EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
HIPPO PROPERTIES LLC,
SELLER
AND
HARVARD PROPERTY TRUST, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
PURCHASER
PROPERTY: 0000 X XXXXXX, X.X.
XXXXXXXXXX, X.X.
DATED AS OF: ____________, 2004
TABLE OF EXHIBITS
EXHIBIT 1.1.1 Legal Description
EXHIBIT 1.1.3 Inventory of Personal Property
EXHIBIT 1.1.6 Schedule of Leases and Security Deposits
EXHIBIT 1.1.10 Schedule of Approvals
EXHIBIT 1.2.2 List of Environmental Reports
EXHIBIT 3.3 Schedule of Contracts
EXHIBIT 4.5 Form of Tenant Estoppel Certificate
EXHIBIT 5.1.6 List of Litigation
EXHIBIT 9.1.1 Form of Special Warranty Deed
EXHIBIT 9.1.2 Form of Xxxx of Sale
EXHIBIT 9.1.3 Form of Assignment and Assumption of Leases and
Security Deposits
EXHIBIT 9.1.4 Form of Assignment and Assumption of Contracts
EXHIBIT 9.1.5 Form of Assignment of Warranties and Guaranties
EXHIBIT 9.1.7 Form of FIRPTA Affidavit
EXHIBIT 9.1.10 Form of Seller's Certificate
EXHIBIT 9.1.13 Form of Tenant Notification Letter
EXHIBIT 9.2.5 Form of Purchaser's Certificate
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT"), dated as of the
______ day of ___________, 2004 (the "EFFECTIVE DATE"), is made by and between
HIPPO PROPERTIES LLC, a Delaware limited liability company (the "SELLER"),
having an office at c/o DuPont Fabros, 0000 X Xxxxxx, X.X., Xxxxx 0000,
Xxxxxxxxxx, X.X. 00000 and HARVARD PROPERTY TRUST, LLC, a Delaware limited
liability company d/b/a Behringer Harvard Funds ("PURCHASER"), having an office
at having an office at 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000.
RECITALS:
WHEREAS, Seller desires to sell certain improved real property located
at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X., along with certain related personal
and intangible property, and Purchaser desires to purchase such real, personal
and intangible property; and
WHEREAS, Seller and Purchaser, intending to be bound by this Agreement,
desire to set forth herein the terms, conditions and agreements under and by
which Seller shall sell and Purchaser shall purchase the foregoing real,
personal and intangible property.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser covenant and agree as follows:
1. THE PROPERTY.
1.1 DESCRIPTION. Subject to the terms and conditions of this
Agreement, and for the consideration herein set forth, Seller agrees to sell and
transfer, and Purchaser agrees to purchase and acquire, all of Seller's right,
title and interest, in and to the following (collectively, the "PROPERTY"):
1.1.1 That certain parcel of land (the "LAND") located
in Washington, D.C., and more specifically described in Exhibit 1.1.1 attached
hereto;
1.1.2 That certain office building (the "BUILDING")
and all other facilities, improvements and fixtures now situated on the Land,
including without limitation all surface and subsurface parking areas and
facilities located thereon (collectively, the "IMPROVEMENTS");
1.1.3 All of the furniture, personal property,
machinery, apparatus, and equipment used in the operation, repair and
maintenance of the Land and the Improvements (excluding, however, tangible
personal property and fixtures of the Improvements which are owned by tenants or
which may be removed by tenants under the terms of their leases) to the extent
set forth on Exhibit 1.1.3 attached hereto (collectively, the "PERSONAL
PROPERTY"). The
1.
Personal Property to be conveyed is subject to reasonable depletions,
replacements and additions in the ordinary course of Seller's business;
1.1.4 All easements, hereditaments, and appurtenances
belonging to or inuring to the benefit of Seller and pertaining to the Land, if
any;
1.1.5 Any street or road abutting the Land to the
center line thereof;
1.1.6 The leases, subleases and occupancy agreements
identified on the Schedule of Leases and Security Deposits attached hereto as
Exhibit 1.1.6 and any new leases, supplements, amendments or modifications to
any existing or new lease entered into pursuant to Section 4.4, below, which as
of the Date of Closing (defined in Section 2.4, below) affect all or any portion
of the Land or the Improvements (collectively, the "LEASES"), and the unapplied
balance of any security deposits ("SECURITY DEPOSITS") with respect to any such
Leases;
1.1.7 All Contracts (defined in Section 3.3, below)
having terms which extend beyond midnight of the day preceding the Date of
Closing;
1.1.8 All warranties and guaranties issued in
connection with the Improvements or the Personal Property which remain in effect
as of the Date of Closing (collectively, the "WARRANTIES"); and
1.1.9 All transferable consents, authorizations,
variances or waivers, licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or other entity
or instrumentality solely in respect of the Land or the Improvements which
remain valid or in effect as of the Date of Closing (collectively, the
"APPROVALS").
1.2 "AS-IS" PURCHASE.
1.2.1 The Property is being sold in its "AS IS, WHERE
IS" condition, "WITH ALL FAULTS" and without representation or warranty (all of
which Seller hereby disclaims) as of the Effective Date and the Date of Closing.
The parties agree that all understandings, agreements, letters of intent and
letters of interest heretofore made between them or their respective agents or
representatives are merged in this Agreement and the Exhibits annexed hereto,
which alone fully and completely express their agreement, and that this
Agreement has been entered into after full investigation, or with the parties
satisfied with the opportunity afforded for full investigation, of the Property
and all matters affecting the Property and the ownership, use, occupancy,
management, operation and maintenance thereof, and neither party relying upon
any statement or representation by the other, unless such statement or
representation is specifically embodied in this Agreement. Purchaser expressly
agrees and acknowledges that no warranty or representation is made by Seller as
to the fitness for any particular purpose, merchantability, design, condition or
repair, value, expense of operation, income potential, compliance with drawings
or specifications, absence of defects, absence of faults, flooding, or
compliance with laws and regulations including without limitation those relating
to health, safety, zoning, the environment and the Americans with Disabilities
Act, or as to any other fact or condition which has or might affect the Property
or the ownership, use,
2.
occupancy, operation, condition, repair, value, expense of operation or income
potential thereof. Except as expressly set forth herein, Seller has not
authorized any broker, agent, representative, consultant, partner, officer,
employee, attorney or any other person to make any statements, certifications,
representations or warranties regarding the Property or any matter relating
thereto, and Seller expressly disclaims and shall not be liable for any
statements, certifications, representations or warranties made by any of the
foregoing parties, whether made on their own behalf or acting or purporting to
act on behalf of Seller.
1.2.2 Seller makes no representations or warranties as
to whether there are any Hazardous Materials (defined in Section 1.2.5, below),
located in, on, under or about the Property. Seller has provided to Purchaser
copies of all environmental surveys, audits, studies and other reports relating
to the presence of Hazardous Materials and/or violations of Environmental Laws
(defined in Section 1.2.6, below) on, in or under the Property, which were
prepared by outside consultants retained by Seller (expressly excluding
documents prepared internally by Seller, or by Seller's attorneys that are
subject to the so-called "ATTORNEY-CLIENT PRIVILEGE") of which Seller has actual
current knowledge and actual possession, a list of which is set forth in Exhibit
1.2.2, attached hereto (the "ENVIRONMENTAL REPORTS"). Seller makes no
representations or warranties with respect to the accuracy, completeness,
methodology of preparation or otherwise concerning the contents of such
Environmental Reports. Further, to the extent that Seller has provided to
Purchaser information from any other inspection, engineering or environmental
reports concerning asbestos or any hazardous materials or harmful toxic
substances, Seller makes no representations or warranties with respect to the
accuracy or completeness, methodology of preparation or otherwise concerning the
contents of such reports.
1.2.3 Purchaser acknowledges that: (a) Seller has
provided and subject to the terms hereof, will continue to provide, to Purchaser
the opportunity to fully and carefully investigate and inspect the physical,
structural and environmental condition of the Property and to review and analyze
all of the Property Documents (defined in Section 3.1.3, below), all matters of
title, all laws, statutes, rules, regulations, ordinances and orders, and all
other materials and information affecting or in any manner relating to the
Property and the ownership, use, occupancy, management, operation and
maintenance thereof, which Purchaser deems necessary to determine the
feasibility of the Property for Purchaser's intended use; (b) all of the
Property Documents and other information provided or made available by Seller to
Purchaser was, and will continue to be, done so as an accommodation to Purchaser
with the understanding and agreement of both Seller and Purchaser that Purchaser
shall not rely on any such documents or information and that the delivery of
same by Seller were, and will continue to be, made without representation or
warranty with respect to the accuracy, completeness, methodology of preparation
or otherwise concerning the contents of such documents or information; and (c)
prior to making the election provided in Section 3.5, below, Purchaser shall
have completed to its satisfaction all studies, investigations and reviews that
it has deemed necessary, and that Purchaser's election under Section 3.5 shall
be made on the basis of such studies, inspections and reviews performed or
obtained by Purchaser, and not on any Property Documents or other information
that may have been provided to Purchaser by or on behalf of Seller.
1.2.4 For purposes of this Agreement, the term
"HAZARDOUS MATERIALS" includes, without limitation: (a) any chemical, material
or other substance defined as or included within the definition of "HAZARDOUS
SUBSTANCES", "HAZARDOUS WASTES", "EXTREMELY HAZARDOUS
3.
SUBSTANCES", "TOXIC SUBSTANCES", "TOXIC MATERIAL", "RESTRICTED HAZARDOUS WASTE",
"SPECIAL WASTE", or words of similar import under any Environmental Law; (b) any
oil, petroleum, or petroleum-derived substances, any flammable substances or
explosives, any radioactive materials, any asbestos or any substances containing
more than 0.1 percent asbestos, any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million, and any urea
formaldehyde insulation; and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated under any Environmental
Law.
1.2.5 For purposes of this Agreement, the term
"ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Sections 6901 et seq.), the Hazardous Materials Transportation Act, as amended
(49 U.S.C. Sections 1801 et seq.), the Federal Water Pollution Control Act, as
amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act, as amended (42
U.S.C. Sections 7401 et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. Sections 2601-2629), and all regulations promulgated under the foregoing;
and any other federal, state or local laws, statutes, rules, ordinances, or
regulations now or hereafter in effect, that deal with or otherwise in any
manner relate to environmental matters of any kind.
1.2.6 Purchaser, on behalf of itself and all of its
officers, directors, shareholders, employees, partners, members, subsidiaries
and other affiliated or related entities, representatives, consultants and
agents, and Purchaser's and each of the foregoing parties' successors and
assigns (collectively, the "PURCHASER PARTIES") hereby expressly waives,
relinquishes and releases any and all rights, remedies and claims any of the
Purchaser Parties may now or hereafter have, against Seller, and all of Seller's
officers, directors, shareholders, employees, partners, members, subsidiaries
and other affiliated or related entities, representatives, consultants and
agents, and Seller's and each of the foregoing parties' successors and assigns
(collectively, the "SELLER PARTIES"), whether known or unknown, arising from or
related to (a) the physical condition, quality, quantity and state of repair of
the Property and the prior management and operation thereof; (b) the accuracy,
completeness or methodology of preparation of the Property Documents or any
other documents or information provided by or on behalf of Seller; (c) the
Property's failure to comply with any federal, state or local laws, regulations,
ordinances or orders, including, without limitation, those relating to health,
safety, zoning, the environment and the Americans with Disabilities Act; or (d)
any past, present or future presence, alleged presence, release or alleged
release of any Hazardous Materials in, on, under or about, or otherwise
migrating to, from, across or under, the Property, including without limitation
any claims under, on account of or related to: (i) the Environmental Laws; (ii)
this Agreement (unless as otherwise expressly provided herein); or (iii) the
common law.
1.2.7 The terms and provisions of this Section 1.2
shall survive Closing (defined in Section 2.4, below) hereunder or termination
of this Agreement for any reason.
1.3 AGREEMENT TO CONVEY. Seller agree to convey, and
Purchaser agrees to accept, on the Date of Closing: (a) title to the Land and
the Improvements by special warranty deed in the physical condition described in
Section 1.2, above, and subject to the "PERMITTED EXCEPTIONS" described in
Section 3.4, below; (b) title to the Personal Property, by xxxx of sale, without
warranty, express or implied, as to the title or the condition of such
personalty; and
4.
(c) all of Seller's right, title and interest in and to the remaining Property
pursuant and subject to the closing documents described in Section 9.1, below.
2. PRICE AND PAYMENT.
2.1 PURCHASE PRICE. The purchase price for the Property (the
"PURCHASE PRICE") is Forty-Four Million and No/100 U.S. Dollars ($44,00,000.00).
2.2 DEPOSIT.
2.2.1 INITIAL DEPOSIT. Within three (3) business days
of full execution and delivery of this Agreement, Purchaser shall, by federal
wire transfer, deposit the sum of One Million Two Hundred Thousand and No/100
U.S. Dollars ($1,200,000.00) into the escrow account of the Title Company
(defined in Section 2.4, below), and shall simultaneously therewith provide
Seller written evidence of such deposit. Of such deposit, the amount of Two
Hundred Thousand and No/100 U.S. Dollars ($200,000.00) (the "PERFORMANCE
DEPOSIT") shall be non-refundable except as otherwise provided in Sections 4.5,
5.1 and 10.2 and shall not be part of the Deposit defined in Section 2.2.3
below, and the amount of One Million and No/100 U.S. Dollars ($1,000,000.00)
(the "INITIAL DEPOSIT") shall be part of the Deposit defined in Section 2.2.3
below. If Purchaser shall fail to make the Performance Deposit or the Initial
Deposit in accordance with the foregoing, this Agreement shall automatically
terminate and neither party shall have any further rights, obligations or
liability hereunder, except for the Surviving Obligations (defined in Section
11.19, below).
