Exhibit
99.1.1
PURCHASE
AGREEMENT
Dated as of November 24, 2003
By and Among
THOMAS E. ROBINSON,
CROWN POINT, L.L.C.,
CROWN POINT MANAGER, INC.,
and COPT ACQUISITIONS, INC.
TABLE OF CONTENTS
i
ii
PURCHASE AGREEMENT
THIS
PURCHASE AGREEMENT
(this “Agreement”) is made as of the
day of November,
2003, (the “Effective Date”) by and among THOMAS E. ROBINSON (“Robinson”), CROWN POINT,
L.L.C., a Delaware limited liability company (the “Company”), CROWN POINT
MANAGER, INC., a Maryland corporation (“CPM” and, collectively with
Robinson, the “Seller”) and COPT ACQUISITIONS, INC., a Delaware
corporation, or its permitted assigns (collectively the “Purchaser”).
RECITALS
A. Robinson & CPM are the owners of 100% of
the membership interests in the Company.
(All of the membership interests in the Company are defined as the
“Interests.”)
B. The Company owns the Property (as defined
below).
C. Robinson & CPM desire to sell the
Interests and Purchaser desires to purchase the Interests, subject to and upon
the terms and conditions hereinafter set forth.
In consideration of the mutual covenants hereinafter
set forth and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section 1.1. Definitions. For purposes of this Agreement, the
following capitalized terms have the meanings set forth in this
Section 1.1:
“Certificate
of Formation” means that certain Certificate of Formation of Crown
Point L.L.C., as amended, and filed with the Delaware Office of the Secretary
of State.
“Operating
Agreement” means that certain Second Restatement of Limited
Liability Company Agreement dated November 7, 2002, a true and correct
certified copy of which is attached hereto along with other Organizational
Documents as Exhibit A.
“Tenant
Deposits” means all security deposits, paid or deposited by the
Tenants to the Company, as landlord, or any other person on the Company’s
behalf pursuant to the Tenant Leases (together with any interest which has
accrued thereon, but only to the extent such interest has accrued for account
of the respective Tenants).
“Tenant
Leases” means (i) all leases, rental agreements or occupancy
agreements, and all renewals, amendments, modifications and supplements
thereto, together with (ii) any renewals and modifications thereof and any
new leases entered into after the Effective Date. Tenant Leases include subleases, franchise agreements or similar
occupancy agreements entered into by Tenants which, by their nature, are
subject to Tenant Leases.
1
“Tenants” means all persons or entities
leasing, renting or occupying space within the Improvements pursuant to the
Tenant Leases, including any subtenants, licenses, concessionaires, franchisees
or other persons or entities whose occupancy is derived through Tenants.
Section 1.2. The Property. Subject to the terms and conditions of this
Agreement, Seller agrees to sell to the Purchaser and the Purchaser agrees to
purchase from the Seller the Interests.
Seller represents that the Company owns all of the following
(hereinafter known as the “Property”):
(a) the parcel of land in
the County of Montgomery, Maryland, known as Crown Point, located at 400
Professional Drive, Gaithersburg, Maryland
20879 and more particularly described in Exhibit B attached
hereto as a part hereof (the “Land”);
(b) all buildings
(including but not limited to the office building that is on the Land as of the
date hereof) [the “Building”], structures, equipment and other improvements on
the Land (the “Improvements”);
(c) all easements,
rights-of-way and appurtenances belonging to the Land and all rights of Seller
in the land lying in the bed of any road, street or alley, open or proposed,
which adjoins the Land;
(d) all equipment,
furniture, furnishings, supplies and other personal property and fixtures of
every description, if any, owned by the Company and located in or on, or
attached to, or used in connection with the Land or Improvements, except as
shown on Schedule 1.2(d)
(hereinafter referred to as the “Personal Property”);
(e) all of the Company’s
right, title and interest as lessor in and to the Tenant Leases and, subject to
the terms of the respective applicable Tenant Leases, the Tenant Deposits;
(f) all of the Company’s
right, title and interest in, in all contract rights related to the Land,
Improvements or Personal Property, to the extent assignable, including, without
limitation, the Company’s interest in the following: maintenance, construction, commission, architectural,
engineering, parking, supply or service contracts, warranties, guarantees and
bonds and other agreements related to the Improvements or Personal Property
that will remain in existence after Closing (as hereinafter defined)
(collectively, the “Service Contracts”);.
