PURCHASE AND SALE AGREEMENT
Exhibit 10.76
This PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into by CITY CENTER BELLEVUE
DEVELOPMENT LLC, a Delaware limited liability company (“Seller”), and XXXX MT BELLEVUE WA, LLC, a
Delaware limited liability company (“Purchaser”), as of April 30, 2010 (the “Effective Date”).
RECITALS:
A. Seller owns a fee simple interest in and to certain real property known as City Center
Plaza and located at 000 000xx Xxxxxx, X.X., in Bellevue, Washington, as more
particularly described in Exhibit A attached hereto and made a part hereof (the
“Premises”).
B. The parties to this Agreement have agreed to the sale and purchase of the Property (as
hereinafter defined), of which the Premises are a part, on terms and conditions more particularly
set forth in this Agreement. Capitalized terms not defined herein shall have the same meaning as
set forth in Schedule I attached hereto.
ARTICLE 1
PURCHASE AND SALE OF PROPERTY.
PURCHASE AND SALE OF PROPERTY.
On the terms and conditions stated in this Agreement, Seller hereby agrees to sell to
Purchaser, and Purchaser hereby agrees to purchase from Seller, all of Seller’s right, title and
interest in and to the following described property (collectively, the “Property”):
1.1 Land. The Premises, together with all rights and appurtenances pertaining to the
Premises, including, without limitation, all of Seller’s right, title and interest in and to
(i) all minerals, oil, gas, and other hydrocarbon substances thereon or thereunder, (ii) all
adjacent strips, streets, roads, alleys and rights-of-way, public or private, open or proposed,
(iii) all covenants, easements, privileges, and hereditaments pertaining thereto, whether or not of
record, and (iv) all access, air, water, riparian, development, utility, and solar rights
(collectively, the “Land”).
1.2 Improvements. The office building (the “Building”) constructed on the Premises, together
with all parking lots and parking structures and all other improvements and structures constructed
on the Premises (collectively, the “Improvements”).
1.3 Personal Property. All of Seller’s right, title and interest in and to (specifically
excluding any fixtures or personal property owned by tenants under leases, licensees under licenses
or the property manager) the following: (i) mechanical systems, fixtures, machinery and equipment
comprising a part of or attached to or located upon or within the Improvements; (ii) maintenance
equipment and tools, if any, owned by Seller and used exclusively in connection with, and located
in or at, the Improvements; (iii) site plans, surveys, plans and specifications, manuals and
instruction materials, and floor plans in Seller’s possession which relate to the Land
or Improvements; (iv) pylons and other signs situated on or at the Land or Improvements; and
(v) other tangible personal property owned by Seller and used exclusively in connection with, and
located in or on, the Land or Improvements as of the Closing Date (as defined in Section 8.1 below)
(collectively, the “Personal Property”).
1.4 Leases and Licenses. Seller’s right, title and interest in (i) all leases, including all
amendments thereto and guaranties thereof, with tenants leasing all or any portion of the
Improvements (collectively, the “Leases”), and (ii) to the extent assignable, all license
agreements, occupancy agreements, and other similar agreements with licensees using any portion of
the Improvements (collectively, the “Licenses”), in each case to the extent the same are in effect
as of the date of Closing, a current list of which is attached hereto as Schedule 1.4.
1.5 Security Deposits. Seller’s right, title and interest in all security deposits (including
any letters of credit) and last month’s rent held by Seller in connection with the Leases and
Licenses and not applied pursuant to the terms thereof, a current list of which is attached hereto
as Schedule 1.5.
1.6 Contracts. Subject to Section 6.1.3 hereof and to the extent assignable, Seller’s right,
title and interest in all contracts and other agreements (other than the Leases and Licenses) to
which Seller is a party related to the Land and Improvements that will remain in existence after
Closing, including, without limitation, contracts or agreements relating to construction,
architectural services, parking, maintenance or other supplies or services, management, leasing or
brokerage services, utility services, or any equipment leases (collectively, the “Contracts”), a
current list of which is attached hereto as Schedule 1.6, but expressly excluding the
existing Property Management Agreement and the Exclusive Leasing Agreement (as such terms are
defined in Section 6.1.3), both of which will be terminated effective as of the time of Closing.
1.7 Permits. Seller’s right, title and interest in all permits, licenses, certificates of
occupancy, entitlements and governmental approvals which relate exclusively to the Land or
Improvements, to the extent assignable (collectively, the “Permits”).
1.8 Intangibles. Seller’s right, title and interest, if any, in all names, trade names,
street numbers, marks, other symbols and general intangibles, which relate exclusively to the Land
or the Improvements, to the extent assignable, but excluding any of the same that reference
“Beacon,” “Beacon Capital” or any other similar name (collectively, the “Intangibles”).
1.9 Warrantees. Seller’s right, title and interest in any and all guarantees and warrantees
related to construction of the Improvements, building structure, roof and roof membrane, mechanical
and HVAC systems, fire and life safety systems, electrical systems, lighting systems, sprinkler
systems, plumbing and sewer systems, elevators or other systems or building component, which relate
exclusively to the Land or the Improvements, to the extent assignable, (collectively, the
“Warrantees”), a current list of which is attached hereto as Schedule 1.9.
1.10 Construction Agreements. Seller’s right, title and interest in any and all contracts,
agreements, plans and surveys relating to construction of the Improvements,
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architectural services, engineering services, design services, parking, maintenance or other
supplies or services, utility services or any equipment leases which relate exclusively to the Land
or the Improvements, to the extent assignable (collectively, the “Construction Agreements”).
ARTICLE 2
PURCHASE PRICE AND DEPOSIT.
PURCHASE PRICE AND DEPOSIT.
2.1 Purchase Price.
2.1.1 The aggregate purchase price for the Property (“Purchase Price”) shall be Three
Hundred and Ten Million and 00/100 Dollars ($310,000,000.00). The cash due at Closing from
Purchaser on account of the Purchase Price shall be subject to adjustment as set forth in this
Agreement. The parties agree that the portion of the Purchase Price attributable to Personal
Property is Thirty Six Thousand, Five Hundred and 00/100 Dollars ($36,500.00). The Purchase
Price shall be payable as follows:
2.1.2 Deposit. Within one (1) Business Day following the Effective Date and as a condition
precedent to this Agreement being effective, Purchaser shall deliver to Commonwealth Land Title
Insurance Company (the “Escrow Agent”), by federal funds wire transfer, a cash deposit in
immediately available funds in the amount of Ten Million and 00/100 Dollars ($10,000,000.00) (the
“Initial Deposit” and together with any interest accrued thereon, the “Deposit”). If Purchaser
shall fail to deposit the Initial Deposit with Escrow Agent within the time period provided for
above, Seller may at any time prior to Escrow Agent’s receipt of the Initial Deposit, terminate
this Agreement by written notice to Purchaser and Escrow Agent as its sole and exclusive remedy,
in which case this Agreement shall be null and void ab initio, and thereafter
neither party shall have any further rights or obligations to the other hereunder, except for
those which expressly survive the termination of this Agreement. Concurrently with the execution
of this Agreement and prior to Purchaser’s making the Initial Deposit, Seller, Purchaser and
Escrow Agent shall enter into an escrow agreement in the form of Exhibit B attached
hereto (the “Escrow Agreement”). Escrow Agent shall hold the Deposit in accordance with this
Agreement and the Escrow Agreement and shall disburse the Deposit to Seller at Closing.
Notwithstanding anything to the contrary contained in this Agreement, prior to the
expiration of the Study Period (as hereinafter defined), the escrow established hereunder shall
be a “sole order” escrow for the benefit of Purchaser (meaning that Escrow Agent shall act solely
in accordance with the instructions of Purchaser until the expiration of the Study Period in
respect of the Deposit). Without limiting the generality of the foregoing, in the event that on
or prior to the expiration of the Study Period, Purchaser delivers notice to Escrow Agent stating
that Purchaser has elected to terminate this Agreement pursuant to the provisions of Section
4.1.3, then Escrow Agent shall refund to Purchaser the Deposit without any requirement that
Escrow Agent first notify or obtain any approval or consent of Seller.
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2.1.3 The balance of the Purchase Price due from Purchaser at Closing (after crediting the
Deposit and after application of prorations and adjustments provided for in this Agreement) shall
be paid by Purchaser to Escrow Agent by federal funds wire transfer in immediately available
funds no later than 10:00 a.m. Pacific time on the Closing Date (as defined in Section 8.1 below)
and disbursed to Seller at Closing in accordance with Section 8.3.2 hereof and the Escrow
Agreement.
ARTICLE 3
TITLE AND SURVEY.
TITLE AND SURVEY.
3.1 State of Title to be Conveyed. Title to the Property shall be conveyed to Purchaser free
from all liens, encumbrances, encroachments and other exceptions to title except (i) those shown on
the Commitment or the Survey (as such terms are defined in Section 3.2 below) and not required to
be cured by Seller in accordance with this Article 3, (ii) the Leases and Licenses, (iii) matters
caused by Purchaser or the activities of Purchaser or its agents, employees, consultants,
contractors and representatives on the Property, (iv) real estate taxes, sewer rents and taxes,
water rates and charges, vault charges and taxes, business improvement district taxes and
assessments and any other governmental taxes, charges or assessments levied or assessed against the
Property, including any so-called payments in lieu of taxes, in each case which are a lien but not
yet due and payable, subject to proration in accordance with Section 8.5.4 below, and (v)
applicable zoning and building ordinances and land use regulations and any and all other present
and future laws, rules, regulations, statutes, ordinances, orders or other legal requirements
affecting the Property (collectively, the “Permitted Exceptions”). Notwithstanding Article 6
below, on or before the Closing Date, Seller shall have the right to enter into and record a “Grant
of Reciprocal Easements” in substantially the form attached hereto as Schedule 3.1 (the
“REA”).
3.2 Title Commitment and Survey. Purchaser shall obtain a title insurance commitment (the
“Commitment”) for an Owner’s Policy of Title Insurance from Commonwealth Land Title Insurance
Company (the “Title Company”), covering the Premises, and Seller shall provide Purchaser (i) a copy
of Seller’s existing ALTA survey of the Land prepared by Triad Associates and dated November 19,
2007, last revised January 25, 2008 (the “Existing Survey”) as well as a copy of the current draft
of an update to the Existing Survey prepared by Triad Associates and dated January 22, 2010 (the
“Updated Survey”; either of the Existing Survey or the Updated Survey is referred to herein as the
“Survey”). Purchaser shall notify Seller no later than the expiration of the Study Period in
writing of any title exceptions, exclusions from coverage or other matters identified in the
Commitment, the Survey, or any updates thereto which Purchaser disapproves, other than any of the
Permitted Exceptions (to which Purchaser shall have no right to object) (the “Title Objections”).
With respect to any title or survey matters first arising after the expiration of the Study Period
and on or prior to the Closing which affect the Property, other than any of the Permitted
Exceptions (to which Purchaser shall have no right to object), Purchaser shall have until the
earlier of (i) five (5) Business Days after Purchaser’s discovery of such objections or (ii) the
Closing Date to notify Seller in writing of Purchaser’s objection thereto, and such matters shall
be deemed Title Objections. In the event Purchaser shall timely notify Seller of any Title
Objections (including pursuant to the preceding sentence), Seller shall have the right, but not the
obligation, to cure
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such Title Objection(s) in its sole and absolute discretion. Within three (3) Business Days
after receipt of Purchaser’s notice of Title Objection(s), with the Closing Date automatically
extended, if necessary, to allow for such response period, Seller shall notify Purchaser in writing
whether Seller elects to attempt to cure such objection(s). Failure of Seller to give such notice
within said three (3) Business Day period shall be deemed an election by Seller not to cure such
objection(s). If Seller elects or is deemed to have elected not to cure any objection(s) specified
in Purchaser’s notice, Purchaser shall have the following options, to be given by written notice to
the Seller within two (2) Business Days after Purchaser’s receipt of Seller’s notice electing not
to cure such objection(s) (or, if Seller fails to deliver such notice, within two (2) Business Days
after the day on which Seller was required to deliver such notice): (i) to accept a conveyance of
the Property subject to the Permitted Exceptions, specifically including any matters objected to by
Purchaser which Seller has elected, or is deemed to have elected, not to cure (which such matter(s)
shall thereafter be deemed to be a Permitted Exception), without reduction of the Purchase Price,
or (ii) to terminate this Agreement by sending written notice thereof to Seller and Escrow Agent,
and upon delivery of such notice of termination, this Agreement shall terminate and the Deposit
shall be returned to Purchaser and thereafter neither party hereto shall have any further rights,
obligations or liabilities hereunder except for those matters which expressly survive termination
of this Agreement. In addition, if Seller fails on or prior to Closing to cure or satisfy any
objection(s) that Seller has elected, or is required hereunder, to cure or satisfy, then Purchaser
may: (a) accept a conveyance of the Property subject to the Permitted Exceptions, specifically
including such objection(s) which Seller has failed to cure or satisfy (which such objection(s)
shall thereafter be deemed to be a Permitted Exception), without reduction of the Purchase Price,
or (b) terminate this Agreement by sending written notice thereof to Seller and Escrow Agent, and
upon delivery of such notice of termination, this Agreement shall terminate, the Deposit shall be
returned to Purchaser, and thereafter neither party hereto shall have any further rights,
obligations or liabilities hereunder except for those matters which expressly survive termination
of this Agreement. In all events, Seller shall be obligated to (a) cause any mortgage, deed of
trust or other encumbrance evidencing outstanding indebtedness to be satisfied of record, and
(b) cause any mechanic’s, materialman’s or supplier’s liens to be satisfied of record and (c) cause
to be removed of record or bonded over any lien or encumbrance placed upon any Property subsequent
to the Effective Date with Seller’s consent.
