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Legend/DuPont(4/30/99) EXHIBIT 10.1
149295 v.6 / 4hpf06
12209 / 014
09/09/99 11:45:28 AM
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") made this 29th day of
July, 1999, by and between (a) ASHBURN CORPORATE CENTER, LC and ASHBURN FRONT
FIVE, LLC (hereinafter referred to, collectively, as "Seller"); and (b) DU PONT
FABROS DEVELOPMENT LLC (hereinafter referred to as "Purchaser").
WHEREAS, Seller is the owner of record and in fact, legally and
beneficially, of certain real property, containing approximately 115 acres of
land situated in Loudoun County, Virginia and more particularly described in the
title commitment and surveys described in Exhibit "A" hereto, together with any
improvements erected or presently located thereon and any related fixtures and
equipment therein and including all right, title and interest of Seller in and
to any and all roads, streets, alleys and ways bounding the real property
(hereinafter referred to as the "Property"); and
WHEREAS, Seller desires to sell the Property to Purchaser, and Purchaser
desires to purchase the Property from Seller, at the price and upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties, intending legally to be bound, hereby
agree as follows:
1. SALE AND PURCHASE OF PROPERTY. Seller agrees to sell, and Purchaser
agrees to purchase, at the price and upon the terms and conditions herein set
forth, all of the rights, title and interest in and to the Property.
Subject to Seller's obligations as provided for herein, Purchaser agrees
to accept the physical condition of the Property in its "as is" condition as of
the date of this Agreement first hereinabove stated.
2. PURCHASE PRICE. The price to be paid by Purchaser for the Property (the
"Purchase Price") shall be Fifteen Million Four Hundred Thousand and 00/100ths
Dollars ($15,400,000.00) subject to adjustment as provided for in Paragraph 3 of
this Agreement. The Purchase Price shall be payable as follows:
(A) INITIAL DEPOSIT. Within three (3) Business Days (as hereinafter
defined at Paragraph 12(O)) of the Effective Date of this Agreement (as
hereinafter defined at Paragraph 12 (B)), Purchaser shall deposit with
Commercial Title Group, Ltd. (the "Settlement
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Agent"), the sum of Two Hundred Fifty Thousand and 00/100ths Dollars
($250,000.00) (the "Initial Deposit").
(B) ADDITIONAL DEPOSIT. In the event that Purchaser desires to extend
Settlement, as hereinafter defined, for a period of up to thirty (30) days past
the date set forth in Paragraph 7(A) hereof, Seller shall grant such extension
provided that, no later than three (3) Business Days prior to the original date
of Settlement, Purchaser shall so notify Seller and Purchaser shall deposit with
Settlement Agent an additional sum of One Hundred Thousand and 00/100ths dollars
($100,000.00) (the "Additional Deposit"), it being agreed that the Additional
Deposit is non-refundable (except for Seller's default).
(C) SETTLEMENT AGENT'S INSTRUCTIONS. The Initial Deposit (and the
Additional Deposit, if made) and all accrued interest thereon shall collectively
hereinafter be referred to as the "Deposit" and shall be held and disbursed by
the Settlement Agent pursuant to the terms of this Agreement. However, on the
Business Day immediately following the expiration of the Study Period,
Settlement Agent shall immediately deliver the Deposit to Seller to hold and
disburse hereunder if Seller tenders to the Settlement Agent all of the
following: (i) the "Deeds" (as hereinafter defined), bills of sale, assignment,
affidavits, and other documents required of Seller pursuant to this Agreement
(it being understood that said Deeds and said other documents may be dated as of
the date of such delivery or as of the then anticipated Settlement date); and
(ii) an agreement to replace said Deeds and said other documents at Settlement
with originals thereof changed only to name Purchaser's designee(s) as the
Grantee(s), Buyer(s), Transferee(s) or Assignee(s) provided that Purchaser
notifies Seller, at least three (3) Business Days in advance of Settlement, of
the precise legal name(s) of such Grantee(s), etc. and, if such Grantee(s), etc.
is (are) entity(ies), the type of entity(ies) it is (they are) and the state(s)
under which it is (they are) organized. Until a party is entitled to receive the
Deposit hereunder, the Deposit shall be invested in a federally insured,
interest-bearing, bank account, government bonds or notes or certificates of
deposit. Settlement Agent shall give Seller written notice of the receipt by the
Settlement Agent of all monies deposited by Purchaser hereunder; and Settlement
Agent shall give Purchaser written notice of delivery of the Deed(s) and other
documents listed hereinabove by Seller to Settlement Agent, of Settlement
Agent's delivery of the Deposit to Seller, and the amount of the Deposit so
delivered. Prior to Settlement, Purchaser shall not be entitled to copies of any
of those documents, but shall be entitled to receive, upon request, copies of
the unsigned versions thereof. The Deposit shall be either (i) credited toward
the Purchase Price at Settlement (as defined hereinafter at Paragraph 7(H)); or
(ii) simultaneously with and not more than five (5) days following Settlement
under the Agreement, Settlement Agent or Seller, as the case may be, shall
return the Deposit to the Purchaser if the Deposit has not been applied to the
Purchase Price at Settlement; or (iii) within two (2) Business Days of their
receipt of written notice by Purchaser that Purchaser is terminating this
Agreement pursuant to Purchaser's rights to so terminate as set forth herein,
Settlement Agent or Seller, as the case may be, shall return the Deposit to
Purchaser.
(D) CASH AT SETTLEMENT. At Settlement, as hereinafter defined at
Paragraph 7 (H), Purchaser shall pay the Purchase Price for the Property in cash
in United States currency.
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2.5 RELEASE. Within three (3) Business Days of the Effective Date,
Purchaser shall deposit, with the Settlement Agent, a release, in the
form of Exhibit "G" hereto (the "Release").
3. PURCHASER'S STUDY PERIOD. During the period from the Effective Date of
this Agreement until 5:00 p.m. of the fifteenth (15th) Business Day following
the Effective Date of this Agreement (the "Study Period"), Purchaser, at its
expense, shall have the opportunity to make test borings, a land survey,
engineering studies, environmental integrity assessments, and any other desired
pre-development investigations concerning said Property. During the Study
Period, Seller will give Purchaser, its architects, engineers, and other
consultants or representatives, full access to the Property during normal
Business Hours, and as often as may be requested for such purposes and studies.
In addition, Seller agrees to furnish to Purchaser any information concerning
the Property which Purchaser shall reasonably request and which is in Seller's
files, including, but not limited to, the following to the extent the same are
in Seller's files: all existing title policies or commitments with all
attachments, surveys, appraisals, all environmental, ADA and engineering
studies, correspondence, actions or approvals, any service or operating
agreements, tax bills for the last two (2) years, and subdivision plans.
If and whenever Purchaser or its employees, agents or contractors
performs any borings or creates any other hazards upon the Property in
connection with such tests and studies, Purchaser shall (a) take all reasonable
steps to prevent any injury or harm to person or property on account thereof,
and (b) immediately after such tests and studies are initially completed, fill
all such boring holes, repair all such damage, remove all such hazards and
restore such areas. Purchaser shall defend, indemnify and hold harmless Seller
from and against any and all claims, suits, liabilities, judgments, and expenses
(including reasonable attorneys' fees) arising out of or in connection with
access to, and entries upon, the Property by Purchaser or Purchaser's employees,
agents or contractors. Purchaser shall maintain, in full force and effect, an
insurance policy covering such of those claims, suits, liabilities, judgments
and expenses as may arise at any time as a result of Purchaser's or Purchaser's
employees', agents' or contractors' acts or omissions upon the Property. That
policy shall be in the amount of at least Two Million Dollars ($2,000,000.00),
include or contain contractor's pollution legal liability insurance coverage,
name Seller as an additional insured, be issued by an insurance company licensed
to do business as such in the Commonwealth of Virginia and having a
policyholder's rating of at least A and a financial rating of at least VIII by
A.M. Best, and otherwise be in form and substance reasonably satisfactory to
Seller. Prior to any entry upon the Property by Purchaser or Purchaser's
employees, agents or contractors, Purchaser shall provide a copy of that policy,
along with a certificate of insurance with respect thereto, to Seller.