(g) all of the Company’s
right, title and interest in, to and under any licenses certificates of
occupancy, and permits and approvals issued by any governmental authority and
relating to the Land, Improvements, Personal Property or Service Contracts, to
the extent assignable (the “Permits”);
(h) all of the Company’s
right, title and interest, if any, to the extent assignable or transferable, in
and to the name “Crown Point” and all names, trade names logos associated or
used in connection with the Property and all trademarks and all local and
toll-free telephone numbers and listings used by the Company exclusively in the
operation and identification of the Improvements; and
2
(i) all of the Company’s
right, title and interest, if any, to the extent assignable or transferable, in
and to all other intangible rights, titles, interests, privileges and
appurtenances owned by the Company’s and related to or used exclusively in
connection with the ownership, use or operation of the Land or Improvements..
The Property shall not include the cash
balances in the bank accounts shown on Schedule 1.2
(the “Cash Accounts”).
Section 1.3. Purchase
Price, Pass-Throughs.
The
purchase price to be paid by Purchaser to Seller for the Interests shall be
fixed at TWENTY-TWO MILLION FOUR HUNDRED THOUSAND AND 00/100 DOLLARS
($22,400,000.00) (hereinafter referred to as the “Purchase Price”), payable as
follows:
(a) FIVE HUNDRED THOUSAND
AND 00/100 DOLLARS ($500,000.00) cash in earnest money to be delivered in
escrow (the “Escrow”) to Pioneer Title, acting as escrow agent (the “Escrow
Agent”) to be delivered simultaneously with the execution hereof by Purchaser
(such deposit, plus all interest earned thereon, being hereinafter referred to as
the “Deposit”). The parties hereby
agree that, pending the closing hereunder or the termination of this Agreement,
the Deposit shall be deposited in a federally insured interest bearing account. The Tax Identification Number of the
Purchaser is 23-2946433. If the
transaction contemplated by this Agreement is consummated in accordance with
the terms hereof, the Deposit shall be credited against the cash due on the
Closing Date (as hereinafter defined).
In the event the transaction contemplated by this Agreement is not
consummated in accordance with the terms hereof, the Deposit shall be delivered
in accordance with Section 3.2 hereof and other applicable provisions of
this Agreement.
(b) Purchaser, through its
acquisition of the Interests shall reaffirm the obligations of the Company (the
“Loan”) under that certain Consolidated Amended and Restated Promissory Note
dated on or about November 19, 2002 (the “Note”), payable to Morgan
Stanley Dean Witter Mortgage Capital, Inc. (“Lender”), and all documents
securing the Note as listed on Schedule 1.3(b) (the “Existing
Mortgage”) held by the holder of the Existing Mortgage as security for the
Note. The principal balance of the Note
as of December 31, 2003, will be approximately SIXTEEN MILLION SEVEN
HUNDRED NINETY-THREE THOUSAND FIVE HUNDRED SIXTY-ONE AND 57/100 DOLLARS ($16,793,561.57) and interest which accrues
on the Note at a rate of approximately 6.25% will be paid by Seller through the
Closing Date. The exact amount of the
Note shall be fixed as of the Closing Date.
Said reaffirmation shall be without material change in the terms of the
Existing Mortgage, with Purchaser or its principals reaffirming, from and after
the Closing Date, (i) the liability, if any, of the Company and its principals
in the Environmental Indemnity Agreement, which agreement was executed by the
Company and Thomas E. Robinson, and (ii) the Guaranty of any carveouts from the
non-recourse provisions of the Existing Mortgage, which Guaranty was executed
by Thomas E. Robinson.
(c) The balance of the
Purchase Price, after a credit for the Deposit and the reaffirmation of the
Company’s obligations under the Note which shall occur simultaneously with the
transfer of the Interests (using the principal balance thereof on the Closing
Date), shall be payable by federal wire transfer or other good funds to be
received by Seller on the Closing Date (as hereinafter
3
defined), such amount to
be increased or decreased by prorations and other adjustments, including
interest, as provided herein.
Section 1.4. Indivisible
Economic Package. Purchaser has
no right to purchase, and Seller has no obligation to sell, less than all of
the Interests, it being the express agreement and understanding of Purchaser
and Seller that, as a material inducement to Seller and Purchaser to enter into
this Agreement, Purchaser has agreed to purchase, and Seller has agreed to
sell, all of the Interests, subject to and in accordance with the terms and
conditions hereof.
