EXHIBIT 10.29
PURCHASE AGREEMENT
This Purchase Agreement (hereinafter referred to as this
"Purchase Agreement") is entered into as of June 24, 2003, among Xxxxxxx
Properties, L.P., a Maryland limited partnership ("Buyer"), RECP Library LLC, a
Delaware limited liability company ("Seller") and New BHE, LLC, a Delaware
limited liability company (the "Company"), Bunker Hill Equity, LLC, a Delaware
limited liability company ("Bunker Hill"), Xxxxxxx Partners BGHS, LLC, a
Delaware limited liability company ("BGHS"), Xxxxxxx Partners-Hope Place, Ltd.,
a California limited partnership ("Hope Place").
RECITALS
A. Xxxxxx X. Xxxxxxx III, Xxxxxxx Partners and their
affiliates are currently engaged in the process of consolidating the ownership
of a portfolio of office and other properties (the "Participating Properties")
located in Southern California, including the property commonly known as the
Library Tower (the "Property"), through a series of transactions in which Xxxxxx
X. Xxxxxxx III, Xxxxxxx Partners, their affiliates and unrelated third parties
shall contribute the direct or indirect interests in the Participating
Properties (the "Property Interests") or the direct or indirect interests in
certain limited partnerships and certain limited liability companies
(collectively, the "Participating Partnerships"), which currently own, directly
or indirectly, the Participating Properties, to Buyer (the "Formation
Transactions"). The Formation Transactions relate to the proposed initial public
offering of the shares of common stock (the "Offering") of Xxxxxxx Properties,
Inc., a Maryland corporation (the "REIT"), the general partner of Buyer, which
intends to operate as a self-administered and self-managed real estate
investment trust.
B. Seller holds a preferred equity interest in the
Company (all of Seller's interest in the Company, including without limitation,
all of its voting rights and interests in the capital, profits and losses of the
Company or any property distributable therefrom are hereinafter collectively
referred to as the "Preferred Equity Interest") pursuant to that certain Limited
Liability Company Agreement of the Company dated June 24, 2003 (the "Company
Operating Agreement") between Seller and Bunker Hill. Seller previously held a
preferred equity interest in Bunker Hill pursuant to that certain Limited
Liability Company Agreement of Bunker Hill dated March 27, 2002 (the "Bunker
Hill Operating Agreement," and together with the Company Operating Agreement,
the "Operating Agreements") between Seller, BGHS, Hope Place and Xxx X.
Xxxxxxxx, as a special member. Xxxxxx X. Xxxxxxx III, BGHS, Hope Place and
Seller also entered into that certain Option Agreement dated March 27, 2002 (the
"Option Agreement") in connection with the Bunker Hill Operating Agreement
whereby Seller was granted certain put rights and BGHS and Hope Place were
granted certain call rights with respect to Seller's preferred equity interest
in Bunker Hill. Seller's preferred equity interest in Bunker Hill was redeemed
by Bunker Hill in exchange for the Preferred Equity Interest pursuant to that
certain Redemption Agreement between Bunker Hill and Seller dated June 24,
2003 (the "Redemption Agreement").
C. In connection with the Formation Transactions, Buyer
desires to acquire from Seller, and Seller desires to sell to Buyer, on the
terms and conditions set forth herein, all of Seller's right, title and interest
to the Preferred Equity Interest.
D. Seller acknowledges that Buyer may decide that,
rather than acquiring all of the direct and indirect interests in the entity
that owns the Property or acquiring the Preferred Equity Interest by direct
transfer, it is more desirable for Buyer to acquire the Property by a direct
contribution of the Property from the entity that owns the Property (a "Direct
Contribution"), or by a merger of a partnership with and into Buyer (a
"Merger"), or to divide a partnership into more than one partnership to
facilitate the Formation Transactions (a "Division"); and Seller desires to give
Buyer the right, in Buyer's sole discretion, to engage in any Direct
Contribution, Merger or Division concurrently with or immediately prior to the
purchase by Buyer of the Preferred Equity Interest on the terms and conditions
described herein without the need to seek any further consent or action of the
Seller and irrevocably consents to such action as set forth in Section 5.4.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer, Seller and the
Company agree as follows:
ARTICLE I.
