sole cost and expense. At Seller's option, Purchaser will furnish to
Seller copies of any reports received by Purchaser relating to any inspections
of the Property. Purchaser agrees to protect, indemnify, defend and hold Seller
harmless from and against any claim for liabilities, losses, costs, expenses
(including reasonable attorneys' fees), damages or injuries arising out of or
resulting from the inspection of the Property by Purchaser or its agents or
consultants (excluding discovery of condition), and notwithstanding anything to
the contrary in this Agreement, such obligation to indemnify and hold harmless
Seller shall survive Closing or any
termination of this Agreement. Unless legally required to report a condition
that is revealed by inspections, Purchaser shall not contact any governmental
authority without first obtaining the prior written consent of Seller thereto
and Seller, at Seller's election, shall be entitled to have a representative on
any telephone call or other contact made by Purchaser to a governmental
authority and to be present at any meeting between Purchaser and a governmental
authority. The foregoing shall not, however, prevent Purchaser from contacting
governmental authorities to request zoning and code compliance letters for
customary due diligence and shall not prohibit Purchaser from reviewing or
requesting copies of public files relating to the Property. Purchaser shall
maintain and shall assure that its contractors maintain public liability and
property damage insurance in amounts and in form and substance adequate to
insure against all liabilities of Purchaser and its agents, employees or
contractors arising out of any entry upon or inspection of the Property pursuant
to the provisions hereof and concurrently with the execution hereof, Purchaser
shall provide Seller with evidence of such insurance coverage naming Seller as
an additional insured party thereunder.
3.2 REPORTS. PURCHASER ACKNOWLEDGES THAT (1) PURCHASER HAS RECEIVED
COPIES OF THE ENVIRONMENTAL, ENGINEERING AND OTHER REPORTS (COLLECTIVELY, THE
"REPORTS") LISTED ON EXHIBIT P ATTACHED HERETO, (2) IF SELLER DELIVERS ANY
ADDITIONAL REPORTS TO PURCHASER, PURCHASER WILL ACKNOWLEDGE IN WRITING THAT IT
HAS RECEIVED SUCH REPORTS PROMPTLY UPON RECEIPT THEREOF, AND (3) ANY REPORTS
DELIVERED OR TO BE DELIVERED BY SELLER OR ITS AGENTS OR CONSULTANTS TO PURCHASER
ARE BEING MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO PURCHASER AND MAY NOT BE
RELIED UPON BY PURCHASER IN CONNECTION WITH THE PURCHASE OF THE PROPERTY.
PURCHASER AGREES THAT SELLER SHALL HAVE NO LIABILITY OR OBLIGATION WHATSOEVER
FOR ANY INACCURACY IN OR OMISSION FROM ANY REPORT. PURCHASER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD, ITS OWN
INVESTIGATION OF THE CONDITION OF THE PROPERTY TO THE EXTENT PURCHASER DEEMS
SUCH AN INVESTIGATION TO BE NECESSARY OR APPROPRIATE.
3.3 RIGHT OF TERMINATION. If for any reason whatsoever Purchaser
determines that the Property or any aspect thereof is unsuitable for Purchaser's
acquisition, Purchaser shall have the right to terminate this Agreement, in its
sole discretion and for any reason or no reason by giving written notice thereof
to Seller prior to the expiration of the Inspection Period, and if Purchaser
gives such notice of termination on or prior to the expiration of the Inspection
Period, this Agreement shall terminate. If this Agreement is terminated pursuant
to the foregoing provisions of this paragraph, then Three Hundred Thousand and
No/100 Dollars of the Deposit shall be paid to Seller and the balance of the
Deposit shall be returned to Purchaser and, thereupon, neither party shall have
any further rights or obligations hereunder (except for those obligations that
expressly survive the termination of this Agreement). If Purchaser fails to give
Seller a notice of termination prior to the expiration of the Initial Review
Period or the Inspection Period, Purchaser shall be deemed to have approved all
aspects of the Property (except title and survey, which shall be governed by
Article II hereof)
and to have elected to proceed with the purchase of the Property pursuant to the
terms hereof, subject to all conditions to Closing otherwise specified herein.
3.4 REVIEW OF TENANT ESTOPPELS. After October 15, 2004, Seller shall
deliver to each tenant of the Property an estoppel certificate in substantially
the form of EXHIBIT D attached hereto (each, an "ESTOPPEL CERTIFICATE"), and
shall request that the tenants complete and sign the Estoppel Certificates and
return them to Seller. Seller shall deliver copies of the completed Estoppel
Certificates to Purchaser as Seller receives them.
3.5 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENTS. Seller
agrees to cooperate with Purchaser to obtain subordination, non-disturbance and
attornment agreements ("SNDAS") from tenants under Leases selected by
Purchaser's lender. As and when received by Seller, Seller shall deliver the
executed SNDAs to Purchaser. If the transaction contemplated herein fails to
close for any reason whatsoever, Purchaser shall return to Seller all such
executed SNDAs previously delivered to Purchaser. The failure to obtain SNDAs
from all or any of the selected tenants shall not constitute a default by Seller
hereunder or otherwise entitle Purchaser to terminate this Agreement.
ARTICLE IV
CLOSING
4.1 TIME AND PLACE. The consummation of the transaction contemplated
hereby (the "CLOSING") shall be held at the Chicago offices of Xxxxx Xxxxxxx LLP
on December 1, 2004 (the "CLOSING DATE"). At the Closing, Seller and Purchaser
shall perform the obligations set forth in, respectively, Section 4.2 and
Section 4.3 hereof, the performance of which obligations shall be concurrent
conditions. At Seller's option, the Closing shall be consummated through an
escrow administered by Escrow Agent. In such event, the Purchase Price and all
documents shall be deposited with the Escrow Agent, as escrowee. Notwithstanding
the foregoing, by delivering, at least three (3) business days prior to the
original Closing Date, to Seller a written notice ("EXTENSION NOTICE").
Purchaser may elect to extend the Closing Date to a date no later than December
15, 2004, which extended Closing Date shall be specified in the Extension
Notice.
4.2 SELLER'S OBLIGATIONS AT CLOSING. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty
deed (the "DEED") in the form attached hereto as EXHIBIT E, conveying
the Land and Improvements, subject only to the Permitted Exceptions (as
hereinafter defined); the warranty of title in the Deed will be only as
to claims made by, through or under Seller and not otherwise;
(b) deliver to Purchaser a duly executed xxxx of sale
(collectively, the "XXXX OF SALE") conveying the Personal Property
without warranty of title or use and without warranty, express or
implied, as to, merchantability and fitness for any purpose and in the
form attached hereto as EXHIBIT F;
(c) assign to Purchaser, and Purchaser shall assume, the
landlord/lessor interest in and to the Leases, Rents and Security
Deposits, and any and all obligations to pay Commissions and finder's
fees with respect to the Leases and amendments, renewals and expansions
thereof, to the extent provided in Section 4.4(b)(v) hereof, by duly
executed assignment and assumption agreements (collectively, the
"ASSIGNMENT OF LEASES") in the form attached hereto as EXHIBIT G;
(d) to the extent assignable, assign to Purchaser, and
Purchaser shall assume, Seller's interest in the Operating Agreements
and the other Intangibles by duly executed assignment and assumption
agreements (collectively, the "ASSIGNMENT OF CONTRACTS") in the form
attached hereto as EXHIBIT H;
(e) join with Purchaser to execute a notice (the "TENANT
NOTICE") in the form attached hereto as EXHIBIT I, which Purchaser shall
send to each tenant under each of the Leases promptly after the Closing,
informing such tenant of the sale of the Property and of the assignment
to Purchaser of Seller's interest in, and obligations under, the Leases
(including, if applicable, any Security Deposits), and directing that
all Rent and other sums payable after the Closing under each such Lease
be paid as set forth in the notice;
(f) deliver to Purchaser the Seller Representation
Certificate (as defined in Section 4.6(b) hereof). In no event shall
Seller be liable to Purchaser for, or be deemed to be in default
hereunder by reason of, any breach of representation or warranty which
results from any change that (i) occurs between the Effective Date and
the Closing Date and (ii) is expressly permitted under the terms of this
Agreement or is beyond the reasonable control of Seller to prevent;
(g) deliver to Purchaser such evidence as the Title Company
may reasonably require as to the authority of the person or persons
executing documents on behalf of Seller;
(h) deliver to Purchaser certificates in the form attached
hereto as EXHIBIT J duly executed by Seller stating that Seller is not a
"foreign person" as defined in the Federal Foreign Investment in Real
Property Tax Act of 1980;
(i) deliver to Purchaser the Leases and the Operating
Agreements, together with such leasing and property files and records
which are material in connection with the continued operation, leasing
and maintenance of the Property, but excluding any Confidential
Documents;
(j) deliver such affidavits as may be customarily and
reasonably required by the Title Company, in a form reasonably
acceptable to Seller;
(k) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions;
(l) execute a closing and proration statement; and
(m) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.3 PURCHASER'S OBLIGATIONS AT CLOSING. At Closing, Purchaser shall:
(a) pay to Seller the full amount of the Purchase Price
(which amount shall include the Deposit), as increased or decreased by
prorations and adjustments as herein provided, in immediately available
wire transferred funds pursuant to Section 1.4 hereof;
(b) join Seller in execution of the Assignment of Leases,
Assignment of Contracts and Tenant Notices;
(c) in the event that any representation or warranty of
Purchaser set forth in Sections 5.7(a) or (b) hereof needs to be
modified due to changes since the Effective Date, deliver to Seller a
certificate, dated as of the Closing Date and executed on behalf of
Purchaser by a duly authorized representative thereof, identifying any
such representation or warranty which is no longer true and correct and
explaining the state of facts giving rise to the change. In no event
shall Purchaser be liable to Seller for, or be deemed to be in default
hereunder by reason of, any breach of representation or warranty set
forth in Sections 5.7(a) or (b) hereof which results from any change
that (i) occurs between the Effective Date and the Closing Date and (ii)
is expressly permitted under the terms of this Agreement or is beyond
the reasonable control of Purchaser to prevent;
(d) deliver to Seller such evidence as the Title Company may
reasonably require as to the authority of the person or persons
executing documents on behalf of Purchaser;
(e) deliver such affidavits as may be customarily and
reasonably required by the Title Company, in a form reasonably
acceptable to Purchaser;
(f) execute a closing and proration statement; and
(g) deliver such additional documents as shall be reasonably
required to consummate the transaction contemplated by this Agreement.
4.4 CREDITS AND PRORATIONS.
(a) Seller shall endeavor to provide Purchaser with a draft
of the closing and proration statement referred to in Sections 4.2(l)
and 4.3(l) (the "CLOSING STATEMENT") on or before the date that is five
(5) business days prior to the Closing Date. If Seller fails to deliver
such draft Closing Statement on or before such date, such failure
shall not constitute a default by Seller hereunder or otherwise entitle
Purchaser to terminate this Agreement.
(b) All income and expenses of the Property shall be
apportioned as of 12:01 a.m., on the Closing Date, as if Purchaser were
vested with title to the Property during the entire day upon which
Closing occurs. Such prorated items shall include without limitation the
following:
(i) all Rents;
(ii) taxes and assessments (including personal
property taxes on the Personal Property) levied against the
Property;
(iii) utility charges for which Seller is liable, if
any, such charges to be apportioned at Closing on the basis of
the most recent meter reading occurring prior to Closing (dated
not more than fifteen (15) days prior to Closing) or, if
unmetered, on the basis of a current xxxx for each such utility;
(iv) all amounts payable under Operating Agreements;
and
(v) any other operating expenses or other items
pertaining to the Property which are customarily prorated
between a purchaser and a seller in the county in which the
Property is located.
