EXHIBIT 10.20
AGREEMENT OF PURCHASE AND SALE
[201 Xxxxxxx Ave West, Seattle, WA]
This agreement of purchase and sale ("Agreement") is made as of the 3rd
day of June 2004 ("Effective Date") between Elliott Park LLC, a Washington
limited liability company ("Seller"), and Xxxxxxxx Property Advisors, Inc., a
California corporation ("Purchaser").
Subject to the terms and conditions of this Agreement, Seller will sell
to Purchaser, and Purchaser will purchase from Seller, a five-story story office
building located at 000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx (such building
and other property is defined below as the "Property"). Seller owns the
adjoining building and related property located at 000 Xxxxxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxx (the "Adjoining Property"). The Property and the Adjoining
Property will share access and certain facilities pursuant to a reciprocal
easement and use agreement substantially in the form of EXHIBIT B ("REA"),
subject to the provisions of Section 3.6 below. In addition, the Property and
the Adjoining Property are security for an existing loan in the original
principal amount of $25 million from Prudential Insurance Company of America
("Prudential") to Seller, as borrower (the "Existing Loan"). In order to
facilitate this sale, Seller made a request to Prudential that the Existing Loan
be divided into two separate loans, one encumbering only the Property, and the
other one encumbering only the Adjoining Property.
ARTICLE 1. PROPERTY/PURCHASE PRICE
1.1. Property. Subject to the terms and conditions of this
Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase
from Seller, the following property (collectively, the "Property"):
(a) The "Real Property," being the land described in
EXHIBIT A attached hereto, containing approximately 52,100 square feet; all
improvements and fixtures (other than fixtures owned by tenants pursuant to the
Leases) located thereon, including but not limited to a five-story office
building located on such land (the "Improvements"); all and singular the rights,
benefits, privileges, easements, tenements, hereditaments, and appurtenances
thereon or in anywise appertaining to such real property (including, without
limitation, those appurtenances established under the REA); and all right,
title, and interest of Seller in and to all strips and gores and any land lying
in the bed of any street, road or alley, open or proposed, adjoining such real
property. The Real Property and the Personal Property shall exclude the boiler
on the Property, and the pipes connecting to such boiler, that serves the
Adjoining Property (the "Adjoining Property Boiler"). Seller shall retain
ownership of the Adjoining Property Boiler.
(b) The landlord's interest in the "Leases," being all
leases and subleases of space or other occupancy agreements affecting the
Improvements, including leases or occupancy agreements which may be made by
Seller after the date hereof and before Closing as permitted by this Agreement,
and any and all amendments and supplements thereto, and any and all guaranties
and security received by landlord in connection therewith.
(c) The "Personal Property," being all right, title and
interest of Seller in and to all tangible personal property now or hereafter
used exclusively in connection with the operation, ownership, maintenance,
management, occupancy or improvement of the Real Property including without
limitation: equipment; machinery; furniture; art work; furnishings;
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office equipment and supplies stored onsite, excluding cash and deposits, bonds
or other security.
(d) The "Intangible Property," being all, right, title
and interest of Seller, if any, in and to all intangible personal property now
or hereafter used exclusively in connection with the operation, ownership,
maintenance, management, or occupancy of the Real Property, including without
limitation: the name "Elliott Park North"; the plans and specifications for the
Improvements; warranties, indemnities, applications, permits, approvals and
licenses (to the extent applicable in any way to the above referenced Real
Property or the Personal Property and assignable); and insurance proceeds and
condemnation awards or claims thereto to the extent provided be assigned to
Purchaser hereunder.
1.2. Purchase Price. The total purchase price to be paid to Seller
by Purchaser for the Property shall be $53 million (the "Purchase Price"). The
Purchase Price, as adjusted for prorations and other adjustments as provided
herein, shall be paid by the credit applied with respect to the Parcel B Loan,
as provided in Section 4.6, with the balance paid in cash. As a matter of
clarity, the Purchase Price is estimated to be paid approximately $36 million in
cash and $17 million in assumption of the Parcel B Loan.
1.3. Deposit of Xxxxxxx Money. Within two business days (in this
Agreement, a business day shall mean any day of the year other than any Saturday
or Sunday or any other day on which banks located in Seattle, Washington
generally are closed for business) after the Effective Date, Purchaser shall
deposit $200,000 in cash (such amount, including any interest earned thereon,
the "Xxxxxxx Money") with Escrow Agent. The Escrow Agent shall hold and disburse
the Xxxxxxx Money in accordance with the escrow provisions in EXHIBIT C. The
Xxxxxxx Money shall be promptly returned to Purchaser upon any termination of
this Agreement other than by reason of Purchaser's default. Seller agrees that
it shall not deliver any instruction to the Escrow Agent calling for
disbursement of the Xxxxxxx Money to Seller except following the occurrence of
Purchaser's default hereunder and the expiration of any applicable cure period,
and Seller further agrees to provide Purchaser with a copy of such instruction
concurrently with the delivery thereof to the Escrow Agent. Provided such
supplemental escrow instructions are not in conflict with this Agreement as it
may be amended in writing from time to time, Seller and Purchaser agree to
execute such supplemental escrow instructions as may be appropriate to enable
Escrow Agent to comply with the terms of this Agreement.
1.4. Title Company and Escrow Agent. The title company and escrow
agent is: LandAmerica National Commercial Services, 0000 Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxx Xxxxxx (tel. 000.000.0000; fax
000.000.0000).
1.5. Closing Date. The "Closing Date" shall mean the date that is
30 days after the expiration or termination of the Due Diligence Period;
provided, however, that:
(a) Purchaser shall have the right to extend the Closing Date to a
date selected by Buyer that is no later than September 30, 2004 by delivering,
at least one business day prior to the previously identified Closing Date: (1)
to Seller and Escrow Holder, a written election to such effect setting forth the
new Closing Date, and (2) to Escrow Holder cash in the amount of $50,000, which
amount shall be added to and thereafter shall handled as part of the Xxxxxxx
Money;
(b) From and after the end of the Due Diligence Period, Buyer at
all times shall have the right to accelerate the Closing Date by written notice
to Seller and Escrow Holder
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establishing a Closing Date earlier than that previously identified (provided
that the accelerated Closing Date shall be no earlier than the 5th day
immediately following the delivery of such written notice).
ARTICLE 2. INSPECTION
2.1. Seller's Delivery of Specified Documents. To the extent such
items are in Seller's or its property manager's possession or control, Seller
shall provide or make available to Purchaser at the Property or at Seller's
office the information and documents set forth on EXHIBIT D attached hereto (the
"Property Information") within 5 business days after the date of this Agreement.
Seller agrees to cooperate with Purchaser and make copies, at Seller's expense,
of such documentation as Purchaser may request during the course of Purchaser's
review of the Property Information. The terms Rent Roll, Operating Statements,
Commission Schedule and Service Contracts are defined in EXHIBIT D. Seller shall
have the continuing obligation during the pendency of this Agreement to provide
Purchaser with any document described above and coming into Seller's or its
property manager's possession or produced by or for Seller after the initial
delivery of the Property Information.
2.2. Due Diligence. Purchaser shall have through July 23, 2004,
(the "Due Diligence Period") in which to examine, inspect, and investigate the
Property and, in Purchaser's sole and absolute judgment and discretion, to
determine whether the Property is satisfactory to Purchaser to proceed with this
transaction. Purchaser may terminate this Agreement pursuant to this Section 2.2
by giving written notice of termination to Seller on or before the last day of
the Due Diligence Period. This Agreement shall continue in full force and effect
if Purchaser does not give the written notice of termination. Upon such
termination, the Xxxxxxx Money shall be refunded to Purchaser immediately upon
request, and all further rights and obligations of the parties under this
Agreement shall terminate except for those that expressly survive such
termination.