THE PURCHASE
1.1 Agreement to Purchase. Buyer hereby agrees to
purchase, and Seller hereby agrees to sell, all right, title and interest of
Seller in the Preferred Equity Interest (the "Purchase") upon the terms and
conditions set forth herein.
1.2 Purchase Price. The purchase price for the Preferred
Equity Interest will be Eighty-Five Million Nine Hundred Seventy Thousand Seven
Hundred Seven Dollars ($85,970,707) (the "Purchase Price"). Buyer and Seller
agree that the Purchase Price constitutes full consideration for the Purchase.
1.3 Consent of the Company. The Company hereby consents
to the Purchase by Buyer upon the terms and conditions set forth herein.
1.4 Termination of this Agreement. In the event that the
Purchase does not occur, Seller agrees not to treat this Agreement as a "Call
Notice" under the Option Agreement, and specifically that the events set forth
in Sections 3.1(c)(ii), (iii) and (iv) of the Option Agreement shall not be
triggered; provided, however, that Seller shall remain entitled to payment of
costs as set forth in Section 3.1 (c)(i) of the Option Agreement.
ARTICLE II.
PURCHASE AND CLOSING
2.1 Purchase and Sale. Seller hereby sells, transfers,
assigns, and conveys to Buyer, and Buyer hereby purchases, for the Purchase
Price all right, title and interest of Seller in the Preferred Equity Interest
free and clear of all Liens. For purposes of this Purchase Agreement, "Liens"
shall mean any lien (statutory or other), pledge, hypothecation, assignment,
preference, priority, security interest, or any other encumbrance or charge on
or affecting the Preferred Equity Interest or the preferred equity interest that
Seller previously held in Bunker Hill.
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2.2 Closing. The parties are hereby delivering the
following closing documents, (i) an Assignment and Assumption Agreement
substantially in the form attached hereto as Exhibit A, (ii) any other documents
reasonably necessary to assign, transfer and convey the Preferred Equity
Interest, and (iii) an affidavit from Seller, stating under penalty of perjury,
Seller's United States Taxpayer Identification Number and that Seller is not a
foreign person pursuant to Section 1445(b)(2) of the Internal Revenue Code of
1986, as amended (the "Code") and a comparable affidavit satisfying California
and any other state withholding requirements, in the forms attached hereto as
Exhibit B. Buyer is hereby delivering to Seller a cash amount equal to the
Purchase Price for the Preferred Equity Interest in consideration for the sale,
transfer, assignment and conveyance of the Preferred Equity Interest.
2.3 Option Termination. The Option Agreement, if not
earlier terminated, is hereby terminated and of no further force and effect.
Bunker Hill, BGHS, Hope Place and Seller hereby consent to the termination of
the Option Agreement, including the termination of all put and call rights
contained therein with respect to Seller's preferred equity interest in Bunker
Hill contained therein.
2.4 Taxes. Buyer agrees to pay all transfer taxes arising
from the sale of the Preferred Equity Interest pursuant to the transfer of the
Preferred Equity Interest hereunder. Buyer and Seller (or any other transferor
as provided hereunder) each agree and consent to treat this transaction as the
sale of the Preferred Equity Interest (or interests of such other transferor)
with the tax consequences set forth in Section 741 of the Code.