ARTICLE 4
PURCHASER’S DUE DILIGENCE.
PURCHASER’S DUE DILIGENCE.
4.1 Purchaser’s Due Diligence. During the period which commenced on the earlier of (i) the
Effective Date or (ii) May 3, 2010 (the “Study Period Commencement Date”), and ending at 5:00 p.m.
Pacific time on the date that is thirty (30) days after the Study Period Commencement Date (the
“Study Period”), Purchaser shall have the right to perform and conduct such examinations and
investigations of the Property as Purchaser may desire, which may include, without limitation,
examination of all structural and mechanical aspects thereof, review of the Property Information
(as hereinafter defined), examination of the title to the Property, reviewing the Survey, and
determining the compliance of the Property with all applicable laws, rules, codes and regulations.
In connection with such examination, Seller shall make available (at reasonable times and places
and/or by providing Purchaser access to an online
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database) for Purchaser’s review Seller’s books and records relating to the Property,
including, without limitation, maintenance records, reports relating to insurance claims,
environmental reports, records of income, taxes and expenses, Leases, Licenses, tenant files,
Contracts, records of repairs and capital improvements, in all cases as available, but expressly
excluding all documents and materials of a proprietary nature, such as internal valuation analysis,
projections, software, marketing materials, and materials constituting the work product of Seller
or its agents (other than any percentage rent or reimbursement calculations) and attorneys
(collectively, the “Property Information”). Notwithstanding anything herein to the contrary,
nothing herein shall authorize Purchaser, nor shall Purchaser be permitted to conduct, any
environmental sampling or subsurface or groundwater testing or air quality testing on or relating
to the Property without Seller’s prior written consent in each instance, which consent may be
withheld or denied for any or no reason.
4.1.1 Access. After the Effective Date, Seller shall, upon reasonable notice and at
reasonable times, make the Property available to Purchaser and its agents, employees, consultants
and representatives for such inspections and tests as Purchaser deems appropriate, at Purchaser’s
sole cost and expense. Purchaser shall provide notice to Seller at least three (3) Business Days
prior to any entry onto the Property by Purchaser or Purchaser’s agents, employees, consultants
or representatives. Seller shall have the right to have a representative present during all or
any of Purchaser’s inspections and tests. Purchaser will use reasonable efforts to minimize
interference with Seller’s operations at the Property and the rights of tenants of the Property.
Purchaser shall not alter or disturb the Property in any manner and Purchaser shall not permit
any mechanics’ liens to be filed against all or any part of the Property. In the event Purchaser
discovers any matter during the course of its investigations and tests which may be reportable
under applicable law, Purchaser acknowledges and agrees that it shall not undertake any such
reporting (unless required by law), but shall notify Seller immediately of any such discovery.
Seller’s prior written consent (not to be unreasonably withheld or delayed) shall be required
prior to any access by Purchaser or Purchaser’s agents to any tenant’s premises or interviews of
any tenants of the Property by Purchaser or its agents, employees, consultants and
representatives, and Seller shall have a right to have a representative present during all tenant
interviews.
4.1.2 Indemnity. Purchaser hereby agrees to indemnify, defend, and hold harmless Seller,
its partners, members, affiliates, property manager, and their respective officers, directors,
agents, employees, and representatives (collectively, the “Indemnified Parties”) from and against
any and all liens, claims, or damages of any kind or nature, including any demands, actions or
causes of action, assessments, losses, costs, expenses, liabilities, interest and penalties, and
reasonable attorneys’ fees suffered, incurred, or sustained by any of the Indemnified Parties
caused by the entry on the Property by Purchaser or its agents, employees, consultants or
representatives or by Purchaser’s investigations of the Property (“Claims”) unless such Claims
arise or are caused by Seller’s gross negligence or willful misconduct. Purchaser will promptly
repair all damage to the Property arising from Purchaser’s inspections or tests, including any
damage that may have been caused by Purchaser or its agents, employees, consultants or
representatives in the conduct of the review, and shall promptly restore the Property
substantially to its condition before such inspections and tests. Notwithstanding anything set
forth herein to the contrary, the indemnification and
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restoration obligations of Purchaser in this Section 4.1.2 shall survive Closing for a
period of one (1) year or the earlier termination, for any reason, of this Agreement. Purchaser
shall provide to Seller prior to its or its agents’, employees’, consultants’ or representatives’
entry on the Property certificates of liability insurance insuring Purchaser and Seller in an
amount not less than Two Million Dollars ($2,000,000.00).
4.1.3 Termination Rights. If for any reason whatsoever or for no reason Purchaser
determines that the Property or any aspect thereof is unsuitable for Purchaser’s acquisition,
Purchaser shall have the right to terminate this Agreement by giving written notice thereof to
Seller and Escrow Agent prior to the expiration of the Study Period, and if Purchaser gives such
notice of termination prior to the expiration of the Study Period, this Agreement shall terminate
and the Deposit shall be returned to Purchaser, and thereafter neither party shall have any
further rights or obligations hereunder (except for any obligations pursuant to the other
provisions of this Agreement which survive a termination). Furthermore, if Purchaser fails to
give written notice prior to the expiration of the Study Period stating that it is waiving its
termination right under this paragraph 4.1.3 and that it elects to proceed hereunder, Purchaser
shall be deemed to have elected to terminate this Agreement which shall be deemed a notice of
termination pursuant to the preceding sentence.
4.2 As Is, Where Is.
4.2.1 Express Representations. Except as provided in the express representations and
warranties of Seller set forth in this Agreement and except as may be expressly set forth in the
documents executed and delivered by Seller at Closing (collectively, the “Express
Representations”), and subject to the limitations of time and money set forth in Sections 5.4 and
10.2 herein, Seller does not, by the execution and delivery of this Agreement, and Seller shall
not, by the execution and delivery of any document or instrument executed and delivered in
connection with Closing, make any representation or warranty, express or implied, of any kind or
nature whatsoever, with respect to the Property.
4.2.2 Disclaimed Matters. Without limiting the generality of the foregoing, other than the
Express Representations, Seller makes, and shall make, no express or implied warranty as to
matters of zoning, acreage, building square footage, tax consequences, physical or environmental
condition (including, without limitation, laws, rules, regulations, orders and requirements
pertaining to the use, handling, generation, treatment, storage or disposal of any toxic or
hazardous waste or toxic, hazardous or regulated substance), valuation, governmental approvals or
governmental regulations (collectively, the “Disclaimed Matters”).
4.2.3 No person acting on behalf of Seller is authorized to make, and by execution hereof,
Purchaser acknowledges that no person has made, any representation, agreement, statement,
warranty, guarantee or promise regarding the Property or the transaction contemplated herein or
the zoning, construction, physical condition or other status of the Property except for the
Express Representations. No representation, warranty, agreement, statement, guarantee or
promise, if any, made by any person acting on behalf of Seller other than the Express
Representations will be valid or binding on Seller.
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PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS, SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (I)
VALUE; (II) THE INCOME TO BE DERIVED FROM THE PROPERTY; (III) THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED THEREON, INCLUDING, WITHOUT LIMITATION, THE
POSSIBILITIES, IF ANY, FOR FUTURE DEVELOPMENT OF THE PROPERTY; (IV) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY;
(V) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (VI) THE NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE INDOOR AND OUTDOOR
ENVIRONMENT AIR QUALITY, WATER, SOIL AND GEOLOGY; (VII) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY
OR BODY; (VIII) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO
THE PROPERTY; (IX) COMPLIANCE WITH ANY FEDERAL, STATE, AND LOCAL ENVIRONMENTAL PROTECTION,
POLLUTION, HEALTH AND SAFETY OR LAND USE LAWS, RULES, REGULATIONS, ORDINANCES, ORDERS, REQUIREMENTS
OR COMMON LAW, INCLUDING, WITHOUT LIMITATION, TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF
1990, AS AMENDED, THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED, THE RESOURCE CONSERVATION
AND RECOVERY ACT, AS AMENDED, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY
ACT OF 1980, AS AMENDED, THE SAFE DRINKING WATER ACT, AS AMENDED, THE HAZARDOUS MATERIALS
TRANSPORTATION ACT, AS AMENDED, THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970, AS AMENDED, THE
TOXIC SUBSTANCE CONTROL ACT, AS AMENDED, AND REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING AND
ANALOGOUS STATE STATUTES AND REGULATIONS; (X) THE PRESENCE OR ABSENCE OF HAZARDOUS OR TOXIC
MATERIALS, SUBSTANCES OR WASTE AT, ON, UNDER, OR ADJACENT TO THE PROPERTY (SUBSECTIONS IX AND X
HEREIN COLLECTIVELY REFERRED TO AS, “ENVIRONMENTAL MATTERS”); (XI) THE CONTENT OR ACCURACY OF THE
PROPERTY INFORMATION, THE COMMITMENT OR THE SURVEY; (XII) THE CONFORMITY OF THE IMPROVEMENTS TO ANY
PLANS OR SPECIFICATIONS FOR THE PROPERTY INCLUDING ANY PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN
OR MAY BE PROVIDED TO PURCHASER; (XIII) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE
APPLICABLE ZONING OR BUILDING REQUIREMENTS; (XIV) DEFICIENCY OF ANY UNDERSHORING, (XV) DEFICIENCY
OF ANY DRAINAGE; (XVI) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED ON OR NEAR AN
EARTHQUAKE FAULT LINE; OR (XVII) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS
AFFECTING THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND
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AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND REVIEW INFORMATION AND
DOCUMENTATION AFFECTING THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE
PROPERTY AND REVIEW OF SUCH INFORMATION AND DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR
TO BE PROVIDED BY SELLER, EXCEPT AS EXPRESSLY SET FORTH IN THE EXPRESS REPRESENTATIONS. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION MADE AVAILABLE TO PURCHASER OR PROVIDED OR TO
BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION,
EXCEPT AS EXPRESSLY SET FORTH IN THE EXPRESS REPRESENTATIONS. PURCHASER HEREBY ACKNOWLEDGES AND
AGREES THAT PURCHASER SHALL NOT BE ENTITLED TO RELY ON ANY REPORTS OR OTHER PROPERTY INFORMATION
SUPPLIED BY SELLER TO PURCHASER, EXCEPT AS SET FORTH IN THE EXPRESS REPRESENTATIONS PURCHASER
AGREES TO FULLY AND IRREVOCABLY RELEASE SELLER FROM ANY AND ALL CLAIMS THAT PURCHASER MAY NOW HAVE
OR HEREAFTER ACQUIRE AGAINST SELLER FOR ANY COSTS, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND, ACTION
OR CAUSE OF ACTION ARISING FROM SUCH INFORMATION OR DOCUMENTATION, EXCEPT TO THE EXTENT ARISING OUT
OF A BREACH BY SELLER OF A REPRESENTATION OR WARRANTY (SUBJECT TO THE LIMITATIONS OF TIME AND MONEY
SET FORTH IN SECTIONS 5.4 AND 10.2 HEREIN) MADE IN THE EXPRESS REPRESENTATIONS. SELLER IS NOT
LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON TO THE EXTENT NOT EXPRESSLY SET FORTH IN THE EXPRESS
REPRESENTATIONS. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY
LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN “AS IS” CONDITION AND BASIS WITH
ALL FAULTS AND DEFECTS, AND THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS, REPLACEMENTS OR
IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY STATED HEREIN. PURCHASER REPRESENTS, WARRANTS,
AND COVENANTS TO SELLER, WHICH REPRESENTATION, WARRANTY, AND COVENANT TO SELLER SHALL SURVIVE THE
CLOSING AND NOT BE MERGED WITH THE DEED, THAT, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS,
PURCHASER IS RELYING SOLELY UPON PURCHASER’S OWN INVESTIGATION OF THE PROPERTY.
BY INITIALING BELOW, PURCHASER ACKNOWLEDGES THAT (i) THIS SECTION 4.2.3 HAS BEEN READ AND
FULLY UNDERSTOOD, (ii) PURCHASER HAS HAD THE OPPORTUNITY TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS
MEANING AND SIGNIFICANCE, AND (iii) PURCHASER HAS ACCEPTED AND AGREED TO THE TERMS SET FORTH IN
THIS SECTION 4.2.3.
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PURCHASER’S INITIALS
4.2.4 Waiver. Without in any way limiting any provision of this Section 4.2, Purchaser
specifically acknowledges and agrees that, except with respect to the Express Representations and
the obligations of Seller set forth in Sections 6.1 and 14.16 of this Agreement, Purchaser hereby
waives, releases and discharges any claim it has, might have had, or may have against Seller with
respect to (a) the Disclaimed Matters, (b) subject to Article 9 of this Agreement, the condition
of the Property as of the Closing Date, (c) the past, present or future condition or compliance
of the Property with regard to any federal, state or local law, statute, ordinance, rule,
regulation, order or determination of any governmental authority or agency affecting the
Property, including without limitation those pertaining to Environmental Matters, or (d) any
other state of facts that exists with respect to the Property or any of the Property Information.
4.2.5 Waiver of Right to Receive Seller Disclosure Statement and Waiver of Right to Rescind.
Because the Property may fit within the definition of “unimproved residential real property”
under RCW 64.06, Seller may be required by RCW 64.06 to provide Purchaser with a completed
statutory seller disclosure statement (the “Seller Disclosure Statement”). Purchaser and Seller
agree that RCW 64.06 was not intended to apply to commercial transactions such as the
transactions contemplated in this Agreement and, to the extent permissible, Purchaser intends to
waive any and all rights Purchaser may have with respect to both the right to receive a Seller
Disclosure Statement and the right to rescind this Agreement based on such Seller Disclosure
Statement.