(c) In addition to and notwithstanding anything contained in
Section 4.4(b) hereof:
(i) At Closing, (A) Seller shall, at Seller's
option, either deliver to Purchaser any Security Deposits
provided under the Leases or credit to the account of Purchaser
the amount of such Security Deposits (to the extent such
Security Deposits have not been applied against delinquent Rents
or otherwise as provided in the Leases, any amounts so supplied
being disclosed to Purchaser in writing with a representation by
Seller that the tenant who posted such applied Security Deposit
is not entitled to a refund of the applied amount), and (B)
Purchaser shall credit to the account of Seller all refundable
cash or other deposits posted with utility companies serving the
Property to the extent transferred to Seller on the utility
company's records, or, at Seller's option, Seller shall be
entitled to receive and retain such refundable cash and
deposits;
(ii) Any taxes paid at or prior to Closing shall be
prorated based upon the amounts actually paid. If taxes and
assessments due and payable during the year of Closing have not
been paid before Closing, Seller shall be charged at Closing an
amount equal to that portion of such taxes and assessments which
relates to the period before Closing and Purchaser shall pay the
taxes and assessments prior to their becoming delinquent and on
or prior to the date that will maximize any discounts or
reductions in said taxes and assessments on account of early
payment thereof. Any such apportionment made with respect to a
tax year
for which the tax rate or assessed valuation, or both, have not
yet been fixed shall be based upon the tax rate and/or assessed
valuation last fixed. To the extent that the actual taxes and
assessments for the current year differ from the amount
apportioned at Closing, the parties shall make all necessary
adjustments by appropriate payments between themselves within
thirty (30) days after such amounts are determined following
Closing, subject to the provisions of Section 4.4(e) hereof;
(iii) Non-delinquent charges referred to in Section
4.4(b) hereof which are payable by any tenant to a third party
shall not be apportioned hereunder, and Purchaser shall accept
title subject to any of such charges unpaid and Purchaser shall
look solely to the tenant responsible therefor for the payment
of the same. If Seller shall have paid any of such charges on
behalf of any tenant, and shall not have been reimbursed
therefor by the time of Closing, Purchaser shall deliver the
reimbursement due Seller upon receipt of the same from the
tenant(s) who are responsible for payment;
(iv) As to utility charges referred to in Section
4.4(a)(iii) hereof, Seller may on notice to Purchaser elect to
pay one or more of all of said items accrued to the date
hereinabove fixed for apportionment directly to the person or
entity entitled thereto, and to the extent Seller so elects,
such item shall not be apportioned hereunder, and Seller's
obligation to pay such item directly in such case shall survive
the Closing or any termination of this Agreement;
(v) Purchaser shall be responsible for the payment
of (A) all Tenant Inducement Costs (as hereinafter defined) and
Commissions (as hereinafter defined) which become due and
payable (whether before or after Closing) as a result of any new
Leases, or any renewals, amendments or expansions of existing
Leases, signed during the Lease Approval Period (as hereinafter
defined) or as a result of any options exercised by tenants or
the failure by a tenant to exercise any options during the Lease
Approval Period, including, without limitation, the Commissions
and Tenant Inducement Costs set forth on SCHEDULE 1, and, if
required, approved or deemed approved in accordance with Section
5.6 hereof; and (B) all Tenant Inducement Costs and Commissions
as a result of new leases, or renewals, amendments or expansions
of existing Leases, signed or entered into from and after the
Closing Date or as a result of any options exercised by tenants
or the failure by a tenant to exercise any options after the
Closing Date. If, as of the Closing Date, Seller shall have paid
any Tenant Inducement Costs or Commissions for which Purchaser
is responsible pursuant to the foregoing provisions, Purchaser
shall reimburse Seller therefor at Closing. As used herein (a)
"COMMISSIONS" shall mean all brokerage commissions, finder's
fees or other similar compensation due or payable in connection
with the applicable lease and (b) "TENANT INDUCEMENT COSTS"
shall mean any out-of-pocket payments required under a Lease to
be paid by the landlord thereunder to or for the benefit of the
tenant thereunder which is in the nature of a tenant inducement,
including specifically, without limitation, tenant improvement
costs, lease buyout costs, and moving, design, refurbishment and
club membership allowances. The term "Tenant Inducement Costs"
shall not include loss of income resulting from any free rental
period, it being agreed that Seller shall bear the loss
resulting from any free rental period until the Closing Date and
that Purchaser shall bear such loss from and after the Closing
Date. For purposes hereof, the term "LEASE APPROVAL PERIOD"
shall mean the period from the Effective Date until the Closing
Date;
(vi) As used herein, the term "REIMBURSABLE TENANT
EXPENSES" shall mean payments required to be paid by tenants
under Leases for such tenant's share of ad valorem taxes,
insurance, common area maintenance and/or other operating
expenses of the Property. Promptly after December 31, 2004,
Purchaser shall determine the actual amount of Reimbursable
Tenant Expenses for the year in which the Closing occurs.
Purchaser shall use reasonable efforts to collect from the
tenants of the Property any underpayment of Reimbursable Tenant
Expenses for the year in which the Closing occurs and to pay to
Seller Seller's share of said underpayment promptly upon
collection thereof. Likewise any overpayments shall similarly be
adjusted and Seller shall refund Purchaser its prorata share of
such overpayments to the extent such overpayments have not
previously been refunded to tenants or credited to Purchaser at
Closing;
(vii) Unpaid and delinquent Rent collected by Seller
and Purchaser after the Closing Date shall be delivered as
follows: (a) if Seller collects any unpaid or delinquent Rent
for the Property, Seller shall, within fifteen (15) days after
the receipt thereof, deliver to Purchaser any such Rent which
Purchaser is entitled to hereunder relating to the Closing Date
and any period thereafter, and (b) if Purchaser collects any
unpaid or delinquent Rent from the Property, Purchaser shall,
within fifteen (15) days after the receipt thereof, deliver to
Seller any such Rent which Seller is entitled to hereunder
relating to the period prior to the Closing Date. Seller and
Purchaser agree that (i) all Rent received by Seller or
Purchaser within the first ninety (90) day period after the
Closing Date shall be applied first to reasonable costs of
collection, then to current Rent, and then to delinquent Rent,
if any, in the inverse order of their maturity. Purchaser will
make a good faith effort after Closing to collect all Rents in
the usual course of Purchaser's operation of the Property, but
Purchaser will not be obligated to institute any lawsuit or
other collection procedures to collect delinquent Rents. Seller
may attempt to collect any delinquent Rents owed Seller and may
institute any lawsuit or collection procedures, but may not
evict any tenant. In the event that there shall be any Rents or
other charges under any Leases which, although relating to a
period prior to Closing, do not become due and payable until
after Closing or are paid prior to Closing but are subject to
adjustment after Closing (such as Reimbursable Tenant Expenses),
then any Rents or charges of such type received by Purchaser or
its agents or Seller or its agents subsequent to Closing shall,
to the extent applicable to a period extending through the
Closing, be
prorated between Seller and Purchaser as of Closing, with each
party promptly remitting to the other amounts due as a result of
such proration.
(viii) Notwithstanding the terms of Section 4.4(c)(vii)
above, if the tenant under any GSA Lease (defined below) or any
Lease with any state or municipal governmental entity shall at
Closing owe any Rent for the period prior to Closing, Seller and
Purchaser agree that all Rent received by Seller or Purchaser
after the Closing Date shall be applied first to Rent payable
under the applicable Lease in the order of its maturity, and
then to current Rent.
(d) For a period of three (3) years after the Closing and
upon reasonable advance written notice, Purchaser shall allow Seller and
its agents and representatives access without charge to all files,
records and documents delivered to Purchaser at the Closing, upon
reasonable advance notice and at all reasonable times, to examine and,
at Seller's expense make copies of any and all such files, records and
documents, which right shall survive the Closing;
(e) Except as otherwise provided herein, any revenue or
expense amount which cannot be ascertained with certainty as of Closing
shall be prorated on the basis of the parties' reasonable estimates of
such amount, and shall be the subject of a final proration thirty (30)
days after Closing, or as soon thereafter as the precise amounts can be
ascertained; but in no event shall any reproration under this Agreement,
other than with respect to taxes and assessments pursuant to Section
4.4(b)(ii) above and Reimbursable Tenant Expenses pursuant to Section
4.4(b)(vi) above, occur more than 180 days after the Closing. Purchaser
shall promptly notify Seller when it becomes aware that any such
estimated amount has been ascertained. Once all revenue and expense
amounts have been ascertained, Purchaser shall prepare, and certify as
correct, a final proration statement which shall be subject to Seller's
approval. Upon Seller's acceptance and approval of any final proration
statement submitted by Purchaser, such statement shall be conclusively
deemed to be accurate and final.
(f) Subject to Section 4.4(e) hereof, the provisions of this
Section 4.4 shall survive Closing.
4.5 TRANSACTION TAXES AND CLOSING COSTS.
(a) Seller and Purchaser shall execute such returns,
questionnaires and other documents as shall be required with regard to
all applicable real property transaction taxes imposed by applicable
federal, state or local law or ordinance;
(b) Seller shall pay the fees of any counsel representing
Seller in connection with this transaction. Seller shall also pay the
following costs and expenses: (i) one-half (1/2) escrow fee, if any,
which may be charged by the Escrow Agent or Title Company; (ii) one-half
(1/2) of transfer tax, sales tax, documentary tax or similar tax which
becomes payable by reason of the transfer of the Property, (iii) the
cost of paying off Seller's existing financing and obtaining applicable
releases, including but
not limited to payment of any prepayment premium or defeasance costs;
and (iv) the cost of the Updated Survey.
(c) Purchaser shall pay the fees of any counsel representing
Purchaser in connection with this transaction. Purchaser shall also pay
the following costs and expenses: (i) one half (1/2) of the escrow fee,
if any, which may be charged by the Escrow Agent or Title Companies;
(ii) the premium for the Title Policy to be issued to Purchaser by the
Title Company at Closing, including any endorsements to the Title
Policy; (iii) all costs and expenses incurred in connection with the
transfer of any transferable permits, warranties, licenses or non-cash
security deposits in connection with the ownership or operation of the
Property; (v) fees for recording the deed and one-half (1/2) of any
transfer tax, sales tax, documentary stamp tax or similar tax which
becomes payable by reason of the transfer of the Property, and (vi) all
costs and expenses associated with Purchaser's financing.
(d) The Personal Property is included in this sale without
charge, and Seller shall pay the amount of any and all sales or similar
taxes payable in connection with the transfer of the Personal Property.
Purchaser and Seller shall execute and deliver any tax returns required
in connection therewith;
(e) All costs and expenses incident to this transaction and
the closing thereof, and not specifically described above, shall be paid
by the party incurring same; and
(f) The provisions of this Section 4.5 shall survive the
Closing.
4.6 CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER. The obligation
of Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the Closing Date of all of the following conditions,
any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the
items required to be delivered to Purchaser pursuant to the terms of
this Agreement, including but not limited to, those provided for in
Section 4.2 hereof;
(b) All of the representations and warranties of Seller
contained in this Agreement shall be true and correct when made and as
of the Closing Date and, at Closing, Seller shall deliver to Purchaser a
certificate to that effect (the "SELLER REPRESENTATION CERTIFICATE").
Notwithstanding the foregoing, unless the Seller Representation
Certificate discloses the existence of a Material Adverse Effect (as
defined in Section 4.6(g) hereof), the condition set forth in this
Section 4.6(b) shall be deemed to be satisfied;
(c) Seller shall have performed and observed in all material
respects all covenants and agreements of this Agreement to be performed
and observed by Seller as of the Closing Date;
(d) The Property shall be conveyed at Closing subject only
to the following matters, which are hereinafter referred to as the
"PERMITTED EXCEPTIONS":
(i) those matters that either are not objected to in
writing within the time periods provided in Sections 2.2 or 2.3
hereof, or if objected to in writing by Purchaser, are those
which Seller has elected not to remove or cure, or has been
unable to remove or cure, and subject to which Purchaser has
elected or is deemed to have elected to accept the conveyance of
the Property;
(ii) the rights of tenants under the Leases;
(iii) the lien of all ad valorem real estate taxes and
assessments not yet due and payable as of the Closing Date (as
defined in Section 4.1), subject to adjustment as herein
provided;
(iv) local, state and federal laws, ordinances or
governmental regulations, including but not limited to, building
and zoning laws, ordinances and regulations, now or hereafter in
effect relating to the Property; and
(v) matters that have arisen as a result of acts=
done or suffered by or through Purchaser.
Evidence of delivery of title subject only to the Permitted Exceptions
shall be the issuance by the Title Company, and/or another national title
company of its Owner's Policy of Title Insurance (the "TITLE POLICY") covering
the Real Property, in the aggregate amount of the Purchase Price, subject only
to the Permitted Exceptions.
(e) No later than five (5) days prior to Closing, Purchaser
shall have received, from tenants leasing eighty percent (80%) or more
of the leased area of the Building which is occupied as of the Effective
Date (specifically including, in any event, all tenants who lease more
than 20,000 rentable square feet in the Building) Estoppel Certificates
addressed to Purchaser and any other person designated by Purchaser,
dated not earlier than October 15, 2004, substantially in the form of
EXHIBIT D or with respect to any Lease where the tenant is the United
States of America (each a "GSA LEASE"), a completed GSA standard form
Lease Status Report (a "GSA FORM") rather than an estoppel certificate
in the form of EXHIBIT D.. Purchaser agrees that an Estoppel Certificate
shall be deemed to satisfy the requirements of this Section 4.6(e) even
though it may not be in the form or substance of EXHIBIT D or a GSA
Form, provided that the Estoppel Certificate (i) states that no material
defaults have occurred under the lease and confirms the economic terms
of the lease, or (ii) contains the specific information (as opposed to a
general or "catch all" requirement), if any, required by the applicable
lease, or (iii) does not depart from the form of Estoppel Certificate
attached as EXHIBIT D or the GSA Form other than to reflect facts or
circumstances that are disclosed in writing by Seller or that were known
to Purchaser through its inspection of the Property prior to the
expiration of the Inspection Period.