2.2.2 ADDITIONAL DEPOSIT; DEPOSIT NOT REFUNDABLE.
Provided this Agreement has not theretofore been terminated in accordance with
Section 3.5, below, on or before the Approval Date, Purchaser shall, by federal
wire transfer, deposit the additional sum of One Million and No/100 U.S. Dollars
($1,000,000.00) (the "ADDITIONAL DEPOSIT") into the escrow account of the Title
Company, and shall simultaneously therewith provide Seller with written evidence
of such deposit. If Purchaser shall fail to make the Additional Deposit in
accordance with the foregoing by 5:00 p.m., Washington, D.C. time, on the
Approval Date, Purchaser shall be deemed to have elected to terminate this
Agreement in accordance with Section 3.5, below, in which event the Initial
Deposit and all interest earned thereon shall be returned to Purchaser by the
Title Company and neither party shall have any further rights, obligations or
liability hereunder, except for the Surviving Obligations. Purchaser expressly
agrees that upon making the Additional Deposit, all funds held in escrow by the
Title Company as xxxxxxx money hereunder, and all interest earned thereon, shall
be non-refundable and Purchaser shall have no further rights with respect
thereto except as otherwise expressly set forth in this Agreement.
DEFINITION AND MAINTENANCE OF DEPOSIT. For purposes of this Agreement, the term
"DEPOSIT" shall mean and include (a) the Initial Deposit and all interest earned
thereon, (b) to the extent deposited by Purchaser with the Title Company
pursuant to Section 2.2.2, above, the Additional Deposit and all interest earned
thereon, and (c) to the extent deposited by Purchaser with the Title Company
pursuant to Section 2.4 below, the Extension Deposit and all interest earned.
The Deposit shall be held by the Title Company in an interest-bearing escrow
account established by the Title Company at a bank or other financial
institution acceptable to Seller and Purchaser and
5.
otherwise pursuant to the terms hereof. All interest earned on any portion of
the Deposit held in escrow by the Title Company hereunder shall (i) be added to
the principal of the Deposit then held in escrow, (ii) constitute a part of the
Deposit, and (iii) be included within the meaning and definition of the term
"DEPOSIT" used herein. Interest earned on the Deposit shall, for income tax
purposes, be deemed earned by Purchaser. Purchaser hereby represents and
warrants that its federal taxpayer identification number is 00-0000000.
2.3 PAYMENT. Prior to the Date of Closing, Purchaser shall
deposit with the Title Company sums sufficient to pay the Purchase Price and all
other amounts necessary to satisfy Purchaser's obligations with respect to
closing the transactions contemplated herein. On or before 2:00 p.m.,
Washington, D.C. time, on the Date of Closing, Purchaser shall cause the
Purchase Price, subject to adjustment for the prorations and credits set forth
in Section 6, below, to be paid to Seller by instructing the Title Company to
wire immediately available funds to such bank account(s) as Seller may
designate. The Deposit and the Performance Deposit shall be returned to
Purchaser at Closing, or, at Purchaser's option, paid by the Title Company to
Seller simultaneously with, as a part of, and credited against, the Purchase
Price.
2.4 CLOSING. Payment of the Purchase Price and the closing
hereunder (the "CLOSING") will take place pursuant to an escrow closing at 10:00
a.m. Washington, D.C. time, on the thirtieth (30th) day after the Approval Date
(the "DATE OF CLOSING"), time being of the essence, and shall be conducted by
Partners Title Company (the "TITLE COMPANY") at the offices of Seller's
attorneys, or at such other time and place as may be agreed to in writing by
Seller and Purchaser. However, Purchaser may extend the Date of Closing to a
date not later than thirty (30) days after the originally scheduled Date of
Closing by performing the following actions on or before the third (3rd)
business day prior to the originally scheduled Date of Closing: (a) delivering
to Seller a written notice designating a new Date of Closing, which shall be a
date on or before the thirtieth (30th) day after the originally scheduled Date
of Closing, and (b) delivering to the Title Company a deposit ("the "EXTENSION
DEPOSIT") in the amount of Five Hundred Thousand and No/100 Dollars
($500,000.00), which shall become a part of the Deposit. On or prior to the Date
of Closing, Seller may, at its option, deposit in escrow with the Title Company
all documents and instruments required to be delivered by Seller in order to
consummate Closing pursuant to this Agreement, in which event Seller's
attendance at Closing shall not be required and Seller's failure to attend
Closing shall not be deemed or constitute a failure of condition or default
hereunder.
3. INSPECTIONS AND APPROVALS. Purchaser shall have the period (the
"DUE DILIGENCE PERIOD") commencing on the Effective Date and expiring at 5:00
p.m. Washington, D.C. time, on the thirtieth day after the Effective Date (the
"APPROVAL DATE") in which to conduct the inspections and studies described in
this Section 3.
3.1 ACCESS.
3.1.1 Seller agree that, during the Due Diligence
Period, Seller shall permit Purchaser or Purchaser's agents or representatives
reasonable access to the Property (during normal business hours) for purposes of
(a) conducting non-intrusive physical or environmental inspections of the
Property, and (b) reviewing the Contracts, the Leases, the Approvals, the
Environmental Reports, and all files, books and records (other than any
6.
privileged, proprietary or confidential files or records), soil reports, matters
of title, surveys, building and systems plans, income and expense statements,
and such other documents and information that relate to the Property of which
Seller has actual knowledge and actual possession (collectively, the "PROPERTY
DOCUMENTS"). Purchaser has advised Seller that Purchaser must cause to be
prepared up to three (3) years of audited financial statements in respect of the
Property in compliance with the policies of Purchaser and certain laws and
regulations, including, without limitation, Securities and Exchange Commission
Regulation S-X, Rule 3-14. Seller agrees to use reasonable efforts to cooperate
with Purchaser's auditors in the preparation of such audited financial
statements. Without limiting the generality of the preceding sentence (i) Seller
shall, during normal business hours, allow Purchaser's auditors reasonable
access to the books and records maintained by Seller in respect of the Property;
(ii) Seller shall use reasonable efforts to provide to Purchaser such financial
information and supporting documentation as are necessary for Purchaser's
auditors to prepare audited financial statements; and (iii) if Seller has
audited financial statements with respect to the Property, Seller shall promptly
provide Purchaser's auditors with a copy of such audited financial statements.
Purchaser shall not conduct or authorize any intrusive physical or environmental
testing of, on or under the Property without first obtaining Seller's written
consent as to the timing and scope of work to be performed. In the event that
Purchaser is permitted by Seller to undertake any inspections or testing of the
Property, all information obtained by Purchaser as a result thereof, and/or as a
result of Purchaser's review of the Property Documents shall be subject to the
conditions and limitations set forth in Section 3.6, below. Purchaser shall not
interfere with the activity of tenants or any persons occupying or providing
service at the Property. Purchaser will not reveal to any third party not
entitled to receive confidential information pursuant to the provisions of
Section 3.6, below, or otherwise approved by Seller, the results of Purchaser's
inspections. Purchaser shall give Seller reasonable (but in no event less than
two (2) business days) prior notice of Purchaser's intention to conduct any
inspections. In the event that the inspections to be conducted by Purchaser
include intrusive physical or environmental testing of, on or under the
Property, such notice from Purchaser shall be in writing and shall provide a
reasonably detailed description of the type, scope, manner and duration of the
inspections to be conducted, as well as a written request for Seller's consent
to such inspections. Seller reserve the right to have a representative present
during any or all such inspections. Purchaser agrees to provide to Seller, as
and when the same are prepared and provided to Purchaser, copies of all
environmental, structural, engineering and other reports or studies prepared by
outside consultants (other than such reports prepared by legal counsel that are
subject to an attorney-client privilege) for or on behalf of Purchaser
(collectively, the "PROPERTY INSPECTION REPORTS"). Immediately upon the
completion of any inspection or test conducted by Purchaser or any of its
consultants or agents, and if such inspection or test has resulted in any damage
to or alteration of the Property or any portion thereof, Purchaser agrees at its
sole expense to cause the Property to be repaired and/or restored to the
condition it was in prior to such inspection or test. Purchaser acknowledges
that as of the Effective Date, Seller has taken all acts, delivered all
documents and complied with all of its obligations under the Access Agreement.
All documents, materials and information provided to Purchaser or Purchaser
Parties pursuant to the Access Agreement shall constitute and be deemed
"PROPERTY DOCUMENTS" for all purposes of this Agreement, including without
limitation the provisions of Section 3.6, below, and Purchaser acknowledges
receipt of all of the following Property Documents:
7.
A. Seller's most current survey of the Property;
B. Seller's most recent title insurance policy or
commitment for the Property;
C. The Leases;
D. The Contracts;
E. The Environmental Reports; and
F. The most recent real estate tax and utility bills
relating to the Property.
3.1.2 Purchaser agrees that, prior to undertaking any
inspections of the Property, Purchaser or Purchaser's agents will obtain not
less than Two Million Dollars ($2,000,000.00) comprehensive general liability
insurance with a contractual liability endorsement which insures Purchaser's
indemnity obligations hereunder and which names Seller and Seller's property
manager at the Property, as insureds thereunder (a copy of which policy shall be
provided by Purchaser to Seller prior to undertaking any inspections under this
Section 3.1). Such insurance coverage shall be maintained by Purchaser for a
period of no less than one (1) year after the Date of Closing or any termination
of this Agreement for any reason. Purchaser, on behalf of itself and the other
Purchaser Parties, agrees to indemnify and hold Seller and each of the Seller
Parties harmless from any claims, loss, injury, liability, damage or expense,
including reasonable attorneys' fees and costs, arising out of (a) a breach by
Purchaser or any of the Purchaser Parties of any applicable laws, rules,
regulations or ordinances, or the agreements set forth in this Section 3,
including without limitation the failure of Purchaser or any of the Purchaser
Parties to restore the Property in accordance with Section 3.1.1, above; (b) any
access to, entry upon or activity conducted by Purchaser or any Purchaser Party
with respect to or on, the Property, whether or not such access, entry or
activity is permitted by, in compliance with or in violation of any applicable
laws, rules, regulations or ordinances, or this Section 3; and/or (c) any
claims, suits, actions or the assertion of any other rights by or on behalf of
any tenant, invitee, guest or other party alleging personal injury, property
damage, interruption of business, nuisance or any other allegation of negligence
or wrong-doing caused by, or arising out of the matters set forth in subsections
(a) and/or (b), above (collectively, the "INDEMNITY OBLIGATIONS"). Any
inspections undertaken by or on behalf of Purchaser pursuant to this Section 3.1
shall be at Purchaser's sole risk and expense.
3.1.3 Except as otherwise expressly set forth in this
Agreement, Seller makes no representations or warranties as to the truth,
accuracy or completeness of any materials, data or other information, including
without limitation the contents of Seller's or its property manager's books and
records, the Leases, the Contracts, the Environmental Reports, rent rolls,
income and expense statements or any other Property Documents supplied to
Purchaser in connection with Purchaser's inspection of the Property. It is the
parties' express understanding and agreement that all of the Property Documents
and any other such materials are provided by Seller solely for Purchaser's
convenience in making its own examination and determination prior to the
Approval Date as to whether it wishes to purchase the Property, and, in making
such examination and determination, Purchaser shall rely exclusively on its own
8.
independent investigation and evaluation of the Property and not on the Property
Documents or other such materials supplied by Seller or its agents or
representatives.
3.1.4 All obligations and agreements of, and
indemnifications by, Purchaser contained in this Section 3 shall survive Closing
or any termination of this Agreement for any reason.
3.2 TITLE AND SURVEY.
3.2.1 Purchaser shall, at its sole expense and as it
deems necessary, obtain (a) a commitment (the "TITLE Commitment") from the Title
Company to issue an owner's and a mortgagee's policy of title insurance (the
"TITLE POLICY") insuring the Land and the Improvements, with such affirmative
coverage and endorsements as Purchaser and/or its lender, if any, shall require
and shall have contracted for with the Title Company prior to expiration of the
Due Diligence Period, (b) copies of all items shown as exceptions to title in
the Title Commitment, and (c) a survey of the Land prepared by a qualified
surveyor licensed in Washington, D.C.(the "SURVEY"). Purchaser shall provide to
Seller a true and complete copy of each of the foregoing items described in this
Section 3.2.1, promptly upon Purchaser's receipt thereof, but in no event later
than the Title Objection Date (defined in Section 3.2.2, below).
3.2.2 Purchaser shall have until 5:00 p.m. Washington,
D.C. time, on the twentieth (20th) day after the Effective Date ("TITLE
OBJECTION DATE") in which to provide written notice to Seller ("TITLE/SURVEY
NOTICE") of any matters affecting title to the Property, including those
disclosed by the Title Commitment (collectively, the "TITLE Objections"), or
shown on the Survey (collectively, the "SURVEY OBJECTIONS") which are not
satisfactory to Purchaser. A Title/Survey Notice must specify the reason each
Title Objection and Survey Objection is not satisfactory and Purchaser's
proposed curative steps to remove the basis for Purchaser's dissatisfaction. In
the event that Purchaser provides Seller with a Title/Survey Notice, the parties
shall, during the Title/Survey Objection Response Period (hereinafter defined),
make such arrangements or take such steps as they shall mutually agree to
satisfy Purchaser's objection(s); PROVIDED, HOWEVER, that Seller shall have no
obligation whatsoever to expend or agree to expend any funds to undertake or
agree to undertake any obligations or otherwise to cure or agree to attempt to
cure any Title Objections or Survey Objections, other than Must-Cure Objections
(hereinafter defined) and Title Objections or Survey Objections that Seller has
expressly agreed to attempt to cure in a written notice given to Purchaser on or
before the expiration of the Title/Survey Objection Response Period and which
recites that it is in response to a Title/Survey Notice. The failure of Seller
to provide written notice to Purchaser prior to expiration of the Title/Survey
Objection Response Period of Seller's intent to cure a Title Objection or Survey
Objection shall be deemed to be and constitute Seller's election not to cure
such Title Objections or Survey Objections; provided, however, that the
foregoing shall not alleviate Seller's obligation to cure any Must-Cure
Objections. As used herein, the term "TITLE/SURVEY OBJECTION RESPONSE PERIOD"
shall mean the period beginning on the date on which Seller receive a
Title/Survey Notice and ending on the earlier to occur of: (a) ten (10) days
thereafter; or (b) the Approval Date. Seller shall use commercially reasonable
efforts to cure all Must-Cure Objections and any Title Objections or Survey
Objections which it has expressly agreed to cure in accordance with the
foregoing, on or prior to the Date of Closing; PROVIDED, HOWEVER, that Seller
may, but shall not be obligated to, in its sole discretion, extend the Closing
for up to sixty
9.