Notwithstanding such understanding, Purchaser and Seller wish to comply with RCW 64.06 in the
event it is deemed applicable and in the event Purchaser’s waiver is held to not to be enforceable.
RCW 64.06 provides that Purchaser may waive its right to receive the Seller Disclosure Statement;
provided, however, if the answer to any of the questions in the section of the Seller Disclosure
Statement entitled “Environmental” would be “yes,” Purchaser may not waive the receipt of the
“Environmental” section of the Seller Disclosure Statement. By executing this Agreement, Purchaser
acknowledges that (i) Purchaser has received, approved and accepted the “Environmental” section of
the Seller Disclosure Statement, a copy of which is attached to this Agreement as
Schedule 4.2.5 and (ii) Purchaser waives its right to receive any of the other sections of
the Seller Disclosure Statement.
Purchaser further agrees that any information discovered by Purchaser concerning the Property
shall not obligate Seller to prepare and deliver to Purchaser a revised or updated Seller
Disclosure Statement. Purchaser hereby waives any right to receive any updated or revised Seller
Disclosure Statement, regardless of the source of any new information. Any “corrective action”
proposed to be taken by Seller to restore the accuracy of the disclosures of the “Environmental”
section of the Seller Disclosure Statement, as described in RCW 64.06.040(1), shall be subject to
Section 6.1.1 of this Agreement. Purchaser further warrants that it is a sophisticated purchaser
who is familiar with the ownership and development of real estate projects similar to the Property
and Purchaser has or will have adequate opportunity to complete such independent inspections of the
Property it deems necessary, and will acquire the Property
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solely on the basis of and in reliance upon such examinations and not on any information provided
in any Seller Disclosure Statement or otherwise provided or to be provided by Seller (other than as
expressly provided in this Agreement).
PURCHASER HEREBY WAIVES, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE RIGHT TO RESCIND THIS
AGREEMENT PURSUANT TO ANY PROVISION OF RCW 64.06. IT IS THE INTENT OF PURCHASER AND SELLER, TO THE
FULLEST EXTENT PERMISSIBLE BY LAW, THAT ANY SELLER DISCLOSURE STATEMENT PROVIDED BY SELLER WILL NOT
BE RELIED UPON BY PURCHASER, AND SHALL GIVE PURCHASER NO RIGHTS WITH RESPECT TO SELLER OR UNDER
THIS AGREEMENT. THIS WAIVER OF THE RIGHT TO RESCIND APPLIES TO THE SELLER DISCLOSURE STATEMENT
PROVIDED ON OR BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT AND APPLIES PROSPECTIVELY TO ANY UPDATED
OR REVISED SELLER DISCLOSURE STATEMENTS THAT MAY BE PROVIDED BY SELLER TO PURCHASER.
PURCHASER’S INITIALS
ARTICLE 5
REPRESENTATIONS AND WARRANTIES.
REPRESENTATIONS AND WARRANTIES.
5.1 Seller’s Representations and Warranties. As a material inducement for Purchaser to enter
into this Agreement, Seller represents to Purchaser, as of the Effective Date, as follows:
5.1.1 Organization. Seller is duly formed and validly existing under the laws of the
jurisdiction of its organization and is qualified to transact business in the jurisdiction where
the Property is located.
5.1.2 Authority/Consent. Seller possesses all requisite power and authority, and has taken
all actions required by its organizational documents and applicable law, to execute and deliver
this Agreement and will, by Closing, have taken all actions required by its organizational
documents and applicable law to consummate the transactions contemplated by this Agreement.
5.1.3 Litigation. Except as may be disclosed on Schedule 5.1.3 attached hereto, and
except for any claims (such as slip and fall and similar claims) that are covered by Seller’s
insurance, no action, suit or other proceeding (including, but not limited to, any condemnation
action) with respect to which Seller has received service is pending or, to Seller’s knowledge,
has been threatened in writing that concerns or involves the Property which would, if determined
adversely to Seller, affect the use or value of the Property or affect Seller’s ability to
fulfill its obligations under this Agreement.
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5.1.4 Bankruptcy. No bankruptcy, insolvency, reorganization or similar action or
proceeding, whether voluntary or involuntary, is pending, or, to Seller’s knowledge, has been
threatened in writing, against Seller.
5.1.5 Contracts. Except for the Contracts referenced on Schedule 1.6 and subject to
Section 6.1.3 below, there are no contracts, agreements to which Seller is a party relating to
construction, architectural services, parking, maintenance or other supplies or services,
management, leasing or brokerage services, or any equipment leases to which Seller is a party,
that are currently in effect and will be in effect after Closing.
5.1.6 Employees. Seller has no employees.
5.1.7 Leases.
(i) Except for the Leases and Licenses, and all amendments thereto, referenced
on Schedule 1.4, and the leases, licenses, or other occupancy agreements
which may be entered into by Seller pursuant to Section 6.1.1 hereof, there are no
leases, rental agreements, license agreements or other occupancy agreements
currently in effect which will affect the Property after Closing.
(ii) Each Lease and each License is in full force and effect and, to Seller’s
knowledge, except as disclosed on Schedule 5.1.7, no monetary or material
non-monetary defaults exist thereunder.
(iii) Seller has provided Purchaser with complete copies of all Leases and
Licenses, including all amendments thereto and guaranties thereof in Seller’s
possession.
(iv) Except as may be described in Schedules 8.5.8(i) and 8.5.8(iii)
attached hereto, all tenant improvement allowances, rent credits or rent abatements
currently due and payable by Seller as landlord or licensee under or in connection
with the current terms of the Leases and Licenses have been paid in full.
(v) Attached hereto as Schedule 1.5 is a true and complete list of
security deposits and last month’s rent currently held by Seller, as landlord or
licensor, under the Leases and Licenses.
5.1.8 Commissions. All brokerage and leasing commissions due and payable by Seller (whether
payable before or after Closing) with respect to the current terms of the Leases and Licenses
have been paid in full, other than those specified in Schedule 8.5.8(ii).
5.1.9 Violations of Law. Except as set forth on Schedule 5.1.9, Seller has not
received written notice from any governmental authority of any material violation of any federal,
state, county or municipal laws, ordinances, orders, regulations and requirements affecting the
Property or any portion thereof (including the conduct of business operations
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thereon) which violation remains unresolved and which violation would materially and
adversely affect the Property or the operation thereof.
5.1.10 Environmental Reports. To Seller’s knowledge, complete copies of all
environmental/hazardous waste studies and reports relating to the Property which are in Seller’s
possession (collectively, the “Environmental Reports”) have been furnished or will be furnished
to Purchaser.
5.1.11 Foreign Person. Seller is not a “foreign person,” “foreign trust” or “foreign
corporation” (as those terms are defined in the Internal Revenue Code of 1986, as amended, and
related Income Tax Regulations).
5.1.12 No Conflicts. The execution and delivery of this Agreement by Seller and the
consummation by Seller of the transactions contemplated hereby will not: (i) violate any
judgment, order, injunction, or decree to which Seller or the Property is subject, or (ii)
conflict with, result in a breach of, or constitute a default under the organizational documents
of Seller or any lease, mortgage, loan agreement, covenant, or other agreement or instrument to
which Seller is a party or by which Seller or the Property is bound.
5.1.13 OFAC. Neither Seller nor any of its equity owners, nor to Seller’s knowledge any of
their respective employees, officers or directors, is a person or entity with whom U.S. persons
or entities are restricted from doing business under regulations of the Office of Foreign Asset
Control of the Department of the Treasury (“OFAC”), (including those named on OFAC’s Specially
Designated and Blocked Persons List) or under any similar statute, executive order (including the
September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons
Who Commit, Threaten to Commit, or Support Terrorism) or other similar governmental action.
5.1.14 Fixtures and Personal Property. The Personal Property set forth on Schedule 5.1.14
attached hereto is owned by Seller free of any liens or encumbrances except for the Permitted
Exceptions.
5.1.15 No Options To Purchase. Seller has not granted to any person or entity any option or
other right to purchase the Property that is currently in effect.
5.2 Purchaser’s Representations and Warranties. As a material inducement for Seller to enter
into this Agreement, Purchaser represents to Seller, as of the Effective Date, as follows:
5.2.1 Organization. Purchaser is duly formed, validly existing and in good standing under
the laws of the jurisdiction of its organization and, as of the Closing Date, will be qualified
to transact business in the jurisdiction where the Property is located.
5.2.2 Authority/Consent. Purchaser possesses all requisite power and authority, has taken
all actions required by its organizational documents and applicable law, and has obtained all
necessary consents, to execute and deliver this Agreement and will, by
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Closing, have taken all actions required by its organizational documents and applicable law
to consummate the transactions contemplated in this Agreement.
5.2.3 OFAC. Neither Purchaser nor any of its equity owners, nor to Purchaser’s knowledge
any of their respective employees, officers or directors, is a person or entity with whom U.S.
persons or entities are restricted from doing business under regulations of OFAC (including those
named on OFAC’s Specially Designated and Blocked Persons List) or under any similar statute,
executive order (including the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) or
other similar governmental action.
5.2.4 No Conflicts. The execution and delivery of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby will not: (i) violate any
judgment, order, injunction, or decree to which Purchaser is subject, or (ii) conflict with,
result in a breach of, or constitute a default under the organizational documents of Purchaser or
any lease, mortgage, loan agreement, covenant, or other agreement or instrument to which
Purchaser is a party or by which Purchaser is bound.
5.2.5 Bankruptcy. No bankruptcy, insolvency, reorganization or similar action or
proceeding, whether voluntary or involuntary, is pending, or, to Purchaser’s knowledge, has been
threatened in writing, against Purchaser.
5.3 Knowledge. For purposes of this Agreement, the phrase “to Seller’s knowledge” means the
present, actual knowledge, without independent investigation or inquiry, of XxXxxxx Xxxxx. There
shall be no personal liability on the part of XxXxxxx Xxxxx arising out of any representations or
warranties made herein or otherwise. XxXxxxx Xxxxx is familiar with the Property and the
operations thereof and has been involved with operations at the Property from the beginning of
Seller’s period of ownership of the Property. To the extent a Tenant Estoppel (defined in Section
6.5 below) is provided to Purchaser which sets forth information with respect to any item as to
which Seller has made a representation or warranty, then Seller’s representations and warranties
with respect to such information will thereafter be null and void and of no further force and
effect and Purchaser shall rely on the information in such Tenant Estoppel.
5.4 Survival. All of the representations and warranties set forth in this Article 5, shall
survive the Closing for a period of twelve (12) months (“Survival Period”), subject to the
provisions of Article 10 of this Agreement. Purchaser shall provide Seller with written notice (a
“Notice of Breach”) of any alleged breach or failure of any representation or warranty made by
Seller and specifying the nature thereof within five (5) Business Days after Purchaser’s discovery
of such alleged breach or failure. Purchaser shall commence any action, suit, or proceeding with
respect to any breach or failure that is the subject of the Notice of Breach, if at all, on or
before the date that is thirty (30) days after the expiration of the Survival Period (the “Suit
Deadline”). Seller acknowledges and agrees that the resolution of such action, suit, or proceeding
may not occur until after the expiration of the Survival Period and the Survival Period shall be
deemed to be tolled with respect to (and only with respect to) any alleged breach or failure of a
representation or warranty of which Seller receives a Notice of Breach before the expiration of
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the Survival Period, provided Purchaser files an action, suit or proceeding with respect
thereto prior to the Suit Deadline. Notwithstanding the foregoing to the contrary, Seller shall
have no liability in connection with this Agreement by reason of any inaccuracy of a representation
or warranty if, and to the extent that, such inaccuracy is disclosed to Purchaser and Purchaser
elects, nevertheless, to consummate the transaction contemplated hereby.
ARTICLE 6
COVENANTS OF SELLER PRIOR TO CLOSING.
COVENANTS OF SELLER PRIOR TO CLOSING.
6.1 Operation of Property. From the Effective Date until the Closing, Seller shall operate
the Property in accordance with the terms of this Section 6.1.
6.1.1 From the Effective Date until the Closing, Seller shall continue to operate, maintain
and repair the Property in the ordinary course of business and to the standard that Seller has
operated the Property to date and continue to perform all of Seller’s obligations as landlord
under the Leases, but shall not take any of the following actions after the expiration of the
Study Period without written notice to Purchaser pursuant to Article 12 hereof and the prior
written consent of Purchaser, which consent shall not be unreasonably withheld, delayed or
conditioned and which consent shall be deemed granted in the event that Purchaser fails to
respond to a written request for its consent within five (5) Business Days: (a) make or permit
to be made any material alterations to or upon the Property (provided, however, Purchaser’s
consent shall not be required for repairs or other work of an emergency nature, as required by
law, or under any Lease, provided that Seller shall notify Purchaser of such work as soon as
practicable), (b) enter into any contracts for the provision of services and/or supplies to the
Property which are not terminable without premium or penalty by Purchaser upon no more than
thirty (30) days’ prior written notice, or amend or modify any of the Contracts in any material
respect, unless such Contract, as amended, may be terminated without premium or penalty by
Purchaser upon no more than thirty (30) days’ prior written notice, (c) remove or permit the
removal from the Property of any fixtures, mechanical equipment, or any other item included in
the Property except when replaced with items of equal or greater quality and value by Seller at
Seller’s cost prior to Closing, and except for the use and consumption at the Property of
inventory, office and other supplies and spare parts, and the replacement of worn out, obsolete
and defective tools, equipment and appliances, in each case in the ordinary course of business,
or (d) subject to Section 6.6 below, settle, compromise, withdraw or terminate any real estate
tax appeal or proceeding affecting the Property other than any relating solely to periods prior
to the tax year in which the Closing occurs.