2.3. Access. Upon reasonable notice to Seller, Purchaser shall have
reasonable access to the Property and all books and records for the Property
that are in Seller's or its property manager's possession or control for the
purpose of conducting surveys, architectural, engineering, geotechnical and
environmental inspections and tests, and any other inspections, studies, or
tests reasonably required by Purchaser. Purchaser may not conduct a Phase II
environmental inspection or any sampling without Seller's prior written consent,
which may be withheld in Seller's sole discretion. All access shall be subject
to any rights of tenants, and restrictions in tenant leases. Purchaser shall
have no authority to allow any liens to be placed against the Property, and
Purchaser shall keep the Property free and clear of any liens and will
indemnify, defend, and hold Seller harmless from all claims asserted against
Seller as a result of Purchaser's entry onto the Property, including reasonable
attorneys' fees incurred in connection with any claim. Purchaser is not
obligated under this indemnity with respect to liability arising by reason of
any existing Property condition disclosed by Purchaser's investigation.
Purchaser's duty to indemnify, defend, and hold Seller harmless, and Purchaser's
restoration obligations, in this Section 2.3 shall survive any termination or
expiration of this Agreement, and shall not be limited by any liquidated damage
provision in this Agreement. If any inspection or test disturbs the Property,
Purchaser will restore the Property to its condition before any such inspection
or test. During the pendency of this Agreement, Purchaser and its agents,
employees, and representatives shall have a continuing right of reasonable
access to the Property and any office where the records of the Property are
kept, with notice, for the purpose of examining and making copies of all books
and records and other materials relating to the Property in Seller's or its
property manager's possession or control. During the Due
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Diligence Period, Purchaser may conduct tenant interviews, at which Seller shall
be present, in accordance with a tenant interview schedule to which the parties
shall reasonably agree. Purchaser shall have the right to conduct a
"walk-through" of the Property before the Closing upon appropriate notice to
tenants as permitted under the Leases. In the course of its investigations,
Purchaser may make inquiries to third parties, including, without limitation,
tenants (and subtenants), Prudential's representatives, contractors, property
managers, parties to Service Contracts and municipal, local and other government
officials and representatives, and Seller consents to such inquiries; provided,
however, that all communications to tenants/subtenants, government officials
(when related to environmental matters), and property management personnel shall
be coordinated exclusively through Seller.
2.4. Tenant Estoppels. Seller shall endeavor to secure and deliver
to Purchaser, before the Closing Date, estoppel certificates from tenants (and
subtenants) under all Leases either (a) in the form of EXHIBIT E attached
hereto, (b) if a Lease provides for a specific form of tenant estoppel, then in
such form, or (c) if a tenant (or subtenant) has executed a prior form, then in
such form; provided that only those forms of prior Tenant Estoppels attached
hereto as EXHIBIT E-1 may be used to satisfy this clause (c) (the "Tenant
Estoppels"), except that such estoppel certificates shall specify the amount of
tenant improvement allowance due under a Lease. The Tenant Estoppels shall be
delivered to the tenants not later than 10 days after the Effective Date, and
Seller shall apply commercially reasonable efforts to obtain the same, duly
executed by the tenants, and deliver the same to the Purchaser no later than the
forty-fifth (45th) day immediately following the Effective Date. Seller shall
provide Purchaser with copies of the Tenant Estoppels in the form attached
hereto as EXHIBIT E for Purchaser's review and comment before delivering the
Tenant Estoppels to tenants. If any tenant fails to deliver a Tenant Estoppel or
if any Tenant Estoppel discloses any facts objectionable to Purchaser in its
reasonable opinion, then Seller shall use commercially reasonable efforts to
obtain the Tenant Estoppel or to correct any such objectionable facts contained
in the Tenant Estoppel.
2.5. Service Contracts; Property Management and Leasing Agreements;
Property Employees. During the Due Diligence Period, Purchaser shall notify
Seller as to which Service Contracts Purchaser will assume and which Service
Contracts shall be terminated by Seller at Closing. Purchaser will assume the
obligations arising from and after the Closing Date under those Service
Contracts which Purchaser has elected to assume. Seller shall terminate at
Closing all Service Contracts that are not so assumed. Seller shall terminate at
Closing, and Purchaser shall not assume, any property management or leasing
agreement affecting the Property.
ARTICLE 3. TITLE AND SURVEY REVIEW
3.1. Delivery of Title Commitment and Survey. Seller shall cause to
be delivered to Purchaser within 35 days after the Effective Date an ALTA-ACSM
Urban survey of the Property (the "Survey") dated June 2004 prepared by ESM
Consulting Engineers, L.L.C., including a certification addressed to Purchaser,
substantially in the form attached hereto as EXHIBIT F. If the Survey is not
delivered before such date, then the Due Diligence Period will be extended one
day for each day beyond such date that the Survey has not been delivered to
Purchaser. The Survey will include a description of the Adjoining Property and
shall plot all plotable easements benefiting the Property, including the
easements under the REA. Within five (5) days of the Effective Date, Seller
shall provide to Purchaser a current, effective commitment for title insurance
(the "Title Commitment") issued by the Title Company. The Title Commitment, the
documents referred to therein, and the Survey are referred to herein
collectively as the "Title Documents."
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3.2. Title Review and Cure. During the Due Diligence Period,
Purchaser shall review title to the Property as disclosed by the Title
Documents. Purchaser shall be entitled to object to any title matters shown in
the Title Documents, in its sole discretion, by a written notice of objections
delivered to Seller on or before the expiration of the Due Diligence Period. At
Closing, whether or not Purchaser makes any objection with respect thereto,
Seller shall remove any liens and security interests (other than the liens and
security interests securing the Parcel B Loan) including, without limitation,
mechanics and materialmens liens or claims thereof, and any exceptions or
encumbrances to title which are created by or through Seller after the Effective
Date (other than the REA). With respect to any other objections, Seller will
cooperate with Purchaser in curing such objections, but shall have no obligation
to do so. If Purchaser does not terminate this Agreement before the expiration
of the Due Diligence Period pursuant to Section 2.2, then Purchaser shall have
been deemed to have approved any title exception set forth in the Title
Documents that Seller is not obligated to remove and did not agree in writing to
remove or cure. If after the expiration of the Due Diligence Period the Title
Company revises the Title Commitment, or the surveyor revises the Survey, to add
or modify exceptions, or to add or modify the conditions to obtaining any
endorsement requested by Purchaser during the Due Diligence Period, then
Purchaser may terminate this Agreement and receive a refund of the Xxxxxxx Money
if provision for their removal or modification satisfactory to Purchaser is not
made. In such case, the Closing Date shall be extended for up to 10 days in
order for Purchaser and Seller to determine if such exception can be resolved
and to give Purchaser the opportunity to terminate this Agreement and receive a
refund of the Xxxxxxx Money if the exception is not removed.
3.3. Permitted Exceptions and Endorsements. "Permitted Exceptions"
means exceptions approved or deemed approved by Purchaser pursuant to this
Agreement; real estate taxes not yet due and payable; tenants in possession as
tenants only under the Leases without any option to purchase or acquire an
interest in the Property; the REA; and the loan documents evidencing the Parcel
B Loan (as defined herein), to the extent approved by Purchaser in accordance
with Article 4 hereof. For the avoidance of doubt, the general exceptions in the
Title Commitment will be removed upon issuance of the ALTA extended coverage
title policy to be issued in this transaction and are not Permitted Exceptions.
"Purchaser's Endorsements" shall mean, to the extent such endorsements are
available under the laws of the state in which the Property is located: (1)
owner's comprehensive; (2) access; (3) survey (accuracy of survey); (4) location
(survey legal matches title legal); (5) separate tax lot; (6) legal lot; (7)
zoning 3.1, with parking and loading docks; and (8) such other endorsements as
Purchaser may require during the Due Diligence Period based on its review of the
Title Commitment and Survey.