(f) No event(s) shall have occurred or condition arisen,
after the Effective Date with respect to the Property (other than any
loss or damage to the Property caused by fire or other casualty or
condemnation which shall be governed by the terms of Article VII
hereof), the result(s) of which may reasonably be expected to have an
adverse effect on the value of the Property (in the aggregate) which
would in the reasonable opinion of an investment sales broker reasonably
selected by Purchaser and Seller be equal to or greater than Five
Hundred Thousand and No/100 Dollars ($500,000.00) (a "MATERIAL ADVERSE
EFFECT").
If any of the conditions to Purchaser's obligations under Section 4.6
shall fail to occur and such failure is not otherwise a default under this
Agreement (in which event Purchaser would be afforded the rights under Section
6.2 hereof), then Purchaser may, as long as Purchaser is not in default
hereunder, and as its sole and exclusive remedy, terminate this Agreement by
written notice to Seller, in which event the Deposit shall be promptly returned
to Purchaser and neither party shall have any further rights or obligations
hereunder (except for those obligations of either party that expressly survive
the termination of this Agreement pursuant to the other provisions of this
Agreement). Notwithstanding the foregoing, in the event any condition to
Purchaser's obligations hereunder described in this Section 4.6 shall not have
been satisfied, Seller may elect by notice to Purchaser to extend the Closing
for a period not to exceed thirty (30) days in order to satisfy such condition.
4.7 CONDITIONS PRECEDENT TO OBLIGATION OF SELLER. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the Closing Date of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as
adjusted as provided herein, pursuant to and payable in the manner
provided for in this Agreement;
(b) Purchaser shall have delivered to Seller all of the
items required to be delivered to Seller pursuant to the terms of this
Agreement, including but not limited to, those provided for in Section
4.3 hereof;
(c) All of the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material
respects as of the Closing Date (with appropriate modifications
permitted under this Agreement); and
(d) Purchaser shall have performed and observed in all
material respects all covenants and agreements of this Agreement to be
performed and observed by Purchaser as of the Closing Date.
4.8 EQUITY TRANSFER.
(a) Purchaser may, in lieu of having Seller execute and
deliver to Purchaser the Deed, the Xxxx of Sale, the Assignment of
Leases and the Assignment of Contracts, elect (an "EQUITY TRANSFER
ELECTION") to receive an assignment of 100% of
the membership interests in Seller (an "EQUITY TRANSFER"). Purchaser may
exercise an Equity Transfer Election, if at all, by giving a written
notice to Seller no later than ten (10) business days prior to the
Closing Date. Notwithstanding anything to the contrary contained in this
Agreement (including, without limitation, Section 4.5 hereof), Purchaser
shall pay any and all transfer taxes and similar taxes payable as a
result of the Equity Transaction. From and after the date hereof, Seller
shall, upon request of Purchaser, make available to Purchaser copies of
all relevant operating agreements, organizational documents, tax returns
and similar documents, to the extent in Seller's possession or control,
in order to enable Purchaser to decide whether or not Purchaser desires
to exercise its Equity Transfer Election. Furthermore, Seller and
Purchaser shall negotiate in good faith the forms of the documents and
terms and conditions of the Equity Transfer, all of which shall be
subject to the approval of Purchaser and Seller. The failure of
Purchaser and Seller to agree upon the terms and conditions of an Equity
Transfer shall not, under any circumstances, constitute a default by
Purchaser or Seller hereunder or otherwise give rise to the right of
Purchaser or Seller to terminate this Agreement. If the parties agree
upon the terms of an Equity Transfer, each party shall, upon the request
of either party, execute an amendment to this Agreement confirming the
terms of such Equity Transfer.
(b) Seller acknowledges and agrees that Purchaser may make
an Equity Transfer Election and then subsequently convey interests in
the Property to TIC Investors (as hereinafter defined). In such event,
provided that the requirements set forth in clauses (a) through (d) of
Section 1.3 are fulfilled as of Closing, the Purchase Price payable by
Purchaser at Closing shall be Fifty-Two Million Six Hundred Thousand and
No/100 Dollars ($52,600,000.00). If Purchaser thereafter conveys
interests in the Property to TIC Investors within ninety (90) days after
the Closing, then (a) Seller shall remain responsible, pursuant to
Section 4.5, to pay one-half (1/2) of the transfer tax, sales tax,
documentary tax or similar tax which becomes payable by reason of the
transfer to the TIC Investors, but Seller shall receive a credit against
such obligation in the amount of One Hundred Fifty Thousand and No/100
Dollars ($150,000.00). Any amount payable by Seller pursuant to this
Section 4.8(b) shall be paid by Seller within ten (10) days after
written notice from Purchaser, and, in any event, shall be based on the
transfer price to the TIC Investors not to exceed $52,750,000.00.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes
the following representations and warranties to Purchaser as of the Effective
Date, which representations and warranties shall be deemed to have been made
again as of the Closing, subject to Section 4.2(f) hereof:
(a) ORGANIZATION AND AUTHORITY. Seller has been duly
organized and is validly existing under the laws of the State of
Delaware. Seller has the full right and authority to enter into this
Agreement and to transfer all of the Property and
to consummate or cause to be consummated the transaction contemplated by
this Agreement. The person signing this Agreement on behalf of Seller is
authorized to do so.
(b) OPERATING AGREEMENTS. The Operating Agreements listed on
EXHIBIT C are all of the agreements concerning the operation and
maintenance of the Property entered into by or on behalf of Seller and
affecting the Property and Seller has no knowledge of any other
Operating Agreements that would be binding on Purchaser or the Property
after Closing, except those operating agreements that are to be
terminated by Seller within thirty (30) days after the Closing, and
except any agreement with Seller's property manager, which shall be
terminated by Seller as of the Closing Date.
(c) LEASE BROKERAGE. There are no agreements with brokers
providing for the payment by Seller or to, Seller's knowledge, Seller's
predecessors-in-interest under the Leases, of Commissions or fees for
procuring tenants with respect to any lease in effect on the date hereof
(the "EXISTING LEASES"), except as disclosed in EXHIBIT K hereto; and to
Seller's knowledge, no commission, fee or other compensation is payable
(or will, with the passage of time or occurrence of any event or both,
be payable), with respect to the current term of the Existing Leases
except as disclosed in EXHIBIT K. Seller has not agreed in writing to
pay and, to Seller's knowledge, there are no Commissions, fees or other
compensation payable in respect of the exercise of renewal, extension or
expansion options set forth in the Existing Leases except as disclosed
in EXHIBIT K.
(d) CONDEMNATION. Seller has neither received written notice
of any pending or threatened condemnation or eminent domain proceedings
relating to or affecting the Property and Seller has no knowledge of the
same.
(e) LITIGATION. To Seller's knowledge, except as set forth
on EXHIBIT L attached hereto, there is no litigation which has been
filed or threatened against Seller that arises out of the ownership or
operation of the Property;
(f) VIOLATIONS. To Seller's knowledge, except as set forth
on EXHIBIT M attached hereto, Seller has not received notice of any
uncured violation of any Legal Requirements relating to the use or
operation of the Property which would materially adversely affect the
Property or use thereof; and
(g) LEASES. The list of Existing Leases attached hereto as
EXHIBIT N is accurate in all material respects. There are no Leases or
other tenancies for any space in the Real Property other than those set
forth on EXHIBIT N. Except as otherwise disclosed on EXHIBIT O or
elsewhere in this Agreement; Seller has not received from any tenant
under a Lease a written notice of default by Seller as landlord under
such Lease or a written notice of violation of any Legal Requirements,
and to Seller's knowledge, Seller is not in default as landlord under
any of the Leases which would give rise to the right of termination of
any Lease in favor of a tenant. Except as set forth on EXHIBIT O, Seller
has not sent any tenant under a Lease a written notice of default by the
tenant under such Lease, and to Seller's knowledge, no tenant is in
default under any of
the Leases, which would give rise to the right of termination of any
lease in favor of the landlord under the Leases if such default is not
cured within any applicable grace, notice or cure period.
5.2 KNOWLEDGE DEFINED. References to the "knowledge" of Seller shall
refer only to the current actual knowledge of the Designated Employees (as
hereinafter defined) of Seller, and shall not be construed, by imputation or
otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to
any property manager, or to any other officer, agent, manager, representative or
employee of Seller or any affiliate thereof or to impose upon such Designated
Employees any duty to investigate the matter to which such actual knowledge, or
the absence thereof, pertains. As used herein, the term "DESIGNATED EMPLOYEES"
shall refer to Xxxx Xxxxx and Xxxxx Xxxxx. Furthermore, Seller's representations
and warranties shall be deemed to be modified to reflect any facts or
circumstances disclosed in the Tenant Estoppels received by Purchaser.
5.3 LEGAL REQUIREMENTS DEFINED. References to "Legal Requirements"
shall mean all laws, statutes, codes, acts, ordinances, orders, judgments,
decrees, injunctions, rules, regulations, Permits, licenses, authorizations,
directions and requirements of governmental authorities or quasi-governmental
authorities, which now or at any time hereafter exercise jurisdiction over the
Property, or any use, operation or condition of the Property.
5.4 INTENTIONALLY OMITTED
5.5 SURVIVAL OF SELLER'S REPRESENTATIONS, WARRANTIES AND OTHER
OBLIGATIONS. The representations and warranties of Seller set forth in Section
5.1 hereof as updated as of the Closing in accordance with the terms of this
Agreement, shall survive Closing for a period of two hundred seventy (270) days
after Closing. No claim for a breach of any representation, warranty, covenant
or agreement of Seller under this Agreement or any other instrument delivered to
Purchaser under or pursuant to this Agreement shall be actionable or payable if
the breach in question results from or is based on a condition, state of facts
or other matter which was known to Purchaser prior to Closing (including,
without limitation, pursuant to the terms of Section 4.2(f) above or if the
truth of any matter is confirmed in any Tenant Estoppel or other estoppel
certificate received by Purchaser from a third party). Seller shall have no
liability to Purchaser for a breach of any representation, warranty, covenant or
agreement (a) unless the valid claims for all such breaches collectively
aggregate more than Fifty Thousand and No/100 Dollars ($50,000.00) in which
event the full amount of such valid claims shall be actionable up to, but not in
excess of Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000.00)
(the "CAP") absent fraud or intentional misrepresentation, and (b) unless
written notice containing a description of the specific nature of such breach
shall have been given by Purchaser to Seller prior to the expiration of and an
action shall have been commenced by Purchaser against Seller within sixty (60)
days after expiration of such two hundred seventy (270) day period. Purchaser
agrees to first seek recovery under any insurance policies, service contracts,
Tenant Estoppels and Leases prior to seeking recovery from Seller, and Seller
shall not be liable to Purchaser if Purchaser's claim is satisfied from such
insurance policies, service contracts or Leases. In no event shall Seller be
liable for any consequential or punitive damages or for any damages in excess of
the Cap.
5.6 COVENANTS OF SELLER. Seller hereby covenants with Purchaser as
follows:
(a) From the Effective Date hereof until the Closing or
earlier termination of this Agreement, Seller shall use reasonable
efforts to operate and maintain the Property in a manner generally
consistent with the manner in which Seller has operated and maintained
the Property prior to the date hereof;
(b) Except as provided in this Section 5.6(b), a copy of any
amendment, renewal or expansion of an existing Lease or of any new Lease
which Seller in good faith wishes to execute between the Effective Date
and the Closing Date will be submitted to Purchaser prior to execution
by Seller. While this Agreement is in effect, Seller shall not enter
into any new Lease or amend any existing Lease without the approval of
Purchaser, such approval not to be unreasonably withheld, delayed or
conditioned. Purchaser agrees to notify Seller in writing within five
(5) business days after its receipt thereof of either its approval or
disapproval thereof, including all Tenant Inducement Costs and
Commissions to be incurred in connection therewith. Prior to the
expiration of the Inspection Period, in the event Purchaser informs
Seller within such five business day period that Purchaser does not
approve the amendment, renewal or expansion of the existing Lease or the
new Lease, which approval shall not be unreasonably withheld, Seller
shall have the right to terminate this Agreement by written notice
thereof to Purchaser within five (5) business days after Seller's
receipt of written notice of Purchaser's disapproval thereof. If this
Agreement is terminated pursuant to the foregoing provisions of this
paragraph, then neither party shall have any further rights or
obligations hereunder (except for any obligations of either party which
expressly survive the termination of this Agreement), the Deposit shall
be returned to Purchaser and each party shall bear its own costs
incurred hereunder. In the event Purchaser fails to notify Seller in
writing of its approval or disapproval within the five (5) business day
period set forth above, Purchaser shall be deemed to have approved such
new Lease, amendment, renewal or expansion. At Closing, Purchaser shall
reimburse Seller for any Tenant Inducement Costs, Commissions or other
expenses, including legal fees, incurred by Seller pursuant to an
amendment, a renewal, an expansion or a new Lease approved (or deemed
approved) by Purchaser. Notwithstanding the foregoing, Purchaser shall
have no right to approve any amendment to an Existing Lease entered into
by Seller which evidences the exercise by a Tenant of a right or option
granted to such Tenant in its Lease.