6.1.2 Prior to the expiration of the Study Period, Seller shall not, without the prior
written consent of Purchaser, which consent shall not be unreasonably withheld, delayed or
conditioned: (a) enter into any leases, licenses, or other occupancy agreements with respect to
the Property or any part thereof, or extend (except pursuant to a provision of the existing Lease
or License), terminate or cancel (except in the event of a tenant default), or otherwise amend
(except pursuant to a provision of the existing Lease or License) any of the Leases or Licenses
or (b) grant any easements or title encumbrances that will affect the Property after the Closing
Date.
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6.1.3 Between the date of the expiration of the Study Period and the Closing Date, Seller
shall not, without the prior written consent of Purchaser, which consent shall be in Purchaser’s
sole discretion: (a) enter into any leases, licenses, or other occupancy agreements with respect
to the Property or any part thereof, or extend, terminate or cancel, or otherwise amend any of
the Leases or Licenses or (b) grant any easements or title encumbrances that will affect the
Property after the Closing Date. Notwithstanding the foregoing to the contrary, Seller shall
have the right to enter into any agreements that Seller is required under the provisions of the
Leases or Licenses unless such agreements materially increase the obligations of the landlord
under the Leases or Licenses or materially decrease the rights of landlord under the Leases or
Licenses (“Material Lease Modifications”). In the event of a Material Lease Modification, Seller
shall provide Purchaser with five (5) Business Days prior written notice of such proposed
Material Lease Modification and Purchaser shall have three (3) Business Days to either accept or
reject the proposed Material Lease Modification. If Purchaser timely rejects the proposed
Material Lease Modification and Seller enters into such Material Lease Modification, then
Purchaser shall have the right to terminate this Agreement and the Deposit shall be returned to
Purchaser and thereafter neither party shall have any further rights or obligations hereunder
(except for any obligations pursuant to the other provisions of this Agreement which survive a
termination).
6.1.4 Notwithstanding the foregoing, Seller shall have no obligation to Purchaser to make or
perform any capital repairs or replacements unless required to do so to meet its obligations as
landlord under the Leases or by applicable law.
6.1.5 Not later than the expiration of the Study Period, Purchaser may deliver a written
notice to Seller setting forth which, if any, of the Contracts Purchaser has elected to have
Seller terminate. Seller will deliver notices of termination at Closing terminating those
Contracts that Seller is timely notified hereunder to terminate by Purchaser. Seller shall be
responsible for any termination penalties or fees associated with the termination of such
Contracts. At Closing, Seller shall assign to Purchaser, to the extent assignable, and Purchaser
shall assume, the Contracts pursuant to the Assignment and Assumption Agreement (as defined in
Section 8.2.1.4). Notwithstanding anything contained herein to the contrary, Seller agrees to
cause the existing property management agreement between Seller and BCSP V Property Management
LLC (the “Property Management Agreement”) and the existing Leasing Services Agreement between
Seller and Xxxxxxxxx Group, Inc. (the “Exclusive Leasing Agreement”) to be terminated effective
as of the Closing Date and Seller shall be solely responsible for any termination fees or
payments due thereunder.
6.2 Notices. Promptly after receipt, Seller shall provide Purchaser with true and complete
copies of any written notices that Seller receives from any governmental authority with respect to
(i) any special assessments or proposed increases in the valuation of the Property; (ii) any
condemnation or eminent domain proceedings affecting the Property or any portion thereof; or (iii)
any material violation of any environmental law or any zoning, health, fire, safety or other law,
regulation or code applicable to the Property. In addition, Seller shall deliver or cause to be
delivered to Purchaser, promptly upon the giving or receipt thereof by Seller, true and complete
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copies of any written notices of default given or received by Seller under any of the Leases
or Licenses.
6.3 Litigation. Seller will advise Purchaser promptly of any litigation, arbitration
proceeding or administrative hearing which is instituted after the Effective Date and which
concerns or affects Seller or the Property, other than any such matters (such as slip and fall and
similar claims) that are covered by Seller’s insurance.
6.4 Insurance. Prior to Closing, Seller will maintain Seller’s existing insurance coverage
with respect to the Property.
6.5 Tenant Estoppels. Seller shall request (and thereafter exercise commercially
reasonable efforts to obtain) from each tenant under a Lease a tenant estoppel certificate in
the form of Exhibit C-1 attached hereto, provided, however, if such tenant’s Lease attaches
or prescribes a form of, or content of, an estoppel certificate, such tenant may deliver an
estoppel certificate conforming to such tenant’s Lease (each, a “Tenant Estoppel”). If Seller
obtains a Tenant Estoppel from any of the tenants, Seller shall promptly deliver it to Purchaser.
Notwithstanding the foregoing or anything set forth herein to the contrary, Seller, at its option,
may deliver to Purchaser a representation letter substantially in the form of Exhibit C-2
(a “Seller Estoppel”) with respect to El Gaucho Bellevue L.L.C. (“El Gaucho”) only. Either of a
Tenant Estoppel or a Seller Estoppel is referred to herein as an “Estoppel”. If Seller fails to
deliver Estoppels from both (a) Microsoft Corporation, a Washington corporation and (b) El Gaucho,
(collectively, the “Estoppel Condition”) on or before the date that is two (2) Business Days prior
to the Closing Date, Purchaser shall thereafter have the right, at Purchaser’s sole option to:
(i) terminate this Agreement by notice given to Seller, whereupon the entire Deposit shall be
immediately refunded to Purchaser and upon such refund, no party hereto shall have any rights or
obligations hereunder except for the surviving obligations, which shall survive such termination,
or (ii) proceed to consummate the Closing hereunder. For purposes hereof (x) delivery of a Tenant
Estoppel from a tenant in a form different from that set forth on
Exhibit C-1 hereto or the
form prescribed by such tenant’s Lease shall not be deemed delivery of a Tenant Estoppel with
respect to such tenant, (y) delivery of a Tenant Estoppel that does not attach or reference the
applicable Lease and all amendments, modifications, extensions and guarantees thereto shall not be
deemed delivery of a Tenant Estoppel with respect to such tenant, and (z) delivery of a Tenant
Estoppel from a tenant that shows defaults by the landlord or the tenant, or other obligations of
the landlord or the tenant that are inconsistent with this Agreement (in any case, an “Adverse
Matter”) shall not be deemed delivery of a Tenant Estoppel with respect to such tenant, except
to the extent that such Adverse Matters have been disclosed by any of the Seller’s representations
and warranties under this Agreement or the applicable lease. Seller’s liability under any Seller
Estoppel shall expire and be of no further force or effect on the earlier of: (A) twelve (12)
months following the Closing Date, or (B) the date that Purchaser receives a Tenant Estoppel from
said tenant which discloses no Adverse Matters. In addition, Seller’s liability under the Seller
Estoppel shall be subject to the limitations of Section 10.2 hereof.
6.6 Tax Reduction Proceedings. Seller may file and/or prosecute an application for the
reduction of the assessed valuation of the Property or any portion thereof for real estate taxes
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or a refund of real estate taxes previously paid (a “Tax Certiorari Proceeding”) to the City
of Bellevue for any fiscal year. Seller shall have the right to withdraw, settle or otherwise
compromise Tax Certiorari Proceedings affecting real estate taxes assessed against the Property (i)
for any fiscal period prior to the fiscal year in which the Closing shall occur without the prior
consent of Purchaser, and (ii) for the fiscal year in which the Closing shall occur, provided
Purchaser shall have consented with respect thereto, which consent shall not be unreasonably
withheld or delayed and which consent shall be deemed granted in the event that Purchaser fails to
respond to a written request for its consent within three (3) Business Days. The amount of any tax
refunds (net of attorneys’ fees and other costs of obtaining such tax refunds) with respect to any
portion of the Property for the tax year in which the Apportionment Time (as defined in Section 6.6
below) occurs shall be apportioned between Seller and Purchaser as of the Apportionment Time with a
prior allocation of the portion thereof which must be returned to tenants pursuant to the terms of
the Leases; Seller hereby agreeing to be responsible for the return of such refund to such tenants
for the period up to and including the Apportionment Time and Purchaser having such obligation for
the return of such refunds attributable to the period from and after the Closing Date. If, in lieu
of a tax refund, a tax credit is received with respect to any portion of the Property for the tax
year in which the Apportionment Time occurs, then (x) within thirty (30) days after receipt by
Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net
of attorneys’ fees and other costs of obtaining such tax credit), the tax credit apportionment
shall be readjusted between Seller and Purchaser, and (y) upon realization by Purchaser of a tax
savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings
realized (as apportioned). All refunds, credits or other benefits applicable to any fiscal period
prior to the fiscal year in which the Closing shall occur shall belong solely to Seller (and
Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone
acting on behalf of Purchaser, same shall be paid to Seller within five (5) days following receipt
thereof. The provisions of this Section 6.6 shall survive the Closing. As used herein, the term
“Apportionment Time” shall mean 11:59 p.m. Pacific time on the date immediately prior to the
Closing Date.
ARTICLE 7
CONDITIONS PRECEDENT TO CLOSING.
CONDITIONS PRECEDENT TO CLOSING.
7.1 Conditions Precedent to Purchaser’s Obligation to Close. Purchaser’s obligation to
purchase the Property is subject to satisfaction on or before the Closing Date of the following
conditions, any of which may be waived in writing by Purchaser in Purchaser’s sole and absolute
subjective discretion:
7.1.1 Title. A final examination of the title to the Land by the Title Company shall
disclose no title exceptions except for the Permitted Exceptions and other matters approved or
deemed approved by Purchaser in accordance with this Agreement, and Title Company shall be
irrevocably committed to issue to Purchaser a standard ALTA owner’s title insurance policy
insuring title to the Property in the amount of the Purchase Price, subject only to the Permitted
Exceptions and such other matters so approved or deemed approved by Purchaser.
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7.1.2 Tenant Estoppels. Seller shall have satisfied the Estoppel Condition.
7.1.3 Delivery of Closing Documents. Seller shall have delivered each of the Closing
Documents required to be delivered under Section 8.2.1 of this Agreement.
7.1.4 Covenants, Representations and Warranties. The Seller’s Express Representations shall
be true, correct and accurate on the Closing Date in all material respects. Seller shall have
performed and observed, in all material respects, all covenants of Seller under this Agreement.
In addition, there shall not exist any facts or circumstances that would make any of the Seller’s
Express Representations untrue in any material respect as of the Closing Date. Notwithstanding
the foregoing, if a change in circumstances occurs after the Effective Date which is not
otherwise a breach or default by Seller under the terms of this Agreement and such change of
circumstances requires a representation and warranty made by the Seller to be modified in order
for such representation and warranty to be accurate as of Closing, then the representation and
warranty shall be deemed remade as so modified, and Seller shall not be in breach of or in
default under this Agreement by virtue of such change in circumstances or modification.
7.2 Conditions Precedent to Seller’s Obligation to Close. Seller’s obligation to sell the
Property is subject to satisfaction, on or before the Closing Date of the following conditions, any
of which may be waived in writing by Seller, in Seller’s sole and absolute subjective discretion:
7.2.1 Covenants. Purchaser shall have performed and observed, in all material respects, all
covenants of Purchaser under this Agreement.
7.2.2 Representations and Warranties. All representations and warranties of Purchaser set
forth in this Agreement shall be true and correct in all material respects as if made on the
Closing Date
7.2.3 Delivery of Closing Documents and Payment of Purchase Price. Purchaser shall have
delivered each of the Closing Documents required to be delivered under Section 8.3.1 of this
Agreement and shall have paid into escrow the balance due of the Purchase Price.
7.3 Failure of a Condition.
7.3.1 General. If any condition precedent to Purchaser’s obligation to close the
transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, has
not been satisfied on or before the Closing Date, then Purchaser shall give notice to Seller of
the condition or conditions that Purchaser asserts are not satisfied. If the conditions
specified in such notice are not satisfied within ten (10) Business Days after receipt of such
notice (with the Closing Date automatically being extended to accommodate such ten (10) Business
Day period), then Purchaser may terminate this Agreement by written notice to Seller and Escrow
Agent, whereupon neither party shall have any further rights or obligations
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hereunder (other than any obligations of either party that expressly survive termination)
and the Deposit shall be returned to Purchaser. Notwithstanding anything contained herein to the
contrary, if any of the conditions precedent to Purchaser’s obligation to close, as set forth in
Section 7.1 of this Agreement, are not satisfied within the ten (10) Business Day period
specified above and the same are reasonably susceptible of being cured, Seller shall have the
right to extend such period in which to satisfy the unsatisfied condition for a period of up to
thirty (30) additional days, by giving written notice thereof to Purchaser and Escrow Agent
within the initial ten (10) Business Day period referenced above. Purchaser shall have the right
to waive the unsatisfied condition or conditions by written notice to Seller and Escrow Agent
given within five (5) Business Days after expiration of the applicable satisfaction period
without satisfaction having occurred, in which event the Closing Date shall be the date that is
five (5) Business Days after Seller’s receipt of Purchaser’s waiver notice. It is understood and
agreed that the failure of any condition set forth in Section 7.1 hereof that is not reasonably
susceptible of being cured within the time allotted shall not constitute a default, breach of a
covenant, or other failure to perform by Seller hereunder unless such failed condition was caused
by Seller’s willful and intentional actions in violation of its covenants set forth in Section
6.1.1 hereof.