2.5 Further Assurances. Seller and Buyer will, from time
to time, execute and deliver to the other party all such other and further
instruments and documents and take or cause to be taken all such other and
further action as Seller and Buyer may reasonably request in order to effect the
transactions contemplated by this Purchase Agreement, including instruments or
documents reasonably necessary to effect and evidence the conveyance of the
Preferred Equity Interest in accordance with the terms of this Purchase
Agreement. Seller has represented herein that it has no equity interest, either
direct or indirect, in the Property, the Company or Bunker Hill, except for the
Preferred Equity Interest which is the subject of this Purchase Agreement. In
the event that this representation is at any time determined to be inaccurate,
Seller agrees to execute and deliver to Buyer all such other and further
instruments and documents and take or cause to be taken all such other and
further action as Buyer may reasonably request in order to document the transfer
hereof of the Preferred Equity Interest to the Buyer.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller hereby makes to Buyer each of the following
representations and warranties:
3.1 Organization; Authority. Seller (A) is duly formed,
validly existing and in good standing (to the extent applicable) under the laws
of the jurisdiction of its formation, and (B) has all requisite power and
authority to enter this Purchase Agreement, each agreement contemplated thereby
and to carry out the transactions contemplated thereby, and own, lease or
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operate its property and to carry on its business as presently conducted and, to
the extent required under applicable law, is qualified to do business and is in
good standing in each jurisdiction in which the nature of its business or the
character of its property make such qualification necessary. The signatory to
this Purchase Agreement on behalf of Seller has the authority to sign this
Purchase Agreement on behalf of Seller.
3.2 Due Authorization. The execution, delivery and
performance of this Purchase Agreement by the Seller has been duly and validly
authorized by all necessary action of the Seller. This Purchase Agreement and
each agreement, document and instrument executed and delivered by or on behalf
of Seller pursuant to this Purchase Agreement constitutes, or when executed and
delivered will constitute, the legal, valid and binding obligation of Seller
each enforceable against the Seller in accordance with its terms.
3.3 Title to Preferred Equity Interest. Seller is the
sole owner of the Preferred Equity Interest and owns beneficially and of record
free and clear of any Liens and has full power and authority to convey free and
clear of any Liens, the Preferred Equity Interest and, upon payment for the
Preferred Equity Interest, Buyer will acquire good and valid title thereto, free
and clear of any Liens except Liens created in favor of Buyer by the
transactions contemplated hereby. Seller does not have any equity interest,
either direct or indirect, in the Property, the Company or Bunker Hill, except
for the Preferred Equity Interest which is the subject of this Purchase
Agreement.
3.4 Consents and Approvals. Seller has full right,
authority, power and capacity, and no consent, waiver, approval or authorization
of any governmental entity, lender or other third party is required for Seller:
(i) to enter into this Purchase Agreement and each agreement, document and
instrument to be executed and delivered by or on behalf of Seller pursuant to
this Purchase Agreement; (ii) to carry out the transactions contemplated hereby
and thereby; and (iii) to transfer, sell and deliver all of the Preferred Equity
Interest to Buyer upon payment therefor in accordance with this Purchase
Agreement.
3.5 No Violation. None of the execution, delivery or
performance of this Purchase Agreement, any agreement contemplated hereby and
the transactions contemplated hereby and thereby does or will, with or without
the giving of notice, lapse of time, or both, (i) violate, conflict with, result
in a breach of, or constitute a default under or give to others any right of
termination, acceleration or cancellation of (A) the organizational documents,
including the charter and bylaws, partnership agreement, or other governing
documents, if any, of the Seller, (B) any material agreement, document or
instrument to which the Seller is a party or by which the Seller is bound or (C)
any term or pro vision of any judgment, order, writ, injunction, or decree of
any governmental or regulatory authority binding on the Seller, or by which the
Seller or any of its assets or properties are bound or subject or (ii) result in
the creation of any Liens upon any of the Preferred Equity Interest.
3.6 Non-Foreign Status. The Seller is a United States
person (as defined in Section 7701(a)(30) of the Code), and is, therefore, not
subject to the provisions of the Code relating to the withholding of sales
proceeds to foreign persons, and is not subject to any state withholding
requirements. Seller shall provide affidavits to this effect in accordance with
Section 2.2(iii) of this Purchase Agreement.
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3.7 Withholding. The Seller shall execute such
certificates or affidavits reasonably necessary to document the inapplicability
of any federal or state withholding provisions, including without limitation
those referred to in Section 3.6 above. If Seller fails to provide such
certificates or affidavits, Buyer may withhold a portion of the Purchase Price
as required by the Code or applicable state law.
3.8 Litigation. To the best of Seller's knowledge, there
is no litigation or proceeding, either judicial or administrative, pending or
threatened, affecting all or any portion of the Preferred Equity Interest or
Seller's ability to consummate the transactions contemplated hereby.