(60) days in order to attempt to cure any Must-Cure Objection, or any Title
Objection or Survey Objection which Seller has expressly agreed to cure. The
term "MUST-CURE OBJECTION" means a lien or encumbrance affecting the Property
that constitutes, secures or evidences an outstanding obligation of Seller under
any: (A) mortgage, deed of trust or other lien encumbering title to the Property
which secures a loan or other monetary obligation of Seller and which was
voluntarily granted to the beneficiary thereof by Seller to secure such
obligation, and/or (B) judgment entered against Seller by a court with competent
jurisdiction, delinquent tax obligation, mechanics or materialmens' liens or
similar obligations of Seller (and expressly not of any tenant or other
third-party), PROVIDED, HOWEVER, that a lien or encumbrance described in this
Subsection (B) shall be deemed and constitute a Must-Cure Objection only if such
lien or encumbrance: (1) relates to and secures a valid and legal obligation of
Seller which would survive Closing and thereafter remain enforceable against the
Property and/or Purchaser, (2) can be fully and finally satisfied and discharged
merely by the payment of a liquidated or pre-determined sum to the beneficiary
thereof and without Seller having to satisfy any further requirements in
connection with the cure and release of same, and (3) the cost to effect the
cure or cures of all such Must-Cure Objections shall not exceed $20,000, in the
aggregate. For purposes of this Agreement, a Must-Cure Objection, Title
Objection or Survey Objection shall be deemed cured by Seller if: (i) to the
extent the objection can be cured by the payment of money, Seller deposit with
the Title Company at Closing (or instructs the Title Company to withhold from
the proceeds of sale payable to Seller upon consummation of Closing) an amount
sufficient to satisfy the Must-Cure Objection, Title Objection or Survey
Objection in full, or (ii) Seller cause the Title Company to provide
"AFFIRMATIVE INSURANCE OVER" such Must-Cure Objection, Title Objection or Survey
Objection, PROVIDED that the terms and coverage of such affirmative insurance
shall be approved by Seller and Purchaser in their reasonable discretion, or
(iii) Seller cause the Title Company to remove such Must-Cure Objection, Title
Objection or Survey Objection from Schedule B of the Title Policy. In the event
that Seller elect to cure a Must-Cure Objection by causing the Title Company to
provide affirmative insurance over same in accordance with the foregoing
Subsection (ii), such affirmative insurance shall be deemed reasonable and
approved by both Seller and Purchaser if the terms and coverage provided thereby
are consistent with the terms and coverage typically and customarily extended by
nationally known and recognizable title insurance companies providing
affirmative insurance over liens and encumbrances of a similar nature and scope
in connection with the closing of other similar acquisitions of commercial real
estate located in and around the commercial market in which the Property is
located.
3.2.3 Purchaser's sole right with respect to any Title
Objections or Survey Objections contained in a Title/Survey Notice given in a
timely manner which Seller has not expressly agreed to attempt to cure during
the Title/Survey Objection Response Period, or which Seller has agreed to cure
but has failed to affect such cure on or prior to the Date of Closing, shall be
to elect to either (a) terminate this Agreement, in which event the Deposit
shall be returned to Purchaser and neither party shall have any further
liability, obligations or rights under this Agreement other than the Surviving
Obligations, or (b) waive such Title Objection or Survey Objection and proceed
to Closing with such matters being added to, and made a part of, the Permitted
Exceptions.
3.2.4 Any (a) existing title or survey matters which
are not included as Title Objections or Survey Objections in a Title/Survey
Notice given by Purchaser to Seller on or
10.
before 5:00 p.m., Washington, D.C. time, on the Title Objection Date; or (b)
Title Objection or Survey Objection with respect to which a timely Title/Survey
Notice is given, but which has not been cured by Seller during the Title/Survey
Objection Cure Period or for which Seller has not expressly agreed to attempt to
cure, and the cure of which has been waived, or deemed waived, by Purchaser
pursuant to this Section 3.2, shall be deemed to be approved by Purchaser as
"PERMITTED EXCEPTIONS" as provided in Section 3.4 hereof. Purchaser agrees that
the Purchaser's consummation of Closing shall constitute conclusive evidence of
Purchaser's waiver of all uncured Title Objections and Survey Objections.
3.3 CONTRACTS. On or before the Approval Date, Purchaser
shall provide Seller written notice ("SERVICE CONTRACT TERMINATION NOTICE") of
Purchaser's election to cause Seller to terminate any Terminable Contract
(hereinafter defined) identified in such Service Contract Termination Notice.
For purposes of this Agreement, the term "TERMINABLE CONTRACT" shall mean any
Contract which is terminable upon thirty (30) days', or less, prior notice
without payment of a termination or similar fee. Provided that this Agreement
has not been terminated pursuant to Section 3.5, below, Seller shall promptly
after the Approval Date deliver to the contractor under any Terminable Contract
specified in a properly and timely delivered Service Contract Termination Notice
a termination notice or other writing required pursuant to the terms of such
Terminable Contract to effect the termination thereof. Notwithstanding the
foregoing, Purchaser shall assume at and as of Closing: (a) any Terminable
Contract specified in a properly and timely delivered Service Contract
Termination Notice, the termination of which, notwithstanding the delivery by
Seller to the contractor thereunder of a termination notice or other writing,
has not been effected as of the Closing, for the period between the Date of
Closing and the date on which such termination is effective; (b) any Contract
which cannot be terminated upon thirty (30) days', or less, prior notice, or
which with respect to such termination requires the payment of a termination or
other similar fee, and (c) any Terminable Contract not specified in a properly
and timely delivered Service Contract Termination Notice. As used herein, the
term "CONTRACTS" shall mean all management, service, maintenance, supply or
other contracts relating to the operation, use, maintenance and repair of the
Property, and all other such contracts or agreements in effect as of the date
hereof which are listed on Exhibit 3.3 attached hereto, and any new Contracts
entered into pursuant to Section 4.3, below. Notwithstanding the foregoing,
Seller shall cause the existing management and leasing agreement between Seller
and its property manager for the Property to be terminated and of no further
force or effect at and as Closing.
3.4 PERMITTED EXCEPTIONS. Provided that this Agreement has
not been terminated pursuant to Section 3.5, below, Purchaser shall be deemed to
have approved and to have agreed to purchase the Property subject to the
following (collectively, the "PERMITTED EXCEPTIONS"):
3.4.1 All Title Objections, Survey Objections, and any
defects in or to title to the Property or other matters affecting or relating to
the title to, or the survey of, the Property existing as of the Title Objection
Date and not included in a Title/Survey Notice given by Purchaser prior to the
Title Objection Date and/or which Purchaser has otherwise approved or is deemed
to have approved pursuant to Section 3.2 hereof;
11.
3.4.2 All Contracts remaining in effect as of the Date
of Closing which Purchaser has approved or is deemed to have approved pursuant
to Sections 3.3 and 4.3 hereof;
3.4.3 All Leases listed on Exhibit 1.1.6 attached
hereto remaining in effect as of the Date of Closing and any other Leases which
Purchaser has approved or is deemed to have approved pursuant to Section 4.4
hereof, and the rights of all tenants thereunder, as tenants only;
3.4.4 The lien of non-delinquent real and personal
property taxes and assessments;
3.4.5 Discrepancies, conflicts in boundary lines,
shortages in area, encroachments, and any state of facts shown on the Survey or
which an inspection of the premises would disclose and which are not shown by
the public records;
3.4.6 Easements or claims of easements not shown by
the public records and of which Seller has no current actual knowledge;
3.4.7 Service, installation, connection, maintenance
or construction charges due after Closing, and, subject to the proration
provisions hereof, charges for sewer, water, electricity, telephone, cable
television or gas;
3.4.8 Unrecorded leaseholds, rights of vendors and
holders of security interests on personal property installed upon the Property
by tenants and rights of tenants to remove trade fixtures at the expiration of
the term of the Leases; and
3.4.9 All federal, state and local laws, regulations,
statutes and ordinances affecting the Property, and any violations by the
Property thereof.
3.5 PURCHASER'S RIGHT TO TERMINATE. Purchaser shall have the
right to terminate this Agreement, for any or no reason whatsoever, by providing
to Seller written notice of such termination before 5:00 p.m. Washington, D.C.
time on the Approval Date, time being of the essence. Purchaser shall also have
the right to waive the foregoing right to terminate this Agreement, by providing
to Seller written notice of Purchaser's election to so waive such right and
depositing the Additional Deposit with the Title Company, in escrow, all before
5:00 p.m., Washington, D.C. time, on the Approval Date, time being of the
essence. In the event that, by such date and time, Purchaser fails to deliver
any written notice to Seller whatsoever, or fails to timely and properly post
the Additional Deposit with the Title Company, either such failure shall be
deemed to be the election of Purchaser to terminate this Agreement pursuant to
this Section 3.5. If Purchaser timely terminates, or is deemed to have
terminated, this Agreement pursuant to this Section 3.5, the Initial Deposit
shall be promptly returned to Purchaser and neither party shall have any further
obligations or liability hereunder, except for the Surviving Obligations.
3.6 CONFIDENTIALITY. Purchaser agrees that, unless Seller
specifically and expressly otherwise agrees in writing, the Property Documents,
the Property Inspection Reports and all other documents and information
regarding the Property of whatsoever nature made available to Purchaser or any
Purchaser Party by Seller or any Seller Party, or in any other
12.
manner obtained by Purchaser or any Purchaser Party (collectively, the
"PROPRIETARY INFORMATION") are proprietary and confidential and Purchaser shall
not disclose same to any other person except those of the Purchaser Parties
assisting Purchaser with the transaction contemplated herein, or Purchaser's
lender, if any, and then only on a need-to-know basis, and upon Purchaser making
each such person aware of the confidentiality restrictions set forth herein and
procuring such person's agreement to be bound thereby. Notwithstanding the
foregoing, Purchaser shall not be deemed to have violated the provisions of this
Section 3.6 if Purchaser or any Purchaser Party is required to disclose any
Proprietary Information pursuant to a judicial order validly issued and served
upon Purchaser or any Purchaser Party by a court with competent jurisdiction
over the Property and the Proprietary Information which is the subject of such
order, if Purchaser (a) promptly, and in no event less than five (5) business
days after Purchaser's or any Purchaser Party's receipt of such court order,
delivers a copy of same, together with any notices or other documents which were
served on Purchaser or any Purchaser Party with such court order, to Seller, and
(b) cooperates in any effort (provided that neither Purchaser nor any Purchaser
Party is thereby placed in breach of such court order) instituted by Seller to
prevent such disclosure. Notwithstanding anything contained in this Agreement to
the contrary, Purchaser shall be permitted (i) to make such disclosures to
potential investors in the Property as may be recommended by Purchaser's legal
counsel, and (ii) to make such other disclosures as may be recommended by
Purchaser's legal counsel in order to comply with all financial reporting,
securities laws and other legal requirements applicable to Purchaser. In the
event the purchase and sale contemplated hereby fails to close for any reason
whatsoever, Purchaser agrees to deliver to Seller, or cause to be delivered to
Seller all Proprietary Information in the possession of Purchaser and any of the
Purchaser Parties. Further, Purchaser agrees not to use or allow to be used any
Proprietary Information for any purpose other than to determine whether
Purchaser shall proceed with the contemplated purchase, or if same is
consummated, in connection with the operation of the Property post-Closing.
Purchaser, on behalf of itself and the other Purchaser Parties, agrees to
indemnify Seller and each of the Seller Parties against all costs, claims and
damages, including attorneys' fees, suffered or sustained as the result of a
breach by Purchaser or any of the Purchaser Parties of the covenants contained
in this Section 3.6. All obligations of Purchaser under this Section 3.6 shall
be referred to as the "CONFIDENTIALITY OBLIGATIONS". Notwithstanding any other
term of this Agreement, the provisions of this Section 3.6 shall survive Closing
or the termination of this Agreement for any reason.
4. PRIOR TO CLOSING. Until Closing, Seller (or Seller's agents, on
behalf of Seller) shall:
4.1 INSURANCE. Maintain Seller's existing casualty and
liability insurance with respect to the Property.
4.2 OPERATION. Operate and maintain the Property
substantially in accordance with Seller's past practices.
4.3 NEW CONTRACTS. Promptly upon Seller's execution thereof,
but in no event later than the Approval Date, provide to Purchaser a copy of any
new Contract, or of any amendment or modification to any existing Contract
listed on Exhibit 3.3 attached hereto, entered into by Seller during the Due
Diligence Period. Between the Approval Date and the Date of Closing, Seller will
enter into only those Contracts which Seller believe are necessary to
13.
carry out its obligations under Section 4.2 hereof and which shall be cancelable
on not more than thirty (30) days' written notice, without the payment of any
termination or other similar fee. If Seller enter into any such Contract after
the Approval Date, Seller shall promptly provide written notice thereof to
Purchaser and unless Purchaser, within five (5) days after such Seller's notice,
notifies Seller in writing of Purchaser's intention not to assume such Contract,
the Contract shall be assumed by Purchaser at Closing pursuant to Section 3.3,
above.
4.4 NEW LEASES.
4.4.1 Promptly upon Seller's execution thereof, but in
no event later than the Approval Date, provide to Purchaser a copy of any new
Lease, or of any amendment or modification to any existing Lease listed on
Exhibit 1.1.6 attached hereto, entered into by Seller during the Due Diligence
Period. Between the Approval Date and the Date of Closing, Seller will not,
without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld, delayed or conditioned: (a) execute any new Leases
affecting the Property, or any part thereof; (b) materially amend any existing
Lease listed on Exhibit 1.1.6 attached hereto; or (c) terminate (except upon a
default by the tenant thereunder) or accept the surrender of any Lease(s);
PROVIDED HOWEVER, that Seller is authorized to accept the termination of Leases
at the end of their existing terms and to expand, extend or renew any Leases
pursuant to expansion, extension or renewal options contained therein.