If any condition precedent to Seller’s obligation to close the transactions contemplated by
this Agreement, as set forth in Section 7.2 of this Agreement, has not been satisfied on or before
the Closing Date, then Seller shall give notice to Purchaser of the condition or conditions that
Seller asserts are not satisfied. If the conditions specified in such notice are not satisfied
within ten (10) Business Days after receipt of such notice (with the Closing Date automatically
being extended to accommodate such ten (10) Business Day period), then Seller may terminate this
Agreement by written notice to Purchaser and Escrow Agent, whereupon neither party shall have any
further rights or obligations hereunder (other than any obligations of either party that expressly
survive termination) and the Deposit shall be returned to Purchaser. Seller shall have the right
to waive the unsatisfied condition or conditions by written notice to Purchaser and Escrow Agent
given within five (5) Business Days after expiration of the applicable satisfaction period without
satisfaction having occurred, in which event the Closing Date shall be the date that is five (5)
Business Days after Purchaser’s receipt of Seller’s waiver notice. Notwithstanding the foregoing
or anything set forth herein to the contrary, subject to Article 10 below, in no event shall the
Closing Date be extended with respect to Purchaser’s failure to fund into escrow the balance of the
Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller
in writing in Seller’s sole and absolute discretion.
7.3.2 Waiver. If the transaction contemplated by this Agreement closes, the parties shall
be deemed to have waived any and all unmet or unsatisfied conditions subject to the provisions of
Sections 5.4 and 10.2 hereof.
ARTICLE 8
CLOSING.
CLOSING.
8.1 Closing Date. The consummation of the transactions contemplated hereby (the “Closing”)
shall be conducted by delivery of documents and funds in escrow to Escrow Agent on the later of (i)
fifteen (15) days after expiration of the Study Period or (ii) June 18, 2010 (the
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“Designated Closing Date”), TIME BEING STRICTLY OF THE ESSENCE (as such date may be extended
in accordance with this Agreement, the “Closing Date”). Purchaser and Seller agree to finalize and
execute all documents necessary for the consummation of the transaction contemplated herein,
including, but not limited to, the Settlement Statement (as defined in Section 8.2.1.7), and to
deliver all such documents to the Escrow Agent in escrow not later than 2:00 p.m. (Pacific time) on
the Business Day immediately preceding the Closing Date to ensure the orderly and timely close of
escrow and disbursement of all funds necessary for Closing by not later than 10:00 a.m.. (Pacific
time) on the Closing Date.
8.2 Seller’s Obligations at the Closing. At the Closing, Seller will do, or cause to be done,
the following:
8.2.1 Closing Documents. Seller shall execute, acknowledge (if necessary) and deliver
originals of the following documents:
8.2.1.1 Special Warranty Deed substantially in the form of Exhibit D hereto
(the “Deed”);
8.2.1.2 Xxxx of Sale, substantially in the form of Exhibit E hereto;
8.2.1.3 Assignment and Assumption Agreement with respect to the Leases and Licenses,
substantially in the form of Exhibit F-1 hereto;
8.2.1.4 Assignment and Assumption Agreement with respect to the Contracts,
substantially in the form of Exhibit F-2 hereto (the “Assignment and Assumption
Agreement”);
8.2.1.5 Certificate of Non-Foreign Status, substantially in the form of Exhibit
G hereto;
8.2.1.6 Letters to each tenant under the Leases and each licensee under the Licenses,
substantially in the form of Exhibit H hereto, notifying tenants and licensees of
the conveyance of the Property to Purchaser and advising them that, following the Closing
Date, all future payments of rent are to be made to Purchaser or at Purchaser’s direction;
8.2.1.7 Settlement statement prepared by Escrow Agent showing all of the payments,
adjustments and prorations provided for in Section 8.5 of this Agreement or otherwise agreed
upon by Seller and Purchaser (the “Settlement Statement”);
8.2.1.8 Such transfer tax forms as may be required as a condition to the recordation of
the Deed or as may be required in connection with the transfer of the Property;
8.2.1.9 Subject to Section 7.1.4 of this Agreement, a certificate signed by Seller
stating that each of Seller’s representations and warranties contained in Section 5.1 of
this Agreement is true and correct in all material respects, provided,
however, that,
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subject to Section 7.1.4 of this Agreement, if any of the representations and
warranties have changed since the Effective Date, then Seller shall revise the
representations and warranties to conform to the changed circumstances and shall set forth
such changed representations and warranties in such certificate;
8.2.1.10 An Owner’s Affidavit in the form of Exhibit I attached hereto (the
“Owner’s Affidavit”). Seller shall also deliver to the Title Company and Purchaser such
evidence as may be reasonably required by the Title Company with respect to the authority of
the person(s) executing the Deed and the other documents required to be executed by Seller
on behalf of Seller;
8.2.1.11 Evidence of the termination of the Property Management Agreement and Exclusive
Leasing Agreement effective as of the Closing Date and copies of notices of termination of
such other Contracts as are to be terminated in accordance with Section 6.1.3;
8.2.1.12 Such transfer documentation as may be necessary to transfer all tenant
security deposits held by Seller under the Leases or Licenses in the form of a letter of
credit (“Letters of Credit”) or any other non-cash form; and
8.2.2 Original Property Information Documents. Seller will deliver to Purchaser, or make
available to Purchaser at the Property, originals of all Leases, originals, or to the extent
originals are not available, copies of all Licenses, Contracts and Permits and all plans and
specifications relating to the Property, and all mechanical and electrical system guarantees and
roof warranties relating to the Property, within Seller’s possession.
8.2.3 Keys. Seller will deliver to Purchaser all keys to the Improvements in the possession
or subject to the control of Seller, including, without limitation, master keys as well as
combinations, card keys and cards for the security systems, if any.
8.2.4 Costs. Seller will pay all costs allocated to Seller pursuant to Section 8.5.1 of
this Agreement.
8.3 Purchaser’s Obligations at the Closing. At the Closing, Purchaser will do, or cause to be
done, the following:
8.3.1 Closing Documents. At Closing, Purchaser shall execute, acknowledge (if necessary)
and deliver originals of the following documents:
8.3.1.1 Xxxx of Sale in the form of Exhibit E hereto;
8.3.1.2 Assignment and Assumption Agreement with respect to the Leases and Licenses in
the form of Exhibit F-1 hereto;
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8.3.1.3 Assignment and Assumption Agreement;
8.3.1.4 Settlement Statement;
8.3.1.5 Such transfer tax forms as may be required as a condition to the recordation of
the Deed or as may be required in connection with the transfer of the Property;
8.3.1.6 Such evidence as may be reasonably required by the Title Company with respect
to the authority of the person(s) executing the documents required to be executed by
Purchaser on behalf of Purchaser;
8.3.1.7 A certificate signed by Purchaser stating that each of Purchaser’s
representations and warranties contained in Section 5.2 of this Agreement is true and
correct in all material respects, provided, however, that if any of the
representations and warranties have changed since the Effective Date, then Purchaser shall
revise the representations and warranties to conform to the changed circumstances and shall
set forth such changed representations and warranties in such certificate; and
8.3.2 Payment of Consideration. Purchaser shall pay to Escrow Agent a sum equal to the
remaining portion of the Purchase Price owed by Purchaser in accordance with Section 2.1.3 of
this Agreement. As part of the Closing under this Agreement, in accordance with this Agreement
and the Escrow Agreement, Escrow Agent shall disburse, via federal funds wire transfer of
immediately available funds, to an account designated by Seller in a written notice to Escrow
Agent delivered prior to the Closing Date, with such notice to contain all information necessary
for Escrow Agent to effectuate such transfer, the amount due to Seller as shown on the Settlement
Statement.
8.3.3 Costs. Purchaser will pay all costs allocated to Purchaser pursuant to Section 8.5.1
of this Agreement.
8.4 Escrow. The delivery of the documents and the payment of the sums to be delivered and
paid at the Closing shall be accomplished through an escrow with Escrow Agent and in accordance
with this Agreement and the Escrow Agreement.
8.5 Costs and Adjustments at Closing. Seller shall prepare and submit to Purchaser for
Purchaser’s review, at least five (5) Business Days prior to the Closing Date, a draft proration
statement setting forth the prorations and adjustments contemplated by this Agreement. Once Seller
and Purchaser have agreed on such proration statement, and at least three (3) Business Days prior
to the Closing Date, Seller and Purchaser shall submit the same to the Escrow Agent and the Escrow
Agent shall prepare the Settlement Statement and submit the same to Seller and Purchaser for their
approval at least two (2) Business Days prior to the Closing Date.
8.5.1 Transaction Expenses. Any closing or escrow fees of Escrow Agent shall be paid fifty
percent (50%) by Seller and fifty percent (50%) by Purchaser. Seller shall pay (i) all costs and
fees for Seller’s representatives and consultants (except as set forth in this Section 8.5.1
below), (ii) all fees and costs associated with delivering title to the
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Property in the condition required by Article 3 of this Agreement; (iii) all transfer and
excise taxes associated with the transfer of the Land and Improvements to Purchaser; (iv) all
costs and fees for title examination, title insurance and related title company charges
associated with the issuance of the Commitment and the payment of the premium for the Owner’s
Policy of Title Insurance (but solely with respect to the standard ALTA Owner’s Policy of Title
Insurance without any endorsements or extended coverage); and (v) the costs relating to the
Survey. Purchaser shall pay (or reimburse Seller for) (i) all costs and fees for title
examination, title insurance and related title company charges associated with any endorsements
to the Owner’s Policy of Title Insurance or any extended coverage and the issuance of the
Purchaser’s lender’s title insurance policy and any updates or endorsements thereto required by
Purchaser’s lender), (ii) all costs associated with any additional updates to the Survey ordered
by Purchaser or required by Purchaser’s lender, (iii) all costs associated with Purchaser’s due
diligence studies and investigations of the Property, (iv) all costs associated with Purchaser’s
financing of its purchase of the Property, including, without limitation, all recording fees and
taxes, (v) all costs associated with any state and local recordation tax, documentary and other
taxes and stamps, and any recording fees or mortgage taxes associated with any mortgage or deed
of trust related to Purchaser’s financing of its purchase of the Property; and (vi) all sales and
use taxes associated with the transfer of the Personal Property to Purchaser. Seller and
Purchaser shall each pay its respective attorneys’ fees.
8.5.2 Security Deposits. Seller shall pay to Purchaser, as a credit against the Purchase
Price, the amount of any cash security deposits and last month’s rent actually received by Seller
pursuant to the Leases and Licenses and not yet refunded to tenants or applied pursuant to the
Leases and Licenses. With respect to any security deposits that are held in the form of Letters
of Credit or any form other than cash, Seller shall deliver to Purchaser at the Closing the
original Letters of Credit or other applicable documents together with such original transfer and
assignment documentation as may be necessary to effect the transfer of each Letter of Credit or
other non-cash security deposit, provided any transfer fees or other costs shall be borne by the
Seller.
8.5.3. Adjustments. The Purchase Price shall be adjusted with respect to rents and other
amounts payable by tenants under Leases and Licenses solely in accordance with the provisions of
this Section 8.5.3 (such adjustments being referred to, collectively, as the “Adjustments”).
Except as otherwise provided in this Section 8.5.3, all Adjustments shall be calculated on the
basis that Seller shall be responsible for all expenses and liabilities, and be entitled to
receive all revenues, accrued in respect of the Property prior to the Closing Date and Purchaser
shall, without duplication, be responsible for all expenses and liabilities accruing from and
including the Closing Date, and be entitled to receive all revenues accruing from and including
the Closing Date in respect of the Property. Except as otherwise provided in Section 8.5.3, all
adjustments for basic rent, additional rent, percentage rent, parking income, damage/security
deposits and interest thereon, if any, prepaid rents and interest thereon, if any, and other
income and operating expenses, prepaid expenses relating to the Property, amounts paid and
payable under the Permitted Exceptions and the Contracts assigned to Purchaser pursuant to the
Contract Assumption and Assignment Agreement, utilities, taxes (including local improvement
charges and assessments and business taxes) and
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other adjustments established by the usual commercial real estate practice in Bellevue,
Washington for the purchase and sale of assets similar to the Property, shall be made as of the
Closing Date and shall be paid on the Closing Date pursuant to a statement of adjustments to be
prepared by Seller (together with reasonable supporting documentation) and approved by Purchaser,
each acting reasonably (the “Statement of Adjustments”). Notwithstanding the foregoing, there
shall not be any Adjustments in favor of Seller in respect of insurance premiums for insurance
coverage obtained by Seller or any development, construction or lease-up costs, it being agreed
that all expenses and liabilities thereunder or in respect thereof are solely for the account of
Seller, whether or not they are accrued after the Closing Date.