Section 2.1. Representations
and Warranties of Seller.
Seller represents and warrants to Purchaser as follows, which
representations and warranties are true as of the date of this Agreement and
shall be true as of the date of Closing:
(a) Company’s Authority. The Company is a duly organized and validly
existing Delaware limited liability company, and is in good standing. The Company has the power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereunder. The person
signing this Agreement on behalf of the Company has been duly authorized by the
Company to do so. The Operating Agreement has not been
modified, amended or changed in any way since the execution thereof, and the
Operating Agreement constitutes the entire operating agreement of the
Company. The Articles of Organization
have not been modified, amended or changed in any way since the execution
thereof, and the Articles of Organization included as part of Exhibit A constitute the entire
articles of organization of the Company.
Seller shall not make or permit any modification of or amendment to the
Operating Agreement or the Articles of Organization of the Company after the Effective
Date to and until the Closing Date.
(b) CPM’s Authority. CPM is a duly organized and validly existing
Maryland corporation, and is in good standing.
CPM has the power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereunder. The person signing this Agreement on behalf
of CPM has been duly authorized by CPM to do so.
(c) Consents. The execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated hereby will not,
require any approval, consent, authorization or order of, or filing with, any
private party or any governmental agency or body, or violate any law, rule or
regulation, or any order, arbitration award, judgment or decree to which Seller
is a party or by which it or any of the Property is bound.
(d) Seller’s Title. CPM and Robinson collectively own one
hundred percent (100%) of the Interests of the Company, and will transfer
unencumbered ownership of such Interests to Purchaser at Closing. As of Closing, there will be no members of
the Company other than the Seller. At
Closing, Seller will transfer the Interests owned by it to Purchaser free and
clear of any restrictions on transfer, assignment or sale, liens, encumbrances,
exceptions, taxes, security interests, options, warrants, purchase rights,
contracts, commitments, equities, claims, liabilities,
4
covenants, agreements and
demands. The foregoing notwithstanding,
Purchaser acknowledges that the Interests are not registered under the
Securities Act of 1933, or any other federal or state securities laws, and may
be subject to any restrictions on resale that may be applicable thereunder, if
any. The Seller is not (and at Closing
will not be) party to any voting trust, proxy, or other agreement or
understanding with respect to the Interests (other than the Operating
Agreements).
(e) Title to Property. The Company owns good and marketable, fee
simple title to the Property, free and clear of all liens, defects and encumbrances
except:
(i) The Tenant
Leases. Attached as Schedule 2.1(e)(i) is a rent roll
for the Property, dated as of the Effective Date, which, to Seller’s knowledge,
is true and correct in all material respects as of the date thereof. Except as set forth in Schedule 2.1(e)(i), there are, to
Seller’s knowledge, no leases, license agreements or other occupancy agreements
(or any amendments or supplements thereto) now in effect with respect to the
Property other than as reflected on the rent roll. Schedule 2.1(e)(i)
also includes a schedule of the Tenant Deposits, together with any
interest that may be required under the Tenant Leases to be accrued thereon as
of the Closing Date. No more than five
(5) days before Closing, Seller shall provide an updated rent roll, which, to
Seller’s knowledge shall be true and correct in all material respects as of the
date thereof.;
(ii) Permitted Exceptions
(as defined herein); and
(iii) Existing financing of
the Land, Improvements and the Interests which shall be paid off no later than
the Closing Date.
(f) Real Estate Agents;
Disclosure. Seller has employed and
agreed to pay a commission to CB Richard Ellis of Virginia, Inc. as broker
(“Broker”) pursuant to a separate agreement. No other fees or commissions are
payable to any other persons with whom Seller may have dealt. Certain members
of Seller are agents of and have an ownership interest in Broker.
(g) Pending Litigation. Except as shown on Schedule 2.1(g),
Seller warrants that, as of October 31, 2003, it has received no written
notice of and has no actual knowledge of any pending or threatened litigation
or other judicial or administrative proceeding, affecting the Interests and/or
the Property or the Company, including, without limitation, condemnation or exercise
of the right of eminent domain or bankruptcy.
The Company is not contemplating either (i) the filing of a petition by
it under any bankruptcy or insolvency laws (and Seller has no actual knowledge
of any person contemplating the filing of any such petition against the
Company), or (ii) the liquidation of all or a major portion of the assets of
the Company except the sale of the Interests hereunder.