3.9 No Other Agreements to Sell. Except for this
Agreement and the Option Agreement, Seller has made no agreement and has no
obligation (absolute or contingent) to sell, transfer or in any way encumber any
of the Preferred Equity Interest or not to sell the Preferred Equity Interest.
3.10 No Brokers. Neither Seller nor any of its officers,
directors or employees, to the extent applicable, has employed or made any
agreement with any broker, finder or similar agent or any person or firm which
will result in the obligation of the Buyer or any of his affiliates to pay any
finder's fee, brokerage fees or commission or similar payment in connection with
the transactions contemplated by this Purchase Agreement.
3.11 Knowledge of Properties. Seller is a sophisticated
real estate investor. Seller is relying upon its own independent analysis and
assessment, and the advice of such Seller's advisors, and not upon that of Buyer
or any of Buyer's affiliates, for purposes of evaluating, entering into, and
consummating the transactions contemplated by this Purchase Agreement.
ARTICLE IV. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF BUYER
Buyer hereby makes to Seller each of the following
representations and warranties:
4.1 Organization; Authority. Buyer (A) is duly formed,
validly existing and in good standing (to the extent applicable) under the laws
of the jurisdiction of its formation, and (B) has all requisite power and
authority to enter this Purchase Agreement, each agreement contemplated thereby
and to carry out the transactions contemplated thereby, and own, lease or
operate its property and to carry on its business as presently conducted and, to
the extent required under applicable law, is qualified to do business and is in
good standing in each jurisdiction in which the nature of its business or the
character of its property make such qualification necessary. The signatory to
this Purchase Agreement on behalf of Buyer has the authority to sign this
Purchase Agreement on behalf of Buyer.
4.2 Due Authorization. The execution, delivery and
performance of this Purchase Agreement by the Buyer has been duly and validly
authorized by all necessary action of the Buyer. This Purchase Agreement and
each agreement, document and instrument executed and delivered by or on behalf
of Buyer pursuant to this Purchase Agreement constitutes, or when
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executed and delivered will constitute, the legal, valid and binding obligation
of Buyer each enforceable against the Buyer in accordance with its terms.
4.3 Consents and Approvals. Subject to any consent,
waiver, approval or authorization in connection with the Public Offering and the
Formation Transactions, Buyer has full right, authority, power and capacity, and
no consent, waiver, approval or authorization of any governmental entity, lender
or other third party is required for Buyer: (i) to enter into this Purchase
Agreement and each agreement, document and instrument to be executed and
delivered by or on behalf of Buyer pursuant to this Purchase Agreement; and (ii)
to purchase the Preferred Equity Interest upon satisfaction or waiver of the
conditions set forth in this Purchase Agreement.
4.4 No Violation. Other than any consents, waivers,
approvals or authorizations required in connection with the Public Offering and
the Formation Transactions, none of the execution, delivery or performance of
this Purchase Agreement, any agreement contemplated hereby and the purchase of
the Preferred Equity Interest by Buyer upon satisfaction or waiver of the
conditions set forth in this Purchase Agreement does or will, with or without
the giving of notice, lapse of time, or both, violate, conflict with, result in
a breach of, or constitute a default under or give to others any right of
termination, acceleration or cancellation of (A) the organizational documents,
including the partnership agreement of Buyer, (B) any material agreement,
document or instrument to which the Buyer is a party or by which the Buyer is
bound or (C) any term or provision of any judgment, order, writ, injunction, or
decree of any governmental or regulatory authority binding on Buyer or by which
Buyer or any of its assets or properties are bound or subject.
4.5 Litigation. To the best of Buyer's knowledge, there
is no litigation or proceeding, either judicial or administrative, pending or
threatened, affecting Buyer's ability to purchase the Preferred Equity Interest
upon satisfaction or waiver of the conditions set forth in this Purchase
Agreement.