(c) Seller shall notify Purchaser promptly if Seller becomes
aware of any transaction or occurrence prior to the Closing Date which
would affect the truth or accuracy of any representation or warranty of
Seller contained in Section 5.1 hereof in a manner that would have a
Material Adverse Effect and which Seller does not, in its reasonable
opinion, believe can be cured prior to the Closing Date.
5.7 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
makes the following representations and warranties to Seller as of the Effective
Date, which representations and warranties shall be deemed to have been made
again as of the Closing, subject to Section 4.3(c) hereof:
(a) ORGANIZATION AND AUTHORITY. Purchaser has been duly
organized and is validly existing under the laws of Texas. Purchaser has
the full right and authority to enter into this Agreement and to
consummate or cause to be consummated the transaction contemplated by
this Agreement. The person signing this Agreement on behalf of Purchaser
is authorized to do so; and
(b) PENDING ACTIONS. To Purchaser's knowledge, there is no
action, suit, arbitration, unsatisfied order or judgment, government
investigation or proceeding pending against Purchaser.
5.8 SURVIVAL OF PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser set forth in Section 5.5 hereof as
updated as of the Closing Date in accordance with the terms of this Agreement,
shall survive Closing for a period of one (1) year. Purchaser shall have no
liability to Seller for a breach of any representation or warranty unless
written notice containing a description of the specific nature of such breach
shall have been given by Seller to Purchaser prior to the expiration of said one
(1) year and an action shall have been commenced by Seller against Purchaser
within sixty (60) days after such one (1) year period.
ARTICLE VI
DEFAULT
6.1 DEFAULT BY PURCHASER. In the event Purchaser fails to close the
purchase of the Property when legally required to do so, Seller shall be
entitled, as its sole remedy, to terminate this Agreement and receive the
Deposit as liquidated damages for the breach of this Agreement, it being agreed
between the parties hereto that the actual damages to Seller in the event of
such breach are impractical to ascertain and the amount of the Deposit is a
reasonable estimate thereof.
6.2 DEFAULT BY SELLER. In the event Seller fails to close the sale
of the Property when legally required to do so, Purchaser shall be entitled, as
its sole remedy, either (a) to receive the return of the Deposit, which return
shall operate to terminate this Agreement and release Seller and from any and
all liability hereunder, or (b) to enforce specific performance of Seller's
obligations to Purchaser in accordance with the terms of this Agreement.
Purchaser expressly waives its rights to seek damages in the event of Seller's
default hereunder. Purchaser shall be deemed to have elected to terminate this
Agreement and receive back the Deposit if Purchaser fails to file suit for
specific performance against Seller in a court having jurisdiction in the county
and state in which the Property is located, on or before sixty (60) days
following the date upon which Closing was to have occurred. Notwithstanding the
foregoing, if the remedy of specific performance is not legally available to
Purchaser solely due to Seller's transfer of the Property to a third person who
is not controlled by Seller or its Affiliates and who is not subject to the
terms and conditions of this Agreement, then Purchaser shall be entitled to the
prompt return of the Deposit and to seek an action for actual damages against
Seller as a result of such material default by Seller under this Agreement.
6.3 RECOVERABLE DAMAGES. Notwithstanding Sections 6.1 and 6.2
hereof, in no event shall the provisions of Sections 6.1 and 6.2 limit the
damages recoverable by either party against the other party due to the other
party's obligation to indemnify such party in accordance with this Agreement.
ARTICLE VII
RISK OF LOSS
7.1 MINOR DAMAGE. In the event of loss or damage to the Property or
any portion thereof which is not "Major" (as hereinafter defined), this
Agreement shall remain in full force and effect provided that Seller shall, at
Seller's option, either (a) perform any necessary repairs, or (b) assign to
Purchaser all of Seller's right, title and interest in and to any claims and
proceeds Seller may have with respect to any casualty insurance policies or
condemnation awards relating to the premises in question. In the event that
Seller elects to perform repairs upon the Property, Seller shall use reasonable
efforts to complete such repairs promptly and the Closing Date shall be extended
a reasonable time in order to allow for the completion of such repairs. If
Seller elects to assign a casualty claim to Purchaser, the Purchase Price shall
be reduced by an amount equal to the lesser of the deductible amount under
Seller's insurance policy and the cost to complete the repairs. Upon Closing,
full risk of loss with respect to the Property shall pass to Purchaser.
7.2 MAJOR DAMAGE. In the event of a "Major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party, in which event the Deposit shall be returned to Purchaser. If neither
Seller nor Purchaser elects to terminate this Agreement within ten (10) days
after Seller sends Purchaser written notice of the occurrence of such Major loss
or damage or threatened Major loss or damage in the case of condemnation or
eminent domain proceedings (which notice shall state the cost of repair or
restoration thereof as opined by an architect in accordance with Section 7.3
hereof), then Seller and Purchaser shall be deemed to have elected to proceed
with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary repairs, or (b) assign to Purchaser all of Seller's right,
title and interest in and to any claims and proceeds Seller may have with
respect to any casualty insurance policies or condemnation awards and the
proceeds of any rent loss insurance relating to the premises in question. In the
event that Seller elects to perform repairs upon the Property, Seller shall use
reasonable efforts to complete such repairs promptly and the Closing Date shall
be extended a reasonable time in order to allow for the completion of such
repairs. If Seller elects to assign a casualty claim to Purchaser, the Purchase
Price shall be reduced by an amount equal to the deductible amount under
Seller's insurance policy. Upon Closing, full risk of loss with respect to the
Property shall pass to Purchaser.
7.3 DEFINITION OF "MAJOR" LOSS OR DAMAGE. For purposes of Sections
7.1 and 7.2, "MAJOR" loss or damage refers to the following: (a) loss or damage
to the Property hereof such that the cost of repairing or restoring the premises
in question to substantially the
same condition which existed prior to the event of damage, in the opinion of an
architect selected by Seller and reasonably approved by Purchaser, either (i)
would be equal to or greater than Seven Hundred Fifty Thousand and No/100
Dollars ($750,000.00), or (ii) could not reasonably be repaired or restored
within one hundred eighty (180) days after the date of casualty, (b) any loss
due to a condemnation or threatened condemnation which could or will permanently
and materially impair the current and intended use of the Property, or (c) any
loss, damage, condemnation or threat of condemnation which gives rise to a right
of termination of a lease in favor of any tenant unless waived in writing by
such tenant or which gives rise to abatement of rent not covered by rent loss
insurance that will inure to Purchaser's benefit after Closing. If Purchaser
does not give written notice to Seller of Purchaser's reasons for disapproving
an architect within five (5) business days after receipt of notice of the
proposed architect, Purchaser shall be deemed to have approved the architect
selected by Seller.
ARTICLE VIII
COMMISSIONS
8.1 BROKERAGE COMMISSIONS. With respect to the transaction
contemplated by this Agreement, Seller represents that it has not engaged any
broker in connection with this transaction except for Eastdil Realty Company,
LLC, whose commissions will be paid by Seller and Purchaser represents that it
has not engaged any broker in connection with this transaction. Each party
hereto agrees that if any person or entity makes a claim for brokerage
commissions or finder's fees related to the sale of the Property by Seller to
Purchaser, and such claim is made by, through or on account of any acts or
alleged acts of said party or its representatives, said party will protect,
indemnify, defend and hold the other party free and harmless from and against
any and all loss, liability, cost, damage and expense (including reasonable
attorneys' fees) in connection therewith. The provisions of this paragraph shall
survive Closing or any termination of this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
9.1 NO RELIANCE ON DOCUMENTS. Except as expressly stated herein or
in the documents to be executed by Seller and delivered to Purchaser in
connection with the Closing, Seller makes no representation or warranty as to
the truth, accuracy or completeness of any materials, data or information
delivered by Seller or its brokers or agents to Purchaser in connection with the
transaction contemplated hereby. Purchaser acknowledges and agrees that all
materials, data and information delivered by Seller to Purchaser in connection
with the transaction contemplated hereby are provided to Purchaser as a
convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. Neither Seller, nor any affiliate of Seller,
nor the person or entity which prepared any report or reports delivered by
Seller to Purchaser shall have any liability to Purchaser for any inaccuracy in
or omission from any such reports.
9.2 AS-IS SALE; DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT
ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL
AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE
IS, WITH ALL FAULTS." EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT OR THE DOCUMENTS EXECUTED AND DELIVERED AT CLOSING TO CONSUMMATE THIS
AGREEMENT, PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, OFFERING PACKAGES
DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE
MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR
PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR
INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS
AGREEMENT.
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER
DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE
PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH
RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY,
AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON
BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN
SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET
FORTH IN THIS AGREEMENT OR THE DOCUMENTS EXECUTED AND DELIVERED AT CLOSING TO
CONSUMMATE THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S
INVESTIGATIONS AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS'
FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER
MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (OR SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES OR AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL OR ENVIRONMENTAL
CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS,
OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY.
9.3 SURVIVAL OF DISCLAIMERS. The provisions of this Article IX shall
survive Closing or any termination of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 CONFIDENTIALITY. Purchaser and its representatives shall hold in
strictest confidence all data and information obtained with respect to Seller or
its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not disclose the same to others; provided, however,
that it is understood and agreed that Purchaser may disclose such data and
information to its directors, employees, consultants, accountants, attorneys and
prospective lenders and investors of Purchaser provided that such persons agree
in writing to treat such data and information confidentially, provided, however,
Purchaser shall be permitted to make such disclosures as may be recommended by
Purchaser's legal counsel in order to comply with all financial reporting,
securities laws and other Legal Requirements applicable to Purchaser. In the
event this Agreement is terminated or Purchaser fails to perform hereunder,
Purchaser shall promptly return to Seller any statements, documents, schedules,
exhibits or other written information obtained from Seller in connection with
this Agreement or the transaction contemplated herein. It is understood and
agreed that, with respect to any provision of this Agreement which refers to the
termination of this Agreement and the return of the Deposit to Purchaser, such
Deposit shall not be returned to Purchaser unless and until Purchaser has
fulfilled its obligation to return to Seller the materials described in the
preceding sentence. In the event of a breach or threatened breach by Purchaser
or its agents or representatives of this Section 10.1, Seller shall be entitled
to an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach or threatened breach. The provisions
of this Section 10.1 shall survive Closing or any termination of this Agreement.
10.2 PUBLIC DISCLOSURE. Prior to and after the Closing, any release
to the public of information with respect to the sale contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Purchaser and Seller; provided, however, Seller and Purchaser shall be permitted
to make such disclosures as may be recommended by Purchaser's legal counsel in
order to comply with all financial reporting, securities laws and other Legal
Requirements applicable to Purchaser and Seller. The provisions of this Section
10.2 shall survive the Closing or any termination of this Agreement.
Notwithstanding anything set
forth in this Agreement to the contrary or in any other agreement to which a
party hereto is bound, each such party is (and any employee, representative or
other agent of such party is) hereby expressly authorized to disclose the "tax
treatment" or "tax structure" (as those terms are defined in Treas. Reg.
ss.ss.1.6011-4(c)(8) and (9), respectively) of the transactions the subject of
this Agreement and all materials of any kind (including tax opinions or other
tax analyses) that are provided to any such party relating to such "tax
treatment" or "tax structure" of the transactions the subject of this Agreement,
except that "tax treatment" or "tax structure" shall not include the identify of
any existing or future party to this Agreement or their affiliates.
10.3 ASSIGNMENT. Subject to the provisions of this Section 10.3, the
terms and provisions of this Agreement are to apply to and bind the permitted
successors and assigns of the parties hereto. Purchaser shall have the right,
exercised by written notice to Seller delivered at any time prior to Closing and
subject to the Assignment Procedures, to assign its rights under this Agreement
to an Affiliate of Purchaser. Except as set forth in the preceding sentence,
Purchaser may not assign its rights under this Agreement without first obtaining
Seller's written approval, which approval may be granted or withheld in Seller's
sole discretion. In the event Purchaser intends to assign its rights hereunder
the following shall apply (the "ASSIGNMENT PROCEDURES"): (a) Purchaser and the
proposed assignee shall execute an assignment and assumption of this Agreement
in form and substance reasonably satisfactory to Seller, and (b) in no event
shall any assignment of this Agreement release or discharge Purchaser from any
liability or obligation hereunder. "AFFILIATE" shall mean, with respect to any
specified entity, an entity that controls, is controlled by, or is under common
control with such specified entity, with control meaning the power through the
ownership of voting securities by contract or otherwise to direct the management
and policies of such entity. It is expressly agreed that any partnership in
which the Purchaser or any Affiliate of the Purchaser is the general partner and
any fund sponsored by Purchaser or any Affiliate of Purchaser shall be deemed to
be an Affiliate of Purchaser. The provisions of this Section 10.3 shall survive
the Closing or any termination of this Agreement.