8.5.3.1. Except as otherwise provided in this Section 8.5.3, if the final cost or amount of
any item which is to be adjusted cannot be determined on the Closing Date, then an initial
adjustment for such item shall be made as of the Closing Date, such amount to be estimated by the
parties, acting reasonably, as of the Closing Date on the basis of the best evidence available as
to what the final cost or amount of such item will be. All amounts which have been estimated as
of the Closing Date because they have not been finally determined at that date, or which this
Section provides will be adjusted only after Closing (the “Post-Closing Adjustments”), shall be
finally adjusted on a post-closing basis once the Post-Closing Adjustments have been determined
and finalized. In each case when a Post-Closing Adjustment is determined, Seller or Purchaser,
as the case may be, shall within thirty (30) days of determination, provide a complete statement
thereof, together with particulars relating thereto in reasonable detail, to the other and within
thirty (30) days thereafter the parties hereto shall make a final adjustment as of the Closing
Date for the Post-Closing Adjustment in question. In the absence of agreement by the parties
hereto by such deadline, the final amount of any Post-Closing Adjustment shall be determined
pursuant to Section 8.5.3. Purchaser and Seller shall provide any information necessary for
Purchaser and Seller to affect such readjustments. Subject to Section 8.5.3.2 and 8.5.3.3, all
Adjustments and Post-Closing Adjustments to be made pursuant to this Section 8.5.3 shall, in any
event, be requested on or before the date which is the first anniversary of the Closing Date (the
“Final Adjustment Date”) and no claim for any re-adjustment may be made by either party
thereafter, except that if either party fails to provide any information that it is required to
provide, and the other party has specifically requested such information prior to the Final
Adjustment Date and such information is necessary to determine any readjustment in favor of the
other party, the other party shall remain entitled to claim such readjustment at any time prior
to that date that is ninety (90) days after the date that such information is so provided.
8.5.3.2. Seller and Purchaser hereby agree that no adjustment will be made in favor of
Seller on the Closing Date in respect of any arrears of rent or other charges, payments, costs or
expenses payable by the tenants under Leases and Licenses in respect of the period prior to the
Closing Date (all such arrears being herein collectively called the “Arrears”); all Arrears shall
remain the property of Seller. From and after the Closing, Purchaser shall use good faith and
commercially reasonable efforts to collect from the tenants and licensees all Arrears. Following
the Closing Date, Seller shall have the right to pursue all rights and remedies against the
applicable tenants or licensees to recover Arrears; provided, however, that
Seller shall not be entitled to dispossess such tenants or licensees, disturb their possession of
their leased premises or seek any involuntary bankruptcy of any tenant or
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licensee. All payments in respect of rent and other amounts payable under Leases or
Licenses that are received by Purchaser on or after the Closing Date that are not otherwise
designated by the tenant for application shall be applied in order, firstly to payment of the
current rent and any costs incurred by Purchaser in collecting such amounts, then to payment of
any arrears in respect of any period from and including the Closing Date, and lastly to payment
of the Arrears; and Purchaser shall forward any amounts payable on account of the Arrears in
accordance with the foregoing provisions to Seller as received from time to time.
8.5.3.3. Seller agrees that if it receives any payments from any tenant or other party with
respect to the period from and after the Closing Date, it shall receive and hold them in trust
for Purchaser and shall forthwith (and in any event within ten (10) Business Days after receipt)
thereafter pay such monies to Purchaser without set-off or deduction. Purchaser agrees that if
it receives any payments from any tenant with respect to the period prior to the Closing Date, it
shall receive and hold them in trust for Seller and shall forthwith (and in any event within ten
(10) Business Days after receipt) thereafter pay such monies to Seller without set off or
deduction.
8.5.3.4. Seller has entered into that certain Assignment of Savings dated June 13, 2007 in
the current outstanding amount of $11,600.00 with respect to utility maintenance at the Property
required by the City of Bellevue (the “Utility Bond”). Seller shall receive a credit from
Purchaser at Closing equal to the then outstanding amount of the Utility Bond and Purchaser shall
be entitled to all funds assigned to the City of Bellevue pursuant to the Utility Bond to the
extent released or refunded by the City of Bellevue; provided, however, that no such credit shall
be due Seller if, on or before Closing, Purchaser causes the Utility Bond to be terminated by the
City of Bellevue (by substituting a new Assignment of Savings in Purchaser’s name, or otherwise).
8.5.3.5. Seller has entered into that certain Assignment of Savings dated February 4, 2010,
in the amount of $116,807.30, which secures certain landscaping obligations at the Property (the
“Landscape Bond”). Seller shall receive a credit from Purchaser at Closing equal to the then
outstanding amount of the Landscape Bond and Purchaser shall be entitled to all funds assigned to
the City of Bellevue pursuant to the Landscape Bond to the extent released or refunded by the
City of Bellevue; provided, however, that no such credit shall be due Seller if, on or before
Closing, Purchaser causes the Landscape Bond to be terminated by the City of Bellevue (by
substituting a new Assignment of Savings in Purchaser’s name, or otherwise).
8.5.3.6. Seller has entered into that certain Assignment of Savings dated February 4, 2010,
in the amount of $142,998.00, which secures an obligation to install certain public art at the
Property (the “Art Bond”). From and after the Effective Date, Seller shall have the right to
install such public art at the Property and to otherwise complete the improvements and/or satisfy
the conditions to obtaining a written release of the Art Bond from the City of Bellevue (such
installation, improvements and/or conditions, collectively, the “Art Installation”). If the Art
Installation is not completed prior to the Closing, then until the earlier to occur of (a) the
one year anniversary of the Closing, and (b) such date as the Art
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Installation is completed, Purchaser shall, upon reasonable notice and at reasonable times,
make the plaza of the Property available to Seller and its agents, employees, consultants and
representatives for the completion of the Art Installation, at Seller’s sole cost and expense.
Purchaser shall cooperate with Seller, at no cost to Purchaser in the completion of the Art
Installation, the termination of the Art Bond and the release of the funds assigned pursuant
thereto. If the Art Installation is not completed prior to the Closing, then, at Closing, Seller
shall assign to Purchaser any rights to the funds subject to the Art Bond to the extent released
by the City of Bellevue which assignment shall be conditional upon Seller’s failure to complete
the Art Installation prior to the one year anniversary of the Closing. If Seller fails to
complete the Art Installation prior to the one year anniversary of the Closing, then Purchaser
shall have the right to complete the Art Installation. Thereafter, any funds subject to the Art
Bond which are released by the City of Bellevue shall be credited first to Purchaser in an amount
equal to the out of pocket costs incurred by Purchaser in connection with the completion of the
Art Installation and the balance thereof, if any, shall be paid to Seller. Seller and Purchaser
agree to use good faith efforts to negotiate the final form of the assignment of the Art Bond
prior to the expiration of the Study Period. Seller shall provide notice to Purchaser at least
three (3) Business Days prior to any entry onto the Property after Closing by Seller or Seller’s
agents, employees, consultants or representatives. Purchaser shall have the right at its own
cost and expense to have a representative present during Seller’s access to the Property after
Closing. Seller will use reasonable efforts to minimize interference with Purchaser’s operations
at the Property and the rights of tenants at the Property. Seller shall not permit any
mechanics’ liens resulting from Seller’s or its agents actions in connection with the Art
Installation to be filed against all or any part of the Property. With respect to its access to
the Property after Closing, Seller hereby agrees to indemnify, defend, and hold harmless
Purchaser, its partners, members, affiliates, property manager, and their respective officers,
directors, agents, employees, and representatives (collectively, the “Purchaser Indemnified
Parties”) from and against any and all liens, claims, or damages of any kind or nature, including
any demands, actions or causes of action, assessments, losses, costs, expenses, liabilities,
interest and penalties, and reasonable attorneys’ fees suffered, incurred, or sustained by any of
the Purchaser Indemnified Parties arising out of any injury to persons or damage to property
arising out of any act or omission of Seller or its agents or other representatives in connection
with Seller’s access to the Property after the Closing unless such claims arise or are caused by
Purchaser’s negligence or willful misconduct. If any property damage, personal injury or loss
results from the joint negligence or willful misconduct of Seller and Purchaser, Seller’s duty of
indemnification shall be in proportion to its allocable share of such joint negligence or willful
misconduct. Notwithstanding anything set forth herein to the contrary, the indemnification
obligations of Seller shall be subject to the limitations of time and money set forth in Sections
5.4 and 10.2 herein. Seller shall provide to Purchaser prior to its or its agents’, employees’,
consultants’ or representatives’ entry on the Property after Closing certificates of liability
insurance insuring Purchaser in an amount not less than Two Million Dollars ($2,000,000.00).
8.5.4 Real Estate and Personal Property Taxes. Subject to Section 6.6 above, real estate,
personal property and ad valorem taxes for the year in which the Closing occurs, and any vault
charges (if any) will be prorated between Seller and Purchaser as of the Apportionment Time on
the basis of actual bills therefor, if available, with such proration to
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be based on the applicable tax year rather than on the calendar year. If such bills are not
available, then such taxes and other charges shall be prorated on the basis of the most currently
available tax bills and, thereafter, promptly re-prorated upon the availability of actual bills
for the applicable period. Subject to Section 6.6 above, any and all rebates or reductions in
taxes received subsequent to Closing for the tax year in which Closing occurs, net of costs of
obtaining the same (including without limitation reasonable attorneys’ fees) and net of any
amounts due to tenants (which shall be calculated by Purchaser with Seller’s reasonable
approval), shall be prorated as of the Apportionment Time, when received. Purchaser shall within
ten (10) Business Days pay any amounts due to Seller as a result of such tax reconciliation. To
the extent any amounts are due to tenants, Purchaser shall make payments directly to the tenants
at the time of reconciliation under the applicable Lease. The current installment of all special
assessments, if any, which are a lien against the Property at the time of Closing and which are
being or may be paid in installments shall be prorated as of the Apportionment Time.
8.5.5 Utilities. Water, sewer, electric, fuel (if any) and other utility charges, other
than those for which tenants under Leases or licensees under Licenses are responsible directly to
the provider, shall be prorated as of the Apportionment Time. If consumption of any of the
foregoing is measured by meter, Seller shall, prior to the Closing Date, endeavor to obtain a
reading of each such meter and a final xxxx as of the Closing Date. If there is no such meter or
if the xxxx for any of the foregoing will not have been issued as of the Closing Date, the
charges therefor shall be adjusted as of the Apportionment Time on the basis of the charges of
the prior period for which such bills were issued and shall be further adjusted between the
parties when the bills for the correct period are issued. Seller and Purchaser shall cooperate
to cause the transfer of utility accounts from Seller to Purchaser. Seller shall be entitled to
retain any utility security deposits to be refunded by the applicable providers. At Closing,
Purchaser shall post substitute utility security deposits to replace those previously paid by
Seller or, if the utility provider will not refund such deposits to Seller, Seller shall be
reimbursed therefor by Purchaser at Closing.
8.5.6 Insurance Policies. Premiums on insurance policies will not be adjusted. As of the
Closing Date, Seller will terminate its insurance coverage with respect to the Property and
Purchaser will effect its own insurance coverage.
8.5.7 Other Operating Income and Expenses. All other income and ordinary operating expenses
for or pertaining to the Property, including, but not limited to, maintenance, service charges,
and license fees, will be prorated as of the Apportionment Time. Notwithstanding anything herein
to the contrary, any operating expenses which are the direct obligation of any tenant shall not
be prorated.
8.5.8 Tenant Improvement Allowances, Leasing Commissions and Free Rent. Purchaser shall
receive credits (collectively, the “Lease Credits”) against the Purchase Price at Closing equal
to (i) the amount of outstanding tenant improvement allowances due and payable by Seller to
tenants or licensees and shown on Schedule 8.5.8(i) attached hereto, as such Schedule may be
updated by Seller at Closing based on payments made or credits given prior to Closing; (ii) the
amount of outstanding brokerage and leasing
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commissions due and payable by Seller to third parties and shown on Schedule 8.5.8(ii)
attached hereto, as such Schedule may be updated by Seller at Closing based on payments made or
credits given prior to Closing; and (iii) the portion of the amount of rent credits available to
tenants under Leases and licensees under Licenses and shown on Schedule 8.5.8(iii) attached
hereto which is attributable to the period from and after the Closing Date. From and after
Closing, Purchaser shall be solely responsible for all tenant improvement allowances and all rent
credits or rent abatements associated with the Property, the Leases and/or the Licenses and all
costs and expenses associated therewith.
8.5.9 True-Up of Operating Expenses and Taxes. Within three (3) months after the Closing
Date, Seller shall provide to Purchaser its general ledger (and related schedule) of operating
expenses and real estate taxes for the Property for the period January 1, 2010 to the Closing
Date. On or before March 1, 2011, Purchaser shall provide to Seller the annual tenant
reconciliation schedule with respect to operating expenses and real estate taxes for the Property
for calendar year 2010, together with appropriate supporting documentation and also with the
proration of such amounts between Seller and Purchaser based on the prorated amounts of operating
expenses and real estate taxes paid by Seller and Purchaser for the 2010 calendar year. Such
schedule and supporting documentation shall be subject to Seller’s reasonable approval.
Purchaser shall invoice the tenants under the Leases and the licensees under the Licenses for
amounts owned in respect of such reconciliation promptly after Seller’s approval of such
schedule, but not before then. Seller shall remit to Purchaser any amount owed by Seller on
account of such reconciliation within ten (10) Business Days of Seller’s approval of such
schedule. Purchaser shall use good faith and commercially reasonable efforts to collect from the
tenants and licensees all amounts owed by such tenants and licensees on account of such
reconciliation, and shall remit to Seller any such amounts received by Purchaser which are
attributable to periods prior to Closing within ten (10) Business Days from Purchaser’s receipt
thereof.
8.5.10 Post-Closing Adjustment. Seller and Purchaser shall endeavor to complete all
adjustments for items to be prorated pursuant to this Section 8.5 within one hundred twenty (120)
days after the Closing Date.
8.5.11 Survival. The provisions of this Section 8.5 shall survive Closing for a period of
twelve (12) months from the Closing Date.