4.6 No Brokers. Other than in connection with the Public
Offering and the Formation Transactions, Buyer has not employed or made any
agreement with any broker, finder or similar agent or any person or firm which
will result in the obligation of Seller or any of its affiliates to pay any
finder's fee, brokerage fees or commission or similar payment in connection with
the transactions contemplated by this Purchase Agreement. Buyer does hereby
agree to indemnify, defend, protect and hold Seller harmless from and against
any charges, complaints, claims, liabilities, damages, actions, causes of
action, losses and costs arising from any finders' fee, brokerage fees or
commission or similar payment in connection with the Public Offering and the
Formation Transactions and any other finders' fees, brokerage fees or commission
or similar payments arising from Buyer's acts or conduct in connection with the
transactions contemplated by this Purchase Agreement.
4.7 Knowledge of Properties. Buyer is a sophisticated
real estate investor. Buyer is relying upon its own independent analysis and
assessment, and the advice of such Buyer's advisors, and not upon that of Seller
or any of Seller's affiliates, for purposes of evaluating, entering into, and
consummating the transactions contemplated by this Purchase Agreement.
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ARTICLE V.
WAIVER AND INDEMNITY
Each of the waiver and indemnity enumerated in this Article 5
shall become effective upon the purchase and sale of the Preferred Equity
Interest pursuant to Article 2 herein.
5.1 Consents With Respect to the Preferred Equity
Interest. Seller hereby grants any consent that may be required of it under the
Operating Agreements to the sale or contribution by Bunker Hill of its
membership interest in the Company to Buyer or any direct or indirect subsidiary
of an entity affiliated with Buyer.
5.2 Final Year Allocations. To the extent the Company
Operating Agreement does not provide for final year tax allocations, the parties
hereto agree to use the "interim closing of the books" method as provided in
Section 706 of the Code to allocate income and loss for the year.
5.3 Indemnification of Seller. Each of the Buyer and the
Company shall indemnify Seller against any all charges, complaints, claims,
liabilities, damages, actions, causes of action, losses and costs of any nature
whatsoever arising out of or relating to the Company, except for matters arising
from the breach by Seller of any representation, warranty, covenant or
obligation under this Purchase Agreement, the Company Operating Agreement or any
agreement contemplated by this Purchase Agreement or from Seller's gross
negligence or willful misconduct.
ARTICLE VI.
MISCELLANEOUS
6.1 Amendment. Any amendment hereto shall be effective
only against those parties who have acknowledged in writing their consent to
such amendment. No waiver of any provisions of this Purchase Agreement shall be
valid unless in writing and signed by the party against whom enforcement is
sought.
6.2 Entire Agreement; Counterparts; Applicable Law. This
Purchase Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof, (b) may be executed in one or more
counterparts, each of which will be deemed an original and all of which shall
constitute but one and the same instrument and (c) shall be governed in all
respects by the laws of New York without giving effect to the conflict of law
provisions thereof.
6.3 Consent to Jurisdiction. To the fullest extent
permitted by law, each of the parties hereto hereby irrevocably consents and
agrees, for the benefit of each party, that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Purchase Agreement shall be
brought in any city, state or federal court located in the Borough of Manhattan,
the City of New York (a "New York Court") and hereby irrevocably accepts and
submits to the jurisdiction of each such New York Court with respect to any such
action, suit or proceeding. Each party hereto also hereby irrevocably consents
and agrees, for the benefit of the other party, that any legal action, suit or
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proceeding against it shall be brought in any New York Court, and hereby
irrevocably accepts and submits to the exclusive jurisdiction of each such New
York Court with respect to any such action, suit or proceeding. Each party
hereto waives any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions, suits or proceedings brought in any such
New York Court and hereby further waives and agrees not to plead or claim in any
such New York Court that any such action, suit or proceeding brought therein has
been brought in an inconvenient forum. Each party agrees that (i) to the fullest
extent permitted by law, service of process may be effectuated hereinafter by
mailing a copy of the summons and compliant or other pleading by certified mail,
return receipt requested, at its address set forth below and (ii) all notices
that are required to be given hereunder may be given by the attorneys for the
respective parties.
6.4 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (B) IN ANY WAY
CONNECTED OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY
OF THEM (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT
OTHERWISE HAVE TO TRIAL BY JURY.