3.4. ALTA Statement. Seller shall execute at Closing an ALTA
Statement (Owner's Affidavit) and any other documents, undertakings or
agreements customarily required by the Title Company to enable it to issue the
Title Policy in accordance with the provisions of this Agreement.
3.5. Title and Survey Costs. Seller has previously paid for and
obtained a survey dated November 25, 2003 from ESM Consulting Engineers, L.L.C.
(the "ESM Survey") with a more limited scope than specified in Exhibit F. Seller
shall pay for the cost of the standard premium for the Title Policy, including
sales tax. Purchaser shall pay for the cost of Purchaser's Endorsements, the
additional premium for extended coverage, and the Survey, including any
revisions, necessary to make the ESM Survey conform to the requirements of this
Agreement,.
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3.6. REA.
(a) Agreement. The Seller has prepared a draft of the REA
in the form attached hereto as EXHIBIT B. On or before June 16, 2004, Purchaser
may submit proposed modifications to the form of REA, which Seller may or may
not accept. Seller will notify Purchaser in writing as to whether Seller accepts
any of Purchaser's proposed modifications. Seller intends to submit the REA to
Prudential, on or before approximately June 18, 2004, for Prudential's review
and approval. It shall be a condition precedent to the obligations of Purchaser
and Seller to close the purchase and sale of the Property that Prudential
consent to the REA and agree that the Existing Loan will be subject to the REA.
If Purchaser does not terminate this Agreement pursuant to Section 2.2 above,
then Purchaser shall be deemed to have approved the REA in the form attached
hereto as Exhibit B, or as may be modified by Seller in response to Purchaser's
proposed modifications. The Parties agree at Closing to enter into and record
the REA in the form approved in accordance with this Section 3.6(a).
(b) Title Review. The Purchaser's title review in Section
3.2 shall include a review of title to the easements and rights benefiting and
vesting in Purchaser or the Property under the REA.
ARTICLE 4. EXISTING LOAN
4.1. Loan Assumption. The Property is to be conveyed without
release of, and Purchaser shall assume and take the Property subject to, the
lien of the existing mortgage and related security instruments and documents, as
so amended and modified (collectively, the "Parcel B Mortgage") in favor of
Prudential, which secures payment of such allocated portion of the Existing Loan
("Parcel B Loan") in accordance with the following provisions of this ARTICLE 4.
4.2. Conditions to Assumption. . It shall be a condition precedent
to the obligations of Purchaser and Seller to close the purchase and sale of the
Property that any required consent by Prudential to the conveyance of the
Property and the division of the Existing Loan into two separate (that is, they
are neither cross-defaulted nor cross-collateralized) loans (the Parcel B Loan,
as noted above, and as to the Adjoining Property, the "Parcel A Loan") shall
have been obtained and its terms and conditions shall be completed. It shall be
a condition precedent to the obligations of Purchaser to close the purchase and
sale of the Property that (i) any terms and conditions imposed by Prudential,
including provision of an Unconditional Guarantee of Recourse Obligations by
Purchaser, in connection with issuing such consent shall be satisfactory to
Purchaser, in its sole discretion; (ii) the form of agreements pursuant to which
the Existing Loan will be segregated and under which Purchaser shall assume the
borrower's obligations with respect to the Parcel B Loan under the Existing
Mortgage shall be satisfactory to Purchaser, in its sole discretion; (iii) as of
the Closing Date there shall not exist any uncured default under the Existing
Loan as it relates to the Parcel B; (iv) as of the Closing Date the principal
balance of the Property Loan shall approximately equal the amount specified in
Section 1.2; and (v) at the Closing, Prudential executes such documents and
makes such deliveries consistent with the Prudential consent letter and all
other conditions to Prudential's consent to the conveyance of the Property and
assumption of the Parcel B Loan are satisfied; and (vi) Prudential consents to
the REA.
4.3. Assumption Costs. All transfer or other fees charged by
Prudential and any fees, costs and expenses charged by Prudential in connection
with the transfer of the Property, recording costs and expenses relating to the
recordation of any mortgage assignment
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agreement or other documentation relating to the transfer of the Property,
attorneys' fees incurred by Prudential, any title insurance premiums or costs
for endorsements required by Prudential, and any other costs and expenses
relating to the division of the Existing Loan into the Parcel B Loan and the
Parcel A Loan shall be paid by Seller, whether or not the transaction is
consummated, and Seller shall indemnify, defend and hold Purchaser harmless for
any such fees, costs and expenses. Each party shall pay the fees charged by
their attorneys in connection with the Existing Loan and the division of the
Existing Loan into two separate loans.
4.4. Cooperation. The parties shall cooperate in good faith and
with reasonable diligence to secure the approval of Prudential to the conveyance
of the Property to Purchaser and the division of the Existing Loan into two
separate loans prior to the expiration of the Due Diligence Period. Seller shall
undertake such commercially reasonable efforts as Prudential may require to
accomplish such division of the Existing Loan into two separate loans. Purchaser
shall have the right to negotiate directly with Prudential concerning
Prudential's consent.
4.5. Closing Deliveries. As Closing deliveries, each of Seller and
Purchaser shall execute such documents and shall make such deliveries as
Prudential may require of each of them to effect the provisions of this ARTICLE
4 (subject to the limitations set forth herein).
4.6. Closing Credit. Purchaser shall receive a credit for interest
accrued and unpaid through the Closing Date and any other amounts due and
payable, but unpaid, on the Closing Date allocable to the Parcel B Loan.
ARTICLE 5. OPERATIONS AND RISK OF LOSS
5.1. Ongoing Operations. During the pendency of this Agreement:
(a) Preservation of Business. Seller shall cause the
Property to be operated only in the ordinary and usual course of business and
consistent with past practice, shall preserve intact the Property, preserve the
good will and advantageous relationships of Seller with customers, suppliers,
independent contractors, employees and other persons or entities material to the
operation of its business, shall perform its obligations under Leases and other
agreements affecting the Property and shall not take any action or omission
which would cause any of the representations or warranties of Seller contained
herein to become inaccurate or any of the covenants of Seller to be breached.
(b) Maintenance of Insurance. Seller shall continue to
carry its existing insurance through the Closing Date, and shall not allow any
breach, default, termination or cancellation of such insurance policies or
agreements to occur or exist.
(c) New Contracts. Without Purchaser's prior written
consent in each instance, Seller will not enter into or amend, terminate, waive
any default under, or grant concessions regarding any contract or agreement that
will be an obligation affecting the Property or binding on the Purchaser after
the Closing.
(d) Leasing Arrangements. Seller will not enter into any
Lease, or amend, terminate, waive any default under, grant concessions
regarding, or incur any obligation for leasing commissions or otherwise in
connection with any Lease without Purchaser's prior written consent in each
instance.
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(e) Removal and Replacement of Tangible Personal
Property. Seller will not remove any Tangible Personal Property unless it is
replaced with a comparable item of equal quality and quantity as existed as of
the time of such removal.
(f) Maintenance of Permits. Seller shall maintain in
existence all licenses, permits and approvals, if any, in its name necessary or
reasonably appropriate to the ownership, operation or improvement of the
Property.
(g) Existing Mortgage. Seller covenants and agrees to
comply with the terms of the documents evidencing or securing the Existing Loan.