ARTICLE 9
DAMAGE AND CONDEMNATION
DAMAGE AND CONDEMNATION
9.1 Damage. If, prior to the Closing, all or any portion of the Property is damaged by fire
or any other cause whatsoever, Seller shall promptly give Purchaser written notice of such damage.
Risk of loss for damage to all or any part of the Property by fire or other casualty from the
Effective Date through the Closing Date will be on Seller.
9.1.1 Minor Damage. If the cost for repairing such damage is equal to or less than Ten
Million Dollars ($10,000,000) (as determined by Seller’s independent
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insurer), then Purchaser shall have the right at Closing to receive a credit for the amount
of the deductible plus all insurance proceeds received by Seller as a result of such loss, or an
assignment of Seller’s rights to such insurance proceeds, and this Agreement shall continue in
full force and effect with no reduction in the Purchase Price, and Seller shall have no further
liability or obligation to repair such damage or to replace the Property.
9.1.2 Major Damage. If the cost for repairing such damage is greater than Ten Million
Dollars ($10,000,000) (as determined by Seller’s independent insurer), then Purchaser shall have
the option, exercisable by written notice delivered to Seller and Escrow Agent within ten (10)
Business Days after Seller’s notice of damage to Purchaser and Purchaser’s receipt of Seller’s
independent insurer’s determination of repair costs, either (i) to receive a credit for the
amount of the deductible plus all insurance proceeds received by Seller as a result of such loss,
or an assignment of Seller’s rights to such insurance proceeds, and this Agreement shall continue
in full force and effect with no reduction in the Purchase Price, and Seller shall have no
further liability or obligation to repair such damage or to replace the Property; or (ii) to
terminate this Agreement. If Purchaser elects to terminate this Agreement, the Deposit shall be
promptly returned to Purchaser, and thereafter neither party will have any further rights or
obligations hereunder, except for any obligations that expressly survive termination. If
Purchaser fails to notify Seller within such ten (10) Business Day period of Purchaser’s
intention to terminate this Agreement, then Purchaser shall be deemed to have elected option
(ii), and this Agreement shall terminate.
9.2 Condemnation and Eminent Domain. If any condemnation proceedings are instituted, or
notice of intent to condemn is given, with respect to all or any portion of the Property, Seller
shall promptly upon obtaining knowledge thereof notify Purchaser thereof (“Taking Notice”). If the
condemnation will not result in a material and adverse effect (as hereinafter defined) on the
Property, the parties shall proceed to Closing, in which event Seller shall assign or pay to
Purchaser at Closing all of Seller’s right, title, and interest in any award payable on account of
the condemnation and/or pay to Purchaser all such awards previously paid. In the event that such
condemnation will result in a material and adverse effect on the Property, Purchaser shall have the
option, which shall be exercised by written notice to Seller and Escrow Agent within ten (10)
Business Days after its receipt of the Taking Notice, either (i) to terminate this Agreement and
receive the prompt return of the Deposit, in which case the parties shall have no further rights or
obligations under this Agreement (except for any obligations that expressly survive termination),
or (ii) to consummate the purchase of the Property without a reduction of the Purchase Price, in
which event Seller shall assign or pay to Purchaser at Closing all of Seller’s right, title, and
interest in any award payable on account of the condemnation proceeding and/or pay to Purchaser all
such awards previously paid. For the purposes of this Section 9.2, “material and adverse effect”
shall include, but not be limited to, any reduction in the amount of any of the rentable square
footage of the Improvements, the reduction in the number of parking spaces at the Property, the
permanent, material disruption of access to the Property, any right of a Tenant occupying more than
10,000 square feet to terminate its Lease or License, any rent abatement under any Lease or License
as a result thereof or insufficient condemnation proceeds to rebuild the Improvements in
substantially the manner in which the Improvements existed prior to the taking. Failure to give
notice of Purchaser’s
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election within such ten (10) Business Day period shall be deemed an election by Purchaser to
terminate this Agreement.
ARTICLE 10
REMEDIES AND ADDITIONAL COVENANT
REMEDIES AND ADDITIONAL COVENANT
10.1 Seller Default At or Before Closing. If Seller refuses or fails, in any material
respect, to perform any of its obligations or agreements hereunder when performance is required on
or prior to the Closing Date, or if any of the Express Representations should be false in any
material respect when made and Purchaser shall become aware of same on or prior to the Closing Date
and Purchaser shall not have waived its claims with regard to same pursuant to this Agreement, then
Purchaser shall give Seller written notice of such breach or default on or prior to the Closing
Date and Seller shall have ten (10) Business Days from the date of receipt of such notice to cure
such breach or default and the Closing Date shall be extended accordingly. If Seller fails to cure
such breach or default within such ten (10) Business Day period, then Purchaser, as its sole and
exclusive remedy, (i) may terminate this Agreement by notifying Seller and the Escrow Agent
thereof, in which event neither party shall have any rights, duties or obligations hereunder other
than the obligations and rights set forth herein that expressly survive the termination of this
Agreement, and the Escrow Agent shall return the Deposit to Purchaser and Seller shall reimburse
Purchaser for its actual out-of-pockets cost paid to third parties in connection with this
transaction not to exceed Two Hundred Thousand Dollars ($200,000.00), (ii) may xxx for specific
performance of the obligations of Seller hereunder; provided, however, if Purchaser fails to file
suit for specific performance within ninety (90) days after the scheduled Closing Date and
diligently pursue such suit, this Agreement shall terminate, in which event neither party shall
have any rights, duties or obligations hereunder other than the obligations and rights set forth
herein that expressly survive the termination of this Agreement, and the Escrow Agent shall return
the Deposit to Purchaser, or (iii) may waive the alleged default and proceed to Closing under this
Agreement without adjustment of the Purchase Price. In no event shall Seller be liable for any
consequential or punitive damages.
10.2 Seller Breach After Closing. If any of the Express Representations should be false in
any material respect when made, and Purchaser shall first become aware of same after the Closing
Date, then Purchaser shall give Seller written notice of such false Express Representation
hereunder prior to the expiration of the Survival Period as set forth in Section 5.4 and Seller
shall have fifteen (15) Business Days from the date of receipt of such notice to cure such breach.
If Seller fails to cure such breach within such fifteen (15) Business Day period, and the actual
losses or damages sustained as a result of Seller’s false Express Representations hereunder exceeds
Fifty Thousand Dollars ($50,000), then Purchaser shall have the right to bring an action against
Seller for the actual damages suffered by Purchaser due to such false Express Representation,
provided that, in no event shall Seller be liable to Purchaser for damages under this Section 10.2
in an aggregate amount in excess of One Million Dollars ($1,000,000) (the “Liability Limit”). In
no event shall Seller be liable to Purchaser for (A) damages in an aggregate amount in excess of
the Liability Limit for (i) Seller’s post-closing obligations and liabilities under Article 5, (ii)
Section 6.5 (to the extent that a Seller Estoppel is delivered), (iii) the closing document to be
delivered pursuant to Section 8.2.1.4 (the Assignment and Assumption Agreement), and (iv) Article
11 of this Agreement, or (B) damages in an aggregate
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amount, together with items (i) through (iv) above, in excess of One Million Five Hundred
Thousand Dollars ($1,500,000) (the “Lease Assignment Liability Limit”) for Seller’s obligations set
forth in the closing document to be delivered pursuant to Section 8.2.1.3 (the Assignment and
Assumption Agreement with respect to Lease and Licenses).
10.3 Purchaser Default. The parties acknowledge and agree that Seller should be entitled to
compensation for any detriment suffered if Purchaser fails to consummate the purchase of the
Property if and when required to do so under the terms of this Agreement, but agree that it would
be extremely difficult to ascertain the extent of the actual detriment Seller would suffer as a
result of such failure. Consequently, if Purchaser fails to consummate the purchase of the
Property on the Closing Date or fails to perform any of its other covenants hereunder in any
material respect, or otherwise defaults in its obligations hereunder, then Purchaser shall have ten
(10) Business Days from the date of receipt of notice from Seller to cure such breach (provided
that no notice from Seller shall be required and Purchaser shall not have any cure period with
respect to a failure by Purchaser to pay the balance due of the Purchase Price by the time required
hereunder). If Purchaser fails to cure such breach within such ten (10) Business Day period,
Seller shall be entitled to terminate this Agreement by giving written notice thereof to Purchaser
and Escrow Agent prior to or on the Closing Date, in which event the Deposit shall be paid to
Seller as fixed, agreed and liquidated damages, and, after the payment of the Deposit to Seller,
neither Seller nor Purchaser will have any further rights or obligations under this Agreement,
except for any obligations that expressly survive termination. Notwithstanding the foregoing, the
aforementioned liquidated damages shall not apply to or limit the indemnity provisions attributable
to Purchaser under this Agreement.
10.4 Delivery of Materials. Notwithstanding anything contained in this Agreement to the
contrary, if this Agreement is terminated for any reason whatsoever, then Purchaser shall promptly
deliver to Seller all Property Information provided to Purchaser by Seller, including copies
thereof in any form whatsoever (including electronic form) along with any and all test results and
studies of the Property performed by or on behalf of Purchaser pursuant to Article 4 of this
Agreement, excluding any confidential or proprietary information or financial modeling or attorney
work product. The obligations of Purchaser under this Section 10.4 shall survive any termination
of this Agreement for a period of one (1) year.
ARTICLE 11
BROKERAGE COMMISSION.
BROKERAGE COMMISSION.
11.1 Brokers. Seller represents and warrants to Purchaser that Seller has not contacted or
entered into any agreement with any real estate broker, agent, finder, or similar party in
connection with this transaction other than Eastdil Secured (“Seller’s Broker”), and that Seller
has not taken any action which would result in any real estate broker’s or finder’s fees or
commissions being due and payable to any party other than Seller’s Broker with respect to the
transactions contemplated hereby. Seller will be solely responsible for the payment of Seller’s
Broker’s commission in accordance with the provisions of a separate agreement between Seller and
Seller’s Broker. Purchaser hereby represents and warrants to Seller that Purchaser has not
contracted or entered into any agreement with any real estate broker, agent, finder, or similar
party in connection with this transaction and that Purchaser has not taken any action which
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would result in any real estate brokerage or finder’s fees or commissions being due or payable
to any party with respect to the transaction contemplated hereby.
11.2 Indemnity. Each party hereby indemnifies and agrees to hold the other party harmless
from any loss, liability, damage, cost, or expense (including, without limitation, reasonable
attorneys’ fees) paid or incurred by the other party by reason of a breach of the representation
and warranty made by such party under this Article 11. Notwithstanding anything to the contrary
contained in this Agreement, the indemnities set forth in this Section 11.2 shall survive the
Closing or earlier termination of this Agreement.
ARTICLE 12
NOTICES
NOTICES
12.1 Written Notice. All notices, demands and requests which may be given or which are
required to be given by either party to the other party under this Agreement must be in writing.
12.2 Method of Transmittal. All notices, demands, requests or other communications required
or permitted to be given hereunder must be sent (i) by United States certified mail, postage fully
prepaid, return receipt requested, (ii) by hand delivery, (iii) by Federal Express or a similar
internationally recognized overnight courier service, or (iv) by facsimile or electronic mail with
a confirmation copy delivered by another method set forth in this Section 12.2. All such notices,
demands, requests or other communications shall be deemed to have been given for all purposes of
this Agreement upon the date of receipt or refusal, except that whenever under this Agreement a
notice is either received on a day which is not a Business Day or is required to be delivered on or
before a specific day which is not a Business Day, the day of receipt or required delivery shall
automatically be extended to the next Business Day.
12.3 Addresses. The addresses for proper notice under this Agreement are as follows:
| As to Seller: | City Center Bellevue Development LLC | |||
| c/o Beacon Capital Partners, LLC | ||||
| 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000 | ||||
| Xxx Xxxxxxx, XX 00000 | ||||
| Attention: Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| Xxxxxxxx Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx | ||||
| Xxxxxxxx Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx | ||||
| With a copy to: | City Center Bellevue Development LLC | |||
| c/o Beacon Capital Partners, LLC | ||||
| 000 Xxxxx Xxxxxx, 0xx Xxxxx | ||||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||
| Attention: Xxxxxxx X. Xxxxxx, Esquire | ||||
| Facsimile: (000) 000-0000 |
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| Email: xxxxxxx@xxxxxxxxxxxxx.xxx | ||||
| With a copy to: | Goulston & Storrs, P.C. | |||
| 000 Xxxxxxxx Xxxxxx | ||||
| Xxxxxx, Xxxxxxxxxxxxx 00000 | ||||
| Attention: Jordan X. Xxxxxxx, Esquire | ||||
| Facsimile: (000) 000-0000 | ||||
| Email: xxxxxxxx@xxxxxxxxxxxxxx.xxx | ||||
| and | ||||
| Attention: Xxxxx X. Xxxxx, Esquire | ||||
| Facsimile: (000) 000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxxxxxx.xxx | ||||
| As to Purchaser: | c/o Cole Real Estate Investments | |||
| 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000 | ||||
| Xxxxxxx, XX 00000 | ||||
| Attention: Xxxx X. Xxxx, Executive Vice President and | ||||
| General Counsel | ||||
| Facsimile: 000-000-0000 | ||||
| Email: xxxxx@xxxxxxxxxxx.xxx | ||||
| With a copy to: | Xxxxxx, Xxxxxxx & Xxxxxx, LLP | |||
| 1600 Atlanta Financial Center | ||||
| 0000 Xxxxxxxxx Xxxx, XX | ||||
| Xxxxxxx, XX 00000 | ||||
| Attention: Xxxx X. Xxxxxx III, Esq. | ||||
| Facsimile: 000-000-0000 | ||||
| Email: xxxxxxx@xxxxxx.xxx | ||||
| As to Escrow Agent: | Commonwealth Land Title Insurance Company | |||
| 0000 00xx Xxxxxx, XX, Xxxxx 000 | ||||
| Xxxxxxxxxx, X.X. 00000 | ||||
| Attention: Xxxxx X. Xxxxxx | ||||
| Facsimile: (000) 000-0000 | ||||
| Email: XxxxxXxxxxx@xxxxx.xxx |
Either party may from time to time by written notice to the other party designate a different
address or addresses for notices. Notices sent to or from an address outside of the continental
United States shall be sent only by one of the methods specified in clauses (ii), (iii) or (iv) of
this Section 12.3. Notices given on behalf of a party by its attorneys in the manner provided for
in this Article 12 shall be considered validly given.