6.5 Assignability. This Purchase Agreement shall be
binding upon, and shall be enforceable by and inure to the benefit of, the
parties hereto and their respective heirs, legal representatives, successors and
assigns. If a party's rights under this Purchase Agreement have been assigned in
accordance with the terms of this Purchase Agreement, all references to such
party shall be treated as a reference to the assignee. Neither this Purchase
Agreement nor any of the rights or obligations hereunder may be assigned by
Seller without the prior written consent of Buyer, and any attempted assignment
without such consent shall be void and of no effect. Buyer may assign all or a
portion of its rights and obligations under this Purchase Agreement, provided
that such assignment(s) shall not affect Buyer's obligations hereunder.
6.6 Severability. If any provision of this Purchase
Agreement, or the application thereof, is for any reason held to any extent to
be invalid or unenforceable, the remainder of this Purchase Agreement and
application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto. The
parties further agree to replace such void or unenforceable provision of this
Purchase Agreement with a valid and enforceable provision that will achieve, to
the extent possible, the economic, business and other purposes of the void or
unenforceable provision and to execute any
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amendment, consent or agreement deemed necessary or desirable by Buyer to effect
such replacement.
6.7 Reliance. Each party to this Purchase Agreement
acknowledges and agrees that it is not relying on tax advice or other advice
from the other party to this Purchase Agreement, and that it has or will consult
with its own advisors.
6.8 Equitable Remedies. Seller agrees that irreparable
damage would occur to Buyer in the event that any of the provisions of this
Purchase Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that Buyer shall be entitled
to an injunction or injunctions to prevent breaches of this Purchase Agreement
by Seller and to enforce specifically the terms and provisions hereof in any
federal or state court located in California (as to which the parties agree to
submit to jurisdiction for the purposes of such action), this being in addition
to any other remedy to which Buyer is entitled under this Purchase Agreement or
otherwise at law or in equity.
6.9 Notices. Any notice or demand which must or may be
given under this Purchase Agreement or by law shall, except as otherwise
provided, be in writing and shall be deemed to have been given (i) when
physically received by personal delivery (which shall include the confirmed
receipt of a telecopied facsimile transmission), or (ii) three business days
after being deposited in the United States certified or registered mail, return
receipt requested, postage prepaid, or (iii) one business day after being
deposited with a nationally known commercial courier service providing next day
delivery service (such as Federal Express).
Any such notice shall be addressed and delivered or telecopied
(a) in the case of a notice to Buyer at the following address and facsimile
number:
c/o Maguire Partners
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000)000-0000
Facsimile: (000)000-0000
Attn: Xxxxxx X. Xxxxxxx III and Xxxx Lammas
and (b), in the case of a notice to Seller, to the address and facsimile number
set forth on the Purchase Agreement Signature Page hereof.
6.10 Survival. It is the express intention and agreement
of the parties hereto that the representations, warranties and covenants of
Seller set forth in this Purchase Agreement shall survive the consummation of
the transactions contemplated hereby.
6.11 Titles. The titles and captions of the Articles,
Sections and paragraphs of this Purchase Agreement are included for convenience
of reference only and shall have no effect on the construction or meaning of
this Purchase Agreement.
6.12 Third Party Beneficiary. No provision of this
Purchase Agreement is intended, nor shall it be interpreted, to provide or
create any third party beneficiary rights or any
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other rights of any kind in any customer, affiliate, stockholder, partner,
member, director, officer or employee of any party hereto or any other person or
entity.
6.13 Expenses. Buyer shall pay all of Seller's
out-of-pocket expenses (including legal fees and expenses) incurred in
connection with this Purchase Agreement and the transactions contemplated
hereby.
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PURCHASE AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has executed
this Purchase Agreement as of this 24th day of June, 2003.
SELLER
RECP Library LLC,
a Delaware limited liability company,
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxx
Treasurer
SELLER'S NOTICE ADDRESS
c/o DLJ Real Estate Capital Partners, Inc.