5.2. Damage. All risk of loss with respect to the Property shall
remain with Seller until the Closing and delivery of the deed vesting title in
Purchaser, when full risk of loss with respect to the Property shall pass to
Purchaser. Seller shall promptly give Purchaser written notice of any damage to
the Property, describing such damage, whether such damage is covered by
insurance and the estimated cost of repairing such damage. If such damage is not
material, then (i) Seller shall, to the extent possible, begin repairs prior to
the Closing out of any insurance proceeds received by Seller for the damage,
(ii) at Closing, Purchaser shall receive a credit, net of any proceeds placed in
escrow for such purpose established with Prudential as the lender of the Parcel
B Loan, for one hundred and twenty-five percent (125%) of the remaining cost to
complete the restoration, as reasonably estimated by Seller's contractor (which
shall be subject to Purchaser's reasonable approval) and Seller's contractor
will be allowed to complete its work, if done so in a commercially reasonable
manner, and (iii) Purchaser shall assume the responsibility for the repair after
the Closing (it being understood that upon such completion and the payment of
any amounts incurred in connection therewith, Purchaser shall return to Seller
any excess amounts credited to Seller at Closing for such restoration work, to
the extent not required to be applied to effect the completion of the
restoration). If such damage is material, Purchaser may elect by notice to
Seller given within 10 days after Purchaser is notified of such damage (and the
Closing shall be extended, if necessary, to give Purchaser such 10 day period to
respond to such notice) to proceed in the same manner as in the case of damage
that is not material or to terminate this Agreement, in which event the Xxxxxxx
Money shall be returned to Purchaser. If damage constituting material damage is
not covered by Seller's existing insurance, then Seller shall not be obligated
to restore the damage or to credit Purchaser for the cost of restoration. Damage
as to any one or multiple occurrences is material if the cost to repair the
damage, as reasonably estimated by Seller's contractor (if Seller has engaged a
contractor to perform the work), and otherwise by a contractor approved by both
Purchaser and Seller, acting reasonably, exceeds $500,000. Purchaser further
shall have the right to characterize damage as material if the damage entitles
any tenant to terminate its Lease. An affiliate of Seller may be engaged as
Seller's contractor.
5.3. Condemnation. Seller shall promptly give Purchaser notice of
any eminent domain proceedings that are contemplated, threatened or instituted
with respect to the Property. By notice to Seller given within 10 days after
Purchaser receives notice of proceedings in eminent domain that are
contemplated, threatened or instituted by any body having the power of eminent
domain with respect to the Property, and if necessary the Closing Date shall be
extended to give Purchaser the full 10 day period to make such election,
Purchaser may terminate this Agreement or proceed under this Agreement, in which
event Seller shall, at the Closing, assign to Purchaser its entire right, title
and interest in and to any condemnation award, and Purchaser shall have the
right during the pendency of this Agreement to negotiate and otherwise deal with
the condemning authority in respect of such matter.
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ARTICLE 6. CONDITIONS PRECEDENT; DEFAULT AND REMEDIES
6.1. Conditions to the Parties' Obligations to Close. In addition
to all other conditions set forth herein, the obligation of Seller, on the one
hand, and Purchaser, on the other hand, to consummate the transactions
contemplated hereunder shall be contingent upon the following:
(a) Representations. The other party's representations
and warranties contained herein shall be true and correct as of the date of this
Agreement and the Closing Date; and, as a condition benefiting Purchaser only,
any update to Seller's representations and warranties pursuant to this Agreement
does not disclose new facts that are material and adverse in relation to the
applicable original representation and warranty;
(b) Performance. As of the Closing Date, the other party
shall have performed its obligations hereunder and all deliveries to be made by
the other party at Closing have been tendered;
(c) Default. As a condition to Purchaser's obligation to
close, as of the Closing Date, Seller shall not be in default under any
agreement to be assigned to, or obligation to be assumed by, Purchaser under
this Agreement.
(d) Physical Condition. As a condition benefiting
Purchaser only, the physical condition of the Property shall be substantially
the same on the Effective Date as on the Closing Date, reasonable wear and tear
excepted, unless the alteration of said physical condition is the result of a
casualty loss or proceeding in eminent domain, in which case the provisions of
Sections 5.2 and 5.3 shall govern;
(e) Lease Condition. As a condition benefiting Purchaser
only, (1) Seller shall have obtained and delivered to Purchaser as of the
Closing Date Tenant Estoppels substantially in the form required pursuant to
Section 2.4 from each Tenant and subtenant matching the rent, term and other
information in the Rent Roll included in the initial delivery of the Property
Information, and otherwise in form reasonably satisfactory to the Purchaser, and
(2) as of the Closing Date, the Leases shall be in full force and effect and no
default, dispute or controversy shall exist or have arisen under any Leases;
(f) Title. As a condition benefiting Purchaser only: upon
the sole condition of payment of the premium, at Closing, the Title Company
shall irrevocably commit to issue to Purchaser an ALTA Owner's Policy of title
insurance (Revised 10-13-70 and 10-17-84), with extended coverage (i.e., with
ALTA General Exceptions 1 through 5 deleted), dated as of the date and time of
the recording of the deed vesting title in Purchaser, in the amount of the
Purchase Price, insuring Purchaser as owner of good, marketable and indefeasible
fee simple title to the Property, subject only to the Permitted Exceptions, and
containing the Purchaser's Endorsements (the "Title Policy").
(g) Loan Condition. The condition in Section 4.2 is
satisfied (it being understood that the fact that such condition is a condition
to the benefit of both parties shall not relieve such parties of their
obligations to pursue satisfaction of such condition in accordance with Article
4).
(h) Other Condition. Any other condition set forth in
this Agreement to such party's obligation to close shall have been satisfied by
the applicable date.
Page 9
6.2. Failure of Condition Precedent. So long as a party is not in
default hereunder, if any condition to such party's obligation to proceed with
the Closing hereunder has not been satisfied as of the Closing Date or other
applicable date, such party may, in its sole discretion, either (i) terminate
this Agreement by delivering written notice to the other party on or before the
Closing Date or other applicable date whereupon the Xxxxxxx Money shall be
returned to Purchaser, or (ii) elect to close, notwithstanding the
non-satisfaction of such condition, in which event such party shall be deemed to
have waived any such condition.
6.3. Purchaser's Defaults; Seller's Remedies.
(a) In the event of a breach by Purchaser of its
obligations under this Agreement, which breach is not cured within five (5) days
after Purchaser's receipt of notice of default from Seller (provided that no
such cure period shall extend the Closing Date or apply for a breach of the
obligation to close by the Closing Date), Seller's sole remedy shall be to
terminate this Agreement and retain all Xxxxxxx Money and any earnings thereon
as liquidated damages, not as a penalty. PURCHASER AND SELLER AGREE THAT IT
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO QUANTIFY THE ACTUAL DAMAGES TO
SELLER IN THE EVENT OF A BREACH BY PURCHASER, THAT THE AMOUNT OF ALL XXXXXXX
MONEY IS A REASONABLE ESTIMATE OF SUCH ACTUAL DAMAGES, AND THAT SELLER'S
EXCLUSIVE REMEDY IN THE EVENT OF A BREACH BY PURCHASER SHALL BE TO RETAIN ALL
XXXXXXX MONEY AND ANY EARNINGS THEREON AS LIQUIDATED DAMAGES. Notwithstanding
the foregoing, this liquidated damages provision does not limit Purchaser's
obligations of restoration and indemnity 2.3 above, which expressly survives
termination of this Agreement for any reason, including default by Purchaser.
/s/ JMH /s/ GAK
________________________ __________________________
Initials of Seller Initials of Purchaser
(b) After Closing, in the event of a breach by Purchaser
of its obligations under this Agreement that survive Closing, Seller may
exercise any rights and remedies available at law or in equity.
6.4. Seller's Defaults; Purchaser's Remedies.
(a) In the event of a breach by Seller of its obligations
under this Agreement, which breach is not cured within five (5) days after
Seller's receipt of notice of default from Purchaser (provided that no such cure
period shall extend the Closing Date or apply for a breach of the obligation to
close by the Closing Date), Purchaser may elect only one of the following two
remedies: (a) terminate this Agreement and receive a refund of the Xxxxxxx Money
and any earnings thereon, plus reimbursement from Seller for Purchaser's
reasonable out of pocket costs incurred in connection with the negotiation of
this Agreement, Purchaser's diligence with respect to the Property, and
Purchaser's actions in furtherance of the transactions contemplated by this
Agreement (provided that said sum recoverable as reimbursement shall not exceed
one hundred thousand dollars ($100,000)); or (b) enforce specific performance of
this Agreement against Seller, including the right to recover reasonable
attorneys' fees.