4.4.2 With respect to any new Lease or lease amendment
submitted by Seller to Purchaser after the Approval Date, if Purchaser (a) shall
fail to either consent or to expressly withhold its consent by a written notice
to Seller which specifically states the reasonable basis for Purchaser's
objection within five (5) business days after Purchaser's receipt of such
request; or (b) unreasonably refuses to grant its consent, then Purchaser shall
be deemed to have consented to such new Lease or lease amendment.
4.5 TENANT ESTOPPELS. Between the Effective Date and the
Date of Closing, Seller agrees to deliver to, and attempt to obtain from, all
tenants of the Property (or any portion thereof) estoppel certificates in the
form attached as Exhibit 4.5 ("ESTOPPEL CERTIFICATES"). Seller shall deliver to
Purchaser at Closing all Estoppel Certificates obtained by Seller from tenants
of the Property. In the event that as of Closing Seller has not received
Estoppel Certificates from tenants occupying at least eighty-five percent (85%)
of the occupied rentable space in the Improvements, then Seller may (but shall
not be required to) furnish Purchaser with certificates ("SELLER CERTIFICATES")
certifying, to Seller's actual knowledge, all of the matters set forth in the
form of estoppel certificate attached hereto as Exhibit 4.5 with respect to such
Leases as are necessary to provide Purchaser with a combination of Estoppel
Certificates and Seller Certificates for Leases covering eighty-five percent
(85%) of the occupied rentable space in the Improvements. Purchaser agrees that
Purchaser shall accept the Seller Certificates in lieu of the missing Estoppel
Certificates. It is agreed that non-material exceptions, qualifications or
modifications of any Estoppel Certificate or Seller Certificate shall not permit
Purchaser to terminate this Agreement. Upon subsequent delivery to Purchaser of
a missing Estoppel Certificate, Purchaser shall cancel any Seller Certificate
executed in lieu thereof and return such cancelled Seller Certificate to Seller.
The representations contained in any Seller Certificate shall survive the
Closing to the extent set forth in, and Purchaser's remedies for breach thereof
shall be subject to, the provisions set forth in Section 5.1 below, in the same
manner as the representations and warranties of Seller in Section
14.
5.1. In the event that Seller is unable to obtain Estoppel Certificates from
tenants occupying at least eighty-five percent (85%) of the occupied rentable
space in the Improvements and Seller is unwilling to furnish Purchaser with
sufficient Seller Certificates to meet the foregoing percentage, then Purchaser
may terminate this Agreement and the Deposit and Performance Deposit shall
thereupon be returned to Purchaser as its sole remedy.
5. REPRESENTATIONS AND WARRANTIES.
5.1 BY SELLER. Seller represents and warrants to Purchaser
as of the Effective Date that:
5.1.1 Seller is a limited liability company duly
organized and validly existing under the laws of the State of Delaware.
5.1.2 Seller has the power to acquire, own, and
dispose of the Property and to engage in the transactions contemplated in this
Agreement.
5.1.3 Seller is in good standing under the laws of the
State of Delaware and the District of Columbia.
5.1.4 The execution and performance of this Agreement
has been authorized by Seller, and to the best of Seller's knowledge
(hereinafter defined), the execution of this Agreement by Seller will not result
in a breach of, violate any term or provision of, or constitute a default under,
any articles of incorporation, bylaws, partnership agreement, indenture, deed to
secure debt, deed of trust, mortgage, lease or other document by which Seller is
bound.
5.1.5 No petition in bankruptcy (voluntary or
otherwise), assignment for the benefit of creditors, or petition seeking
reorganization or arrangement or other action under Federal or state bankruptcy
law is pending against Seller.
5.1.6 Except for the matters listed on Exhibit 5.1.6
attached hereto, there is no litigation pending or, to the best of Seller's
knowledge, threatened against the Property or Seller, materially and adversely
affecting the Property.
5.1.7 Exhibit 1.1.6 attached hereto is a true and
complete list of all of the Leases, including all amendments, supplements and
modifications thereto, and the current unapplied balance of all Security
Deposits held by Seller under such Leases, as of the Effective Date.
5.1.8 Exhibit 3.3 attached hereto is a true and
complete list of all Contracts, including all amendments, supplements and
modifications thereto, affecting the Property, as of the Effective Date.
The above-stated representations and warranties of Seller will survive
Closing for a period of one hundred twenty (120) days. Purchaser hereby
expressly agrees that Seller shall have no liability to Purchaser for a
misrepresentation or breach of
15.
warranty hereunder, if: (a) Purchaser does not provide to Seller written notice
of a claim of misrepresentation or breach of warranty on or prior to the date
which is one hundred twenty (120) days after the Date of Closing; (b) Purchaser
had actual knowledge of the misrepresentation or breach of warranty prior to the
consummation of Closing; or (c) the aggregate amount of all claims by Purchaser
of misrepresentation or breach of warranty is less than $25,000; PROVIDED,
HOWEVER, that if such claims equal or exceed $25,000, in the aggregate,
Purchaser shall have the right to prosecute such claims in the full amount
thereof, and not just in the amount by which such claims exceed $25,000.
Purchaser further expressly agrees that the maximum amount for which Seller
shall be liable, and for which Purchaser shall have the right to assert claims
against Seller, arising out of any and all misrepresentations or breaches of
warranty hereunder shall not exceed the sum of $250,000.00, in the aggregate.
Purchaser and Seller hereby agree that in the event that Seller disclose in
writing to Purchaser, or Purchaser otherwise has actual knowledge of, at the
time of or prior to Closing, any fact, information or circumstance which renders
any representation or warranty made by Seller in this Agreement untrue,
incorrect or misleading in any material respect, Purchaser's sole remedy shall
be to either (such election of Purchaser to be exercised on or before the Date
of Closing): (i) waive its rights and claims hereunder with respect to such
misrepresentation or breach of warranty, and proceed to Closing in accordance
with the terms of this Agreement, without any reduction in the Purchase Price,
or (ii) terminate this Agreement, in which event the Deposit and the Performance
Deposit shall be returned to Purchaser and the parties shall have no further
obligations hereunder except for the Surviving Obligations.
Purchaser understands and acknowledges that Seller has maintained no
employees at the Property and that the Property has, during Seller's ownership
thereof, always been managed by a third-party manager, and that Seller has
relied upon such manager for knowledge and notice. As used herein, the terms
"BEST OF SELLER'S KNOWLEDGE," "SELLER'S ACTUAL KNOWLEDGE", "SELLER'S KNOWLEDGE"
and any similar phrase shall mean the current actual knowledge of Lammot J. du
Pont and Xxxxxxx Xxxxx, who are the individuals having primary responsibility
for asset management of the Property on behalf of Seller, as of the Effective
Date (or, solely with respect to the representations and warranties made by
Seller in the certificate referred to in Section 9.1.10, below, the Date of
Closing); PROVIDED, HOWEVER, that Lammot J. du Pont and Xxxxxxx Xxxxx shall not
have any personal liability in connection with, or arising out of, any
representation made by Seller in this Agreement.
5.2 BY PURCHASER. Purchaser represents and warrants to
Seller as of the Effective Date that:
5.2.1 Purchaser is a limited liability company duly
organized and validly existing under the laws of the State of Delaware.
5.2.2 Purchaser has the power to acquire, own, and
dispose of the Property and to engage in the transactions contemplated in this
Agreement.
5.2.3 Purchaser is in good standing under the laws of
the District of Columbia to the extent required by such laws.
5.2.4 The execution and performance of this Agreement
has been authorized by Purchaser, and to the best of Purchaser's knowledge, the
execution of this Agreement by Purchaser will not result in a breach of, violate
any term or provision of, or
16.
constitute a default under, any articles of incorporation, bylaws, partnership
agreement, indenture, deed to secure debt, deed of trust, mortgage, lease or
other document by which Purchaser is bound.
5.2.5 No petition in bankruptcy (voluntary or
otherwise), assignment for the benefit of creditors, or petition seeking
reorganization or arrangement or other action under Federal or state bankruptcy
law is pending against Purchaser.
5.2.6 On or before the Approval Date, Purchaser (a)
shall have inspected the Property fully and completely at its expense and will
have ascertained to its satisfaction the extent to which the Property complies
with applicable zoning, building, environmental, health and safety and all other
laws, codes and regulation; and (b) shall have reviewed the Leases, the
Contracts, the Survey, the Title Commitment, books and records, expenses and
other matters relating to the Property and based upon its own investigations,
inspections, tests and studies, shall have determined whether or not to purchase
the Property and to assume Seller's obligations under the Leases, the Contracts,
and otherwise with respect to the Property.
5.3 BROKER. Seller and Purchaser each represents to the
other that it has had no dealings, negotiations, or consultations with any
broker, representative, employee, agent or other intermediary in connection with
the sale of the Property, except that Seller has retained the services of
Eastdil Realty Co., LLC. ("SELLER'S BROKER"), and the payment of any fee or
commission to Seller's Broker shall be subject to the terms and conditions of a
separate written agreement between Seller and Seller's Broker and such fee or
commission owed or alleged to be owed to Seller's Broker shall in no way be the
responsibility of Purchaser. Seller and Purchaser agree that each will
indemnify, defend and hold the other free and harmless from any claims arising
from a breach of the foregoing representations (the "BROKER OBLIGATIONS"). This
mutual indemnity shall survive Closing and any termination of this Agreement for
any reason.
6. COSTS AND PRORATIONS.
6.1 PURCHASER'S COSTS. Purchaser will pay the following
costs of closing this transaction:
6.1.1 One-half (1/2) of all deed recordation fees and
expenses and transfer taxes due in connection with the recordation of the Deed
(defined in Section 9.1.1, below);
6.1.2 One-half (1/2) of all settlement fees and other
charges of the Title Company due in connection with the closing of this
transaction;
6.1.3 The premiums and all other costs relating to the
issuance of the Title Policy, and any and all special endorsements issued in
connection with this transaction, whether pursuant to the Title Commitment or
otherwise;
6.1.4 The cost of the Survey;
17.
6.1.5 The fees and disbursements of Purchaser's
counsel and any other expense(s) incurred by Purchaser or its representative(s)
in inspecting or evaluating the Property or closing this transaction; and
6.1.6 Any and all costs and expenses in connection
with obtaining financing for the purchase of the Property, including without
limitation any recordation or transfer taxes required to be paid upon the
recordation of any deed of trust, mortgage or other security agreement executed
and recorded in connection with such financing.
6.2 SELLER'S COSTS. Seller will pay the following costs of
closing this transaction:
6.2.1 One-half (1/2) of all deed recordation fees and
expenses transfer taxes due in connection with the recordation of the Deed;
6.2.2 The fees and disbursements of Seller's counsel;
6.2.3 The Seller's Broker's fee to the extent any such
fee is payable pursuant to Seller's separate written agreement with the Seller's
Broker referred to in Section 5.3, above;
6.2.4 One-half (1/2) of all reasonable settlement fees
and other charges of the Title Company due in connection with the closing of
this transaction (expressly excluding the cost of the Title Policy referred to
in Section 6.1.3, above); and
6.2.5 All release fees and other charges required to
be paid in order to release from the Property the lien of any Must-Cure
Objections.
6.3 PRORATIONS. All revenues and expenses, including, but
not limited to rents and any other amounts paid by tenants, personal property
taxes, installment payments of special assessment liens, vault charges, sewer
charges, utility charges and normally prorated operating expenses paid as of the
Date of Closing shall be prorated as of 12:01 a.m. on the Date of Closing on an
as and when collected or paid basis and shall be adjusted against the Purchase
Price due at Closing; PROVIDED that within sixty (60) days after Closing
Purchaser and Seller will make a further adjustment for such rents, taxes or
charges which may have accrued or been incurred prior to the Date of Closing,
but not received or paid at that date. In the event that any item of income or
expense is prorated at Closing in error or on the basis of an estimate, or if it
is determined that the parties failed to prorate an item at Closing which should
have been prorated, Purchaser and Seller agree, promptly upon (but in no event
later than 15 days after) discovery of such error, receipt of information
indicating an incorrect proration, or determination that a pro-ratable item was
not prorated, to make a further adjustment of such item(s). To the extent that
either party is required to pay to the other any sum based on the foregoing
post-Closing adjustments of prorated items, Purchaser and Seller each agree to
make such payments within fifteen (15) days after the post-Closing adjustments
have been calculated and agreed to. Notwithstanding the provisions of Section
6.12, below, prorations required to be made under this Section 6.3 shall be
final on the date which is one (1) year after the Date of Closing.
18.
6.4 SECURITY DEPOSITS. At Closing, Seller shall (a) either
(i) deliver to Purchaser the unapplied balance of all cash (or cash equivalent)
security, damage or other deposits paid by any of the tenants to secure their
respective obligations under the Leases (collectively, the "SECURITY DEPOSITS"),
or (ii) credit against the Purchase Price an amount equal to the unapplied
balance of all cash Security Deposits; and (b) assign to Purchaser all of
Seller's interests in and to any letters of credit, bonds, notes or other
instruments constituting non-cash Security Deposits under any of the Leases.