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
BUYER
XXXXXXX PROPERTIES, L.P.
a Maryland limited partnership
By: Xxxxxxx Properties, Inc.
a Maryland corporation
Its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Co-Chief Executive Officer
S-1
THE COMPANY
NEW BHE, LLC,
a Delaware limited liability company
By: RECP Library LLC,
a Delaware limited liability company,
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxx
Treasurer
BUNKER HILL
BUNKER HILL EQUITY, LLC
a Delaware limited liability company
By: Xxxxxxx Partners BGHS, LLC
a California limited liability company
By: Xxxxxxx Partners SCS, Inc.
a California corporation
Its Manager
By: /s/ Xxxxxx X. Xxxxxxx III
-------------------------
Xxxxxx X. Xxxxxxx III
President
BGHS
XXXXXXX PARTNERS BGHS, LLC
a California limited liability company
By: Xxxxxxx Partners SCS, Inc.
a California corporation
Its Manager:
By: /s/ Xxxxxx X. Xxxxxxx III
-------------------------------
Xxxxxx X. Xxxxxxx III
President
S-2
HOPE PLACE
XXXXXXX PARTNERS-HOPE PLACE, LTD.
a California limited liability company
By: Xxxxxxx Partners BGHS, LLC
a California limited liability company
Its Managing General Partner
By: Xxxxxxx Partners SCS, Inc.
a California corporation
Its Manager
By: /s/ Xxxxxx X. Xxxxxxx III
-------------------------------------
Xxxxxx X. Xxxxxxx III
President
S-3
EXHIBIT A
TO
PURCHASE AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby assigns,
transfers, sells and conveys to Xxxxxxx Properties, L.P., a Maryland limited
partnership, its entire legal and beneficial right, title and interest in and to
New BHE, LLC, a Delaware limited liability company (the "Company"), including,
without limitation, all right, title and interest, if any, of the undersigned in
and to the assets of the Company and the right to receive distributions of
money, profits and other assets from the Company, presently existing or
hereafter at any time arising or accruing (such right, title and interest are
hereinafter collectively referred to as the "Preferred Equity Interest"), TO
HAVE AND TO HOLD the same unto Xxxxxxx Properties, L.P., its successors and
assigns, forever.
The undersigned hereby reaffirms the accuracy of all
representations and warranties and the satisfaction of all covenants made by the
undersigned in that certain Purchase Agreement dated as of______________, 2003
(including any exhibit thereto or agreement contemplated thereby) and if such
reaffirmation cannot be made, hereby identifies those representations,
warranties and covenants with respect to which circumstances have changed.
Upon the execution and delivery hereof, Xxxxxxx Properties,
L.P., or its assignee assumes all obligations in respect of the Preferred Equity
Interest.
Executed: ___________________, 200_
RECP LIBRARY LLC,
a Delaware limited liability company,
By:__________________________________
Xxxxxx X. Xxxxxxxxx
Treasurer
Exhibit A
EXHIBIT B
TO
PURCHASE AGREEMENT
CERTIFICATION OF NON-FOREIGN STATUS(1)
Section 1445 of the Internal Revenue Code of 1986, as amended provides that a
transferee of a United States real property interest must withhold tax if the
transferor is a foreign person. To inform Xxxxxxx Properties, L.P., a Maryland
limited partnership ("Buyer") that the withholding of tax is not required upon
the sale of the Preferred Equity Interest by RECP Library LLC, a Delaware
limited liability company (the "Seller") to the Buyer in exchange for the
Purchase Price, the undersigned hereby certifies the following on behalf of the
Seller:
1. The Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the Code and the
Treasury Regulations promulgated thereunder);
2. The Seller's employer identification number is_____________________;
and
3. The Seller's office address is:
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
The undersigned understands that this certification may be disclosed to
the Internal Revenue Service by the Buyer and that any false statement contained
herein could be punishable by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certification and, to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of the Seller.
By:______________________________
Its:_____________________________
Date:____________________________
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(1) Capitalized terms which are used but not otherwise defined herein shall
have the meanings ascribed to them in that certain Purchase Agreement,
dated________________, 2003.
Exhibit B, Page 1