10.4 NOTICES. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, (b) reputable overnight delivery service with
proof of delivery, (c) United States Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Seller: c/o Trizec Properties, Inc.
Sears Tower
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
with a copy to: Xxxxx Xxxxxxx LLP
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
If to Purchaser: Harvard Property Trust, LLC
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
10.5 MODIFICATIONS. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
10.6 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules hereto, contains the entire agreement between the parties hereto
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the parties pertaining to such
subject matter, other than any confidentiality agreement executed by Purchaser
in connection with the Property.
10.7 FURTHER ASSURANCES. Each party agrees that it will execute and
deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may be reasonably requested by the other party to
consummate the transaction contemplated by this Agreement so long as the same
imposes no additional liability on such party. The provisions of this Section
10.7 shall survive Closing.
10.8 COUNTERPARTS. This Agreement may be executed in counterparts,
all such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
10.9 FACSIMILE SIGNATURES. In order to expedite the transaction
contemplated herein, telecopied or facsimile signatures may be used in place of
original signatures on this Agreement. Seller and Purchaser intend to be bound
by the signatures on the telecopied document, are aware that the other party
will rely on the telecopied signatures, and hereby waive any defenses to the
enforcement of the terms of this Agreement based on the form of signature.
10.10 SEVERABILITY. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect;
provided that the invalidity or unenforceability of such provision does not
materially adversely affect the benefits accruing to any party hereunder.
10.11 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State in which the Property is
located. Purchaser and Seller agree that the provisions of this Section 10.11
shall survive the Closing or any termination of this Agreement.
10.12 NO THIRD-PARTY BENEFICIARY. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
10.13 CAPTIONS. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
10.14 CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
10.15 RECORDATION. This Agreement may not be recorded by any party
hereto without the prior written consent of the other party hereto. The
provisions of this Section 10.15 shall survive the Closing or any termination of
this Agreement.
10.16 LIKE KIND EXCHANGE.
(a) Seller, at its option, may elect to use the proceeds for
the sale of the Property to purchase a replacement property as part of a
like-kind exchange under Section 1031 of the Code. If Seller desires to
sell the Property as part of such a like-kind exchange, Seller shall
notify Purchaser no later than two (2) business days prior to the
Closing Date. Provided Seller has so notified Purchaser, Purchaser
agrees to cooperate with Seller to effect the like-kind exchange
contemplated hereunder and to execute and deliver all documents which
reasonably may be required to effectuate such exchange as a qualified
transaction pursuant to Section 1031 of the Code; provided that: (i) the
Closing shall not be delayed; (ii) Purchaser incurs no additional cost
or liability in connection with the like-kind exchange; (iii) Seller
pays all costs associated with the like-kind exchange; and (iv)
Purchaser is not obligated to take title to any other property.
Similarly, in the event that Purchaser elects to purchase the Property
as part of a like kind exchange pursuant to Section 1031 of the Code
(including, without limitation, a Section 1031 exchange involving
tenancy in common interests), Seller agrees to cooperate with Purchaser
in connection therewith and to execute and deliver all documents which
reasonably may be required to effectuate such exchange as a qualified
transaction pursuant to Section 1031 of the Code; provided that: (i) the
Closing shall not be delayed; (ii) Seller incurs no additional cost or
liability in connection with the like-kind exchange; (iii) Purchaser
pays all costs associated with the like-kind exchange; and (iv) Seller
is not obligated to take title to any other property.
(b) Purchaser has advised Seller that Purchaser may solicit
investments in the Property from investors that will acquire undivided
interests in the Property and become tenants-in-common therein ("TIC
INVESTORS"). Notwithstanding anything contained in this Agreement to the
contrary, Seller and Purchaser agree as follows: (a) Purchaser shall
have the right to distribute information about the Property and this
Agreement to potential brokers and their advisors who may facilitate the
sale of such tenant-in-common interests; (b) Purchaser shall have the
right to assign its rights under this Agreement (including, without
limitation, any rights arising under the Seller Representation
Certificate) to TIC Investors that invest in the Property; (c) Purchaser
shall have the right to modify the form of Tenant Estoppel Certificate
attached hereto as EXHIBIT D so as to expressly include the TIC
Investors that invest in the Property within the definition of
"Purchaser," so long as Purchaser informs Seller of such modification at
least three (3) business days prior to the expiration of the Inspection
Period; and (d) with the prior approval of Seller, which approval shall
not be unreasonably withheld, delayed or conditioned, Purchaser may
undertake other activities to accommodate the sale of tenant in common
interest and substitute TIC Investors for all or portion of the
Purchaser's interests hereunder or in the Property.
10.17 ATTORNEYS' FEES AND COSTS. In the event suit or action is
instituted to interpret or enforce the terms of this Agreement, or in connection
with any arbitration or mediation of any dispute, the prevailing party shall be
entitled to recover from the other party such sum as the court, arbitrator or
mediator may adjudge reasonable as such party's costs and attorney's fees,
including such costs and fees as are incurred in any trial, on any appeal, in
any bankruptcy proceeding (including the adjudication of issues peculiar to
bankruptcy law) and in any petition for review. Each party shall also have the
right to recover its reasonable costs and attorney's fees incurred in collecting
any sum or debt owed to it by the other party, with or without litigation, if
such sum or debt is not paid within fifteen (15) days following written demand
therefor.
10.18 GOVERNMENTAL APPROVALS. Nothing contained in this Agreement
shall be construed as authorizing Purchaser to apply for a zoning change,
variance, subdivision maps, lot line adjustment, or other discretionary
governmental act, approval or permit with respect to the Property prior to the
Closing, and Purchaser agrees not to do so. Purchaser agrees not to submit any
reports, studies or other documents, including, without limitation, plans and
specifications, impact statements for water, sewage, drainage or traffic,
environmental review forms, or energy conservation checklists to any
governmental agency, or any amendment or modification to any such instruments or
documents prior to the Closing except to the extent disclosure is required by
applicable law. Purchaser's obligation to purchase the Property shall not be
subject to or conditioned upon Purchaser's obtaining any variances, zoning
amendments, subdivision maps, lot line adjustment or other discretionary
governmental act, approval or permit.
10.19 EXCLUSIVE. Until this Agreement is terminated, Seller will cease
its marketing efforts and will not solicit, negotiate or enter into any backup
letters of intent, proposals, options or contracts with regard to the purchase
and sale of the Property.
10.20 CALCULATION OF TIME PERIODS. In the event the date on which
Purchaser or Seller is required to take any action under the terms of this
Agreement is not a business day, the action will be taken on the next succeeding
business day.
10.21 TIME OF ESSENCE. Seller and Purchaser hereby acknowledge and
agree that time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof.
[EXECUTION PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Effective Date.
SELLER:
TRIZEC 250 X. XXXXX, LLC,
a Delaware limited liability company
By:
------------------------------------------
Name:
----------------------------------------
Its:
-----------------------------------------
PURCHASER:
BEHRINGER HARVARD OPERATING PARTNERSHIP I
LP, a Texas limited partnership
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Escrow Agent executes this Agreement below solely for the purpose of
acknowledging that it agrees to be bound by the provisions of Sections 1.5 and
1.6 hereof.
ESCROW AGENT:
PARTNERS TITLE COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE OF EXHIBITS
SCHEDULE 1 List of Leasing Commissions and Tenant Improvement Costs
EXHIBIT A Legal Description
EXHIBIT B Excluded Personal Property
EXHIBIT C List of Operating Agreements
EXHIBIT D Tenant Estoppel Form
EXHIBIT E Special Warranty Deed
EXHIBIT F Xxxx of Sale
EXHIBIT G Assignment of Leases
EXHIBIT H Assignment of Contracts and Intangible Property
EXHIBIT I Tenant Notice
EXHIBIT J FIRPTA Certificate
EXHIBIT K List of Brokerage Agreements
EXHIBIT L List of Litigation
EXHIBIT M List of Violations
EXHIBIT N List of Leases
EXHIBIT O Claims Under Leases
EXHIBIT P List of Reports
SCHEDULE 1
LIST OF LEASING COMMISSION AND TENANT IMPROVEMENT COSTS
None
EXHIBIT A
DESCRIPTION OF LAND
PARCEL I
BEING KNOWN AND DESIGNATED as Lot 3-A-2 as shown on the Plat entitled, "Final
Subdivision of Lot 3 of the Inner Harbor West Urban Renewal Project", which Plat
is recorded among the Plat Records of Baltimore City at Plat S.E.B. 2890 and as
more fully described as follows:
Beginning for the same at a point on the east side of Xxxxxx Street, as
now laid out 82.5 feet wide, 79.00 feet northerly along said side from the north
side of Xxxxx Xxxxxx, 00 feet wide, as shown on the Final Subdivision of Lot 3
of the Inner Harbor Urban Renewal Project recorded among the Plat Records of
Baltimore City at Plat S.E.B. 2890, said beginning point also being the
southwest corner of said Lot 3-A-2 as shown on said plat and running thence
binding on the said east side of Xxxxxx Street.
North 02(degree) 36' 35" West 136.98 feet to the division line between the
parcel of land being herein described known as Lot 3-A-2 and the parcel of land
adjoining on the north hereof known as Lot 3-A-3 as shown on said final
subdivision plat; thence binding on said division line, the five following
courses and distances; namely
North 87(degree) 23' 40" East 52.62 feet,
South 01(degree) 51' 10" East 15.94 feet,
North 88(degree) 08' 50" East 34.33 feet,
North 01(degree) 51' 10" West 16.39 feet, and
North 87(degree) 23' 40" East 136.57 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east known as Lot 3-A-1 and 3-C-1
as shown on said final subdivision plat; thence binding on the division line
between said Lot 3-A-2 and the parcel on the east known as Lot 3-A-1 and 3-C-1,
the following two courses and distances; namely
South 02(degree) 52' 47" East 41.40 feet, and
North 87(degree) 07' 13" East 33.50 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east thereof known as Lot 3-C-2 as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X-0
Xxxxx 00(xxxxxx) 52' 47" East 57.14 feet to the division line between said Lot
3-A-2 and the land adjoining on the south and east thereof owned by others as
shown on said final subdivision plat; thence binding on the said division line
between said Lot 3-A-2 and others, the following two courses and distances;
namely
South 85(degree) 51' 40" West 16.00 feet, and
South 02(degree) 52' 47" East 37.13 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the south thereof known as Lot 3-B as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X.
Xxxxx 00(xxxxxx) 08' 50" West 241.67 feet to the place of beginning.
Containing 32,571.71 square feet or 0.7477 acres of land, more or less.
Subject to easements for ingress and egress and an easement for
exclusion of Habitable Structures as shown on the above-mentioned Final
Subdivision of Xxx 0 xx xxx Xxxxx Xxxxxx Xxxx Xxxxx Renewal Project.
All courses and distances in the above description are referred to the
true meridian as adopted by the Baltimore Survey Control System.
Together with all of the Grantor's right, title and interest, in, to and
under that certain Declaration of Easements and Covenants by and among Grantor,
Days Inns of America, Inc., One Hundred Xxxxxxx Place Ltd. and The Mayor and
City Council of Baltimore, dated March 29, 1984, and recorded in Liber 204 at
folio 380 among the Land Records of the City of Baltimore.
Together with all of the Grantor's right, title and interest, in, to and
under that certain agreement dated November 16, 1983 between Grantor and One
Hundred Xxxxxxx Place, Ltd., a memorandum of which agreement, dated December 28,
1983, has been recorded among the Land Records of Baltimore City in Liber SEB
160, folio 457.