6.5 TAXES. General real estate taxes and special assessments
relating to the Property payable during the year in which Closing occurs shall
be prorated as of the Date of Closing. If Closing shall occur before the actual
taxes and special assessments payable during such year are known, the
apportionment of taxes shall be upon the basis of taxes for the Property payable
during the immediately preceding year; PROVIDED that, if the taxes and special
assessments payable during the year in which Closing occurs are thereafter
determined to be more or less than the taxes payable during the preceding year
(after any appeal of the assessed valuation thereof is concluded), Seller and
Purchaser promptly shall adjust the proration of such taxes and special
assessments, and Seller or Purchaser, as the case may be, shall pay to the other
any amount required as a result of such adjustment and this covenant shall not
merge with the deed delivered hereunder but shall survive the Closing. If, as
the result of an appeal of the assessed valuation of the Property for any real
estate tax year prior to (or including) the Closing, there is issued after
Closing an administrative ruling, judicial decision or settlement by which the
assessed value of the Property for such tax year is reduced, and a real estate
tax refund issued, Seller shall be entitled to all such refunds relating to the
period prior to Closing, except to the extent that prior or then-existing
tenants in the Improvements are entitled to a portion of same under the express
provisions of their Lease(s). To the extent any tax appeals or protests have
been instituted or are pending at and as of the Date of Closing, Seller and
Purchaser shall execute such documents as are reasonably necessary for Purchaser
to assume any such tax appeal or protest and the prosecution thereof with
attorneys or consultants reasonably acceptable to Seller; PROVIDED, HOWEVER,
that Purchaser agrees to remit to Seller within ten (10) days after receipt by
Purchaser all refunds of real estate taxes obtained in connection with such tax
appeal to the extent such refunds relate to the period prior to the Date of
Closing, and after deducting therefrom Seller's pro rata share of attorneys fees
and collection costs incurred in connection with obtaining such refunds,
calculated on the basis of the number of days during the period for which such
refund was issued that Seller and Purchaser, respectively, owned the Property.
6.6 CONTRACTS/PERMITTED EXCEPTIONS. Amounts due, if any,
under all Contracts and the Permitted Exceptions shall be prorated as of the
Date of Closing in accordance with the purposes and intent of this Agreement.
6.7 PURCHASER'S OBLIGATION TO PAY CERTAIN COSTS. At Closing,
Purchaser shall assume and be solely responsible and liable for all Landlord
Lease Obligations (hereinafter defined): (a) with respect to those Leases listed
on Exhibit 1.1.6 attached hereto, coming due or arising after the Date of
Closing, including without limitation those Landlord Lease Obligations accruing
or arising as the result of the exercise by a tenant under its Lease of any
expansion, extension or renewal option contained therein; and (b) with respect
to any Lease entered into pursuant to Section 4.4, above, to the extent that
Seller has, or as of Closing shall have, paid or contributed any sums in
satisfaction of any Landlord Lease Obligations under any Lease entered
19.
into pursuant to Section 4.4, above, Purchaser shall at Closing reimburse and
pay to Seller all such amounts so expended by Seller in connection therewith.
Purchaser shall indemnify Seller against all costs, claims and damages,
including attorneys' fees, suffered or sustained as the result of Purchaser's
breach of the covenants contained in this Section 6.7. At Closing, Purchaser
shall receive a credit in the amount of all rent and other amounts paid by
tenants under any Lease entered into pursuant to Section 4.4, above. For
purposes of this Agreement, the term "LANDLORD LEASE OBLIGATIONS" shall mean and
include: (i) all leasing commissions and brokerage fees payable in connection
with the execution of a Lease or the exercise by the tenant thereunder of any
extension, renewal or expansion option, (ii) all tenant improvement allowances
(if any) specified in such Lease required to be funded by the landlord
thereunder, including without limitation tenant allowances required to be funded
upon the exercise by a tenant under its Lease of any extension, renewal or
expansion option; (iii) the cost of completing tenant improvements, if any,
specified in the Lease to be performed by landlord, including without limitation
tenant improvements to be performed by the landlord upon the exercise by a
tenant under its Lease of any extension, renewal or expansion option; (iv)
expenses incurred or to be incurred pursuant to the terms of the Lease for the
purposes of satisfying or terminating the obligations of a tenant under another
lease to the landlord thereunder (whether or not such other lease covers space
in the Property) and any other inducement to the tenant under such Lease
pursuant to the terms thereof; and (v) any costs associated with the
negotiation, execution and delivery of such Lease(s), including without
limitation attorneys' and consultants' fees and expenses.
6.8 ESTIMATED AMOUNTS. With respect to percentage rents
based upon gross sales or other income generated by the business of a tenant
located on the Property during a specific period of time (the "APPLICABLE
PERIOD"), Purchaser or Seller, as the case may be, shall, upon collection of
such percentage rent, remit to Seller an amount equal to the product obtained by
multiplying the percentage rent so collected by a fraction, the numerator of
which is the number of days which have elapsed in the Applicable Period prior to
the Closing and the denominator of which is the total number of days in the
Applicable Period. With respect to additional rent attributable to insurance,
taxes, common area maintenance and other operating expenses which are passed
through to tenants under the Leases (the "PASS THROUGH Expenses") which have
been billed by Seller to tenants prior to the Closing but which have not yet
been collected and are delinquent, such Pass Through Expenses shall be pro-rated
between the parties as uncollected rent as provided in Section 6.10, below. With
respect to Pass Through Expenses which (a) have been billed prior to Closing but
which have not yet been collected and are not delinquent, or (b) have not been
billed to tenants as of Closing, Purchaser shall use all commercially reasonable
efforts to collect such amounts, and upon the collection of same, Purchaser
shall remit to Seller an amount equal to that portion of Pass Through Expenses
which accrued prior to Closing, after deducting therefrom Seller's pro rata
share of attorneys fees and collection costs incurred in connection with
recovering such Pass Through Expenses, calculated on the basis of the number of
days during the period for which such Pass Through Expenses were incurred that
Seller and Purchaser, respectively, owned the Property. With respect to Pass
Through Expenses which have not been billed to tenants as of Closing, Purchaser
shall xxxx each tenant for same in accordance with each such Lease. At Closing,
Seller and Purchaser shall reasonably estimate the amount, if any, by which
tenants in the Improvements have overpaid or underpaid their proportionate
shares of operating expenses and real estate taxes through the Date
20.
of Closing. If, at Closing, Purchaser and Seller determine that an overpayment
by tenants exists, Purchaser shall receive a credit in the aggregate amount of
such estimated overpayment. If, at Closing, Purchaser and Seller determine that
an underpayment by tenants exists, Seller shall receive a credit in the
aggregate amount of such estimated underpayment. Notwithstanding the foregoing,
the parties shall perform a final reconciliation after Closing of such
pass-through costs in accordance with the other provisions of this Section 6.
Seller shall continue to be responsible for the actual amount of any overpayment
and Purchaser shall be responsible for the amount of any underpayment, to the
extent collected from tenants. In the event that Seller and Purchaser, after
using commercially reasonable efforts to do so, are not able to agree at Closing
on the estimated amount of overpayment or underpayment of operating expenses and
real estate taxes, by tenants, the parties shall reconcile the proration of such
pass-through costs after Closing.
6.9 UTILITY DEPOSITS. Seller shall be entitled to the return
of any deposit(s) posted by it with any utility company and Seller shall pay all
charges and notify each utility company serving the Property to terminate
Seller's account, effective at noon on the Date of Closing.
6.10 POST-CLOSING COLLECTIONS. Upon Closing, Seller shall
retain all rights in and to any rents or other amounts due for any period prior
to Closing, but shall have no right to commence any legal proceedings which
would, or could, result in the eviction or dispossession of a tenant from the
Property. Purchaser shall use commercially reasonable efforts during the twelve
(12) month period immediately following Closing to collect and promptly remit to
Seller rents or other amounts due Seller for the period prior to Closing after
deducting therefrom the cost of collection. In exercising commercially
reasonable efforts to collect rents and other amounts due Seller as herein
required, Purchaser agrees, during the entirety of the foregoing 12-month
period, to xxxx and invoice tenants owing any such amounts to Seller on a
monthly basis, and to institute the same "FOLLOW UP" actions or programs used by
Purchaser to collect delinquent amounts owed by tenants to Purchaser.
6.11 IN GENERAL. Any other costs or charges of closing this
transaction not specifically mentioned in this Agreement shall be paid and
adjusted in accordance with local custom in the commercial real estate market in
which the Property is located.
6.12 PURPOSE AND INTENT. Except as expressly provided herein,
the purpose and intent as to the provisions of prorations and apportionments set
forth in this Section 6 and elsewhere in this Agreement is that Seller shall
bear all expenses of ownership and operation of the Property and shall receive
all income therefrom accruing through midnight of the day preceding the Closing
and Purchaser shall bear all such expenses and receive all such income accruing
thereafter; PROVIDED, HOWEVER, that if Seller do not receive the Purchase Price
in immediately-available funds by 1:00 p.m. Washington, D.C. time, on the Date
of Closing, all adjustments and prorations shall be made as of midnight on the
next business day immediately following the Date of Closing. All of the
provisions contained in Section 6 of this Agreement shall survive Closing.
21.
7. DAMAGE, DESTRUCTION OR CONDEMNATION.
7.1 MATERIAL EVENT. Notwithstanding anything to the contrary
set forth in this Agreement, if, prior to Closing: either (a) ten percent (10%)
or more of the net rentable area of the Building is rendered completely
untenantable as a result of fire, lightning or other casualty, or is permanently
taken under the power of eminent domain, or (b) material access to such Building
is permanently destroyed as a result of fire, lightening or other casualty or is
permanently taken under the power of eminent domain, Purchaser may elect to
terminate this Agreement by giving written notice to Seller of its election to
terminate this Agreement (a "MATERIAL EVENT TERMINATION NOTICE") within five (5)
days after receiving written notice of such destruction or permanent taking from
Seller. If Purchaser does not give a Material Event Termination Notice within
such five (5) day period, Purchaser shall be deemed to have waived its right to
terminate this Agreement pursuant to this Section 7.2, in which event, this
transaction shall close on the Date of Closing and Purchaser shall pay the full
Purchase Price provided for in Section 2, and Seller shall assign to Purchaser
the physical damage proceeds of any insurance policies payable to Seller, or
Seller's portion of any condemnation award, in both cases, up to the amount of
the Purchase Price, and, if an insured casualty, pay to Purchaser the amount of
any deductible under Seller's insurance coverage, but not to exceed the amount
of the loss.
7.2 IMMATERIAL EVENT. If, prior to Closing: (a) less than
ten percent (10%) of the net rentable area of the Building is rendered
completely untenantable as a result of fire, lightning or other casualty or is
permanently taken under the power of eminent domain, or (b) less than material
access to such Building is permanently destroyed as a result of fire, lightening
or other casualty or is permanently taken under the power of eminent domain,
this transaction shall close on the Date of Closing and Purchaser shall pay the
full Purchase Price agreed upon in Section 2, above, and Seller shall assign to
Purchaser the physical damage proceeds of any insurance policies payable to
Seller, or Seller's portion of any condemnation award, in both cases, up to the
amount of the Purchase Price and, if an insured casualty, pay to Purchaser the
amount of any deductible under Seller's insurance coverage, but not to exceed
the amount of the loss.
7.3 TERMINATION. If Purchaser timely delivers a Material
Event Termination Notice pursuant to Section 7.1, above, and if Purchaser is
not, on the date of such delivery, in material default under the Agreement, the
Deposit shall be returned to Purchaser and the parties shall have no further
obligations hereunder except for the Surviving Obligations.
8. NOTICES. Any notice required or permitted to be given hereunder
must be in writing and shall be deemed to be given (a) upon confirmed receipt if
given by facsimile transmission, PROVIDED that (i) such transmission is
completed at or prior to 5:00 p.m. Washington, D.C. time, on the date
transmitted, and (ii) an original of such notice is also delivered pursuant to
one of the methods described in Subsections 8(b) and 8(c), below, for scheduled
delivery on the next business day, or (b) one (1) business day after pickup by
Xxxxx Air Freight, United Parcel Service (Overnight) or Federal Express, or
another similar overnight express service, or (c) upon receipt if delivered by
local messenger, in any case addressed to the parties at their respective
addresses set forth below:
22.
If to Seller: c/o DuPont Fabros Development LLC
0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Lammot J. du Pont
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxx Godward LLP
00000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxxx Xxxxxx
Managing Director
Eastdil Realty Company
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X., 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Purchaser: Harvard Property Trust, LLC
0000 X. Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx, L.L.P.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
or in each case to such other address as either party may from time to time
designate by giving notice in writing pursuant to this Section 8 to the other
party. Notices shall be deemed effective if given by counsel to either party on
behalf of such party. Effective notice will be deemed given only as provided
above, except as otherwise expressly provided in this Agreement.
9. CLOSING AND ESCROW.
9.1 SELLER'S DELIVERIES. Seller shall deliver as to their
respective Property either at the Closing or by making available at the
Property, as appropriate, the following original documents, if available, each
executed and, if required, acknowledged:
23.
9.1.1 A special warranty deed, in the form attached
hereto as Exhibit 9.1.1 (the "DEED"), subject to the Permitted Exceptions and
other matters reasonably approved in writing by Purchaser or Purchaser's
counsel.
9.1.2 A xxxx of sale in the form attached hereto as
Exhibit 9.1.2 (the "XXXX OF SALE"), conveying the Personal Property to
Purchaser.
9.1.3 (i) Originals (or copies if originals are not
available) of the Leases described in Section 1.1.6 which are still in effect as
of Closing and any new Leases entered into pursuant to Section 4.4; (ii) a
current listing of any tenant security deposits and prepaid rents held by Seller
with respect to the Property; (iii) an assignment of such Leases, deposits and
prepaid rents by way of an assignment and assumption agreement in the form
attached hereto as Exhibit 9.1.3.
9.1.4 (i) Originals (or copies if originals are not
available) of all Contracts relating to the Property which Purchaser is required
or has elected to assume (explicitly or implicitly in accordance with the terms
of this Agreement); and (ii) an assignment of such Contracts to Purchaser by way
of an assignment and assumption agreement, in the form attached hereto as
Exhibit 9.1.4.
9.1.5 An assignment of all transferable warranties and
guarantees then in effect, if any, with respect to the Improvements or any
repairs or renovations to such Improvements and the Personal Property being
conveyed hereunder, in the form attached hereto as Exhibit 9.1.5.
9.1.6 All books and records at the Property held by or
for the account of Seller, including without limitation plans and specifications
and lease applications, as available.