Page 10
(b) After Closing, in the event of a breach by Seller of
its obligations under this Agreement that survive Closing, Purchaser may
exercise any rights and remedies available at law or in equity.
ARTICLE 7. CLOSING
7.1. Closing and Escrow. The consummation of the transaction
contemplated herein ("Closing") shall occur on the Closing Date at the offices
of the Escrow Agent. Closing shall occur through a normal deed and money escrow
with the Escrow Agent. Funds shall be deposited into and held by Escrow Agent in
a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon
satisfaction or completion of all closing conditions and deliveries, the parties
shall direct the Escrow Agent to immediately record and deliver the closing
documents to the appropriate parties and make disbursements according to the
closing statements executed by Seller and Purchaser. Provided such supplemental
escrow instructions are not in conflict with this Agreement as it may be amended
in writing from time to time, Seller and Purchaser agree to execute such
supplemental escrow instructions as may be appropriate to enable Escrow Agent to
comply with the terms of this Agreement. The parties understand that the Closing
shall occur in Seattle requiring that all necessary deliveries to escrow must be
completed by 9 AM PST on the Closing Date.
7.2. Seller's Deliveries in Escrow. On or before 9:00 AM Seattle
time on the Closing Date, Seller shall deliver in escrow to the Escrow Agent the
following:
(a) Deed. A deed of limited warranty (warranty against
grantor's acts) sufficient to vest title in Purchaser as required in Section
6.1(f);
(b) Xxxx of Sale and Assignment of Leases and Contracts.
A Xxxx of Sale and Assignment of Leases and Contracts substantially in the form
of EXHIBIT G attached hereto, executed and acknowledged by Seller, vesting in
Purchaser good title to the property described therein free of any claims,
except for the Permitted Exceptions to the extent applicable; At either party's
election, with respect to any particular contract, the assignment and assumption
of Service Contracts and other contracts that are being assigned to and assumed
by Purchaser, may be accomplished by a single instrument for such contract
containing substantially the same terms and provisions as EXHIBIT G;
(c) Certificate. A certificate from Seller that contains
an updated Rent Roll and an updated list of the Leases and Service Contracts to
be assumed, each of which Seller shall certify to be true and correct as of
Closing;
(d) Notice to Tenants. A notice to each tenant in the
form of EXHIBIT H attached hereto;
(e) State Law Disclosures. Such disclosures and reports
as are required by applicable state and local law in connection with the
conveyance of real property;
(f) FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit executed by Seller;
(g) Tenant Estoppels and Service Contract Estoppels.
Estoppel certificates satisfying the conditions in Section 6.1(e);
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(h) Terminations. Terminations, effective no later than
Closing, of those Service Agreements which Purchaser has elected not to assume,
including any management agreements affecting the Property;
(i) Authority. Evidence of the existence, organization
and authority of Seller and of the authority of the persons executing documents
on behalf of Seller reasonably satisfactory to the Escrow Agent and the Title
Company; and
(j) Other Deliveries. Any other Closing deliveries
required to be made by or on behalf of Seller hereunder or reasonably required
to effect the Closing of this transaction consistent with this Agreement.
7.3. Purchaser's Deliveries in Escrow. On or before 9:00 AM Seattle
time on the Closing Date, Purchaser shall deliver in escrow to the Escrow Agent
the following:
(a) Purchase Price. On or before the Closing Date, the
Purchase Price, less the Xxxxxxx Money that is applied to the Purchase Price,
plus or minus applicable prorations and less the credit provided for in Section
4.6, deposited by Purchaser with the Escrow Agent in immediate, same-day federal
funds wired for credit into the Escrow Agent's escrow account;
(b) Xxxx of Sale and Assignment of Leases and Contracts.
Counterpart of the assignments provided by Seller in Section 7.2(b), executed by
Purchaser;
(c) State Law Disclosures. Such disclosures and reports
as are required by applicable state and local law in connection with the
conveyance of real property; and
(d) Other Deliveries. Any other Closing deliveries
required to be made by or on behalf of Purchaser hereunder or reasonably
required to effect the Closing of this transaction consistent with this
Agreement.
7.4. Closing Statements/Escrow Fees. Seller and Purchaser shall
deposit with the Escrow Agent executed closing statements consistent with this
Agreement in the form required by the Escrow Agent. The Escrow Agent's escrow
fee shall be divided equally between and paid by Seller and Purchaser.
7.5. Sales, Transfer, and Documentary Taxes. Seller shall pay all
excise, transfer, recording, deed or similar taxes imposed in connection with
this transaction under applicable state or local law (including without
limitation any real estate excise tax). Purchaser shall pay any sales tax
associated with any personal property. Purchaser and Seller hereby allocate the
Purchase Price as $52,995,000 to real property and $5,000 to personal property.
7.6. Possession. At the time of Closing, Seller shall deliver to
Purchaser possession of the Property, subject only to the Permitted Exceptions.
7.7. Delivery of Books and Records. Immediately after the Closing,
Seller shall deliver to the offices of Purchaser's property manager: the
original Leases and Service Contracts; copies or originals of all books and
records of account, contracts, copies of correspondence with tenants and
suppliers, receipts for deposits, unpaid bills and other papers or documents
which pertain to the Property; all permits and warranties; all advertising
materials, booklets, keys and other items, if any, used in the operation of the
Property; and, if in Seller's or its property manager's possession or control,
the original "as-built" plans and specification; all
Page 12
other available plans and specifications and all operation manuals. Seller shall
cooperate with Purchaser after Closing to transfer to Purchaser any such
information stored electronically.
7.8. Storage Rights. Pursuant to a lease ("PI Lease") entered into
with Seller for the Adjoining Property, the Hearst Corporation dba Seattle
Post-Intelligencer ("Seattle PI") has the right to use approximately 1,000
square feet of storage space in the Property. Seller shall use reasonable
efforts to amend the PI Lease by June 30, 2004 to either (1) move this tenant
from the Property or (2) execute a separate license agreement for the space
under commercially reasonable terms through April 30,2006, the expiration date
of the PI Lease, except that Purchaser will be paid only $1 of rent as
consideration..
ARTICLE 8. PRORATIONS AND ADJUSTMENTS
8.1. Prorations. On or before Closing, Seller shall provide to
Purchaser such information and verification reasonably necessary to support the
prorations and adjustments under this ARTICLE 8. The items in Subsections (a)
through (e) of this Section 8.1 shall be prorated between Seller and Purchaser,
based on the actual number of days in the applicable period, as of the close of
the day immediately preceding the Closing Date, the Closing Date being a day of
income and expense to Purchaser:
(a) Taxes and Assessments. Purchaser shall receive a
credit for any accrued but unpaid real estate taxes and assessments (including,
without limitation, any assessments imposed by private covenant) applicable to
any period before the Closing Date, even if such taxes and assessments are not
yet due and payable. Purchaser shall receive a credit for any special
assessments which are levied or charged against the Property, whether or not
then due and payable.
(b) Income. Purchaser shall receive a credit for any
rent, Operating Expense Pass-throughs, and other income (and any applicable
state or local tax on rent) under Leases collected by Seller before Closing that
applies to any period after Closing. Uncollected rent and other uncollected
income, including Operating Expense Pass-throughs and reimbursement of long
lived repairs that may be charged to tenants under the Leases, shall be prorated
at Closing and Seller shall receive a credit for them. The reimbursement of long
lived repairs principally includes the cost of freight elevator repairs made in
2004. The cost of such repair, estimated at $110,000, is being charged to the
tenants under the Leases as an Operating Expense Pass-through, plus interest at
10%, over a period not longer than their respective current lease terms.