(h) Contracts. Attached as Schedule 2.1(h) is a list of the Service Contracts,
which list, to Seller’s knowledge, is true and correct in all material respects
as of the date hereof. To Seller’s
knowledge, other than the Service Contracts, and as may be reflected within the
Tenant Leases and Permitted Exceptions, there are no service contracts to which
the Company is a party that will be in effect as of the Closing Date that are
not terminable within thirty (30) days without
5
cause or penalty. To
Seller’s knowledge, there are no other agreements or contracts, including but
not limited to those for the sale, option to sell, lease or manage, with
respect to the Property and its operation, use and maintenance, that will be in
effect upon Closing.
(i) Leasing Commissions. All leasing commissions due CB Richard
Ellis, Inc. have been paid (or will be paid by Seller prior to Closing) for the
initial terms of the Leases. Broker is
the exclusive leasing agent for the Property, and no other brokers or agents
are entitled to be paid any commissions or finder’s fees in connection with the
leasing of the Building. Seller shall
deliver to Purchaser within five (5) days of the date hereof (i) a complete
copy of the leasing agreement with Broker, including all provisions relating to
any renewal commissions, and all provisions relating to new tenants, and (ii)
the current Property Management Agreement with Broker. Notwithstanding anything contained herein,
Purchaser shall be responsible for the leasing commissions and tenant improvements
outlined on Schedule 2.1(i)(1) attached hereto. Other than the agreement with CB Richard
Ellis, Inc, there are no other agreements (i) providing for the payment from
and after the Closing Date of leasing commissions or fees for procuring tenants
with respect to the Property, or (ii) except as shown on Schedule 2.1(i)(2)to
Seller’s knowledge, providing for the payment of any leasing commissions or
fees upon the future exercise by such tenants of extension or expansion rights
set forth in their Leases.
(j) Taxes. The Company is not delinquent in its
obligation to file Federal, state and local income tax returns, and/or limited
liability company annual or other filings in Delaware or Maryland, required to
be filed by it, nor to pay Federal, State and local income taxes and/or limited
liability company annual or other filing fees in Delaware or Maryland required
to be paid by it. Seller will cause
final income tax returns for the Company to be filed for the partial tax year
ending on the Closing Date prior to delinquency, will pay all taxes due from it
in connection or as shown on such filings prior to delinquency, and will
provide a copy thereof to Purchaser promptly after filing. In addition, Seller will, prior to Closing,
cause the Company to file all applicable business tax returns, personal
property tax returns and/or limited liability company filings in Delaware and
Maryland that are then required to be filed (e.g., for all tax reporting
periods that are “closed” as of the Closing Date) even if the date of
delinquency for such tax filings would not occur until after the Closing Date,
and will pay all taxes and/or fees due in connection with or as shown on such
filings.
(k) Environmental
Conditions. Except with respect to
issues (a) disclosed in any environmental report(s) furnished to Purchaser by
the Company or Seller, or otherwise obtained by Purchaser during the Study
Period (collectively, the “Phase I Report”), or (b) otherwise
disclosed by the Company or Seller to Purchaser in writing during the Study
Period, to Seller’s knowledge, no Hazardous Materials are located upon or
within the Property. The term “Hazardous
Materials” shall mean: (A) any
“hazardous waste” as defined by the Resource Conservation and Recovery Act of
1976, as amended from time to time, and related regulations; (B) any “hazardous
substance” as defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time, and related
regulations; (C) oil petroleum products and their byproducts; (D) any hazardous
levels of asbestos or radon gas; (E) polychlorinated biphenyls (PCBs); (F)
flammable explosives; and (G) radioactive materials. Seller has not received a summons, citation, directive, notice,
complaint or other written communication from the United States Environmental
Protection Agency or the
6
Maryland Environmental
Service or other governmental authority concerning any alleged violation of any
environmental law or rule or regulation at the Land.
(l) Financial Information. To Seller’s knowledge, Schedule 2.1(l) contains a true,
correct and complete Schedule E of the 2002 federal tax return for the
Company and (ii) accurately reflects true and correct statements of profit and
loss and the budget of the Company with respect to the Property for calendar
year 2002 and year-to-date for calendar year 2003 from the management, leasing,
maintenance, repair and operation of such Property for such periods.
(m) Employees of Company. Since its formation and through the Effective
Date, the Company has no employees and/or employment agreements or
understandings (whether written or verbal) with any person, nor is the Company
party to any union contract or collective bargaining agreement.