9.1.7 An affidavit pursuant to the Foreign Investment
and Real Property Tax Act, in the form attached hereto as Exhibit 9.1.7.
9.1.8 Any documents reasonably required from, and
approved as to form and substance by, Seller as a condition precedent to the
issuance of the Title Policy in the form contemplated by the Title Commitment.
9.1.9 A settlement statement.
9.1.10 A certification in the form of Exhibit 9.1.10,
certifying for the benefit of Purchaser that the representations and warranties
made in Section 5.1 hereof are true and accurate on the Date of Closing as if
then made; PROVIDED however, that if between the Effective Date and the Date of
Closing: (a) facts are discovered by Seller; or (b) events not within Seller's
control occur, which facts or events preclude Seller from being able to provide
such certification without qualification, Seller's failure to provide the
certification without qualification shall constitute a failure of condition to
Closing and not a breach of this Agreement, and Purchaser's sole remedies in
such event, exercisable at Purchaser's sole option, shall be to either: (i)
waive the condition and proceed to Closing, in which event Seller shall deliver
the qualified certificate; or (ii) terminate this Agreement and obtain a return
of the Deposit.
24.
9.1.11 To the extent received by Seller, all Estoppel
Certificates from tenants of the Property and all Seller Certificates that
Seller desires to deliver.
9.1.12 Transfer and recordation tax declarations, or
other similar documents required to be executed in connection with the
recordation of the Deed.
9.1.13 Tenant notification letters, in the form
attached hereto as Exhibit 9.1.13, to the tenants under the Leases, notifying
such tenants that the Property has been conveyed to Purchaser and directing the
tenants to make all payments of rent and to send any notices or other
correspondence regarding their respective Leases to the persons and addresses to
be determined by Purchaser and specified in each such letter, on and after the
Date of Closing.
9.1.14 All of Seller's property files located at the
Property and relating to the operation of the Property and all keys to the
Improvements and all utility, storage and equipment rooms located thereon.
9.1.15 Evidence of Seller's authority reasonably
acceptable to the Title Company to enter into the transaction contemplated by
this Agreement.
9.2 PURCHASER'S DELIVERIES. At the Closing, Purchaser shall
(i) pay Seller the Purchase Price as required by, and in the manner described
in, Section 2 hereof, and (ii) execute and deliver the following documents:
9.2.1 An assignment and assumption agreement with
respect to the Leases in the form attached hereto as Exhibit 9.1.3.
9.2.2 An assignment and assumption agreement with
respect to the Contracts, in the form attached hereto as Exhibit 9.1.4.
9.2.3 Such documents in a form reasonably acceptable
to the Title Company as are required as a condition precedent to the issuance of
the Title Policy in the form agreed to (or which Purchaser has been deemed to
have agreed to) by Purchaser in accordance with this Agreement, and otherwise in
the form contemplated by the Title Commitment.
9.2.4 A settlement statement.
9.2.5 A certification in the form of Exhibit 9.2.5,
certifying for the benefit of Seller that the representations and warranties
made in Section 5.2 hereof are true and accurate on the Date of Closing as if
then made; PROVIDED HOWEVER, that if between the Effective Date and the Date of
Closing: (a) facts are discovered by Purchaser, or (b) events not within
Purchaser's control occur, which facts or events preclude Purchaser from being
able to provide such certification without qualification, Purchaser's failure to
provide the certification without qualification shall constitute a failure of
condition to Closing and not a breach of this Agreement, and Seller's sole
remedies in such event, exercisable at Seller's sole option, shall be to either:
(i) waive the condition and proceed to Closing, in which event Purchaser shall
deliver the qualified certificate, or (ii) terminate this Agreement and
Purchaser shall receive the Deposit from the Title Company.
25.
9.2.6 Evidence of Purchaser's authority reasonably
acceptable to the Title Company to enter into the transaction contemplated by
this Agreement.
9.2.7 Transfer and recordation tax forms, or other
similar documents required to be executed in connection with the recordation of
the Deed.
9.3 POSSESSION. Purchaser shall be entitled to possession of
the Property at the conclusion of the Closing.
9.4 INSURANCE. Seller shall terminate its policies of
insurance as of noon on the Date of Closing, at which
point the risk of loss shall pass to Purchaser and Purchaser shall be
responsible for obtaining its own insurance thereafter.
9.5 CONDITIONS PRECEDENT TO CLOSING.
9.5.1 PURCHASER'S CONDITIONS. Purchaser's obligation
to consummate Closing pursuant to this Agreement is conditioned upon the
satisfaction (or waiver by Purchaser) of the following conditions on and as of
the Date of Closing:
A. Seller shall have performed and satisfied its
obligations under this Agreement in all material respects.
B. The representations and warranties of Seller shall be
true and correct in all material respects.
9.5.2 SELLER'S CONDITIONS. Seller's obligation to
consummate Closing pursuant to this Agreement is conditioned upon the
satisfaction (or waiver by Seller) of the following conditions on and as of the
Date of Closing:
A. Purchaser shall have performed and satisfied its
obligations under this Agreement in all material respects.
B. The representations and warranties of Purchaser shall be
true and correct in all material respects.
9.5.3 FAILURE OF CONDITION. In the event that any
condition set forth in Sections 9.5.1, above, or 9.5.2, above, is not satisfied
by Seller or waived by Purchaser or satisfied by Purchaser or waived by Seller,
as the case may be, on or as of the Date of Closing, the sole right of Purchaser
and Seller, as applicable, shall be to either (a) terminate this Agreement by
delivering written notice of such termination to the other party on or prior to
the Date of Closing, in which event the Deposit shall be returned to Purchaser
and the parties shall have no further obligations or liabilities hereunder,
except for the Surviving Obligations, (b) waive the satisfaction of such
condition or conditions and proceed to Closing in accordance with and subject to
the terms of this Agreement.
26.
10. DEFAULT.
10.1 PURCHASER DEFAULT. If Purchaser shall fail or refuse to
purchase the Property in violation of Purchaser's obligations hereunder for any
reason other than a default by Seller or a failure of condition under this
Agreement, or shall otherwise be in default of its obligations hereunder, Seller
shall have as its sole and exclusive remedy the right to terminate this
Agreement and retain the full amount of the Deposit (in addition to the
Performance Deposit) and all interest earned thereon. Seller and Purchaser
acknowledge and agree that (a) it would be extremely difficult to accurately
determine the amount of damages suffered by Seller as a result of Purchaser's
default hereunder; (b) the amount of the Deposit and the Performance Deposit
constitutes a fair and reasonable amount to be received by Seller as agreed and
liquidated damages for Purchaser's default under this Agreement, as well as a
fair, reasonable and customary amount to be paid as liquidated damages to a
seller in an arm's length transaction of the type contemplated by this Agreement
upon a default by the purchaser thereunder; and (c) receipt by Seller of the
Deposit (in addition to the Performance Deposit) upon Purchaser's default
hereunder shall not constitute a penalty or a forfeiture.
10.2 SELLER DEFAULT. If Seller shall refuse or fail to convey
the Property to Purchaser in violation of Seller's obligations hereunder for any
reason other than a default by Purchaser under this Agreement, or shall
otherwise be in default of its obligations hereunder, Purchaser shall have as
its sole remedies hereunder the right to: (a) terminate this Agreement and
receive a return of the Deposit and the Performance Deposit, or (b) seek
specific performance of this Agreement, or (c) waive such breach or default and
proceed to Closing. In the event that Purchaser elects to seek specific
performance under Section 10.2(b), above, Purchaser hereby agrees that: (i)
Purchaser shall bring such action within sixty (60) days after the scheduled
Date of Closing, or else such remedy shall be deemed waived; and (ii) in no
event shall Seller be obligated to undertake any action, liability or duty not
expressly set forth in this Agreement. If Purchaser shall not institute an
action for specific performance within sixty (60) days after the scheduled Date
of Closing, time being of the essence, and Purchaser has not then elected to
waive such default by Seller, Purchaser shall be deemed to have elected to
exercise the remedy set forth in Section 10.2(a), above.
10.3 ATTORNEYS' FEES. Notwithstanding anything to the
contrary in this Agreement, in the event that either Seller or Purchaser, as the
case may be, shall bring a lawsuit against the other party to enforce their
respective rights under Sections 10.1 and 10.2, above, the losing party shall
pay the prevailing party's costs and expenses incurred in connection with such
litigation, including without limitation reasonable attorneys' fees. The
"PREVAILING PARTY" shall be determined by the court hearing such matter.
11. MISCELLANEOUS.
11.1 ENTIRE AGREEMENT. This Agreement, together with the
Exhibits attached hereto, all of which are incorporated by reference, is the
entire agreement between the parties with respect to the subject matter hereof,
and no alteration, modification or interpretation hereof shall be binding unless
in writing and signed by both parties.
27.
11.2 SEVERABILITY. If any provision of this Agreement or its
application to any party or circumstances shall be determined by any court of
competent jurisdiction to be invalid and unenforceable to any extent, the
remainder of this Agreement or the application of such provision to such person
or circumstances, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
11.3 APPLICABLE LAW. This Agreement shall be construed and
enforced in accordance with the internal laws of Washington, D.C..
11.4 ASSIGNABILITY. Purchaser shall not have the right,
without the prior written approval of Seller, which may be given or withheld in
Seller's sole and absolute discretion, to assign or transfer any of Purchaser's
rights, obligations and interests under this Agreement prior to or at the
Closing. Any assignment made without Seller's prior written approval shall be
void. No assignment shall release Purchaser herein named from any obligation or
liability under this Agreement. Notwithstanding the foregoing, however,
Purchaser may assign this Agreement to an Affiliate without the consent of
Seller. For purposes of this Section 11.4, the term "Affiliate" shall mean: (a)
an entity that controls, is controlled by, or is under common control with
Purchaser, (b) any partnership in which Purchaser or Purchaser's controlling
member is the general partner, or (c) any fund or entity sponsored by Purchaser.
11.5 SUCCESSORS BOUND. This Agreement shall be binding upon
and inure to the benefit of Purchaser and Seller and their respective successors
and permitted assigns.
11.6 NO PUBLIC DISCLOSURE. Prior to Closing, all press
releases or other dissemination of information to the media or responses to
requests from the media for information relating to the transaction contemplated
herein shall be subject to the prior written consent of both parties hereto.
After Closing, this covenant shall terminate and no longer be binding on either
party.
11.7 CAPTIONS; INTERPRETATION. The captions in this Agreement
are inserted only as a matter of convenience and for reference and in no way
define, limit or describe the scope of this Agreement or the scope or content of
any of its provisions. Whenever the context may require, words used in this
Agreement shall include the corresponding feminine, masculine, or neuter forms,
and the singular shall include the plural and vice versa. Unless the context
expressly indicates otherwise, all references to "SECTION" are to sections of
this Agreement.
11.8 NO PARTNERSHIP. Nothing contained in this Agreement
shall be construed to create a partnership or joint venture between the parties
or their successors in interest.
11.9 TIME OF ESSENCE. Time is of the essence in this
Agreement.
11.10 COUNTERPARTS. This Agreement may be executed and
delivered in any number of counterparts, each of which so executed and delivered
shall be deemed to be an original and all of which shall constitute one and the
same instrument.
28.
11.11 RECORDATION. Purchaser and Seller agree not to record
this Agreement or any memorandum hereof.
11.12 PROPER EXECUTION. The submission by Seller to Purchaser
of this Agreement in an unsigned form shall be deemed to be a submission solely
for Purchaser's consideration and not for acceptance and execution. Such
submission shall have no binding force and effect, shall not constitute an
option or an offer, and shall not confer any rights upon Purchaser or impose any
obligations upon Seller irrespective of any reliance thereon, change of position
or partial performance. The submission by Seller to Purchaser of this Agreement
for execution by Purchaser and the actual execution thereof and delivery to
Seller by Purchaser shall similarly have no binding force and effect on Seller
unless and until Seller shall have executed this Agreement and the Deposit shall
have been received by the Title Company.
11.13 TIME TO EXECUTE AND DELIVER. This Agreement shall be
void if one fully executed copy of this Agreement is not received by Seller, on
or before 5:00 p.m. Washington, D.C. time, on May 5, 2004.
11.14 LIABILITY OF SELLER. It is hereby expressly agreed that
any liability by Seller arising hereunder, for any reason whatsoever, shall be
limited to Seller's interests in and to the Property. It is further hereby
expressly agreed that in no event shall any officer, director, employee, agent
or representative of Seller has any personal liability in connection with this
Agreement or the transaction envisioned herein.
11.15 WAIVER. No waiver of any breach of any agreement or
provision contained herein shall be deemed a waiver of any preceding or
succeeding breach of any other agreement or provision herein contained. No
extension of time for the performance of any obligation or act shall be deemed
an extension of time for the performance of any other obligation or act.
11.16 SELLER'S PERFORMANCE. The delivery by Seller of the Deed
and the Xxxx of Sale to the Title Company shall be deemed to be a full
performance and discharge of every agreement and obligation of Seller herein
contained and expressed, all of which agreements and obligations shall merge
with the Deed and Xxxx of Sale and thereafter be of no further force and effect,
except as such are, by the express terms hereof, to survive Closing and the
delivery of such instruments.
11.17 TITLE COMPANY. In performing any of its duties
hereunder, the Title Company shall not incur any liability to anyone for any
damages, losses or expenses, except for those arising out of its willful
default, gross negligence or breach of trust, and the Title Company shall
accordingly not incur any such liability with respect (a) to any action taken or
omitted in good faith upon advice of its counsel, or (b) to any action taken or
omitted in reliance upon any written notice or instruction provided for in this
Agreement. Seller and Purchaser hereby agree to indemnify and hold harmless the
Title Company from and against any and all losses, claims, damages, liabilities
and expenses, including reasonable attorneys' fees, which may be incurred by the
Title Company in connection with its acceptance or performance of its duties
hereunder, including any litigation arising from this Agreement or involving the
subject matter hereof, except in the case of Title Company's willful default,
gross negligence or breach of trust. In the
29.
event of a dispute between Seller and Purchaser sufficient in the discretion of
the Title Company to justify its doing so, the Title Company shall be entitled
to tender into the registry or custody of any court of competent jurisdiction
the Deposit and all other money or property in its hands under this Agreement,
together with such legal pleadings as it deems appropriate, and thereupon be
discharged from all further duties and liabilities under this Agreement.