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ARTICLE 13
ASSIGNMENT
ASSIGNMENT
13.1 Assignment. Except for an assignment by Purchaser as permitted pursuant to this Article,
neither party shall have the right to assign this Agreement without the prior written consent of
the other, which consent may be granted or withheld in the sole and absolute subjective discretion
of the party whose consent has been requested; provided, however, that, Purchaser
shall have the right to assign its interest in this Agreement and delegate its duties to an
affiliate, so long as such affiliate controls, is controlled by, or is under common control with
Purchaser, and provided that (a) such affiliate shall assume, in writing (by execution of an
assignment and assumption of this Agreement in form and substance reasonably satisfactory to
Seller), all of Purchaser’s obligations under this Agreement, and (b) Purchaser shall not be
released of any obligations under this Agreement. If Purchaser so assigns this Agreement to an
affiliate, Purchaser shall, at least five (5) Business Days prior to the Closing Date, give the
Seller written notice of such assignment, together with a copy of the assignment and assumption
agreement executed by Purchaser and the assignee.
ARTICLE 14
MISCELLANEOUS
MISCELLANEOUS
14.1 Entire Agreement. This Agreement embodies the entire agreement between the parties and
cannot be varied except by the written agreement of the parties and supersedes all prior agreements
and undertakings.
14.2 Modifications. This Agreement may not be modified except by the written agreement of the
parties.
14.3 Gender and Number. Words of any gender used in this Agreement will be construed to
include any other gender and words in the singular number will be construed to include the plural,
and vice versa, unless the context requires otherwise.
14.4 Captions. The captions used in connection with the Articles, Sections and Subsections of
this Agreement are for convenience only and will not be deemed to expand or limit the meaning of
the language of this Agreement.
14.5 Successors and Assigns. This Agreement will be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
14.6 Controlling Law; Submission to Jurisdiction. This Agreement will be construed under,
governed by and enforced in accordance with the laws of the State of Washington (without reference
to conflicts of laws principles). Any claim, action, suit, or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought only in the courts of the State of Washington,
and each of the parties hereto hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom in any such claim, action, suit, or proceeding) and
irrevocably waives, to the fullest extent permitted by applicable
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law, any objection that it may now or hereafter have to the laying of venue of any such claim,
action, suit, or proceeding in any such court or that any such claim, action, suit, or proceeding
that is brought in any such court has been brought in an inconvenient forum. Subject to applicable
law, process in any such claim, action, suit, or proceeding may be served on any party anywhere in
the world, whether within or without the jurisdiction of any such court, and such service shall be
made by personal service made on such party or by mail sent to such party at the address set forth
in this Agreement. Personal service may be made on such party’s resident agent.
14.7 Exhibits. All exhibits, attachments, schedules annexed instruments and addenda referred
to herein will be considered a part hereof for all purposes with the same force and effect as if
set forth verbatim herein.
14.8 No Rule of Construction. Seller and Purchaser have each been represented by counsel in
the negotiations and preparation of this Agreement; therefore, this Agreement will be deemed to be
drafted by both Seller and Purchaser, and no rule of construction will be invoked respecting the
authorship of this Agreement.
14.9 Severability. In the event that any one or more of the provisions contained in this
Agreement (except the provisions relating to Seller’s obligations to convey the Property and
Purchaser’s obligation to pay the Purchase Price, the invalidity of either of which shall cause
this Agreement to be null and void) are held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability will not affect any other provisions
hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had not been contained herein; provided, however, that the parties hereto
shall endeavor in good faith to rewrite the affected provision to make it (i) valid, and (ii)
consistent with the intent of the original provision.
14.10 Time of Essence. Time is important to both Seller and Purchaser in the performance of
this Agreement, and both parties have agreed that TIME IS OF THE ESSENCE with respect to any date
set out in this Agreement.
14.11 Business Days. “Business Day” means any day on which business is generally transacted
by banks in Bellevue, Washington, Phoenix, Arizona, and Boston, Massachusetts. If the final date
of any period which is set out in any paragraph of this Agreement falls upon a day which is not a
Business Day, then, and in such event, the time of such period will be extended to the next
Business Day.
14.12 No Memorandum. Purchaser and Seller agree not to record this Agreement or any
memorandum hereof.
14.13 Attorneys’ Fees and Costs. In the event either party is required to resort to
litigation to enforce its rights under this Agreement, the prevailing party in such litigation will
be entitled to collect from the other party all costs, expenses and reasonable attorneys’ fees
incurred in connection with such action.
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14.14 Counterparts and Acceptance of Offer. This Agreement may be executed in multiple
counterparts (which counterparts may be executed by facsimile or PDF) which shall together
constitute a single document. However, this Agreement shall not be effective unless and until all
counterpart signatures have been obtained. An unsigned draft of this Agreement shall not be
considered an offer by either party. Acceptance, for purposes hereof, shall mean that each party
is in physical possession of a fully-signed counterpart copy or original of this Agreement.
14.15 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF SELLER AND PURCHASER HEREUNDER, SELLER’S
OR PURCHASER’S OWNERSHIP OR USE OF THE PROPERTY, AND/OR ANY CLAIMS OF INJURY OR DAMAGE RELATED TO
THE PROPERTY.
14.16 Confidentiality.
14.16.1 Except as provided otherwise in this Section 14.16, Purchaser and Seller, for the
benefit of each other, hereby agree that neither of them will release, or cause or permit to be
released, to the public any press notices, publicity (oral or written) or advertising promotion
relating to, or otherwise publicly announce or disclose, or cause or permit to be publicly
announced or disclosed, in any manner whatsoever, (i) the names of Seller and Purchaser
respectively, or any of their affiliates or subsidiaries, or (ii) the terms, conditions or
substance of this Agreement or the transactions contemplated herein, without first obtaining the
consent of the other party hereto. In addition, prior to Closing, both Seller and Purchaser
shall keep strictly confidential this Agreement, the transactions contemplated hereby, and the
terms and conditions hereof, and all matters relating thereto, as well as all information
relating to the other party. Further, prior to Closing, Purchaser shall keep strictly
confidential all information (including the Property Information) relating in any way to the
Property or any portion thereof.
14.16.2 It is understood and agreed that the foregoing shall not preclude any party from
discussing the substance or any relevant details of the transactions contemplated in this
Agreement, or preclude Purchaser from sharing information relating to the Property, on a
confidential basis with such party’s partners, members, shareholders, directors, officers,
employees engineers, direct or indirect owners, affiliates, attorneys, accountants, professional
consultants, advisors, financial advisors, rating agencies, investors, or potential lenders and
the lender’s partners, members, shareholders, directors, officers, employees engineers, direct or
indirect owners, affiliates, attorneys, accountants, professional consultants, advisors,
financial advisors, rating agencies, investors (“Representatives”), as the case may be, or
prevent any party hereto from complying with applicable laws, including, without limitation,
governmental, regulatory, disclosure, tax and reporting requirements; provided, further, any
information that is disclosed pursuant to such requirements shall no longer be subject to the
restrictions set forth in this Section 14.16.
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14.16.3 Purchaser shall indemnify and hold Seller and Seller’s affiliates, employees,
officers and directors harmless, and Seller shall indemnify and hold Purchaser and Purchaser’s
affiliates, employees, officers and directors harmless, from and against any and all claims,
demands, causes of action, losses, damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys’ fees and disbursements) suffered or incurred by the other party
and proximately caused by a breach by Purchaser or Seller, as the case may be, or their
respective Representatives, of the provisions of Section 14.16; but this Section 14.16.3 will not
entitle either Purchaser or Seller or any other person or entity, to recover consequential or
incidental damages.
14.16.4 In addition to any other remedies available to Seller and Purchaser, Seller and
Purchaser shall each have the right to seek equitable relief, including, without limitation,
injunctive relief or specific performance, against the other party or its Representatives in
order to enforce the provisions of Section 14.16.
14.16.5 Notwithstanding any other provision of this Agreement, the provisions of Section
14.16 shall survive the termination of this Agreement and the provisions of Section 14.16.1
regarding press releases or public disclosures shall survive Closing.
14.17 Exclusivity. From the Effective Date until the Closing Date or earlier termination of
this Agreement, Seller shall not, directly or indirectly, enter into any agreement or other
arrangement, or have any dealings or communications of any nature whatsoever, with any person or
entity other than Purchaser with respect to the proposed sale of the Property.
14.18 Letter of Intent. Upon execution and delivery of this Agreement by Seller and
Purchaser, the parties hereto acknowledge and agree that the terms and conditions set forth in that
certain letter dated April 23, 2010 (the “Letter of Intent”) between Seller and Xxxx Real Estate
Investments shall be null and void and of no further effect and the terms and conditions set forth
in this Agreement shall supersede the Letter of Intent in its entirety.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Purchase and Sale Agreement as of the date
first written above.
| SELLER: | ||||||||||||
| CITY CENTER BELLEVUE DEVELOPMENT LLC, | ||||||||||||
| a Delaware limited liability company | ||||||||||||
| By: | CC BELLEVUE REIT LLC, a Delaware limited liability company, | |||||||||||
| its sole member | ||||||||||||
| By: | BCSP V U.S. INVESTMENTS, L.P., a Delaware | |||||||||||
| limited partnership, its sole member | ||||||||||||
| By: | BCSP REIT V, INC., a Maryland | |||||||||||
| corporation, its sole general partner | ||||||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx
|
|||||||||||
| Title: Senior Managing Director | ||||||||||||
| PURCHASER: | ||||
| XXXX MT BELLEVUE WA, LLC, | ||||
| a Delaware limited liability company | ||||
| By: Xxxx REIT Advisors III, LLC, its manager | ||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Executive Vice President | |||
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JOINDER:
Provided that the Closing of the transaction hereunder shall occur, BCSP V U.S. Investments, L.P.,
a Delaware limited partnership, for good and valuable consideration, the receipt of which is hereby
acknowledged, agrees to and does hereby unconditionally and irrevocably guaranty (i) subject to the
Survival Period and the Liability Limit, Seller’s post-closing obligations and liabilities under
Article 5, Section 6.5 (to the extent that a Seller Estoppel is delivered) and Article 11 of the
Agreement, (ii) subject to the Survival Period and the Liability Limit, Seller’s obligations set
forth in the closing document to be delivered pursuant to Section 8.2.1.4 (the Assignment and
Assumption Agreement), (iii) subject to the Survival Period and the Lease Assignment Liability
Limit, Seller’s obligations set forth in the closing document to be delivered pursuant to Section
8.2.1.3 (the Assignment and Assumption Agreement with respect to Lease and Licenses), and (iv)
Seller’s post-closing obligations and liabilities under Section 14.16.
BCSP V U.S. Investments, L.P.,
a Delaware limited partnership
a Delaware limited partnership
| By: | BCSP REIT V, Inc., a Maryland corporation |
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Fletch | |||
| Title: | Senior Managing Director | |||
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Schedules and Exhibits
Schedules
Schedule I
|
— | List of Defined Terms | ||
Schedule 1.4
|
— | Leases and Licenses | ||
Schedule 1.5
|
— | Security Deposits | ||
Schedule 1.6
|
— | Contracts | ||
Schedule 1.9
|
— | Warrantees | ||
Schedule 3.1
|
— | REA | ||
Schedule 4.2.5
|
— | Environmental Section of the Seller Disclosure Statement | ||
Schedule 5.1.3
|
— | Litigation | ||
Schedule 5.1.7
|
— | Defaults under Leases | ||
Schedule 5.1.9
|
— | Violations of Law | ||
Schedule 5.1.14
|
— | Personal Property | ||
Schedule 8.5.8(i)
|
— | Outstanding Tenant Improvements | ||
Schedule 8.5.8(ii)
|
— | Outstanding Brokerage and Leasing Commissions | ||
Schedule 8.5.8(iii)
|
— | Rent Credits |
Exhibits
Exhibit A
|
— | Legal Description | ||
Exhibit B
|
— | Escrow Agreement | ||
Exhibit C-1
|
— | Form of Tenant Estoppel | ||
Exhibit C-2
|
— | Form of Seller Estoppel | ||
Exhibit D
|
— | Form of Special Warranty Deed | ||
Exhibit E
|
— | Form of Xxxx of Sale | ||
Exhibit F-1
|
— | Form of Assignment and Assumption Agreement for Leases and Licenses | ||
Exhibit F-2
|
— | Form of Assignment and Assumption Agreement for Contracts | ||
Exhibit G
|
— | Form of Certificate of Non-Foreign Status | ||
Exhibit H
|
— | Form of Tenant Notification Letter | ||
Exhibit I
|
— | Form of Owner’s Affidavit |
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