In addition, Seller shall submit to Purchaser on the Effective Date, a
copy of any leases, occupancy agreements or licenses to use the Property entered
into by Seller, or otherwise within Seller's knowledge, and presently in effect
as of the date of this Agreement as first hereinabove fixed and all amendments
thereto. Seller shall also submit to Purchaser such information concerning the
prior owners and tenants of the Property, and the prior uses of the Property for
the past sixty (60) years, as is located in the files and records (a) of Seller;
(b) of the law firm of Wilkes, Artis, Xxxxxxx and Xxxx, Chartered with respect
to Seller or Legend
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Properties, Inc.; or (c) maintained by Xxxxxxx X. Xxxxxxx, Esq., in his own
current working files on the Property (excluding any information that may be
contained in the other files of his law firm).
In the event the test borings, survey, engineering studies, other
pre-development investigations or leases are not satisfactory to Purchaser,
Purchaser may elect to terminate this Agreement by giving written notice to
Seller and Settlement Agent terminating this Agreement and authorizing the
delivery of the Release to Seller, in which event Settlement Agent shall
promptly return the Deposit to Purchaser and deliver the Release to Seller,
whereupon this Agreement shall become null and void. In the event Purchaser
fails to deliver such notice to Seller prior to the expiration of the Study
Period, Purchaser shall be deemed to accept the Property in the physical
condition as found during the Study Period, except as otherwise provided for or
required by this Agreement, and the Release shall be returned to Purchaser.
Should the studies describe an area for the Property different from that
specified in the Recitals set forth above, the Purchase Price specified in
Paragraph 2 hereof shall be adjusted upward or downward pro rata per 1/10th (one
tenth) acre.
4. TITLE AND SURVEY. At Settlement, Seller shall convey to Purchaser fee
simple title to the Property, including any personal property being sold
therewith, subject to the matters of record as of the date hereof (except any
and all deeds of trust, mortgages, financing statements, and other monetary
liens) and the following (collectively, the "Specific Title Obligations"): any
claims of Xxxxxxx X. Xxxxxxx or Xxxxxxx Guardian, L.L.C., the owner of Xxx 0,
Xxxxxxx Xxxxxxx Subdivision, or their representatives, successors or assigns,
arising out of the location of an entrance road or roads into the subject
property from Route 625, the location of the entrance road and highway median
cuts or other access into the Property, storm water easement, sanitary sewer
easement or other site plan improvements located on Lot 6 or on the Property,
However, Seller shall retain all of Seller's right and interest in the
amount of Four Thousand Five Hundred Sixty-Five Dollars ($4,565.00) filed with
the Circuit Court of Loudoun County, Virginia by the Loudoun County Sanitation
Authority with Certificate of Taking No. 26 dated November 3, 1998, and the
"Property" shall not include that amount.
Seller shall make every reasonable effort to deliver to Purchaser,
before the expiration of the Study Period and at Seller's expense, a revised
title commitment, dated not more than thirty (30) days prior to the Effective
Date, issued by the Settlement Agent or a National Title Insurance Company, and
naming Purchaser and Purchaser's lenders as the insureds.
"Title Defects" are all matters that affect whether Seller's title to
the Property, including any personal property being sold therewith, is fee
simple and in good, indefeasible and marketable condition, of record and in
fact, and fully insurable under a full coverage owner's title insurance policy
at standard rates, free and clear of all deeds of trust, mortgage pledges,
liens, conditional sales, encumbrances, leases, tenancies, licenses, security
interests, covenants, preferences, conditions, restrictions, rights-of-way,
easements, encroachments, or other matters of any nature affecting title.
However, "Title Defects" do not
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include any matters which are (a) referenced in the title commitment described
in Exhibit "A" hereto; (b) included in the Specific Title Obligations; or (c)
deeds of trust, mortgages, financing statements, and other monetary liens (it
being understood and agreed that Seller is required to discharge such deeds of
trust, mortgages, financing statements and other monetary liens at Settlement).
If there are any Title Defects at Settlement, Seller must promptly take action
to remove and cure such Title Defects, at its own cost and expense, provided
that, where Seller does not have actual knowledge of such Title Defects as of
the Effective Date, Seller may not be required to spend more than Twenty-Five
Thousand ($25,000.00) to remove or cure such Title Defects or to institute
litigation for that purpose. Upon the written consent of Purchaser, the time
herein specified for full Settlement will be extended for a period necessary for
such prompt action, said period being extended for not in excess of ninety (90)
days, in which event Settlement shall occur on the fifth (5th) Business Day
after such removal or cure is completed. If Seller fails to cure such Title
Defects by the scheduled Settlement date, as so extended (if at all), then,
unless those Title Defects were created by Seller after the Effective Date, on
the scheduled Settlement date, Purchaser shall either (a) proceed to Settlement,
on the fifth (5th) Business Day after that ninety (90) - day period, hereunder
taking title to the Property subject to such Title Defects and waiving any
claims against Seller with respect thereto; or (b) terminate this Agreement by
written notice to Seller, in which event the Settlement Agent shall promptly
return the Deposit to Purchaser and each party shall have no further obligation
to the other, but for the return of the Deposit and as hereinafter specifically
provided.
5. AGREEMENTS AFFECTING PROPERTY. From and after the date of this Agreement
as first hereinabove fixed, Seller shall not enter into any lease, contract or
agreement with any person or party, including any government authority or
quasi-government authority, concerning or affecting the Property, without the
specific written consent of Purchaser, which consent may not be unreasonably
withheld.
With respect to the existing bond in favor of Loudoun County, in the
amount of Three Hundred Seventy-Four Thousand Thirty Dollars ($374,030.00),
Purchaser will pay off such bond by paying Seller that amount at Settlement and
causing the same to be reissued or re-named in Purchaser's own name.
6. COMPLIANCE WITH GOVERNMENT REGULATIONS. From and after the date of this
Agreement as first hereinabove fixed, Seller shall promptly forward to Purchaser
a copy of each and every written notice Seller actually (as opposed to
constructively) receives of violation or non-compliance with any law, ordinance
or regulation of the Commonwealth of Virginia or federal government. Purchaser
will have the option, within a reasonable period of time following receipt of
such notice by Purchaser (but, in any event, prior to the scheduled Settlement
date), either to proceed to Settlement or to terminate this Agreement. However,
if Seller notifies Purchaser that it will correct the violation and completes
that correction within ninety (90) days thereafter, then Settlement shall be
within ten (10) Business Days after such correction is completed.
7. SETTLEMENT.
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(A) TIME AND PLACE; SETTLEMENT AGENT. Seller and Purchaser shall make
full Settlement hereunder in accordance with the provisions of this Agreement,
at 10:00 a.m. on the date which is twenty (20) (calendar) days following the end
of the Study Period. However, that date shall be subject to such extensions as
are expressly authorized in this Agreement. Settlement shall be handled by
Settlement Agent, and shall be held at the offices of Settlement Agent, or at
the offices of Purchaser's attorney, in Washington, D.C. or Northern Virginia.
The title insurance company shall be Commonwealth Land Title Insurance Company,
Lawyers Title Insurance Corporation, Chicago Title Insurance Company, First
American Title Insurance Company, or Xxxxxxx Title Guaranty Company
(collectively, the "National Title Insurance Companies"). Before Settlement,
Settlement Agent shall deliver to Seller a current insured closing letter issued
to it, with respect to the transaction contemplated by this Agreement, by one of
the National Title Insurance Companies. At Settlement, Purchaser shall deliver,
to such title insurance company or agent all of the monies (in immediately
available funds) and documents required of Purchaser under Paragraphs 7(C) and
7(E) hereof. Provided that Seller shall have theretofore tendered, to such title
insurance company or agent, all documents required of Seller under Paragraph
7(D) hereof, all of the proceeds of Settlement due Seller shall be disbursed to
Seller, by wire transfer in accordance with Seller's instructions, immediately
upon recordation of the Deeds. However, if such recordation is not completed by
2:00 p.m. on the first day of the Settlement, then, at or before that 2:00 p.m.
deadline, Settlement Agent shall make a partial wire transfer to Seller in
accordance with those instructions. The amount of such partial wire transfer
shall be the greater of (i) so much of the Purchase Price as is not funded by an
institutional lender to be secured by a first mortgage or deed of trust
encumbering all or part of Property, or (ii) ten percent (10%) of the Purchase
Price.
(B) ADJUSTMENTS. The following items shall be apportioned between Seller
and Purchaser as of the date of Settlement:
(1) Real estate taxes (including but not limited to Route 28 taxes)
for the tax year in which Settlement is held (with such real estate taxes to be
adjusted or prorated as of the date of the Settlement according to the
certificate of taxes issued by the appropriate authorities of the County of
Loudoun or other acceptable evidence); assessments for improvements, if any,
completed prior to the date of Settlement hereunder, whether assessment therefor
has been levied or not, shall also be adjusted or prorated as of the date of the
Settlement based upon the normal assessment period without acceleration.