11.18 BUSINESS DAYS. If any date herein set forth for the
performance of any obligations by Seller or Purchaser or for the delivery of any
instrument or notice as herein provided should fall on a Saturday, Sunday or
Legal Holiday (hereinafter defined), the compliance with such obligations or
delivery shall be deemed acceptable on the next business day following such
Saturday, Sunday or Legal Holiday. As used herein, the term "LEGAL HOLIDAY"
shall mean any local or federal holiday on which post offices are closed in the
jurisdiction in which the Property is located.
11.19 SURVIVING OBLIGATIONS. The term "SURVIVING OBLIGATIONS",
as used herein shall mean, collectively, the Indemnity Obligations, defined in
Section 3.1.3, above, the Confidentiality Obligations, defined in Section 3.6,
above, and the Broker Obligations, defined in Section 5.3, above, together with
any other obligations of the parties which expressly survive the termination of
this Agreement for any reason.
11.20 SOIL CONDITIONS. In accordance with the provisions of
ss.45-308 of the District of Columbia Code, according to the "SOIL SURVEY OF
DISTRICT OF COLUMBIA" (issued July, 1976), the condition of the soil of the Real
Property is that of "URBAN LAND-NOT RATED." Further information concerning the
characteristic of the soil on the Real Property may be obtained from a soil
testing laboratory, the District of Columbia Department of Environmental
Services or the Soil Conservation Service of the Department of Agriculture.
11.21 UNDERGROUND STORAGE TANKS. Purchaser hereby acknowledges
receipt, prior to entering into this Agreement, of a disclosure by the Seller as
to any underground storage tanks located on the Property of which Seller has
knowledge and Purchaser acknowledges that Seller has disclosed to Purchaser that
there has been no removal of any underground storage tanks during the xxxx
Xxxxxx has owned the Property. Purchaser acknowledges that such disclosure has
been provided in compliance with the D.C. Underground Storage Tank Management
Act of 1990, as amended. The form of disclosure is set forth in Exhibit 11.18
attached hereto.
[SIGNATURES ON NEXT PAGE]
30.
9 IN WITNESS WHEREOF, Purchaser and Seller has executed this Agreement on
the dates set forth below, effective as of the date first set forth above.
SELLER:
HIPPO PROPERTIES LLC
BY: HIPPO VENTURES LLC, MANAGER
BY: HIPPO MANAGEMENT LLC, MANAGER
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx, Managing Member
PURCHASER:
HARVARD PROPERTY TRUST, LLC
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
EXHIBIT 1.1.1
LEGAL DESCRIPTION
All that certain lot or parcel of land situate and lying in Washington,
D.C. and more particularly described as follows:
Lot numbered 60 in Square numbered 252 in a subdivision made by Xxxxxx
X. Xxxxx, as per plat recorded in Liber 27 at folio 66 in the Office of
the Surveyor for the District of Columbia
EXHIBIT 1.1.3
INVENTORY OF PERSONAL PROPERTY
All furniture, personal property, machinery, apparatus, and equipment
currently used in the operation, repair and maintenance of the Land and the
Improvements and situated thereon, (excluding, however, tangible personal
property and fixtures of the Improvements which are owned by tenants or which
may be removed by tenants under the terms of their leases) listed below, subject
to reasonable depletions, replacements and additions in the ordinary course of
Seller's business:
[See attached Schedule of Personal Property]
SCHEDULE OF PERSONAL PROPERTY
LADDERS
-------
1 - 8 foot Aluminum
2 - 6 foot Aluminum
1 - 4 foot Aluminum
1 - 10 foot Wood
2 - 8 foot Wood
1 - 25 foot Extension (Aluminum)
3 - 6 foot wood
KEY CABINET
-----------
Key Master 120
COMPUTER
--------
COMPAQ DESPRO Serial # 6843-CCP2-0246
w/ H.P. Printer - Laser Jet 1100
KEY MACHINE
-----------
Speed Ex Model # S-160M
w/ Lab pin set HLP LPK 005
1 - XXXXXXX Tempt. Recorder Mod # B4-7
( 2 Desk, 2 File Cabinets, 8 each foot - fridge 3 chairs
SCAFFOLDS
---------
1 - Steel Platform - 6 height x 3 width
200 feet of 1 inch Rubber Hose w/ HANNAY REEL # AT1200
1 - Paint Locker 60 gal. cap. - EAGLE model # 1962
2 - 4 foot Hand Trucks
2 - Furniture Dollies
1 - WESCO Long Ram Xxxx model # 17-02-1616-5W488
2 - Rubber Maid Trash Cart - 8.7 cu. ft.
1 - Salt Spreader April - February #125
2 - Rubber Maid Trash Carts - 18.3 cu. ft.
5 - Snow Shovels
1 - Vice - Wilton #645
1 - Grinder - B & D 5/8 hp.
2 - Wet Vacs- Dayton model # 62098E
1 - Power Washer- NorthStar, 3000 PSI, model # 156701/156702
3 - 4 Drawer- File Cabinets
3 - Metal Parts Bins
1 - Light Bulb Cart
1 - Electric Cart
1 3/4 in. E.M.T. Xxxxxx
1 - 1/2 in. E.M.T. Xxxxxx
2.
1 - Dewalt Cordless Drill model # DW953
1 - Skil1/2in. Drill model # 6345
1 - B & D 3/8 in. drill model # 7190
1 - 18 in Ridge pipe wrenches
1 - 24 in Ridge pipe wrenches
2 - 10 in Ridge pipe wrenches
1 - 14 in Ridge pipe wrenches
1 Skill 18 volt cordless drill
1 - Metal Snips set craftsman model # 9 - 42707 (3 pc. set)
1 Digital pyrometer by Check - It (- 40(Degree) to 1999(Degree) F.)
1 - Amprobe Tempt Recorder
1 - Amprobe Volt Tester
1 - 16 Craftsman Screwdrivers assorted
2 - 24oz. Hammers
3 - Drill bit sets -1/2in. to 1/16 in.
1 - 14 pcs. Wrenches set
1 - Plumbers Torch Adjustable Wrenches 1 - 10in., 1 - 8 in., 1 - 6 in.
3 - 10 in. Channel Lock Pliers
2 - Bulbs Changer Extension Poles - 12 ft. & 16 ft.
1 - Refrigerator Pressure gauges
2 - Toilet Auger
3 - Plungers (Toilet)
1 - 4 cu. ft. Refrigerator
1 24 in level
1 Acetylene Torch
1 Amano Timeclock
1 24 inch T-Square
1 30lb's R-22 refridgerant
1 24in Bolt cutters
1 100ft electric fish tape
1 50ft electric fish tape
Management Office
1 Sony video surveillance monitor and recorder
3.
EXHIBIT 1.1.6
SCHEDULE OF LEASES AND SECURITY DEPOSITS
[Attached]
EXHIBIT 1.2.2
LIST OF ENVIRONMENTAL REPORTS
Phase I Environmental Site Assessment, created by EMG, EMG Corporate Center,
00000 XxXxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 (410) 785-6200; EMG Project No.
83811, dated July 31, 2001, On-Site Date of July 27, 2001, addressed to DuPont
Fabros Development, LLC
EXHIBIT 3.3
SCHEDULE OF CONTRACTS
[See attached Schedule of Contracts]
THE COLORADO BUILDING
Schedule Of Contracts
CONTRACT SERVICE
Capitol Concierge, Inc. Concierge
Xxxxxxxx Xxxxxx Industries Waste Removal
Admiral Security Services Security
Emcor Services HVAC Maintenance
National Fire Safety Engineering, Inc. Fire Life Safety
(Allied Fire Protection) has taken over the contract
Express Cleaning Janitorial & Day Xxxxxx
Xxxxxxx Krutt Elevator Maintenance
Xxxxx & Xxxxx Property Management
ADDITIONAL CONTRACTS:
TRICON CHEMICAL CORP WATER TREATMENT
OWL PEST PREVENTION PEST CONTROL
XXXXXX XXXX METAL MAINTENANCE
2.
EXHIBIT 4.5
FORM OF TENANT ESTOPPEL CERTIFICATE
______________________
______________________
______________________
Re: 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. (the "PROPERTY")
Ladies and Gentlemen:
We understand that you have agreed to acquire the Property and in
connection therewith have requested this certification from us. The undersigned
("TENANT") is the tenant under that certain lease agreement dated as of
___________ ____ (the "INITIAL LEASE") between _______________________
("LANDLORD"), and Tenant for certain space (the "PREMISES") at the Property. The
Initial Lease, as modified by the following amendments, if any, is hereinafter
referred to as the "LEASE": __________________________.
Tenant hereby certifies to you, your designee and your respective
successors and assigns as follows:
1. The Lease contains the complete agreement between Landlord and
Tenant concerning the Premises. Attached hereto as Attachment A is a true,
correct and complete copy of the Lease.
2. The Premises contains __________ square feet of rentable area.
3. Tenant has deposited with Landlord a security deposit in the
amount of $___________ pursuant to the terms of the Lease. No security held in
connection with the Lease has been drawn against for rent due or for any other
purpose, except as follows: _____________________.
4. Tenant has accepted possession of the Premises and is now in
possession of the same. The term of the Lease began on ___________, _____ and
the term expires on __________________ (excluding renewal periods).
5. The Annual Base Rent payable by Tenant under the Lease during
the current lease year is $_________ per year. All rent and other charges have
been paid currently. Tenant has not paid, and will not hereafter pay, any rent
more than one (1) month in advance.
6. The Premises have been built-out in accordance with the terms of
the Lease. All work to be performed by Landlord under the Lease has been
performed, and Tenant has accepted all such work. All required contributions (if
any) by Landlord to Tenant have been received or waived.
7. Tenant asserts no claim of offset, defense, or counterclaim to
the payment of any rent or other charges payable under the Lease and no claim
against Landlord with regard to any obligation of Landlord under the Lease.
8. Tenant has not been granted and has not exercised any options or
rights of expansions, purchase or first refusal, or options or rights to renew,
amend, modify or change the term, except as set forth in the Lease.
9. Tenant has not filed and is not the subject of any pending or
actual filing for bankruptcy or reorganization.
The person signing this certificate on behalf of Tenant is a duly
authorized agent of Tenant. This certificate may be relied on by you and your
designee and your respective successors and assigns.
TENANT:
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Note: If any blank lines appear in this Certificate after execution by Tenant,
the word "NONE" shall be deemed to have been inserted therein.
2.
EXHIBIT 5.1.6
LIST OF LITIGATION
None.
EXHIBIT 9.1.1
SPECIAL WARRANTY DEED
________________________________, a __________________________
("GRANTOR"), having an address ______________________________________________,
_________, _________________, for and in consideration of the sum of Ten and
No/100 Dollars ($10.00) paid to Grantor and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
has, subject to the exceptions hereinafter set forth, GRANTED, SOLD, and
CONVEYED and does hereby GRANT, SELL, and CONVEY with Special Warranty unto
_________________________, a _________ ("GRANTEE"), having an address of
________________________________________, certain land located at
__________________ _______________________________________, Washington, D.C.,
and being more particularly described in Exhibit A attached hereto and
incorporated herein by reference (the "LAND"), together with all improvements
located on such land, including without limitation the building, parking areas,
improvements and fixtures now situated on the Land, including without limitation
the below grade and grade-level parking facilities located thereon and
thereunder (collectively, the "IMPROVEMENTS") (the Land and Improvements being
together referred to as the "PROPERTY").
This conveyance is made and accepted subject to all easements,
conditions and restrictions of record.
TO HAVE AND TO HOLD the Property, together with all easements,
hereditaments, rights and appurtenances pertaining thereto, including without
limitation any and all of Grantor's right, title and interest in and to
adjoining streets, alleys and rights-of-way, to the extent that any of the
foregoing relate to the Property, unto Grantee and Grantee's successors, heirs,
and assigns forever.
Guarantor covenants that it has the right to convey the Property to
Grantee and that Grantor will execute such further assurances of the Property as
may be requisite.
EXECUTED as of the ______ day of ____________________, 200_.
Attest: ___________________________________________,
a __________________________________________
By:_________________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
DISTRICT OF COLUMBIA ) SS:
I,____________________________, a Notary Public in and for the
jurisdiction aforesaid, do hereby certify that _____________________________,
who is personally well known to me as the person named as attorney-in-fact for
__________________________________________, party to the foregoing instrument
bearing date the ______ day of , 200_, personally appeared before me in such
jurisdiction, and as such attorney-in-fact and by virtue of the authority vested
in him/her by such Instrument, acknowledged such Instrument to be the act and
deed _____________________________ and that (s)he executed and delivered the
same as such.
Witness my hand and official seal this day of , 200_.
Notary Public
[Notarial Seal] My Commission Expires:
EXHIBIT 9.1.2
XXXX OF SALE
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ___________________________, a ___________________, having
an address of ________________________________________ ("SELLER"), hereby convey
to _____________________________, a _________________, having an address of
__________________________ ("PURCHASER"), all of Seller's right, title and
interest in and to all of the furniture, personal property, machinery,
apparatus, and equipment currently used in the operation, repair and maintenance
of the Real Property (excluding, however, tangible personal property and
fixtures which are owned by tenants of the Real Property or which may be removed
by tenants under the terms of their leases), to the extent set forth on Exhibit
A attached hereto and made a part hereof (the "PERSONAL PROPERTY") relating to
certain real property known as __________________________ (the "REAL PROPERTY").
Seller has not made and does not make any express or implied warranty or
representation of any kind whatsoever with respect to the Personal Property,
including but not limited to: title; merchantability of the Personal Property or
its fitness for any particular purpose; the design or condition of the Personal
Property; the quality or capacity of the Personal Property; workmanship or
compliance of the Personal Property with the requirements of any law, rule,
specification or contract pertaining thereto; patent infringement or latent
defects. Purchaser accepts the Personal Property "AS IS AND WHERE IS, WITH ALL
FAULTS".