Commonly know as : 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx
EXHIBIT B
EXCLUDED PERSONAL PROPERTY
o Desktop Computer Set-ups (4 PC's)
o Printers (2)
o LAN/WAN Equipment
EXHIBIT C
LIST OF OPERATING AGREEMENTS
===================================== =================================== ===================================
TYPE OF SERVICE VENDOR NAME CANCELLATION/
COMMENTS
------------------------------------- ----------------------------------- -----------------------------------
Concierge Charm City Concierge MTM - contract expired
------------------------------------- ----------------------------------- -----------------------------------
Elevator Maintenance ThyssenKrupp Elevator MTM - contract expired
------------------------------------- ----------------------------------- -----------------------------------
Emergency Generator Alban Engine 30 days
------------------------------------- ----------------------------------- -----------------------------------
Energy Management Services Crae Controls 30 days
------------------------------------- ----------------------------------- -----------------------------------
Fire Alarm System Monitoring Honeywell 60 days
------------------------------------- ----------------------------------- -----------------------------------
HVAC Flo-tron Contracting 30 days
------------------------------------- ----------------------------------- -----------------------------------
Indoor Air Quality Healthy Buildings International 30 days
------------------------------------- ----------------------------------- -----------------------------------
Janitorial ABM Janitorial Services 30 days
------------------------------------- ----------------------------------- -----------------------------------
Landscaping - Interior Lily Turf MTM - contract expired
------------------------------------- ----------------------------------- -----------------------------------
Landscaping - Exterior & Snow Chapel Valley Landscaping MTM - contract expired
Removal
------------------------------------- ----------------------------------- -----------------------------------
Metal Maintenance Cameo Bronze 30 days
------------------------------------- ----------------------------------- -----------------------------------
Pest Control Western Pest Services MTM - contract expired
------------------------------------- ----------------------------------- -----------------------------------
Security Guard Services Allied Security 30 days
------------------------------------- ----------------------------------- -----------------------------------
Trash Removal Waste Management 30 days
------------------------------------- ----------------------------------- -----------------------------------
Uniforms Cintas Uniforms 30 days
------------------------------------- ----------------------------------- -----------------------------------
Water Treatment Ondeo Nalco MTM - contract expired
------------------------------------- ----------------------------------- -----------------------------------
Window Washing Xxxxxxxx Building Services MTM - contract expired
------------------------------------- ----------------------------------- -----------------------------------
Wood Maintenance Hastings Restorations MTM - contract expired
===================================== =================================== ===================================
EXHIBIT D
TENANT ESTOPPEL FORM
__________ __, 200__
[Landlord]
[Purchaser]
Bear Xxxxxxx Commercial Mortgage, Inc.,
its successors and assigns
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Confirmation of Lease Agreement for Premises
At 000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
Gentlemen:
At the request of __________________________________ ("Landlord") the
undersigned hereby certifies to you and agrees as follows recognizing that you
will rely on the information contained herein:
1 The undersigned is the tenant under a lease with Landlord, as
described in Schedule 1 attached hereto and occupies the premises demised
thereunder.
2 The above lease [, AS AMENDED AS AFORESAID] (said lease [, AS
AMENDED,] the "Lease"), is in full force and effect and has not [OTHERWISE] been
amended, modified, supplemented or superseded, and together herewith constitutes
the entire agreement between the undersigned and Landlord with respect to said
premises. There is no other agreement (except for the agreements contained
herein) between the undersigned and the Landlord with respect to said premises
or any other space at the above referenced property.
3 Neither the undersigned nor the Landlord is in default under the
Lease. There is no defense, offset, claim or counterclaim by or in favor of the
undersigned against Landlord under the Lease or against the obligations of the
undersigned under the Lease.
4 The undersigned has not received notice and is not aware of any
prior transfer, assignment or pledge by Landlord or of any of Landlord's
interest in the Lease, except to you.
5 The monthly [BASE, MINIMUM] rent due under the Lease is
$____________ and has been paid through ______________, 20__ and the monthly
additional rent in the amount of $__________ due under the Lease has been paid
through _______________, 20__.
6 There are no actions, voluntary or otherwise, pending or, to the
best knowledge of the undersigned, threatened against the undersigned under the
bankruptcy, reorganization, moratorium of similar laws of the United States, any
state thereof or any other jurisdiction.
7 The undersigned has accepted possession, and taken occupancy of,
the premises; the term of the Lease has commenced; the undersigned has commenced
the payment of rents for all space subject to the Lease; and the expiration date
of the Lease is _______________.
8 All work to be performed by Landlord under the Lease has been
completed in accordance with the Lease and has been accepted by the undersigned
and all reimbursements and allowances due to the undersigned under the Lease in
connection with any work have been paid in full, except as follows:
_______________________.
Very truly yours,
[TENANT]
By: _______________________________
Name:
Title:
EXHIBIT E
SPECIAL WARRANTY DEED
THIS DEED is made this day of _______________, 2004, by and between
TRIZEC 250 X. XXXXX, LLC, a Delaware limited liability company, party of the
first part and ________________________________, a _______________________,
party of the second part.
W I T N E S S E T H:
In consideration of the sum of $_____________, receipt of which is
hereby acknowledged, and which the party of the first part certifies under the
penalties of perjury as the actual consideration paid or to be paid, including
the amount of any mortgage or deed of trust outstanding, the said party of the
first part does grant and convey unto the party of the second part in fee simple
all that property situate in the City of Baltimore, State of Maryland, described
as:
SEE LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A"
Subject to covenants, easements and restrictions of record.
TO HAVE AND TO HOLD said land and premises above described or mentioned
and hereby intended to be conveyed, together with the buildings and improvements
thereupon erected, made or being, and all and every title, right, privileges,
appurtenances and advantages thereunto belonging, or in anywise appertaining,
unto and for the proper use only, benefit and behoof forever of said party of
the second part in fee simple.
Being the same property conveyed to the party of the first part by deed
recorded in LIBER _______ AT FOLIO ____ among the said Land Records.
AND said party of the first part does hereby covenant to warrant
specially the property hereby conveyed; and to execute such further assurances
of said land as may be requisite.
IN TESTIMONY WHEREOF, the said party of the first part, on the day and
year first hereinbefore written, has caused these presents to be signed.
TRIZEC 000 X. XXXXX XXXXXX, XXX, a Delaware
limited liability company
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
STATE OF _______________________
SS
COUNTY OF _______________________
On this ______ day of ________, 2004, before me, the undersigned
___________________, personally appeared ____________ the __________ of
______________________________________________________, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument and acknowledged that he has executed the same for the purposes
contained therein.
In witness whereof, I have hereunto set my hand and official seal this
_______ day of ________, 2004.
My commission expires: (SEAL)
_______________________________________
My commission expires: Notary Public
______________________
----------------------------------------------------------------
GRANTOR'S ADDRESS: Trizec 250 X. Xxxxx, LLC
(PARTY OF THE c/o Trizec Holdings, Inc.
FIRST PART) 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
GRANTEE'S ADDRESS: ___________________________
(PARTY OF THE ___________________________
SECOND PART) ___________________________
___________________________
CONSIDERATION: $_______________
TITLE INSURER:
or
I HEREBY CERTIFY THAT THIS DEED WAS PREPARED BY GRANTEE, A PARTY TO THIS
INSTRUMENT.
TRIZEC 250 X. XXXXX, LLC, a Delaware
limited liability company
By:
----------------------------------
Name:
---------------------------
Title:
--------------------------
EXHIBIT A
DESCRIPTION OF LAND
PARCEL I
BEING KNOWN AND DESIGNATED as Lot 3-A-2 as shown on the Plat entitled, "Final
Subdivision of Lot 3 of the Inner Harbor West Urban Renewal Project", which Plat
is recorded among the Plat Records of Baltimore City at Plat S.E.B. 2890 and as
more fully described as follows:
Beginning for the same at a point on the east side of Xxxxxx Street, as
now laid out 82.5 feet wide, 79.00 feet northerly along said side from the north
side of Xxxxx Xxxxxx, 00 feet wide, as shown on the Final Subdivision of Lot 3
of the Inner Harbor Urban Renewal Project recorded among the Plat Records of
Baltimore City at Plat S.E.B. 2890, said beginning point also being the
southwest corner of said Lot 3-A-2 as shown on said plat and running thence
binding on the said east side of Xxxxxx Street.
North 02(degree) 36' 35" West 136.98 feet to the division line between the
parcel of land being herein described known as Lot 3-A-2 and the parcel of land
adjoining on the north hereof known as Lot 3-A-3 as shown on said final
subdivision plat; thence binding on said division line, the five following
courses and distances; namely
North 87(degree) 23' 40" East 52.62 feet,
South 01(degree) 51' 10" East 15.94 feet,
North 88(degree) 08' 50" East 34.33 feet,
North 01(degree) 51' 10" West 16.39 feet, and
North 87(degree) 23' 40" East 136.57 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east known as Lot 3-A-1 and 3-C-1
as shown on said final subdivision plat; thence binding on the division line
between said Lot 3-A-2 and the parcel on the east known as Lot 3-A-1 and 3-C-1,
the following two courses and distances; namely
South 02(degree) 52' 47" East 41.40 feet, and
North 87(degree) 07' 13" East 33.50 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east thereof known as Lot 3-C-2 as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X-0
Xxxxx 00(xxxxxx) 52' 47" East 57.14 feet to the division line between said Lot
3-A-2 and the land adjoining on the south and east thereof owned by others as
shown on said final subdivision plat;
thence binding on the said division line between said Lot 3-A-2 and others, the
following two courses and distances; namely
South 85(degree) 51' 40" West 16.00 feet, and
South 02(degree) 52' 47" East 37.13 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the south thereof known as Lot 3-B as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X.
Xxxxx 00(xxxxxx) 08' 50" West 241.67 feet to the place of beginning.
Containing 32,571.71 square feet or 0.7477 acres of land, more or less.
Subject to easements for ingress and egress and an easement for
exclusion of Habitable Structures as shown on the above-mentioned Final
Subdivision of Xxx 0 xx xxx Xxxxx Xxxxxx Xxxx Xxxxx Renewal Project.
All courses and distances in the above description are referred to the
true meridian as adopted by the Baltimore Survey Control System.
Together with all of the Grantor's right, title and interest, in, to and
under that certain Declaration of Easements and Covenants by and among Grantor,
Days Inns of America, Inc., One Hundred Xxxxxxx Place Ltd. and The Mayor and
City Council of Baltimore, dated March 29, 1984, and recorded in Liber 204 at
folio 380 among the Land Records of the City of Baltimore.
Together with all of the Grantor's right, title and interest, in, to and
under that certain agreement dated November 16, 1983 between Grantor and One
Hundred Xxxxxxx Place, Ltd., a memorandum of which agreement, dated December 28,
1983, has been recorded among the Land Records of Baltimore City in Liber SEB
160, folio 457.
Commonly know as : 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx
EXHIBIT B
PERMITTED EXCEPTIONS
[to be completed]
EXHIBIT F
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Trizec 250 X. Xxxxx, LLC, a
Delaware limited liability company (the "SELLER"), for and in consideration of
the sum of Ten Dollars ($10.00) and other valuable consideration to it in hand
paid (the "PURCHASER"), the receipt and sufficiency of which are hereby
acknowledged, hereby sells, assigns, transfers and conveys unto said Purchaser
any and all of Seller's right, title and interest in and to all tangible
personal property located upon the land described in EXHIBIT "A" attached hereto
and hereby made a part hereof (the "LAND") or within the Improvements (as
defined in the Agreement), including, without limitation, any and all
appliances, furniture, carpeting, draperies and curtains, tools and supplies,
and other items of personal property owned by Seller (excluding cash, computers,
any software and the personal property described on EXHIBIT "B" attached
hereto), located on and used exclusively in connection with the operation of the
Land and Improvements, as is, where is, and without warranty, express or
implied, of title, use, merchantability or fitness for any purpose.
TO HAVE AND TO HOLD all of said personal property unto Purchaser, its
successors and assigns, to its own use forever.
Any liability of Seller hereunder shall be limited as set forth in
Section 5.5 of that certain Sale Agreement between Seller and Purchaser, dated
as of ___, 2004 as amended (the "AGREEMENT").
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the
_______ day of _________________, 2004.
TRIZEC 250 X. XXXXX, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
By:
------------------------------
Name:
------------------------------
Its:
------------------------------
EXHIBIT "A" TO XXXX OF SALE
LEGAL DESCRIPTION
PARCEL I
BEING KNOWN AND DESIGNATED as Lot 3-A-2 as shown on the Plat entitled, "Final
Subdivision of Lot 3 of the Inner Harbor West Urban Renewal Project", which Plat
is recorded among the Plat Records of Baltimore City at Plat S.E.B. 2890 and as
more fully described as follows:
Beginning for the same at a point on the east side of Xxxxxx Street, as
now laid out 82.5 feet wide, 79.00 feet northerly along said side from the north
side of Xxxxx Xxxxxx, 00 feet wide, as shown on the Final Subdivision of Lot 3
of the Inner Harbor Urban Renewal Project recorded among the Plat Records of
Baltimore City at Plat S.E.B. 2890, said beginning point also being the
southwest corner of said Lot 3-A-2 as shown on said plat and running thence
binding on the said east side of Xxxxxx Street.