(2) Utilities, if any, shall be read on the date of Settlement and
the bills to such date shall be paid by Seller.
(3) Rent of any kind or nature arising under any leases, occupancy
agreements or licenses to use the Property, if any, where tenancies are accepted
by Purchaser pursuant to Paragraphs 5 and 8 hereof, shall be prorated as of the
date of Settlement.
(4) Seller shall convey to Purchaser at Settlement, without
adjustment, set-off or deduction, the full amount of all security deposits, if
any, which have been placed by tenants under the terms of the lease(s), if any,
accepted by Purchaser.
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(C) SETTLEMENT CHARGES. Seller and Purchaser shall each pay fifty
percent (50%) of the total of all applicable state and local grantor's taxes,
state and local grantee's taxes and transfer fees. Seller shall also pay the
costs for preparation of the Deeds, any certificate of taxes, any release fees
and other costs and expenses arising from removal of Title Defects, its
counsel's fees, and a fee for filing an information return with the United
States Internal Revenue Service in accordance with applicable codes and
regulations. Purchaser shall pay all other costs and expenses attendant to
Settlement hereunder, including, without limitation, title insurance premiums,
fees related to title examination and issuance of the binder and commitment,
survey costs, costs and expenses of pre-development investigations, notary fees,
and Purchaser's legal fees.
(D) SELLER'S OBLIGATIONS. At Settlement hereunder, Seller shall deliver
to Settlement Agent (i) two (2) deeds, in the respective forms attached hereto
as Exhibit "B", duly executed and acknowledged by Seller, and naming Purchaser
or Purchaser's designee(s) as the grantee(s) (the "Deeds"); (ii) two (2) bills
of sale, in the respective forms attached hereto as Exhibit "C", duly executed
by Seller, and naming Purchaser or Purchaser's designee(s) as the "Buyer"; (iii)
an assignment of any lease(s) to the Property accepted by Purchaser, as herein
otherwise provided for, containing a provision whereby Seller remains
responsible for and indemnifies Purchaser against all obligations under the
accepted lease(s) on and before the date of Settlement hereunder; (iv) an
affidavit, in the form of Exhibit "E" hereto, and such documents or other
evidence as may be reasonably required by the Settlement Agent, and dated as may
be reasonably requested by Settlement Agent, reflecting (a) satisfaction of
requirements as identified in Schedule B -- Section 1 of the title commitment
described Exhibit "A" hereto, but only insofar with respect to Seller's
authority to consummate Settlement hereunder or release of existing mortgage
liens, and (b) removal or satisfaction of any Title Defects which are not
permitted under Paragraph 4 hereof and for which Settlement Agent would
otherwise take exception in any policy it issues Purchaser; (v) an affidavits in
the form of Exhibit "F" hereto; (vi) an assignment, in the form attached hereto
as Exhibit "G", duly executed by Seller, and naming Purchaser or Purchaser's
designee(s) as the "Buyer"; (vii) a Virginia Form R-5, and a Virginia Form R-5P,
properly completed for the scheduled Settlement by each of the entities
constituting Seller; and (viii) an IRS Form 1099 properly completed for the
scheduled Settlement by each of the entities constituting Seller.
Title to the Property is to be conveyed in the name of the Purchaser
(or, in the name of Purchaser's assignee pursuant to the operation of Paragraph
12(G) hereto).
(E) PURCHASER'S OBLIGATIONS. At Settlement hereunder, Purchaser shall
deliver the Purchase Price specified in Paragraph 2 hereof, in immediately
available funds, for payment to Seller. In addition, Purchaser shall execute or
have executed such documents as are required to be executed by Purchaser
pursuant to the terms hereof, and shall provide such documents and shall sign
such affidavits or other documents as reasonably required by the Settlement
Agent related to conveyance of title to the Property in the condition required
by this Agreement.
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(F) SELLER'S DEFAULT. If Seller shall fail to perform its obligations
hereunder to make full Settlement on the date of Settlement in accordance with
the terms hereof, Settlement Agent or Seller, as the case may be, shall be
required to return the Deposit to Purchaser, as set forth herein, and Purchaser
may avail itself of any legal or equitable rights (including, without
limitation, the right of specific performance) which Purchaser may have at law
and/or in equity or under this Agreement, except that Purchaser may not claim
any monetary damages to the extent the same total more than Four Hundred
Thousand Dollars ($400,000.00).
(G) PURCHASER'S DEFAULT. If Purchaser shall be obligated to proceed to
Settlement under the provisions of this Agreement and shall fail to do so, the
Settlement Agent is authorized and directed to pay the Deposit to Seller, or
Seller may retain the Deposit, as the case may be, as liquidated damages,
whereupon this Agreement shall terminate and the parties hereto shall be
released from any further liability or obligation to each other, it being
expressly understood that Seller's entitlement to the Deposit shall be the sole
and exclusive right and remedy of Seller.
(H) TENDER OF PERFORMANCE; SETTLEMENT. It shall be a good and sufficient
tender of performance of the terms hereof if the responsible parties shall have
deposited with the Settlement Agent evidentiary documentation and fully executed
original of the Deeds and of the other documents required to be executed by the
terms of this Agreement, and Purchaser shall have delivered to the Settlement
Agent the Purchase Price in the form or forms provided for in this Agreement.
"Settlement" shall have occurred upon recordation of the Deeds and disbursement
of the entire amount of the Purchase Price and other amounts payable hereunder.
8. POSSESSION - LEASES/MANAGEMENT AND OPERATING AGREEMENTS.
(A) At Settlement, Seller shall deliver to Purchaser full and complete
possession of the Property free and clear of all tenancies, whether by lease,
sublease or otherwise, and free and clear of any and all rights to possession or
occupancy thereof, except as such tenancies are specifically accepted in writing
by Purchaser.
(B) The Property shall be conveyed free and clear of any obligations to
any person, firm, partnership or corporation in connection with the management
thereof, or on account of any tenancy or occupancy of the Property on the date
of Settlement, except as accepted in writing by Purchaser.
(C) During the Study Period, Seller shall cooperate fully with Purchaser
in obtaining acceptable estoppel, subordination, and non-disturbance agreements
with all accepted tenants.
(D) At any time following the date the Deposit becomes non-refundable to
Purchaser (except for Seller's default), Purchaser may request the removal of
any and all of Seller's broker's signs for the leasing/sale of the Property and
the replacement thereof with Purchaser's broker's signs and, if Seller has the
right to do so pursuant to Seller's brokerage
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agreements, Seller shall use reasonable efforts (excepting the institution of
litigation or spending in excess of $25,000.00) to cause Seller's brokers to
comply with such request.
9. REPRESENTATIONS AND WARRANTIES OF SELLER. Each of the following
representations and warranties is true and correct as of the date of this
Agreement as hereinabove set forth and, but for changes beyond Seller's
reasonable control and not caused by Seller's own gross negligence or fraud (it
being understood and agreed that any such change must be objected to by
Purchaser, if at all, at or before the scheduled Settlement date, in which event
that change shall be treated in the same manner as a Title Defects not permitted
under Paragraph 4 hereof), shall be true and correct on the date of Settlement:
(A) NO MATERIAL OMISSIONS. To the best of Seller's knowledge, neither
this Agreement nor any other certificate, statement, document or other
information furnished, or to be furnished, to Purchaser, by or on behalf of
Seller, pursuant to or in connection with the transaction contemplated by this
Agreement, contains or will contain any misstatement of a material fact, or
omits or will omit to state a material fact necessary in order to make the
representations and warranties and other statements herein or therein contained
not misleading, in the circumstances in which made.
(B) TITLE. Seller is the owner of record and in fact of the Property.
Seller has, or shall have as of Settlement, the right and authority to sell the
Property hereunder without the agreement of any other person.
(C) CLAIMS. All bills and claims for labor performed and materials
furnished to or for the benefit of the Property during the period preceding the
date of Settlement have been (or will prior to Settlement be) paid in full.
There are no mechanics' liens (whether or not perfected) on or affecting the
Property. To the best of Seller's knowledge, there is no litigation threatened
or pending in any court of competent jurisdiction (i) regarding the Property in
particular, or (ii) naming Seller or Legend Properties, Inc. as a party and
affecting Seller's ability to perform its obligations hereunder.