EXECUTED as of the ______ day of ____________________, 200__.
SELLER:
__________________________________________
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBITS:
A - SCHEDULE OF PERSONAL PROPERTY
EXHIBIT 9.1.3
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, ________________________________, a
________________________, having an address c/o
____________________________________ ("ASSIGNOR"), hereby assigns, transfers and
delegates to ___________________, a _________________________, having an address
of __________________________ ("ASSIGNEE"), and Assignee hereby accepts the
assignment, transfer and delegation of, all of Assignor's right, title and
interest in and to, the leases described on Exhibit A attached hereto (the
"Leases") and the unapplied non-cash security deposits held by Assignor under
and pursuant to the Leases, all of which are listed on Exhibit A attached hereto
(the "SECURITY DEPOSITS"), all of which Leases and Security Deposits relate to
the property known as ________________________________ (the "PROPERTY"), and
Assignee does further hereby agree to assume all of Assignor's duties,
obligations and liabilities under and pursuant to the terms of the Leases from
and after the date hereof. Assignee acknowledges that as to the Security
Deposits, Assignee has received a credit therefor from Assignor at the closing
of Assignee's acquisition of the Property and is therefore responsible for the
proper handling and return of all such Security Deposits to the tenants entitled
thereto as provided in the Leases.
Assignee hereby assumes and agrees to perform, on and after the date
hereof, all of the terms, covenants, obligations and conditions required to be
performed by landlord under the Leases (the "ASSIGNEE OBLIGATIONS"); PROVIDED,
HOWEVER, that, and subject to the provisions of that certain Purchase and Sale
Agreement, dated as of ___________, 2004, by and between Assignor and Assignee
(the "PURCHASE AGREEMENT"), Assignor shall remain responsible for the
performance of all of the terms, covenants, obligations and conditions required
to be performed by landlord under the Leases for the period prior to the date
hereof (the "ASSIGNOR OBLIGATIONS").
Assignee agrees to indemnify, protect, defend and hold Assignor harmless
from and against any and all liabilities, losses, costs, damages and expenses
(including reasonable attorneys' fees) incurred by Assignor as a result of
Assignee's failure to perform the Assignee Obligations. Assignor agrees to
indemnify, protect, defend and hold Assignee harmless from and against any and
all liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees) incurred by Assignee as a result of Assignor's failure to
perform the Assignor Obligations.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such litigation, including without
limitation reasonable attorneys' fees.
This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
Nothing in this Assignment and Assumption of Leases is intended to, or
shall be construed to, confer upon or give to any person, firm or corporation
other than the parties hereto
any right, remedy or claim under or by reason of this instrument. All terms and
conditions in this instrument shall be for the sole and exclusive benefit of the
parties hereto.
EXECUTED as of the ______ day of ____________________, 200__.
ASSIGNOR:
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
ASSIGNEE:
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBITS:
A - LIST OF LEASES AND SECURITY DEPOSITS
EXHIBIT 9.1.4
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, ______________________________, a ______________________,
having an address of _________________________________________ ("ASSIGNOR"),
hereby assigns, transfers and delegates to ________________________, a
______________________, having an address of ________________________________
("ASSIGNEE"), and Assignee hereby accepts the assignment, transfer and
delegation of, all of Assignor's right, title and interest in and to the
contracts described on Exhibit A attached hereto (the "CONTRACTS") relating to
certain real property known as __________________________________, and Assignee
does further hereby agree to assume all of Assignor's duties, obligations and
liabilities under and pursuant to the terms of the Contracts from and after the
date hereof.
Assignee hereby assumes and agrees to perform, on and after the date
hereof, all of the terms, covenants, obligations and conditions required to be
performed by Assignor under the Contracts (the "ASSIGNEE OBLIGATIONS"),
PROVIDED, HOWEVER, that Assignor shall remain responsible for all of the terms,
covenants, obligations and conditions required to be performed by Assignor under
the Contracts prior to the date hereof (the "ASSIGNOR OBLIGATIONS").
Assignee agrees to indemnify, protect, defend and hold Assignor harmless
from and against any and all liabilities, losses, costs, damages and expenses
(including reasonable attorneys' fees) incurred by Assignor as a result of
Assignee's failure to perform the Assignee Obligations. Assignor agrees to
indemnify, protect, defend and hold Assignee harmless from and against any and
all liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees) incurred by Assignee as a result of Assignor's failure to
perform the Assignor Obligations.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such litigation including without
limitation reasonable attorneys' fees.
This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
Nothing in this Assignment and Assumption of Contracts is intended to,
or shall be construed to, confer upon or give to any person, firm or corporation
other than the parties hereto any right, remedy or claim under of by reason by
this instrument. All terms and conditions in this instrument shall be for the
sole and exclusive benefit of the parties hereto.
EXECUTED as of the ______ day of ____________________, 200__.
ASSIGNOR:
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
ASSIGNEE:
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBITS:
A - LIST OF CONTRACTS
EXHIBIT 9.1.5
ASSIGNMENT OF WARRANTIES AND GUARANTIES
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, ______________________, a ____________________, having an
address c/o ____________________________________________ ("ASSIGNOR"), hereby
assigns and delegates to _________________________, a ___________________,
having an address of ____________________________ ("ASSIGNEE"), all of
Assignor's right, title and interest in and to all transferable warranties and
guarantees, if any, with respect to (a) the improvements located on certain real
property known as ____________________ (the "PROPERTY"), (b) any repairs or
renovations to such improvements, or (c) any personal property conveyed to
Assignee by Assignor in connection with the sale of the Property.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such litigation including without
limitation reasonable attorneys' fees.
This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
Nothing in this Assignment and Assumption of Warranties is intended to,
or shall be construed to, confer upon or give to any person, firm or corporation
other than the parties hereto any right, remedy or claim under of by reason by
this instrument. All terms and conditions in this instrument shall be for the
sole and exclusive benefit of the parties hereto.
EXECUTED as of the ______ day of ____________________, 200__.
ASSIGNOR:
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
ASSIGNEE:
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT 9.1.7
FIRPTA AFFIDAVIT
The undersigned hereby declares that the name, address and United States
taxpayer identification number of the owner of the real property described in
Exhibit "A" attached hereto and incorporated herein by reference is as follows:
Name and Address I.D. Number
The owner is a limited partnership organized and existing under the laws
of the State of ___________________, and as such, is not a foreign citizen or
entity.
The undersigned understands that the purchaser of the property intends
to rely on the foregoing representations in connection with the United States
Foreign Investment and Real Property Act.
SELLER:
By:_______________________________________
Name:
Title:
EXHIBITS:
A-LEGAL DESCRIPTION OF PROPERTY
EXHIBIT 9.1.10
FORM OF SELLER'S CERTIFICATE
THIS SELLER'S CERTIFICATE ("CERTIFICATE") is made as of the ____ day of
_______, 200__ by _____________________________________, a ____________________
("SELLER") for the benefit of ____________________, a
___________________________ ("PURCHASER").
RECITALS:
R-1. Reference is hereby made to that certain Purchase and Sale
Agreement dated ________________, 200__ (the "AGREEMENT"), wherein Seller has
agreed to sell certain property described therein to Purchaser, which property
is known generally as ______________________.
R-2. The Agreement contains certain representations and warranties
(the "REPRESENTATIONS AND WARRANTIES") made by the Seller to and for the benefit
of Purchaser.
R-3. The Agreement also provides that Seller shall execute and
deliver a certificate stating that the Representations and Warranties of Seller
set forth in the Agreement are true and correct as of the Date of Closing (as
defined in the Agreement) as if then made.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
and covenants made by Purchaser and Seller to one another in the Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller hereby (a) agrees that the recitals set forth above
are incorporated herein as an integral part hereof, and (b) certifies,
represents and warrants to and for the benefit of Purchaser that all of the
Representations and Warranties made by Seller in the Agreement are true and
correct in all material respects as of the date hereof.
IN WITNESS WHEREOF, Seller has executed and delivered this Certificate
as of the day and year first hereinabove written.
SELLER:
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT 9.1.13
FORM OF TENANT NOTIFICATION LETTER
Date: _______________, 200__
____________________________
____________________________
Attn: ______________________
Re: __________________________________________(the "BUILDING")
Dar Sir/Madame:
This will advise you that the undersigned
_________________________________ ("SELLER") have sold the Building to
____________________________ ("PURCHASER") effective as of _____________, 200__
(the "CLOSING DATE"). Please make all future rent checks payable to Purchaser
and send such checks, and any future notices or other correspondence relating to
your lease of space in the Building, to Purchaser, at the following address:
_________________________________________
_________________________________________
_________________________________________
All rent payments which were due, but not paid, prior to the Closing
Date should be sent to Seller.
If you have any questions, please call the undersigned at (___)
___-____.
Sincerely,
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT 9.2.5
FORM OF PURCHASER'S CERTIFICATE
THIS PURCHASER'S CERTIFICATE ("CERTIFICATE") is made as of the ____ day
of __________, 200__, by __________________________, a _________________________
("PURCHASER") for the benefit of _______________________, a
________________________ ("SELLER").
RECITALS:
R-1. Reference is hereby made to that certain Purchase and Sale
Agreement dated ______________, 200__ (the "AGREEMENT"), wherein Seller has
agreed to sell certain property described therein to Purchaser, which property
is known generally as ____________________________________.
R-2. The Agreement contains certain representations and warranties
(the "REPRESENTATIONS AND WARRANTIES") made by the Purchaser to and for the
benefit of Seller.
R-3. The Agreement also provides that Purchaser shall execute and
deliver a certificate stating that the Representations and Warranties of
Purchaser set forth in the Agreement are true and correct as of the Date of
Closing (as defined in the Agreement) as if then made.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
and covenants made by Purchaser and Seller to one another in the Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser hereby (a) agrees that the recitals set forth
above are incorporated herein as an integral part hereof, and (b) certifies,
represents and warrants to and for the benefit of Seller that all of the
Representations and Warranties made by Purchaser in the Agreement are true and
correct in all material respects as of the date hereof.
IN WITNESS WHEREOF, Purchaser has executed and delivered this
Certificate as of the day and year first hereinabove written.
__________________________________________
By: ______________________________________
Name:_____________________________________
Title:____________________________________
TABLE OF CONTENTS
PAGE
1. THE PROPERTY..................................................................................................1
1.1 Description.........................................................................................1
1.2 "As-Is" Purchase....................................................................................2
1.3 Agreement to Convey.................................................................................4
2. PRICE AND PAYMENT.............................................................................................5
2.1 Purchase Price......................................................................................5
2.2 Deposit.............................................................................................5
2.3 Payment.............................................................................................6
2.4 Closing.............................................................................................6
3. INSPECTIONS AND APPROVALS.....................................................................................6
3.1 Access..............................................................................................6
3.2 Title and Survey....................................................................................9
3.3 Contracts..........................................................................................11
3.4 Permitted Exceptions...............................................................................11
3.5 Purchaser's Right to Terminate.....................................................................12
3.6 Confidentiality....................................................................................12
4. PRIOR TO CLOSING.............................................................................................13
4.1 Insurance..........................................................................................13
4.2 Operation..........................................................................................13
4.3 New Contracts......................................................................................13
4.4 New Leases.........................................................................................14
4.5 Tenant Estoppels...................................................................................14
5. REPRESENTATIONS AND WARRANTIES...............................................................................15
5.1 By Seller..........................................................................................15
5.2 By Purchaser.......................................................................................16
5.3 Broker.............................................................................................17
6. COSTS AND PRORATIONS.........................................................................................17
6.1 Purchaser's Costs..................................................................................17
6.2 Seller's Costs.....................................................................................18
6.3 Prorations.........................................................................................18
6.4 Security Deposits..................................................................................19
6.5 Taxes..............................................................................................19
6.6 Contracts/Permitted Exceptions.....................................................................19
6.7 Purchaser's Obligation to Pay Certain Costs........................................................19
6.8 Estimated Amounts..................................................................................20
6.9 Utility Deposits...................................................................................21
6.10 Post-Closing Collections..........................................................................21
6.11 In General........................................................................................21
6.12 Purpose and Intent................................................................................21
7. DAMAGE, DESTRUCTION OR CONDEMNATION..........................................................................22
7.1 Material Event.....................................................................................22
7.2 Immaterial Event...................................................................................22
7.3 Termination........................................................................................22
8. NOTICES......................................................................................................22
9. CLOSING AND ESCROW...........................................................................................23
9.1 Seller's Deliveries................................................................................23
9.2 Purchaser's Deliveries.............................................................................25
9.3 Possession.........................................................................................26
9.4 Insurance..........................................................................................26
9.5 Conditions Precedent to Closing....................................................................26
10. DEFAULT.....................................................................................................27
10.1 Purchaser Default.................................................................................27
10.2 Seller Default....................................................................................27
10.3 Attorneys' Fees...................................................................................27
11. MISCELLANEOUS...............................................................................................27
11.1 Entire Agreement..................................................................................27
11.2 Severability......................................................................................28
11.3 Applicable Law....................................................................................28
11.4 Assignability.....................................................................................28
11.5 Successors Bound..................................................................................28
11.6 No Public Disclosure..............................................................................28
11.7 Captions; Interpretation..........................................................................28
11.8 No Partnership....................................................................................28
11.9 Time of Essence...................................................................................28
11.10 Counterparts.....................................................................................28
11.11 Recordation......................................................................................29
11.12 Proper Execution.................................................................................29
11.13 Time to Execute and Deliver......................................................................29
11.14 Liability of Seller..............................................................................29
11.15 Waiver...........................................................................................29
11.16 Seller's Performance.............................................................................29
11.17 Title Company....................................................................................29
11.18 Business Days....................................................................................30
11.19 Surviving Obligations............................................................................30
11.20 Soil Conditions..................................................................................30
11.21 Underground Storage Tanks........................................................................30
TABLE OF CONTENTS
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