(c) Operating Expense Pass-throughs. Seller, as landlord
under the Leases, is currently collecting from tenants under the Leases
additional rent to cover taxes, insurance, utilities, maintenance and other
operating costs and expenses (collectively, "Operating Expense Pass-throughs")
incurred by Seller in connection with the ownership, operation, maintenance and
management of the Property under triple net leases. Purchaser shall be
responsible to reconcile the calendar year 2004 Operating Expense Pass-throughs
and shall retain all 2004 tenant payments associated with such costs, subject to
the prorations in Section 8.1(b). Seller shall cooperate with Purchaser in the
reconciliation process.
(d) Service Contracts. Seller or Purchaser, as the case
may be, shall receive a credit for regular charges under Service Contracts
assumed by Purchaser pursuant to this Agreement paid and applicable to
Purchaser's period of ownership or payable and applicable to Seller's period of
ownership, respectively.
Page 13
(e) Utilities. The Seller shall cause the meters, if any,
for utilities to be read the day on which the Closing Date occurs and to pay the
bills rendered on the basis of such readings. If any such meter reading for any
utility is not available, then adjustment therefor shall be made on the basis of
the most recently issued bills therefor which are based on meter readings no
earlier than 30 days before the Closing Date; and such adjustment shall be
reprorated when the next utility bills are received.
8.2. Leasing Costs. Leasing commissions, tenant improvement costs,
tenant allowances, moving expenses and other out-of-pocket expenses that are the
obligation of Seller or landlord under the Leases ("Leasing Costs") shall be the
responsibility of Seller; provided however, with respect to Leasing Costs
related to the renewal or expansion of a Lease as the result of the exercise of
such right after the Effective Date, Purchaser shall be responsible for the
payment of Leasing Costs to the extent that they are expressly identified in the
Commission Schedule or provided for under the applicable Lease.
8.3. Security Deposits. All tenant security deposits shall be
transferred or credited to Purchaser at Closing. As of the Closing, Purchaser
shall assume Seller's obligations related to tenant security deposits, but only
to the extent they are properly credited and transferred to Purchaser. In the
case of any security deposits held by Seller in the form of letters of credit,
such letters of credit and the beneficial interest therein, to the extent
permitted by the terms thereof, shall be transferred to Purchaser at the Closing
and Seller shall execute and deliver, and use reasonable efforts to cause any
applicable tenant(s) to execute and deliver, to Purchaser such documents as are
reasonably necessary to cause such transfer to Purchaser at Closing. In the case
of any such letters of credit which provide by their terms that the beneficial
interest is not transferable, Seller shall use reasonable efforts to cause the
applicable tenant(s) to replace or amend such letters of credit with ones in
which Purchaser is the beneficiary; however, to the extent that replacement or
amended letters of credit are not obtained prior to the Closing, at Closing, the
Seller shall deliver the remaining letters of credit to Purchaser. After the
Closing, Purchaser may enforce its rights under the applicable Leases to obtain
a reissued or amended letter of credit for the benefit of Purchaser and the
Seller shall co-operate with Purchaser in such efforts, including executing and
delivering such documents as are necessary to cause the amendment or reissuance
of the letters of credit in favor of Purchaser.
8.4. Utility Deposits. Seller shall receive a credit for the amount
of deposits, if any, with utility companies that are transferable and that are
assigned to Purchaser at the Closing.
8.5. Sales Commissions. Seller and Purchaser represent and warrant
each to the other that they have not dealt with any real estate broker, sales
person or finder in connection with this transaction. In the event of any claim
for broker's or finder's fees or commissions in connection with the negotiation,
execution or consummation of this Agreement or the transactions contemplated
hereby, each party shall indemnify and hold harmless the other party from and
against any such claim based upon any statement, representation or agreement of
such party.
8.6. Pre-Closing Expenses. Except as otherwise specifically
provided in this Agreement or in any other written agreement that may be entered
into between Seller and Purchaser, Seller has paid or will pay in full, prior to
Closing, all bills and invoices for labor, goods, material and services of any
kind relating to the Property and utility charges (except if and to the extent
such utility charges are billed directly to Tenants), relating to the period
prior to Closing. Except for those Leasing Costs that are the responsibility of
Purchaser pursuant to Section 8.4, any alterations, installations, decorations
and other work required to be performed
Page 14
under any and all agreements affecting the Property (including, but not limited
to, Leases) have been or will, by the Closing, be completed and paid for in
full.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
9.1. Seller's Representations and Warranties. As a material
inducement to Purchaser to execute this Agreement and consummate this
transaction, Seller represents and warrants to Purchaser that:
(a) Organization and Authority. Seller has been duly
organized, is validly existing, and is in good standing as a Washington limited
liability company. Seller is in good standing and is qualified to do business in
the state in which the Real Property is located. Seller has the full right and
authority and has obtained any and all consents required to enter into this
Agreement and to consummate or cause to be consummated the transactions
contemplated hereby, other than the consent of Prudential, which consent Seller
shall pursue in good faith and diligence in accordance with Article 4 of this
Agreement. This Agreement has been, and all of the documents to be delivered by
Seller at the Closing will be, authorized and properly executed and constitute,
or will constitute, as appropriate, the valid and binding obligations of Seller,
enforceable in accordance with their terms.
(b) Conflicts and Pending Actions or Proceedings. There
is no agreement to which Seller is a party or, to Seller's knowledge, binding on
Seller which is in conflict with this Agreement, or which challenges or impairs
Seller's ability to execute or perform its obligations under this Agreement,
except for the terms of the Existing Loan. There is not now pending or, to the
best of Seller's knowledge, threatened, any action, suit or proceeding before
any court or governmental agency or body against the Seller that would prevent
Seller from performing its obligations hereunder or against or with respect to
the Property. To Seller's knowledge, no condemnation, eminent domain or similar
proceedings are pending or threatened with regard to the Property. Seller has
not received any notice and has no knowledge of any pending or threatened liens,
special assessments, impositions or increases in assessed valuations to be made
against the Property.
(c) Leases and Rent Roll. As of the date hereof, the only
tenants under any Leases affecting the Property are Chiron Corporation, Cell
Therapeutics, Inc., United Parcel Service, The Hearst Corporation (as described
in Section 7.8), and TCG. The documents constituting the Leases that are
delivered to Purchaser pursuant to Section 2.1 are true, correct and complete
copies of all of the Leases affecting the Property, including any and all
amendments or supplements thereto, and guaranties or other security in
connection therewith. There are no lease or occupancy agreements affecting any
portion of the Real Property or the Improvements other than the Leases. All
information set forth in the Rent Roll is or will be true, correct, and complete
in all material respects as of its date. Except as set forth in the Rent Roll,
there are no leasing or other fees or commissions due, nor will any become due,
in connection with any Lease or any renewal or extension or expansion of any
Lease, nor under any understanding or agreement with any party as to payment of
any leasing commissions or fees regarding future leases or as to the procuring
of tenants. To Seller's knowledge, except as disclosed in the Property
Information, no tenants have asserted nor are there any defenses or offsets to
rent accruing after the Closing Date and no default or breach exists on the part
of any tenant. Seller has not received any notice of any default or breach on
the part of the landlord under any Lease, nor, to the best of Seller's
knowledge, does there exist any such default or breach on the part of the
landlord. Except as set forth in the Rent Roll, all of the landlord's
obligations to construct tenant improvements or reimburse the tenants for tenant
improvements
Page 15
under the Leases have been paid and performed in full and all concessions (other
than any unexpired rent abatement set forth in the Leases) from the landlord
under the Leases have been paid and performed in full. Except for the shared
facilities or uses described in the REA, no tenant under any Lease has the right
to lease, use or occupancy any portion of the Adjoining Property.