(D) AGREEMENTS. Subject to the provisions of Paragraph 4 hereof, the
Property will be delivered free of any service or other continuing contractual
obligations, except (i) such assignable agreements as Purchaser, in its
discretion, elects to assume; and (ii) the obligations that may be imposed under
or pursuant to special exceptions numbers SPEX 1998-0015, 1998-0016, and
1998-0017, as the same may be amended from time to time (collectively, the
"Special Exceptions").
(E) COMPLIANCE WITH GOVERNMENTAL REGULATIONS. To the best of Seller's
knowledge (i) Seller has complied with all applicable laws, ordinances and
regulations of local, state and the Federal governments affecting the Property,
and (ii) neither the Property nor Seller is in violation of any such law,
ordinance or regulation.
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(F) COMPLIANCE WITH EASEMENTS, RESTRICTIVE COVENANTS AND RIGHTS OF WAY.
To the best of Seller's knowledge, Seller has complied with the obligations and
conditions of any easement, restrictive covenant and right-of-way binding the
Property.
(G) CONDEMNATION. Seller has not received any notice of, nor has any
knowledge of, condemnation of eminent domain proceedings having been commenced
against the Property or any part thereof. Seller has not entered into any
agreement with any governmental or quasi-governmental authority relating to the
Property, or any part thereof, except the Special Exceptions.
(H) ZONING. The zoning classification of the Property in its entirety
is Industrial Warehouse/Flex/Office, subject to the Special Exceptions.
(J) RESIDENTIAL TENANTS. There are no residential tenants, subtenants
or occupants of the Property. Seller has the right to convey the Property to
Purchaser free of any right or claim of any residential tenant or any
organization of tenants.
(K) PROPERTY MAINTENANCE. From the date of this Agreement as
hereinabove set forth to the date of Settlement, Seller will operate the
Property in the customary manner, and will deliver the same at Settlement in the
same good order and condition as now exists, reasonable wear and tear and
changes beyond Seller's reasonable control excepted. (It is understood and
agreed that, if any such change occurs and has a material adverse affect upon
the value of the Property, then Purchaser may terminate this Agreement,
whereupon Purchaser shall be entitled to the return of the Deposit and neither
party shall have any further liability to the other hereunder.)
(L) LICENSES AND PERMITS. To the best of Seller's knowledge, all
licenses and permits necessary or required by law for the use and operation of
the Property are currently valid and in effect and proper certificates of
occupancy have been issued by the appropriate governmental authorities with
regard to the Property.
(M) INSURANCE POLICIES. There is in existence liability coverage
insurance on the Property, insuring the interests of the Seller. Such policies
of insurance shall remain in effect until recordation of the Deeds.
(N) NON-FOREIGN SELLER. For the purposes of Sections 1445 and 7701 of
the Internal Revenue Code of 1986, Seller is not a foreign person.
(O) HAZARDOUS MATERIALS. To the best of Seller's knowledge, no
Hazardous Materials are located on, under, or about, the Property. To the best
of Seller's knowledge, the Property does not contain, and has not contained, any
underground tanks for the storage or disposal of Hazardous Materials. Further,
to the best of Seller's knowledge (i) Hazardous Materials have not previously
been used, stored, manufactured or released at the Property; (ii) no complaint,
order, citation or notice with regard to air emissions, water discharges, noise
emissions, and Hazardous Materials, if any, or any other environmental, health,
13
11
or safety matters affecting the Property, or any portion thereof, from any
person, government or entity, has been issued to Seller; (iii) Seller has
complied with all applicable Environmental Laws affecting the Property; (iv)
there are no conditions or circumstances at the Property that pose a risk to the
environment or to the health and safety of persons; (v) Seller has provided to
Purchaser, or otherwise made available to Purchaser, any environmental
information concerning the Property that Seller possesses; and (vi) Seller has
not, and has no knowledge of any other person who has, caused any release or
threatened release at the Property of any Hazardous Material, and the Property
is not affected by any release or threatened release of a Hazardous Material
originating on or emanating from any other property. None of the foregoing
representations and warranties applies to anything disclosed by any of the
following, copies of which have been or will be delivered to Purchaser: (i)
Phase I - Environmental Site Assessment for Ashburn Business Park, dated
February 16, 1998, by GMTI; (ii) Phase I - Environmental Site Assessment for
Loudoun Station Lots 1 through 5, dated February 16, 1998, by GMTI; (iii)
Preliminary Geotechnical Investigation for Ashburn Business Park, dated February
16, 1998, by GMTI; (iv) Preliminary Geotechnical Investigation for Loudoun
Station for Lots 1 through 5, dated February 16, 1998, by GMTI; (v) letter,
dated March 31, 1998, by GMTI,, updating its February 16, 1998 geotechnical
report for Ashburn Business Park; (vi) Report of Subsurface Investigation for
Proposed Roadway System for Ashburn Business Park, dated October 15, 1998; or
(vii) the environmental update reports described in Exhibit "D" hereto.
As used herein, "Hazardous Material(s)" shall mean any substance,
chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant,
contaminant, or material which is hazardous or toxic, and includes, without
limitation, (a) asbestos, polychlorinated biphenyls, and petroleum (including
crude oil or any fraction thereof) and (b) any such material classified or
regulated as "hazardous' or "toxic" pursuant to any Environmental Law.
"Environmental Law" as used herein shall mean any generally published treaty,
statute, law, regulation, ordinance, injunction, judgment, order, consent
decree, or other requirement of any of federal, state, regional, county, or
local person or body having governmental or quasi-governmental authority,
pertaining to (a) the protection of health, safety, and the indoor or outdoor
environment, (b) the conservation, management, or use of natural resources and
wildlife, (c) the protection or use of surface water and groundwater, (d) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, storage, release, threatened release, abatement, removal, remediation
or handling of, or exposure to, any Hazardous Material or (e) pollution
(including any release to air, land, surface water, and groundwater), and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous
and Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq.,
Clean Air Act of 1966, as amended, 42 USC 7401 et seq., Toxic Substances Control
Act of 1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC
App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29
USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency
Planning and Community Right-to-Know Act of 1986,42 USC 11001 et seq., National
Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act
of 1974, as amended, 42 USC 300(f ) et seq., any similar, implementing
14
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or successor law, any amendment, rule, regulation, or generally published order
or directive issued thereunder.
(P) SUBDIVISION. To the best of Seller's knowledge (i) the Property has
been subdivided in accordance with the applicable ordinances and regulations of
the Commonwealth of Virginia, and (ii) the Property described in Exhibit "A"
hereto consists of twenty-one (21) subdivided lots and accompanying storm-water
areas, other infrastructure and related areas.
10. RISK OF LOSS. The risk of loss or damage to the Property by fire or
other casualty until recordation of the Deeds is not assumed by either party,
but is subject to the other provisions hereof.
11. CONDEMNATION. Notwithstanding the foregoing, in the event that
condemnation or eminent domain proceedings (or private purchase in lieu thereof)
shall be commenced by any public or quasi-public authority having jurisdiction
against all or any part of the Property, then Seller shall promptly notify
Purchaser. Purchaser may, at its option, by giving written notice to Seller
within thirty (30) days after receipt of notice from Seller of such condemnation
proceedings, but in any event prior to the scheduled Settlement date, terminate
this Agreement. In such event, Purchaser shall be entitled to the return of the
Deposit, and thereafter neither Purchaser nor Seller shall have any liability to
the other hereunder.
If Seller receives any condemnation award prior to Settlement for any
portion of the Property, Seller may retain that amount and the Purchase Price
hereunder shall be reduced by the net amount so received (i.e. after deducting
the costs of collection, including attorneys' fees). However, if those net
proceeds exceeds the Purchase Price, then, at Settlement, Seller shall deliver
the excess to Purchaser.
In the event that Purchaser elects not to terminate this Agreement,
Seller shall not adjust or settle any condemnation awards whatsoever without the
prior written approval of Purchaser; further, Purchaser and its counsel shall
have the right (including prior to the date of Settlement) to participate in all
negotiations relating to any such condemnation awards, and in the event that any
litigation arises as a result of any such condemnation, as the case may be,
Purchaser may participate in and direct the course of any such litigation, at
Purchaser's expense.