North 02(degree) 36' 35" West 136.98 feet to the division line between the
parcel of land being herein described known as Lot 3-A-2 and the parcel of land
adjoining on the north hereof known as Lot 3-A-3 as shown on said final
subdivision plat; thence binding on said division line, the five following
courses and distances; namely
North 87(degree) 23' 40" East 52.62 feet,
South 01(degree) 51' 10" East 15.94 feet,
North 88(degree) 08' 50" East 34.33 feet,
North 01(degree) 51' 10" West 16.39 feet, and
North 87(degree) 23' 40" East 136.57 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east known as Lot 3-A-1 and 3-C-1
as shown on said final subdivision plat; thence binding on the division line
between said Lot 3-A-2 and the parcel on the east known as Lot 3-A-1 and 3-C-1,
the following two courses and distances; namely
South 02(degree) 52' 47" East 41.40 feet, and
North 87(degree) 07' 13" East 33.50 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east thereof known as Lot 3-C-2 as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X-0
Xxxxx 00(xxxxxx) 52' 47" East 57.14 feet to the division line between said Lot
3-A-2 and the land adjoining on the south and east thereof owned by others as
shown on said final subdivision plat; thence binding on the said division line
between said Lot 3-A-2 and others, the following two courses and distances;
namely
South 85(degree) 51' 40" West 16.00 feet, and
South 02(degree) 52' 47" East 37.13 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the south thereof known as Lot 3-B as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X.
Xxxxx 00(xxxxxx) 08' 50" West 241.67 feet to the place of beginning.
Containing 32,571.71 square feet or 0.7477 acres of land, more or less.
Subject to easements for ingress and egress and an easement for
exclusion of Habitable Structures as shown on the above-mentioned Final
Subdivision of Xxx 0 xx xxx Xxxxx Xxxxxx Xxxx Xxxxx Renewal Project.
All courses and distances in the above description are referred to the
true meridian as adopted by the Baltimore Survey Control System.
Together with all of the Grantor's right, title and interest, in, to and
under that certain Declaration of Easements and Covenants by and among Grantor,
Days Inns of America, Inc., One Hundred Xxxxxxx Place Ltd. and The Mayor and
City Council of Baltimore, dated March 29, 1984, and recorded in Liber 204 at
folio 380 among the Land Records of the City of Baltimore.
Together with all of the Grantor's right, title and interest, in, to and
under that certain agreement dated November 16, 1983 between Grantor and One
Hundred Xxxxxxx Place, Ltd., a memorandum of which agreement, dated December 28,
1983, has been recorded among the Land Records of Baltimore City in Liber SEB
160, folio 457.
Commonly know as : 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx
EXHIBIT "B" TO XXXX OF SALE
EXCLUDED PERSONAL PROPERTY
[SAME AS EXHIBIT B TO SALE AGREEMENT]
EXHIBIT G
ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES (the "ASSIGNMENT") is made as of this _______
day of _______________, 2004 between Trizec 250 X. Xxxxx, LLC, a Delaware
limited liability company, ("ASSIGNOR"), and , a ("ASSIGNEE").
For and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration to it in hand paid by Assignee to Assignor, the
conveyance by Assignor to Assignee of all that certain real property being
particularly described on EXHIBIT "A" attached hereto and incorporated herein by
this reference, more commonly known as 000 Xxxx Xxxxx located in the City of
Baltimore, State of Maryland (the "PROPERTY"), and the mutual covenants herein
contained, the receipt and sufficiency of the foregoing consideration being
hereby acknowledged by the parties hereto, Assignor hereby assigns, transfers,
sets over and conveys to Assignee all of Assignor's right, title and interest
in, to and under any and all existing and outstanding leases, licenses and
occupancy agreements (collectively, the "LEASES"), of the improvements
comprising a part of the Property, including without limitation, all those
Leases described on EXHIBIT "B" attached hereto and incorporated herein by this
reference, together with all security deposits tendered under the Leases
remaining in the possession of Assignor.
Unless otherwise defined, all capitalized terms shall have meanings
ascribed to them in that certain Sale Agreement between Assignor and Assignee
dated as of __, 2004, as amended (the "AGREEMENT").
Assignee does hereby assume and agree to perform all of Assignor's
obligations as landlord under the Leases accruing from and after and relating to
the period from and after the date hereof, including without limitation, any and
all obligations to pay Tenant Inducement Costs and Commissions which are due or
payable after the date hereof with respect to the Leases (except as otherwise
provided in the Agreement) and claims made by tenants with respect to the
tenants' security deposits to the extent paid, credited or assigned to Assignee
by Assignor. Assignee agrees to indemnify, protect, defend and hold Assignor
harmless from and against any and all liabilities, losses, costs, damages and
expenses (including reasonable attorneys' fees) directly or indirectly arising
out of or related to any breach or default in Assignee's obligations hereunder.
Any liability of Assignor hereunder shall be limited as provided in
Section 5.5 of the Agreement.
This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective heirs, executors, administrators,
successors and assigns.
This Assignment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment as of the date first written above.
ASSIGNOR:
TRIZEC 250 X. XXXXX, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
By: __________________________________
Name: ________________________________
Title: _______________________________
ASSIGNEE:
________________________ , a _________
______________________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
EXHIBIT "A" TO ASSIGNMENT OF LEASES
LEGAL DESCRIPTION
PARCEL I
BEING KNOWN AND DESIGNATED as Lot 3-A-2 as shown on the Plat entitled, "Final
Subdivision of Lot 3 of the Inner Harbor West Urban Renewal Project", which Plat
is recorded among the Plat Records of Baltimore City at Plat S.E.B. 2890 and as
more fully described as follows:
Beginning for the same at a point on the east side of Xxxxxx Street, as
now laid out 82.5 feet wide, 79.00 feet northerly along said side from the north
side of Xxxxx Xxxxxx, 00 feet wide, as shown on the Final Subdivision of Lot 3
of the Inner Harbor Urban Renewal Project recorded among the Plat Records of
Baltimore City at Plat S.E.B. 2890, said beginning point also being the
southwest corner of said Lot 3-A-2 as shown on said plat and running thence
binding on the said east side of Xxxxxx Street.
North 02(degree) 36' 35" West 136.98 feet to the division line between the
parcel of land being herein described known as Lot 3-A-2 aND THe parcel of land
adjoining on the north hereof known as Lot 3-A-3 as shown on said final
subdivision plat; thence binding on said division line, the five following
courses and distances; namely
North 87(degree) 23' 40" East 52.62 feet,
South 01(degree) 51' 10" East 15.94 feet,
North 88(degree) 08' 50" East 34.33 feet,
North 01(degree) 51' 10" West 16.39 feet, and
North 87(degree) 23' 40" East 136.57 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east knOWN As Lot 3-A-1 and 3-C-1
as shown on said final subdivision plat; thence binding on the division line
between said Lot 3-A-2 and the parcel on the east known as Lot 3-A-1 and 3-C-1,
the following two courses and distances; namely
South 02(degree) 52' 47" East 41.40 feet, and
North 87(degree) 07' 13" East 33.50 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east tHEREOf known as Lot 3-C-2 as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X-0
Xxxxx 00(xxxxxx) 52' 47" East 57.14 feet to the division line between said Lot
3-A-2 and the land adjoining on the south and east tHEREOf owned by others as
shown on said final subdivision plat; thence binding on the said division line
between said Lot 3-A-2 and others, the following two courses and distances;
namely
South 85(degree) 51' 40" West 16.00 feet, and
South 02(degree) 52' 47" East 37.13 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the south tHEREOf known as Lot 3-B as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X.
Xxxxx 00(xxxxxx) 08' 50" West 241.67 feet to the place of beginning.
Containing 32,571.71 square feet or 0.7477 acres of land, more or less.
Subject to easements for ingress and egress and an easement for
exclusion of Habitable Structures as shown on the above-mentioned Final
Subdivision of Xxx 0 xx xxx Xxxxx Xxxxxx Xxxx Xxxxx Renewal Project.
All courses and distances in the above description are referred to the
true meridian as adopted by the Baltimore Survey Control System.
Together with all of the Grantor's right, title and interest, in, to and
under that certain Declaration of Easements and Covenants by and among Grantor,
Days Inns of America, Inc., One Hundred Xxxxxxx Place Ltd. and The Mayor and
City Council of Baltimore, dated March 29, 1984, and recorded in Liber 204 at
folio 380 among the Land Records of the City of Baltimore.
Together with all of the Grantor's right, title and interest, in, to and
under that certain agreement dated November 16, 1983 between Grantor and One
Hundred Xxxxxxx Place, Ltd., a memorandum of which agreement, dated December 28,
1983, has been recorded among the Land Records of Baltimore City in Liber SEB
160, folio 457.
Commonly know as : 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx
EXHIBIT "B" TO ASSIGNMENT OF LEASES
LEASES
[To be attached]
EXHIBIT H
ASSIGNMENT OF CONTRACTS AND INTANGIBLE PROPERTY
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLE PROPERTY (the
"ASSIGNMENT") is made as of the day of ______________, 2004 between Trizec 250
X. Xxxxx, LLC, a Delaware limited liability company ("ASSIGNOR"), and , a
("ASSIGNEE").
For and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration to it in hand paid by Assignee to Assignor, the
conveyance by Assignor to Assignee of all that certain real property being
particularly described on EXHIBIT "A" attached hereto and incorporated herein by
this reference, more commonly known as 000 Xxxx Xxxxx located in the City of
Baltimore, State of Maryland (the "PROPERTY"), and the mutual covenants herein
contained, the receipt and sufficiency of the foregoing consideration being
hereby acknowledged by the parties hereto, Assignor hereby assigns, transfers,
sets over and conveys to Assignee all of Assignor's right, title and interest,
to the extent assignable, in, to and under any and all of the following, to wit:
(i) the contracts and agreements listed and described on
EXHIBIT "B" attached hereto and incorporated herein by this reference
(the "CONTRACTS"),
(ii) all existing warranties and guaranties (express or
implied) issued to Assignor in connection with the improvements or the
personal property being conveyed to Assignee by Xxxx of Sale on the date
hereof,
(iii) all existing permits, licenses, approvals and
authorizations issued by any governmental authority in connection with
the Property, and
(iv) the non-exclusive right to the name "250 West Xxxxx
Street":
All items described in (ii), (iii) and (iv) above are hereinafter collectively
referred to as "INTANGIBLE PROPERTY."
Assignee does hereby assume and agree to perform all of Assignor's
obligations under the Contracts and Intangible Property accruing from and after
and relating to the period from and after the date hereof. Assignee agrees to
indemnify, protect, defend and hold Assignor harmless from and against any and
all liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees) directly or indirectly arising out of or related to any breach
or default in Assignee's obligations hereunder.
Any liability of Assignor hereunder shall be limited as provided in
Section 5.5 of that certain Sale Agreement between Assignor and Assignee dated
as of __, 2004 as amended.
This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective heirs, executors, administrators,
successors and assigns.
This Assignment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment as of the date first written above.
ASSIGNOR:
TRIZEC 250 X. XXXXX, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
By: __________________________________
Name: ________________________________
Title: _______________________________
ASSIGNEE:
________________________ , a _________
______________________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
EXHIBIT "A" TO AGREEMENT OF CONTRACTS
AND INTANGIBLE PROPERTY
LEGAL DESCRIPTION
PARCEL I
BEING KNOWN AND DESIGNATED as Lot 3-A-2 as shown on the Plat entitled, "Final
Subdivision of Lot 3 of the Inner Harbor West Urban Renewal Project", which Plat
is recorded among the Plat Records of Baltimore City at Plat S.E.B. 2890 and as
more fully described as follows:
Beginning for the same at a point on the east side of Xxxxxx Street, as
now laid out 82.5 feet wide, 79.00 feet northerly along said side from the north
side of Xxxxx Xxxxxx, 00 feet wide, as shown on the Final Subdivision of Lot 3
of the Inner Harbor Urban Renewal Project recorded among the Plat Records of
Baltimore City at Plat S.E.B. 2890, said beginning point also being the
southwest corner of said Lot 3-A-2 as shown on said plat and running thence
binding on the said east side of Xxxxxx Street.