(d) Service Contracts; Operating Statements. The list of
Service Contracts to be delivered to Purchaser pursuant to this Agreement is or
will be true, correct, and complete as of the date of its delivery. The
documents constituting the Service Contracts that are delivered to Purchaser are
true, correct and complete copies of all of the Service Contracts affecting the
Property. Neither Seller nor, to Seller's knowledge, any other party is in
default under any Service Contract. The Operating Statements to be delivered to
Purchaser pursuant to this Agreement will show all items of income and expense
(operating and capital) incurred in connection with Seller's ownership,
operation, and management of the Property for the periods indicated and will be
true, correct, and complete in all material respects.
(e) Legal Compliance. To Seller's knowledge, Seller has
all material licenses, permits and certificates necessary for the use and
operation of the Property, including, without limitation, all certificates of
occupancy necessary for the lawful occupancy of the Property. Seller has
received no written notice that the Property or the use thereof violates any
governmental law or regulation or any covenants or restrictions encumbering the
Property. Seller has not received any written notices of violations or alleged
violations of any laws, rules, regulations or codes, including building codes,
with respect to the Property which have not been corrected to the satisfaction
of the issuer of the notice.
(f) Environmental. Seller has no knowledge of any
violation of Environmental Laws related to the Property or the presence or
release of Hazardous Materials on or from the Property except as disclosed in
the Property Information. Neither Seller nor, to Seller's knowledge, any tenant
or other occupant, has used the Property or any part thereof for the release,
generation, treatment, storage, handling or disposal of any Hazardous Materials,
in violation of any Environmental Laws. To Seller's knowledge, there are no
underground storage tanks located on the Property. The term "Environmental Laws"
includes without limitation the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response Compensation and Liability Act and other
federal laws governing the environment as in effect on the Date of this
Agreement, together with their implementing regulations, guidelines, rules or
orders as of the Date of this Agreement, and all state, regional, county,
municipal and other local laws, regulations, ordinances, rules or orders that
are equivalent or similar to the federal laws recited above or that purport to
regulate Hazardous Materials. The term "Hazardous Materials" includes petroleum,
including crude oil or any fraction thereof, natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural
gas or such synthetic gas), and any substance, material, waste, pollutant or
contaminant listed or defined as hazardous or toxic under any Environmental Law.
(g) Withholding Obligation. Seller's sale of the Property
is not subject to any federal, state or local withholding obligation of
Purchaser under the tax laws applicable to Seller or the Property.
(h) Disclosure. Other than this Agreement, the documents
delivered at Closing pursuant hereto, the Permitted Exceptions, and the Leases,
Service Contracts, and any commission agreements described in the Commission
Schedule, there are no contracts or agreements of any kind relating to the
Property to which Seller or its agents is a party and which
Page 16
would be binding on Purchaser after Closing. Copies of Property Information
delivered to Seller pursuant to Section 2.1 hereof are or will be true, correct
and complete. To Seller's actual knowledge, the Property Information shall not
contain a material misstatement of fact or omit to state a fact necessary in
order to make the statements therein not misleading in any material respect.
Seller is not aware of any current fact or circumstance pertaining to the
condition of the Property that (1) has not been disclosed to Purchaser, or will
not be disclosed to Purchaser pursuant to the Property Information, and (2) in
Seller's reasonable opinion has a material adverse impact on the value of the
Property. Notwithstanding the foregoing, Purchaser agrees that, so long as
Seller discloses the following information in a manner which is not misleading
in any material respect, Purchaser shall be fully responsible for all
information: (a) contained in the Property Information, the Survey, the Title
Commitment, the Estoppels, and/or any reports or studies obtained by Purchaser;
and/or (b) otherwise disclosed to Purchaser; and/or (c) is of public record
and/or is publicly available. Purchaser shall also be responsible for all
information discovered through its own due diligence efforts.
(h)
(i) ERISA. Seller is not and is not acting on behalf of
an "employee benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, a "plan" within the meaning
of Section 4975 of the Internal Revenue Code of 1986, as amended or an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
any such employee benefit plan or plans.
9.2. Purchaser's Representations and Warranties. As a material
inducement to Seller to execute this Agreement and consummate this transaction,
Purchaser represents and warrants to Seller that:
(a) Organization and Authority. Purchaser has been duly
organized and is validly existing as a California corporation, in good standing
in the State of California, and will be qualified to do business in the state in
which the Real Property is located on the Closing Date. Subject only to
obtaining certain internal approvals on or before the expiration of the Due
Diligence Period, Purchaser has the full right and authority and has obtained
any and all consents required to enter into this Agreement and to consummate or
cause to be consummated the transactions contemplated hereby. This Agreement has
been, and all of the documents to be delivered by Purchaser at the Closing will
be, authorized and properly executed and constitutes, or will constitute, as
appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
(b) Conflicts and Pending Action. There is no agreement
to which Purchaser is a party or to Purchaser's knowledge binding on Purchaser
which is in conflict with this Agreement. There is no action or proceeding
pending or, to Purchaser's knowledge, threatened against Purchaser which
challenges or impairs Purchaser's ability to execute or perform its obligations
under this Agreement.
(c) "As-Is" Purchase. Purchaser is an experienced
commercial real estate owner and, except as set forth in this Agreement or in
any document executed at Closing pursuant to or in connection with this
Agreement, shall rely solely upon its own evaluation and investigation of the
condition and all aspects of the Property. Purchaser acknowledges that this
Agreement grants to Purchaser the opportunity to fully evaluate the condition
and all aspects of the Property. Purchaser has asked for, and has obtained in
this Agreement, disclosure of information and documents regarding the Property
which is in Seller's possession. Accordingly,
Page 17
except to the extent that the Seller fraudulently or intentionally conceals or
makes misrepresentations as to the condition or suitability of the Property and
except for Seller's representations and warranties set forth in this Agreement
and the warranties set forth in any closing documents delivered to Purchaser
from Seller, Purchaser acknowledges that it is not relying upon any
representations of Seller as to the condition of the Property or its suitability
for Purchaser's intended use. Subject to the foregoing, in the event Purchaser
does not terminate this Agreement pursuant to Section 2.2 above, Purchaser shall
be deemed to accept the Property "as is" in all respects.
9.3. Survival of Representations and Warranties. The
representations and warranties set forth in this ARTICLE 9 are made as of the
Effective Date and are remade as of the Closing Date and shall not be deemed to
be merged into or waived by the instruments of Closing, but shall survive the
Closing.
ARTICLE 10. MISCELLANEOUS
10.1. Parties Bound. Neither party may assign this Agreement without
the prior written consent of the other, and any such prohibited assignment shall
be void; provided, however, that Purchaser may assign this Agreement without
Seller's consent to an Affiliate (including without limitation BioMed Property
Trust, Inc. (which is in the process of changing its name to BioMed Realty
Trust, Inc.) or BioMed Property, L.P.) or to effect an Exchange pursuant to
Section 10.18 hereof. No assignment by Purchaser shall release Xxxxxxxx Property
Advisors, Inc. of its obligations hereunder. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the respective legal
representatives, successors, assigns, heirs, and devisees of the parties. For
the purposes of this paragraph, the term "Affiliate" means (i) an entity that
directly or indirectly controls, is controlled by or is under common control
with the Purchaser or (ii) a partnership or other entity in which Purchaser or
an entity described in (i) is a partner or other owner; and the term "control"
means the power to direct the management of such entity through voting rights,
ownership or contractual obligations.
10.2. Headings. The article and paragraph headings of this Agreement
are for convenience only and in no way limit or enlarge the scope or meaning of
the language hereof.
10.3. Expenses. Except as otherwise expressly provided herein, each
party hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated hereunder, including all legal and accounting fees and
disbursements.
10.4. Invalidity and Waiver. If any portion of this Agreement is
held invalid or inoperative, then so far as is reasonable and possible the
remainder of this Agreement shall be deemed valid and operative, and, to the
greatest extent legally possible, effect shall be given to the intent manifested
by the portion held invalid or inoperative. The failure by either party to
enforce against the other any term or provision of this Agreement shall not be
deemed to be a waiver of such party's right to enforce against the other party
the same or any other such term or provision in the future.