12. OTHER PROVISIONS.
(A) BROKERS/BROKERAGE COMMISSION. Seller and Purchaser each represent
and warrant to the other that, except as set forth in the sentences immediately
following, it (i.e. the party making the representation and warranty) has not
authorized any broker, agent or finder to act on its behalf nor does it have any
knowledge of any broker, agent or finder purporting to act on its behalf in
respect of this transaction. Seller hereby represents to Purchaser that Seller
has dealt with Xxxxxx X. Xxxxxxx, Inc. in this transaction. Purchaser hereby
represents to Seller that Purchaser has dealt with only Millennium Realty
Advisors and OA Partners in this transaction. The parties hereby agree to pay
the brokers at Settlement as follows pursuant to
15
13
certain outside agreements: Seller shall pay Xxxxxx X. Xxxxxxx, Inc. and
Millennium Realty Advisors, each, one and one half percent (1 1/2%) of the
Purchase Price. Buyer shall pay OA Partners any and all amounts due OA Partners
in connection with this Agreement or Settlement. At Settlement, Purchaser shall
deliver a release from OA Partners with respect to any brokerage commissions or
other amounts claimed by AO Partners in connection with this Agreement or
Settlement.
(B) EFFECTIVE DATE. This Agreement shall be effective as of the last
date upon which the parties hereto, excluding the Escrow Agent, have executed
this Agreement, as demonstrated by the date beside the signatures on the
signature pages hereof (the "Effective Date"), regardless of when signed copies
of this Agreement are delivered. The parties hereto shall fax signature pages to
each other as soon as possible.
(C) NOTICES. Any and all notices, requests or other communications
hereunder shall be deemed to have been duly given if in writing and if
transmitted by hand delivery with receipt therefor, by Federal Express for next
business morning delivery, or by registered or certified mail, return receipt
requested, and first class postage prepaid, as follows:
To Seller: c/o Legend Properties, Inc.
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
with a copy to
Wilkes, Artis, Xxxxxxx & Lane, Chartered
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
and
To Purchaser: c/o Du Pont Fabros Development LLC
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Lammot du Pont or Xxxxxxx Xxxxx
with a copy to
Xxxxxxx & Xxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxxx X. Xxxxxxxxx, Esq.
16
14
or to such other address as either party may furnish to the other by notice.
Notice shall be deemed effective when received.
(D) GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Virginia.
(E) SETTLEMENT AGENT. Purchaser and Seller agree that Settlement Agent
assumes no responsibility for the performance of this Agreement by the parties
hereto, and shall only be liable for the application of the Deposit and the
Release, recordation of documents, and disbursement of Settlement proceeds in
accordance with the terms hereof.
(F) HEADINGS. The captions and headings herein are for convenience and
reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
(G) ASSIGNMENT. This Agreement shall be freely assignable by Purchaser
to an entity or persons related to Purchaser, but may not be assigned by Seller.
However, no such assignment shall relieve Purchaser of any of its obligations
hereunder.
(H) COUNTERPART COPIES. This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.
(I) SURVIVAL OF PROVISIONS. The provisions of this Agreement and the
representations and warranties herein shall survive Settlement hereunder and the
execution and delivery of the Deeds, and shall not be merged therein. However,
the representations and warranties of Seller shall survive for a period of only
one (1) year from the Settlement date; any claims for any breach of such
representations and warranties shall be barred unless asserted in a xxxx of
complaint filed with a court of competent jurisdiction within that period.
(J) BINDING EFFECT. This Agreement shall be binding upon, and inure to
the benefit of, the parties hereto and their respective legal representatives,
heirs, executors, administrators, successors and assigns.
(K) ENTIRE AGREEMENT. This Agreement and any Exhibits attached hereto
contain the final and entire agreement between the parties hereto with respect
to the sale and purchase of the Property, and are intended to be an integration
of all prior negotiations and understandings. Purchaser, Seller, and their
agents shall not be bound by any terms, conditions, statements, warranties or
representations, oral or written, not contained herein. No change or
modification of this Agreement shall be valid unless the same is in writing and
signed by the parties hereto. No waiver of any of the provisions of this
Agreement shall be valid unless the same is in writing and is signed by the
party against which it is sought to be enforced.
17
15
(L) TIME OF THE ESSENCE. Time is of the essence. Each and every
provision of this Agreement shall be construed in accordance with the principle
that time is of the essence.
(M) SELLER'S KNOWLEDGE. The terms "to Seller's knowledge" and "to the
best of Seller's knowledge" and similar terms, as used in this Agreement, mean
only the actual knowledge of Xxxxx Xxxx, Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx
Xxxxxx and such information as is in the files of Seller or Legend Properties,
Inc. Seller represents and warrants that those three (3) individuals are the
only present employees of Legend Properties, Inc. or of Seller and that those
three (3) individuals have made a diligent search of those files and have found
nothing therein inconsistent with the representations and warranties made by
Seller in this Agreement. However, without limiting the foregoing, those terms
shall not include any constructive knowledge based upon the contents of any law
or public record or any information Seller could gain from the former employees
of Seller, Legend Properties, Inc. or any affiliate thereof..
(N) CONTINUING LIABILITY. Notwithstanding any provision of this
Agreement to the contrary, no termination or cancellation of this Agreement,
cessation of liability or obligations under the terms hereof, Settlement or
release shall relieve either of the parties hereto from its respective
obligations under Paragraph 3 or 12(A) hereof with respect to any access or
activities that shall have theretofore occurred.
(O) BUSINESS DAYS; BUSINESS HOURS. "Business Days" are any day that the
offices of the United States Government, the Government of the Commonwealth of
Virginia, or the Government of Loudoun County, Virginia are generally open to
the public for business. "Business Hours" are the time period from 9:00 a.m. to
5:00 p.m. on Business Days.
(P) NO RECORDATION. Neither party may, directly or indirectly, record
or file a copy or memorandum of this Agreement among any Land Records or other
public records.
[Signature page(s) follow(s).]
18
16
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement under seal as of the day and year first set forth
above.
SELLER:
Witness/attest: ASHBURN CORPORATE CENTER, LC
By: Legend Properties, Inc.
[SIG] By: /s/ XXXXX X. XXXX (Seal)
----------------------------- -------------------------------
XXXXX X. XXXX (print name)
--------------------------
Dated: June 28, 1999 Title: PRESIDENT / CEO
----------------------- -------------------------------
Witness/attest: ASHBURN FRONT FIVE, LLC
By: Legend Properties, Inc.
[SIG] By: /s/ XXXXX X. XXXX (Seal)
----------------------------- --------------------------------
XXXXX X. XXXX (print name)
--------------------------
Dated: June 28, 1999 Title: PRESIDENT / CEO
----------------------- -------------------------------
[Signature page follows]
17
PURCHASER:
Witness/attest: DU PONT FABROS DEVELOPMENT, LLC
[SIG] By: /s/ LAMMOT J. DU PONT
----------------------------- --------------------------------------
Lammot J. du Pont, Member
Dated: July 29, 1999
-----------------------
[SIG] By: /s/ XXXXXXX XXXXX
----------------------------- --------------------------------------
Xxxxxxx Xxxxx, Member
Dated: July 29, 1999
-----------------------
18
Acknowledgment and Acceptance of Settlement Agent
Responsibilities
SETTLEMENT AGENT
Dated: _______________, 1999 Commercial Title Group, Ltd.
By: __________________________
Name: _____________________(print)
Title: _______________________
2
19
Exhibit "A"
Title Commitment and ALTA Surveys
1. Commitment No. LO992579C-Revision #2, having an Effective Date of
May 11, 1999 and issued by Commonwealth Land Title Insurance Company
2. ALTA/ACSM Land Title Survey of the Lands of Ashburn Corporate Center,
LC, a/k/a "Ashburn Business Park" "Phase I" and "Phase II" (In Their
Entirety - Excepting Lot 1), prepared by Xxxxxxx, Xxxx & Associates, Ltd. and
dated March 3, 1998, as revised May 4, 1999, June 7, 1999, and June 24, 1999.
3. ALTA/ACSM Land Title Survey of the Lands of Ashburn Front Five, LLC,
a/k/a "Loudoun Station Limited Partnership Subdivision", Lots 1 through 5
(inclusive), prepared by Xxxxxxx, Xxxx & Associates, Ltd. and dated April 10,
1998, as revised April 29, 1998, April 28, 1999, June 7, 1999, and June 24,
1999.
20
Exhibit "B"
Form of the Deeds
21
PREPARED OUTSIDE THE COMMONWEALTH BY:
Xxxxxx Xxxxx Xxxxxxx & Xxxx, Chartered
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Xxxxxxx X. Xxxxxxxxx, Esquire
AFTER RECORDING RETURN ORIGINAL TO:
Xxxxxxx Xxxxx
Commonwealth Title Group, Ltd
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
GRANTEE'S ADDRESS: c/o Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx & Xxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
TAX MAP NO. 79-3P1-2 THRU 7, 00-00 XXX XX
XXX XXX XX. 00-0X0-0 XXXX 14
CONSIDERATION: _________________
THIS DEED is made as of ________________, 1999, by and between
ASHBURN CORPORATE CENTER, LC, a Virginia limited liability company as Grantor;
and CATAPULT VENTURES LLC, a Delaware limited liability company as Grantee.