North 02(degree) 36' 35" West 136.98 feet to the division line between the
parcel of land being herein described known as Lot 3-A-2 aND THe parcel of land
adjoining on the north hereof known as Lot 3-A-3 as shown on said final
subdivision plat; thence binding on said division line, the five following
courses and distances; namely
North 87(degree) 23' 40" East 52.62 feet,
South 01(degree) 51' 10" East 15.94 feet,
North 88(degree) 08' 50" East 34.33 feet,
North 01(degree) 51' 10" West 16.39 feet, and
North 87(degree) 23' 40" East 136.57 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east knOWN As Lot 3-A-1 and 3-C-1
as shown on said final subdivision plat; thence binding on the division line
between said Lot 3-A-2 and the parcel on the east known as Lot 3-A-1 and 3-C-1,
the following two courses and distances; namely
South 02(degree) 52' 47" East 41.40 feet, and
North 87(degree) 07' 13" East 33.50 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the east tHEREOf known as Lot 3-C-2 as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X-0
Xxxxx 00(xxxxxx) 52' 47" East 57.14 feet to the division line between said Lot
3-A-2 and the land adjoining on the south and east tHEREOf owned by others as
shown on said final subdivision plat;
thence binding on the said division line between said Lot 3-A-2 and others, the
following two courses and distances; namely
South 85(degree) 51' 40" West 16.00 feet, and
South 02(degree) 52' 47" East 37.13 feet to the division line between said Lot
3-A-2 and the parcel of land adjoining on the south tHEREOf known as Lot 3-B as
shown on said final subdivision plat; thence binding on the division line
between said Xxx 0-X-0 xxx xxxx Xxx 0-X.
Xxxxx 00(xxxxxx) 08' 50" West 241.67 feet to the place of beginning.
Containing 32,571.71 square feet or 0.7477 acres of land, more or less.
Subject to easements for ingress and egress and an easement for
exclusion of Habitable Structures as shown on the above-mentioned Final
Subdivision of Xxx 0 xx xxx Xxxxx Xxxxxx Xxxx Xxxxx Renewal Project.
All courses and distances in the above description are referred to the
true meridian as adopted by the Baltimore Survey Control System.
Together with all of the Grantor's right, title and interest, in, to and
under that certain Declaration of Easements and Covenants by and among Grantor,
Days Inns of America, Inc., One Hundred Xxxxxxx Place Ltd. and The Mayor and
City Council of Baltimore, dated March 29, 1984, and recorded in Liber 204 at
folio 380 among the Land Records of the City of Baltimore.
Together with all of the Grantor's right, title and interest, in, to and
under that certain agreement dated November 16, 1983 between Grantor and One
Hundred Xxxxxxx Place, Ltd., a memorandum of which agreement, dated December 28,
1983, has been recorded among the Land Records of Baltimore City in Liber SEB
160, folio 457.
Commonly know as : 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxxx
EXHIBIT "B" TO AGREEMENT OF CONTRACTS
AND INTANGIBLE PROPERTY
CONTRACTS
[To be attached]
EXHIBIT I
TENANT NOTICE
TENANT NOTIFICATION LETTER
[DATE OF SALE CLOSING]
HAND DELIVERED
TO: ALL TENANTS AT 000 X. XXXXX XXXXXX, XXXXXXXXX, XXXXXXXX (THE "PROPERTY")
RE: NOTIFICATION REGARDING CHANGE OF OWNERSHIP
This letter is to notify you as a Tenant at the Property, that the
Property has been sold by Trizec 250 X. Xxxxx, LLC, a Delaware limited liability
company ("SELLER"), to , a ("PURCHASER"). As of the date hereof, your Lease has
been assigned by Seller to Purchaser. From the date of this letter, any and all
unpaid rent as well as all future rent, or any other amounts due under the terms
of your Lease, shall be directed as follows:
TO: ____________________
ATTN:___________________
AT: ___________________
As part of the sale, all refundable tenant deposits, if any, actually held by
Seller with respect to the Property have been transferred to, and Seller's
obligations with respect to such deposits have been assumed by, Purchaser as of
the date of this letter. Any and all payments of rent (or other sums due under
your Lease) hereafter paid to any party other than Purchaser shall not relieve
you of the obligation of making said payment to Purchaser.
SELLER:
TRIZEC 250 X. XXXXX, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
By: __________________________________
Name: ________________________________
Title: _______________________________
PURCHASER:
________________________ , a _________
______________________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
EXHIBIT J
FIRPTA NOTICE
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee (purchaser) that
withholding of tax is not required upon the disposition of a U.S. real property
interest by Trizec 250 X. Xxxxx, LLC, a Delaware limited liability company
("TRANSFEROR") Transferor hereby certifies:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations).
2. Transferor's Federal Employer Identification Number is
_____________.
3. Transferor's office address is:
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000; and
4. The address or description of the property which is the subject
matter of the disposition is 250 West Xxxxx.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor declares that it has examined this certification and to the
best of its knowledge and belief, it is true, correct and complete, and further
declares that the individual executing this certification on behalf of
Transferor has full authority to do so.
TRIZEC 250 X. XXXXX, LLC, A DELAWARE
LIMITED LIABILITY COMPANY
By: __________________________________
Name: ________________________________
Title: _______________________________
Dated: _______________________________
EXHIBIT K
LIST OF BROKERAGE AGREEMENTS
o Brokerage Agreement with Xxxxxxxx Xxxx Services, Inc. dated 10/2/03
EXHIBIT L
LIST OF LITIGATION
-------------------------------------------------------------------------------------------------------------
A.
-------------------------------------------------------------------------------------------------------------
CASE NAME: In re WorldCom, Inc., ET AL.,
-------------------------------------------------------------------------------------------------------------
VENUE: United States Bankruptcy Court / Southern District of New York
-------------------------------------------------------------------------------------------------------------
NATURE OF DISPUTE: Claim for lease rejection damages and other pre-petition obligations.
-------------------------------------------------------------------------------------------------------------
DISPUTED AMOUNT: $325,321.34
-------------------------------------------------------------------------------------------------------------
SUMMARY: WorldCom and certain of its affiliated entities filed for Chapter 11 Bankruptcy protection on
July 21, 2002. The Court granted WorldCom's motion to reject its lease at 250 West Xxxxx Lease (10,807
rentable square feet expiring 3/31/2005) effective as of July 10, 2003. We have filed a proof of claim
with the Court for $325,321.34 for lease rejections damages and other pre-petition obligations. Payment on
this claim is still pending.
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
B.
-------------------------------------------------------------------------------------------------------------
CASE NAME: CC&F Xxxxx Associates c/o Trizec v. Logical Options, Inc.
-------------------------------------------------------------------------------------------------------------
VENUE: District Court of Maryland for Baltimore City
-------------------------------------------------------------------------------------------------------------
NATURE OF DISPUTE: Eviction, failure to pay rent and bankruptcy.
-------------------------------------------------------------------------------------------------------------
DISPUTED AMOUNT: $42,658.20
-------------------------------------------------------------------------------------------------------------
SUMMARY: Tenant failed to pay rent and Landlord subsequently repossessed the Premises. Tenant
subsequently filed for bankruptcy and Landlord is currently working on a claim through the bankruptcy
court.
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
C.
-------------------------------------------------------------------------------------------------------------
CASE NAME: Trizec 250 X. Xxxxx, LLC v. The Mayor and City Council of Baltimore, CSX Corporation and CSX
Transportation
-------------------------------------------------------------------------------------------------------------
VENUE: Circuit Court of Maryland for Baltimore City
-------------------------------------------------------------------------------------------------------------
NATURE OF DISPUTE: Property Damage
-------------------------------------------------------------------------------------------------------------
DISPUTED AMOUNT: $212,010
-------------------------------------------------------------------------------------------------------------
SUMMARY: Our insurer, Fireman's Fund, has subrogated itself to our claim against the City and CSX. This
claim (which Trizec has already received insurance proceeds for) was based on damage to building caused by
flooding from a train derailment that occurred on July 18, 2001.
-------------------------------------------------------------------------------------------------------------
EXHIBIT M
LIST OF VIOLATIONS
NONE
EXHIBIT N
LIST OF LEASES
ABRAMOFF, NEUBERGER, XXXXXX AND REDDING
Lease 04/05/88
Sublease 03/31/88
Sublease 1st Amendment 06/15/93
1st Amendment 07/21/93
SNDA 07/21/93
SNDA 07/30/96
2nd Amendment 09/30/97
Sublease 2nd Amendment 10/30/97
SNDA 03/01/98
3rd Amendment 07/28/03
Sublease 3rd Amendment 07/30/03
XXXX X. XXXXXXXX & ASSOCIATES, INC.
Lease 11/29/94
SNDA 07/24/96
SNDA 03/13/98
1st Amendment 11/08/99
ANSHEN & XXXXX ARCHITECTS, INC.
Lease 09/18/95
1st Amendment 03/26/96
SNDA 08/07/96
SNDA 03/01/98
3rd Amendment 10/01/99
4th Amendment 03/09/00
5th Amendment 09/20/00
6th Amendment 09/07/01
7th Amendment 01/01/02
XXXXXX COMMUNICATIONS
Lease 07/21/99
1st Amendment 03/22/00
2nd Amendment 01/01/02
BLANK, ROME, XXXXXXX & XXXXXXXX LLP
Lease 03/13/00
1st Amendment 12/11/01
2nd Amendment 03/31/03
3rd Amendment 04/12/04
CB XXXXXXX XXXXX, INC.
Lease 02/08/88
Lease Modification 06/06/88
Commencement Date Agreement 06/22/88
SNDA 08/26/96
1st Amendment 10/11/96
SNDA 03/01/98
2nd Amendment 05/09/03
3rd Amendment 10/24/03
EDIE'S DELI & GRILL, INC.
Lease 11/29/99
1st Amendment 04/01/00
FERRIS, BAKER, XXXXX, INC.
Lease 04/29/99
1st Amendment 03/13/00
GENERAL SERVICES ADMINISTRATION (GS-03B-10228)
Lease 09/26/91
Supplemental Lease Agreement 08/06/92
Supplemental Lease Agreement 10/31/96
Supplemental Lease Agreement 03/20/02
Supplemental Lease Agreement 04/22/02
Supplemental Lease Agreement 11/26/02
METROPOLITAN FIBER SYSTEMS OF BALTIMORE, INC.
Lease 09/11/89
1st Amendment 09/15/94
2nd Amendment 10/14/99
XXXXXX XXXXXXX XX INC.
Lease 03/14/86
1st Amendment 10/06/94
2nd Amendment 12/22/94
SNDA 08/01/96
SNDA 03/06/98
3rd Amendment 02/25/04
NORTEL NETWORKS USA, INC.
Lease 08/09/96
SNDA 03/01/98
1st Amendment 10/03/01
2nd Amendment 08/24/02
XXXXXX XXXXX, L.L.P.
Lease 12/30/98
Sublease Agreement 03/13/00
PRICEWATERHOUSECOOPERS LLP
Lease 03/31/97
SNDA 03/31/97
1st Amendment 05/05/97
2nd Amendment 07/18/97
SNDA 03/01/98
PROVIDENT BANK OF MARYLAND
Lease 03/24/87
SNDA 08/26/96
1st Amendment 10/11/96
SNDA 03/01/98
2nd Amendment 01/25/00
Lease 10/24/02
PRUDENTIAL-BACHE SECURITIES, INC.
Lease 06/01/87
1st Amendment 11/14/96
Letter Agreement 12/06/96
SNDA 03/01/98
QUICK & XXXXXX, INC.
Lease 06/14/02
License Agreement 12/05/02
RESOURCES CONNECTION LLC
Lease 10/09/00
SEMMES, XXXXX & XXXXXX
Lease 01/01/93
Letter Agreement 06/30/93
1st Amendment 01/01/95
2nd Amendment 05/01/95
Assignment & 3rd Amendment 01/01/96
SNDA 08/28/96
4th Amendment 02/04/97
5th Amendment 09/04/97
SNDA 03/01/98
STEINITZ & ASSOCIATES, LLC
Lease 03/04/04
SUNRISE NEWSSTAND, INC.
Lease N/A
Lease Renewal Agreement 01/01/90
Commencement Date Agreement 01/01/90
1st Amendment 03/19/96
SNDA 08/26/96
SNDA 03/01/98
Assignment and Assumption 10/20/00
Assignment and Assumption &
3rd Amendment 08/03/01
Assignment Agreement 02/02/04
Consent to Assignment 03/28/04
TRIZECHAHN 250 XXXXX MANAGEMENT, INC.
Lease 07/01/99
UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION
Lease 09/15/99
1st Amendment 04/23/01
XXXXXX, INC.
Lease 10/30/95
1st Amendment 12/08/95
2nd Amendment 04/23/96
3rd Amendment 04/23/96
4th Amendment 07/30/96
SNDA 03/01/98
5th Amendment 09/15/00
Non-Disclosure Agreement 12/12/00
6th Amendment 12/14/00
Assignment and Assumption 12/31/00
WASTELESS ENVIRONMENTAL SERVICES INC.
License Agreement 03/01/02
Service Agreement 03/01/02
License Agreement 1st Amendment 03/30/04
Service Agreement 1st Amendment 03/30/04
WINSTAR WIRELESS, INC.
Telecommunications Services
License Agreement 01/15/01
EXHIBIT O
CLAIMS UNDER LEASES
.None
EXHIBIT P
LIST OF REPORTS
o Phase I Environmental Site Assessment - dated 1/15/98
o Property Condition Assessment - dated 1/26/98