10.5. Governing Law. This Agreement shall, in all respects, be
governed, construed, applied, and enforced in accordance with the law of the
state in which the Real Property is located.
10.6. Survival. The provisions of this Agreement and the obligations
of the parties not fully performed at the Closing shall survive the Closing for
one year and shall not be deemed to
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be merged into or waived by the instruments of Closing. Any claim for
performance of an obligation after Closing shall be barred and shall lapse
unless a claim is made in writing, with a description of the claim made, on or
before the first anniversary of Closing.
10.7. No Third Party Beneficiary. This Agreement is not intended to
give or confer any benefits, rights, privileges, claims, actions, or remedies to
any person or entity as a third party beneficiary, decree, or otherwise.
10.8. Entirety and Amendments. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only in writing by a non-electronic instrument executed by the
party against whom enforcement is sought. For the avoidance of doubt, copies of
signed instruments that are electronically transmitted constitute a writing for
this purpose.
10.9. Time of the Essence. Time is of the essence in the performance
of this Agreement.
10.10. Press Release. Until the Closing, neither Seller nor Purchaser
will release or cause or permit to be released any press notices, or publicity
(oral or written) or advertising promotion relating to, or otherwise announce or
disclose or cause or permit to be announced or disclosed, in any manner
whatsoever, the terms, conditions or substance of this Agreement without first
obtaining the written consent of the other party except those disclosures that
are required by securities law(s), including the Securities Act of 1933, or
contractual obligation (in which case notice shall be timely provided to the
other party of such requirement and disclosure). The foregoing shall not
preclude either party from discussing the substance or any relevant details of
such transactions with any of its attorneys, accountants, professional
consultants, lenders, partners, investors, or any prospective lender, partner or
investor, as the case may be, or prevent either party hereto, from complying
with laws, rules, regulations and court orders, including without limitation,
governmental regulatory, disclosure, tax and reporting requirements, or from
Seller making disclosures in the ordinary course of its due diligence
inspections and contacts with third parties related thereto. Notwithstanding the
foregoing, any party to this transaction (and each employee, agent or
representative of the foregoing) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
are provided to them relating to such tax treatment and tax structure except to
the extent maintaining such confidentiality is necessary to comply with any
applicable federal or state securities laws. The authorization in the preceding
sentence is not intended to permit disclosure of any other information unrelated
to the tax treatment and tax structure of the transaction including (without
limitation) (i) any portion of the transaction documents or related materials to
the extent not related to the tax treatment or tax structure of the transaction,
(ii) the existence or status of any negotiations unrelated to the tax issues, or
(iii) any other term or detail not relevant to the tax treatment or the tax
structure of the transaction.
10.11. Attorneys' Fees. Should either party employ attorneys to
enforce any of the provisions hereof, the non-prevailing party agrees to pay the
prevailing party all reasonable costs, charges, and expenses, including
reasonable attorneys' fees, expended or incurred by the prevailing party in
connection therewith.
10.12. Notices. All notices required or permitted hereunder shall be
in writing and shall be served on the parties at the addresses set forth in
EXHIBIT I. Any such notices shall be either
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(i) sent by overnight delivery using a nationally recognized overnight courier,
in which case notice shall be deemed delivered one business day after deposit
with such courier, (ii) sent by facsimile, in which case notice shall be deemed
delivered upon transmission of such notice with confirmed receipt by the
sender's machine, or (iii) sent by personal delivery, in which case notice shall
be deemed delivered upon receipt or refusal of delivery. A party's address may
be changed by written notice to the other party; provided, however, that no
notice of a change of address shall be effective until actual receipt of such
notice. Copies of notices are for informational purposes only, and a failure to
give or receive copies of any notice shall not be deemed a failure to give
notice. The attorney for a party has the authority to send notices on behalf of
such party.
10.13. Construction. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
10.14. Remedies Cumulative. Except as expressly provided to the
contrary in this Agreement, the remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion or exercise of any other rights
or remedies available by law, in equity or otherwise.
10.15. Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein and the time during any day by which an
event must occur shall be deemed to end at 5 p.m., according to local Seattle,
Washington time.
10.16. Public Company Requirements. Upon Purchaser's request, for a
period of two years after Closing, Seller shall make the books and records of
the Property available to Purchaser for inspection, copying and audit by
Purchaser's designated accountants, and at Purchaser's expense. Seller shall
provide Purchaser, but without third-party expense to Seller, with copies of, or
access to, such factual information as may be reasonably requested by Purchaser,
and in the possession or control of Seller, to enable Purchaser to comply with
applicable filing requirements of the Securities and Exchange Commission
("SEC"). Purchaser or its designated independent or other accountants may audit
the operating statements of the Property, and Seller shall supply such
documentation in its possession or control as Purchaser or its accountants may
reasonably request in order to complete such audit and shall provide to
Purchaser's auditors a customary representation letter from Seller or its
representative reasonably satisfactory to Purchaser's auditors in connection
with such audit.
10.17. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of such counterparts shall constitute one Agreement. To facilitate execution
of this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
10.18. Section 1031 Exchange. Either Seller or Purchaser (the
"Exchanging Party") may consummate the purchase of the Property as part of a
so-called like kind exchange (the "Exchange") pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended (the "Code"), provided that: (i) the
Closing shall not be delayed or affected by reason of the
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Exchange nor shall the consummation or accomplishment of the Exchange be a
condition precedent or condition subsequent to the Exchanging Party's
obligations under this Agreement; (ii) the Exchanging Party shall effect the
Exchange through an assignment of this Agreement, or its rights under this
Agreement, to a qualified intermediary; (iii) the non-Exchanging Party shall not
be required to take an assignment of the purchase agreement for the relinquished
property or be required to acquire or hold title to any real property for
purposes of consummating the Exchange; and (iv) the Exchanging Party shall pay
any additional costs or liabilities that would not otherwise have been incurred
by Purchaser or Seller had the Exchanging Party not consummated its purchase
through the Exchange. The non- Exchanging Party shall not by this agreement or
acquiescence to the Exchange have its rights under this Agreement affected or
diminished in any manner or be responsible for compliance with or be deemed to
have warranted to Purchaser that the Exchange in fact complies with Section 1031
of the Code.
10.19. Further Assurances. In addition to the acts and deeds recited
herein and contemplated to be performed, executed or delivered by either party
at Closing, each party agrees to perform, execute and deliver, on or after the
Closing any further actions, documents, and will obtain such consents, as may be
reasonably necessary or as may be reasonably requested to fully effectuate the
purposes, terms and conditions of this Agreement or to further perfect the
conveyance, transfer and assignment of the Property to Purchaser.
10.20. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[Signature Page Follows]
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SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
ELLIOTT PARK LLC
AND
XXXXXXXX PROPERTY ADVISORS, INC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
Effective Date.
SELLER: PURCHASER:
ELLIOTT PARK LLC XXXXXXXX PROPERTY ADVISORS, INC.
By: Xxxxx Corporation, its Manager
By /s/ XXXX X. XXXXXXXX
-------------------------------
By /s/ XXXXX X. XXXXXX Xxxx X. Gold
------------------------------------ President
Xxxxx X. Xxxxxx,
Senior Vice President - Investments,
Treasurer and Secretary
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Escrow Agent has executed this Agreement in order to confirm that Escrow Agent
shall act as escrowee with respect to and hold in escrow the Xxxxxxx Money and
the interest earned thereon, and shall disburse the Xxxxxxx Money and the
interest earned thereon, pursuant to the provisions of Exhibit C hereof.
ESCROW AGENT:
LANDAMERICA TITLE INSURANCE COMPANY
By /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Com'l Escrow Officer
----------------------------
Dated: 6/8/04
-------------------------------
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