W I T N E S S E T H :
That for and in consideration of the sum of Ten Dollars ($10.00), cash
in hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the Grantor does hereby grant and convey, with Special
Warranty, unto the Grantee the following described property located in the
County/City of Loudoun, Virginia (the "Property"): See Exhibit No. 1 attached
hereto.
This conveyance is made subject to all matters of record.
22
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed by its
duly authorized representative as of the date set forth above.
GRANTOR:
Witness/attest: ASHBURN CORPORATE CENTER, LC,
a Virginia limited liability company
By: Legend Properties, Inc.
By: _____________________________ (Seal)
_____________________________
________________________ (print name)
Title: _______________________
STATE OF ____________________
COUNTY OF__________________
The foregoing instrument was duly acknowledged before me this ___ day of
______, _____ by_____________________, as the _____________________ of Legend
Properties, Inc., as the Managing Member of, and on behalf of, Ashburn Corporate
Center, LC, a Virginia limited liability company.
_____________________________
Notary Public
[Notarial Seal]
My Commission Expires: _________________
2
23
Exhibit No. 1
Parcel 1:
Lots No. TWO (2) through SEVEN (7), inclusive, and Lots FIFTEEN (15) through
SEVENTEEN (17), inclusive, Phase I, ASHBURN BUSINESS PARK, as the same appears
duly dedicated, platted and recorded in Deed Book 1063 at Page 176, among the
land records of Loudoun County, Virginia;
Parcel 2:
Lots EIGHT (8) through FOURTEEN (14), inclusive, Phase II, ASHBURN BUSINESS
PARK, as the same appears duly dedicated, platted and recorded in Deed Book 1066
at Page 187, among the land records of Loudoun County, Virginia;
Parcel 3:
Parcel designated as "STORM WATER MANAGEMENT AREA" containing 2.6530 acres, more
or less, as shown on Record and Easement Plat for Phase I, ASHBURN BUSINESS
PARK, attached to a Deed of Dedication, Subdivision and Easement recorded in
Deed Book 1063 at Page 176, among the land records of Loudoun County, Virginia;
and being the property conveyed to Grantor by a deed dated March 5, 1998 and
recorded in Deed Book 1557 at Page 1510 among the Land Records of Loudoun
County, Virginia.
3
24
PREPARED OUTSIDE THE COMMONWEALTH BY:
Xxxxxx Xxxxx Xxxxxxx & Xxxx, Chartered
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Xxxxxxx X. Xxxxxxxxx, Esquire
AFTER RECORDING RETURN ORIGINAL TO:
Xxxxxxx Xxxxx
Commonwealth Title Group, Ltd
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
GRANTEE'S ADDRESS: c/o Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx & Xxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
TAX MAP NO. 79, ((4)) XXXX 0, 0, 0, 0 XXX 0
XXXXXXXXXXXXX: _______________________
THIS DEED is made as of ________________, 1999, by and between ASHBURN FRONT
FIVE, LLC, a Virginia Limited liability company as Grantor; and CATAPULT
VENTURES, LLC, a Delaware limited liability company as Grantee.
W I T N E S S E T H :
That for and in consideration of the sum of Ten Dollars ($10.00),
cash in hand paid, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the Grantor does hereby grant and convey, with
Special Warranty, unto the Grantee the following described property located in
the County/City of Loudoun, Virginia (the "Property"): See Exhibit No. 1
attached hereto.
This conveyance is made subject to all matters of record.
25
IN WITNESS WHEREOF, Grantor has caused this Deed to be executed by its
duly authorized representative as of the date set forth above.
GRANTOR:
Witness/attest: ASHBURN FRONT FIVE, LLC
a Virginia limited liability company
By: Legend Properties, Inc.
____________________________ By: _____________________________ (Seal)
________________________ (print name)
Title: _______________________
STATE OF ____________________
COUNTY OF__________________
The foregoing instrument was duly acknowledged before me this ____ day of ______
by _____________________, as the _____________________ of Legend Properties,
Inc., as the Managing Member of, and on behalf of, Ashburn Front Five, LLC, a
Virginia limited liability company.
_____________________________
Notary Public
[Notarial Seal]
My Commission Expires: _________________
2
26
Exhibit Xx. 0
Xxxx 0, 0, 0, 0 and 5, Subdivision of the Property of Loudoun Station Limited
Partnership, as the same appears duly dedicated, platted and recorded in Deed
Book 1104 at Page 1539, among the land records of Loudoun County, Virginia, and
being the property conveyed to Grantor by a deed dated April 15, 1999 and
recorded in Deed Book 1670 at Page 1282 among the Land Records of Loudoun
County, Virginia.
3
27
Exhibit "C"
Form of the Bills of Sale
28
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That Ashburn Corporate Center, LC ("Seller"), for and in consideration
of the sum of Ten and no/100ths Dollars ($10.00), lawful money of the United
States of America, to it in hand paid by _______________________________________
("Buyer"), the receipt whereof is hereby acknowledged, do by these presents
grant, bargain, sell and convey unto Buyer, Buyer's successors, administrators
and assigns, all of Seller's right, title and interest (if any) in and to the
personal property located within and upon real property described in Exhibit No.
1 (Tract II) hereto, as more particularly described as follows: any and all
fences, materials located on site, but not yet incorporated, and rights that
Seller has in the name "Ashburn" and any other names incorporating the name
"Ashburn," other than the names of the Seller.
TO HAVE AND TO HOLD the same to Buyer, and Buyer's successors,
administrators and assigns forever.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed,
and delivered to Buyer, on its behalf by _____________________ as the
____________________ of Legend Properties, its managing member, as of the ____
day of _________________, 1999.
SELLER:
Witness/attest: ASHBURN CORPORATE CENTER, LC
By: Legend Properties, Inc.
___________________________ By: _____________________________ (Seal)
________________________ (print name)
Title: _______________________
29
Exhibit No. 1 (Tract II)
TRACT II
Parcel 1:
Lots No. TWO (2) through SEVEN (7), inclusive, and Lots FIFTEEN (15) through
SEVENTEEN (17), inclusive, Phase I, ASHBURN BUSINESS PARK, as the same appears
duly dedicated, platted and recorded in Deed Book 1063 at Page 176, among the
land records of Loudoun County, Virginia;
Parcel 2:
Lots EIGHT (8) through FOURTEEN (14), inclusive, Phase II, ASHBURN BUSINESS
PARK, as the same appears duly dedicated, platted and recorded in Deed Book 1066
at Page 187, among the land records of Loudoun County, Virginia;
Parcel 3:
Parcel designated as "STORM WATER MANAGEMENT AREA" containing 2.6530 acres, more
or less, as shown on Record and Easement Plat for Phase I, ASHBURN BUSINESS
PARK, attached to a Deed of Dedication, Subdivision and Easement recorded in
Deed Book 1063 at Page 176, among the land records of Loudoun County, Virginia;
and being the property conveyed to Grantor by a deed dated March 5, 1998 and
recorded in Deed Book 1557 at Page 1510 among the Land Records of Loudoun
County, Virginia.
30
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That Ashburn Front Five, LLC ("Seller"), for and in consideration of
the sum of Ten and no/100ths Dollars ($10.00), lawful money of the United States
of America, to it in hand paid by ________________________________________
("Buyer"), the receipt whereof is hereby acknowledged, do by these presents
grant, bargain, sell and convey unto Buyer, Buyer's successors, administrators
and assigns, all of Seller's right, title and interest (if any) in and to the
personal property located within and upon real property described in Exhibit No.
1 (Tract 1) hereto, as more particularly described as follows: any and all
fences, materials located on site, but not yet incorporated, and rights that
Seller has in the name "Ashburn" and any other names incorporating the name
"Ashburn," other than the names of the Seller.
TO HAVE AND TO HOLD the same to Buyer, and Buyer's successors,
administrators and assigns forever.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed,
and delivered to Buyer, on its behalf by _____________________ as the
____________________ of Legend Properties, its managing member, as of the ____
day of _________________, 1999.
SELLER:
Witness/attest: ASHBURN FRONT FIVE, LLC
By: Legend Properties, Inc.
_____________________________ By: ______________________________ (Seal)
________________________ (print name)
Title: ____________________________
31
Exhibit No. 1 (Tract I)
TRACT I
Lots 1, 2, 3, 4 and 5, Subdivision of the Property of Loudoun Station Limited
Partnership, as the same appears duly dedicated, platted and recorded in Deed
Book 1104 at Page 1539, among the land records of Loudoun County, Virginia, and
being the property conveyed to Grantor by a deed dated April 15, 1999 and
recorded in Deed Book 1670 at Page 1282 among the Land Records of Loudoun
County, Virginia.
32
Exhibit "D"
Environmental Update
1. Phase I Environmental Site Assessment for Ashburn Business Park, dated May 5,
1999 and prepared by Professional Service Industries, Inc., as modified by
letter and substitute page dated June 24, 1999 by Professional Service
Industries, Inc.
2. Phase I Environmental Site Assessment for Loudoun Station - Lots 1 - 5,
dated May 5, 1999 and prepared by Professional Service Industries, Inc., as
modified by letter and substitute page dated June 24, 1999 by Professional
Service Industries, Inc.
33
Form of Owner's Affidavit as to
Mechanic's Liens and Possession
TO: Title Guaranty Company
CASE NO.: ____________________
COMMONWEALTH OF VIRGINIA,
COUNTY OF FAIRFAX, to wit:
THIS DAY personally appeared before me, the undersigned Notary Public
in and for the jurisdiction aforesaid, Ashburn Corporate Center, LC and Ashburn
Front Five, LLC (collectively, the "Owner"), who, after being first dully sworn,
declared and said as follows:
1. That the Owner is, and has been for at least 122 days prior to the
date hereof, the owner of the real property described on Exhibit No. 1 hereto
(the "Property"); except that the said Ashburn Front Five, LLC has owned its
portion of the Property only since April 20, 1999;
2. That there has been no work performed, services rendered, or
materials furnished in connection with repairs, improvements, development,
construction, removal, alterations, demolition, or similar activities with
respect to the Property for at least 122 days prior to the date hereof for which
payment has not been made in full; except possibly prior to April 20, 1999 with
respect to the portion of the Property owned by Ashburn Front Five, LLC;
3. That there are no outstanding claims, or persons entitled to any
claim or right to a claim, for a mechanic's or materialman's lien known to, or
created by or for, the Owner against the Property; and
4. That, to the best of Owner's actual knowledge (a) there are no
outstanding leases or agreements, written or oral, recorded or unrecorded, with
respect to the Property; and (b) there is no person or entity, other than the
Owner, in or entitled to possession of the Property.
This Affidavit is made for the purpose of inducing the title insurer to
which this Affidavit is addressed to insure title to the Property without
exception to (i) claims of mechanics, materialmen, laborers or others entitled
to claim a lien for work, services or materials furnished, or (ii) rights of
parties in possession.
[Signature page follows.]
34
IN WITNESS WHEREOF, the owner has executed this Affidavit as of the __
day of ____________ 1999.
Attest: ASHBURN CORPORATE CENTER, LC
By: Legend Properties, Inc.
_____________________________ By: ______________________________ (Seal)
________________________ (print name)
Title: _______________________
Dated: ______________________
Attest: ASHBURN FRONT FIVE, LLC
By: Legend Properties, Inc.
_____________________________ By: _____________________________ (Seal)
________________________ (print name)
Title: _______________________
Dated: ______________________
2
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Exhibit No. 1
TRACT I
Lots 1, 2, 3, 4 and 5, Subdivision of the Property of Loudoun Station Limited
Partnership, as the same appears duly dedicated, platted and recorded in Deed
Book 1104 at Page 1539, among the land records of Loudoun County, Virginia, and
being the property conveyed to Grantor by a deed dated April 15, 1999 and
recorded in Deed Book 1670 at Page 1282 among the Land Records of Loudoun
County, Virginia.
TRACT II
Parcel 1:
Lots No. TWO (2) through SEVEN (7), inclusive, and Lots FIFTEEN (15) through
SEVENTEEN (17), inclusive, Phase I, ASHBURN BUSINESS PARK, as the same appears
duly dedicated, platted and recorded in Deed Book 1063 at Page 176, among the
land records of Loudoun County, Virginia;
Parcel 2:
Lots EIGHT (8) through FOURTEEN (14), inclusive, Phase II, ASHBURN BUSINESS
PARK, as the same appears duly dedicated, platted and recorded in Deed Book 1066
at Page 187, among the land records of Loudoun County, Virginia;
Parcel 3:
Parcel designated as "STORM WATER MANAGEMENT AREA" containing 2.6530 acres, more
or less, as shown on Record and Easement Plat for Phase I, ASHBURN BUSINESS
PARK, attached to a Deed of Dedication, Subdivision and Easement recorded in
Deed Book 1063 at Page 176, among the land records of Loudoun County, Virginia;
and being the property conveyed to Grantor by a deed dated March 5, 1998 and
recorded in Deed Book 1557 at Page 1510 among the Land Records of Loudoun
County, Virginia.
36
Exhibit "F"
Form of FIRPTA Affidavits
37
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a United States real property interest must withhold tax if the
transferor is a foreign person. To inform_______________________________________
_______________________________________ ("Transferee") that withholding of tax
is not required upon the disposition of a United States real property interest
by ASHBURN CORPORATE CENTER, LC, a Virginia limited liability company
("Transferor"), the undersigned hereby certify the following:
1. Neither of the entities comprising Transferor is a foreign
corporation, foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax Regulations); and
2. Transferor's U.S. employer tax identification number:
Ashburn Corporate Center, LC is: 00-0000000; and
3. Transferor's office address is: Legend Properties, Inc.,
c/o Harbor Title & Escrow Co., Ltd
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The undersigned officer of Transferor declares that he has examined
this certification and to the best of his knowledge and belief it is true,
correct and complete, and he further declares that he has authority to sign this
document on behalf of Transferor.
Dated as of _____________, 1999
ASHBURN CORPORATE CENTER, LC,
a Virginia limited liability company
By: Legend Properties, Inc.,
managing member
By: _________________________________
Name: __________________________ (print)
Title: _______________________________
38
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a United States real property interest must withhold tax if the
transferor is a foreign person. To inform_______________________________________
_______________________________________ ("Transferee") that withholding of tax
is not required upon the disposition of a United States real property interest
by ASHBURN FRONT FIVE, LLC, a Virginia limited liability company ("Transferor"),
the undersigned hereby certify the following:
1. Neither of the entities comprising Transferor is a foreign
corporation, foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax Regulations); and
2. Transferor's U.S. employer tax identification number:
Ashburn Front Five LLC is: 54-19944622; and
3. Transferor's office address is: Legend Properties, Inc.,
c/o Harbor Title & Escrow Co., Ltd
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The undersigned officer of Transferor declares that he has examined
this certification and to the best of his knowledge and belief it is true,
correct and complete, and he further declares that he has authority to sign this
document on behalf of Transferor.
Dated as of _____________, 1999
ASHBURN FRONT FIVE, LLC,
a Virginia limited liability company
By: Legend Properties, Inc.,
managing member
By: _______________________________
Name: ________________________ (print)
Title: _____________________________
39
Exhibit "F"
Form of the Release
40
RELEASE
This Release is made by Du Pont Fabros Development LLC, a ____________
limited liability company ("Releasor"), in favor of Ashburn Corporate Center,
LC, a Virginia limited liability company, and Ashburn Front Five, LLC, a
Virginia limited liability company (collectively, "Releasee").
WHEREAS, Releasor and Releasee are, simultaneously herewith, entering
into a Real Estate Purchase Agreement (the "Agreement") with respect to certain
real estate, containing approximately 115 acres, located in Loudoun County,
Virginia, and more particularly described in Exhibit No. 1 hereto (the
"Property").
WHEREAS, the Agreement requires Releasor to deliver this Release to the
"Escrow Agent" named in the Agreement, and requires the Escrow Agent to deliver
this Release to Releasee under certain circumstances.
NOW, THEREFORE, in order to induce the Releasee to enter into the
Agreement simultaneously herewith, and in consideration of the Releasee's doing
so, Releasor, intending to be legally bound hereby, hereby covenants and agrees
as follows:
1. If Releasee obtains possession of this Release (the original,
not a copy), such possession shall be irrevocable proof that Releasor has no
legal interest in the Property and no claim or right to acquire such an
interest. All persons and entities interested in buying or leasing the Property
may rely upon the aforementioned proof without inquiry.
2. This Release is not revocable and cannot be amended or
terminated.
3. The foregoing notwithstanding, in the event Releasee shall
have transferred title to the Property to a third party prior to the end of the
"Study Period", as the same is defined in the Agreement, this Release shall be
null and void.
Witness: DU PONT FABROS DEVELOPMENT, LLC
_____________________ By: _______________________________
Lammot J. du Pont, Member
Dated: ______________, 1999
_____________________ By: _______________________________
Xxxxxxx Xxxxx, Member
Dated: ______________, 1999
41
State of ____________
to wit
County of ___________
I hereby certify that, on this _____ day of ______________, 1999,
before the subscriber, a Notary Public in and for the jurisdiction aforesaid,
personally appeared Lammot J. du Pont and Xxxxxxx Xxxxx, and, being personally
well known to me (or satisfactorily proven to be) the persons who signed the
foregoing Release, acknowledged and gave oath, in due form of law, that they are
the sole members of Du Pont Fabros Development, LLC, a ___________ limited
liability company, a grantor of that Release, and that they executed that
Release on behalf of, and as the act and deed of, said limited liability
company.
Witness my hand and notarial seal.
___________________________________
Notary Public
My Commission expires: _____________
[Affix notarial seal]
42
Exhibit No. 1
TRACT I
Lots 1, 2, 3, 4 and 5, Subdivision of the Property of Loudoun Station Limited
Partnership, as the same appears duly dedicated, platted and recorded in Deed
Book 1104 at Page 1539, among the land records of Loudoun County, Virginia, and
being the property conveyed to Grantor by a deed dated April 15, 1999 and
recorded in Deed Book 1670 at Page 1282 among the Land Records of Loudoun
County, Virginia.
TRACT II
Parcel 1:
Lots No. TWO (2) through SEVEN (7), inclusive, and Lots FIFTEEN (15) through
SEVENTEEN (17), inclusive, Phase I, ASHBURN BUSINESS PARK, as the same appears
duly dedicated, platted and recorded in Deed Book 1063 at Page 176, among the
land records of Loudoun County, Virginia;
Parcel 2:
Lots EIGHT (8) through FOURTEEN (14), inclusive, Phase II, ASHBURN BUSINESS
PARK, as the same appears duly dedicated, platted and recorded in Deed Book 1066
at Page 187, among the land records of Loudoun County, Virginia;
Parcel 3:
Parcel designated as "STORM WATER MANAGEMENT AREA" containing 2.6530 acres, more
or less, as shown on Record and Easement Plat for Phase I, ASHBURN BUSINESS
PARK, attached to a Deed of Dedication, Subdivision and Easement recorded in
Deed Book 1063 at Page 176, among the land records of Loudoun County, Virginia;
and being the property conveyed to Grantor by a deed dated March 5, 1998 and
recorded in Deed Book 1557 at Page 1510 among the Land Records of Loudoun
County, Virginia.
43
Exhibit "G"
Form of Assignment
44
ASSIGNMENT
As of the _____ day of _____________, 1999, Ashburn Corporate Center,
LC, a Virginia limited liability company, and Ashburn Front Five, LLC, a
Virginia limited liability company (collectively, "Assignors") hereby assign,
convey and transfer unto ______________________________________________________,
a ___________ ___________ ("Assignee"), the following to the extent the same are
in Assignor's possession or control and are assignable: each of the agreements
listed on Exhibit No. 2 hereto, all governmental licenses, permits,
authorizations, consents, certificates and approvals that have been granted by
all governmental authorities having jurisdiction over the Property; Assignor's
rights to all fees, escrow and/or security funds, deposits and other sums
heretofore paid to any governmental authority or public or private utility in
connection with the Property; all plans and specifications, feasibility reports,
traffic studies, environmental impact statements and similar reports and studies
for the Property, and all physical test reports with respect to the Property.
An original or a copy of the items so assigned is attached hereto.
The "Property" means the following land and other items collectively:
The property known as "Ashburn Corporate Center", located in the County of
Loudoun, Commonwealth of Virginia, containing approximately one hundred eighteen
(118) acres of land in the aggregate, consisting of sixteen (16) lots (and a
storm water management area) on the parcel formerly known as "Ashburn Business
Park" and five (5) lots on the parcel formerly known as "Loudoun Station", all
as more fully described on Exhibit No. 1 hereto, and any and all improvements,
easements, rights of way, licenses, interests, rights and appurtenances of any
kind situate on or relating to said land (or any portion thereof) including,
without limitation, any and all right, title and interest of Assignor in and to
any air, zoning and development rights.
Assignor specially warrants its title to the matters assigned hereby,
and shall execute and deliver such further assurances with respect hereto as may
be requisite.
[Signature page(s) follows(s).]
45
IN WITNESS WHEREOF, Assignors have caused this Assignment to be
executed by their duly authorized representative as of the date set forth above.
Assignors:
ASHBURN CORPORATE CENTER, LC,
a Virginia limited liability company
By: Legend Properties, Inc.,
managing member
By: _________________________
Name: Xxxxx X. Xxxx
Title: President
ASHBURN FRONT FIVE, LLC,
a Virginia limited liability company
By: Legend Properties, Inc.,
managing member
By: _________________________
Name: Xxxxx X. Xxxx
Title: President
STATE OF __________________
COUNTY OF__________________
The foregoing instrument was duly acknowledged before me this day of
_________________ , 1999, by Xxxxx X. Xxxx, President of Legend Properties,
Inc., as the Managing Member of, and on behalf of, Ashburn Corporate Center, LC,
a Virginia limited liability company and Ashburn Front Five, LLC, a Virginia
limited liability company.
_____________________________
Notary Public
My Commission Expires: _________________
[Notarial Seal]
46
Exhibit No. 1
TRACT I
Lots 1, 2, 3, 4 and 5, Subdivision of the Property of Loudoun Station Limited
Partnership, as the same appears duly dedicated, platted and recorded in Deed
Book 1104 at Page 1539, among the land records of Loudoun County, Virginia, and
being the property conveyed to Grantor by a deed dated April 15, 1999 and
recorded in Deed Book 1670 at Page 1282 among the Land Records of Loudoun
County, Virginia.
TRACT II
Parcel 1:
Lots No. TWO (2) through SEVEN (7), inclusive, and Lots FIFTEEN (15) through
SEVENTEEN (17), inclusive, Phase I, ASHBURN BUSINESS PARK, as the same appears
duly dedicated, platted and recorded in Deed Book 1063 at Page 176, among the
land records of Loudoun County, Virginia;
Parcel 2:
Lots EIGHT (8) through FOURTEEN (14), inclusive, Phase II, ASHBURN BUSINESS
PARK, as the same appears duly dedicated, platted and recorded in Deed Book 1066
at Page 187, among the land records of Loudoun County, Virginia;
Parcel 3:
Parcel designated as "STORM WATER MANAGEMENT AREA" containing 2.6530 acres, more
or less, as shown on Record and Easement Plat for Phase I, ASHBURN BUSINESS
PARK, attached to a Deed of Dedication, Subdivision and Easement recorded in
Deed Book 1063 at Page 176, among the land records of Loudoun County, Virginia;
and being the property conveyed to Grantor by a deed dated March 5, 1998 and
recorded in Deed Book 1557 at Page 1510 among the Land Records of Loudoun
County, Virginia.
47
Exhibit No. 2
1. Permit No. 1 (Project ID Nos. 88-0010 and 88-0011) from the Loudoun
County Sanitation Authority
2. "Onsite" Water and Sewer Agreement, dated March 6, 1998, between
Loudoun County Sanitation Authority and Ashburn Corporate Center, LC
(relating to Phase I)
3. "Onsite" Water and Sewer Agreement, dated March 6, 1998, between
Loudoun County Sanitation Authority and Ashburn Corporate Center, LC
(relating to Phase II)
4. Substitute State Maintained Roads Agreement - New Owner, dated March 6,
1998, between the Loudoun County Board of Supervisors and Ashburn
Corporate Center, LC (relating to Phase 1B)
5. Substitute State Maintained Roads Agreement - New Owner, dated March 6,
1998, between the Loudoun County Board of Supervisors and Ashburn
Corporate Center, LC (relating to Phase 2)
6. Application for Grading Permits, dated March 6, 1998, by Ashburn
Corporate Center, LC to the Department of Building & Development of
Loudoun County (relating to Phase I)
7. Application for Grading Permits, dated March 6, 1998, by Ashburn
Corporate Center, LC to the Department of Building & Development of
Loudoun County (relating to Phase II)
8. Temporary Use and Occupancy Agreement, dated March 6, 1998, between
Ashburn Corporate Center, LC and the Board of Supervisors of Loudoun
County
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