(n) Single Purpose Entity. The Company is a single purpose entity with
its sole business purpose being the ownership, operation and management of the
Property.
(o) Liabilities. Except for liabilities incurred in the
ordinary course of business which shall be satisfied on or before the Closing,
the Company, to the best of Seller’s knowledge, has no liabilities (current or
contingent, asserted or unasserted) of any nature except for the liabilities
expressly described in this Agreement under the Permitted Exceptions and the
Service Contracts, including, without limitation, no contract liabilities, tort
liabilities or tax liabilities.
(p) Tenant Inducement Costs. The
Company has performed, or will perform at or prior to closing, all of
the duties, liabilities and obligations imposed upon the Company by the terms,
provisions and conditions contained in the Tenant Leases and accruing on or
prior to the date hereof, and there are no Tenant Inducement Costs (as defined
herein) that remain to be paid or performed by any Seller as landlord under the Tenant Leases,
including all hard and soft construction costs (whether payable to the
contractor or the tenant), tenant allowances, moving expenses and other
out-of-pocket costs, or that remain unused, including any rent abatements. For
purposes of this Section 2.1(p), “Tenant Inducement Costs” shall mean any
out-of-pocket payments required under the Tenant Leases to be paid by the
Company, as landlord thereunder, to or for the benefit of tenants, any rent
abatement or other rent concessions granted to tenant, which are in the nature
of a tenant inducement, including specifically, but without limitation, tenant
improvement costs, improvement costs for improvements to the Property
generally, lease buyout costs, free rent and moving, design, refurbishment and
other allowances and leasing commissions, except as shown on Schedule 2.1(p).
(q) Compliance with Laws. To Seller’s knowledge, neither Seller nor
Company has received any written notice of any violation of any federal, state,
county or municipal laws, ordinances, regulations and requirements affecting
the Property or any portion thereof (including the conduct of business
operations thereon), or of any recorded covenants, easements or other
agreements affecting the Property.
(r) Loan Current. All payments due on the Loan are current
through the date of this Agreement; no default exists under the Loan or the
Existing Loan Documents; the following
7
amounts are held in
escrow by Lender, or an agent for Lender, for taxes or insurance: taxes - $51,311.81, insurance - $39,390.97; and there are no side letters or
other agreements relating to the Loan that have not been delivered to
Purchaser.
(s) Survival. Seller’s liability for a breach of the
foregoing warranties and representations, set forth in (a)-(r) above shall
survive Closing for a period of one (1) year.
(t) Seller’s Knowledge. Whenever the phrases “to Seller’s knowledge”
or “to the best of Seller’s knowledge” are used in this Agreement or in any representations
and warranties given to Purchaser at Closing, such knowledge shall be the
actual knowledge of Thomas E. Robinson.
Section 2.2. Representations
and Warranties of Purchaser.
Purchaser represents and warrants to Seller as follows:
(a) Purchaser’s
Authority. Purchaser is duly
organized and validly existing under the laws of the State of Delaware and is
in good standing. Purchaser has the power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereunder. The person signing this Agreement on behalf
of Purchaser has been duly authorized to do so.
(b) Real Estate Agents. Purchaser has not dealt with any brokers,
and no commissions are payable by Purchaser to any persons as a result of
Purchaser’s acquisition of the Interests, or otherwise arising from Purchaser’s
obligations under this Agreement.
(c) Non-Contravention. The execution and delivery of this Agreement
by Purchaser and the consummation by Purchaser of the transactions contemplated
hereby will not violate any judgment, order, injunction, decree, regulation or
ruling of any court or Authority or conflict with, result in a breach of, or
constitute a default under the organic documents of Purchaser, any note or
other evidence of indebtedness, any mortgage, deed of trust or indenture, or
any lease or other material agreement or instrument to which Purchaser is a
party or by which it is bound.
(d) Consents. No consent, waiver, approval or
authorization is required from any person or entity (that has not already been
obtained) in connection with the execution and delivery of this Agreement by
Purchaser or the performance by Purchaser of the transactions contemplated
hereby.
Section 3.1. Study
Period. Seller has provided
Purchaser with the following information or will provide within five (5) days
following execution of this Purchase Agreement:
(a) Copies of the Tenant
Leases, amendments, side letters, and any other documents relating to the
leasing of the Property or any unexecuted leases being considered by Seller,
including, without limitation, copies of any lease abstracts, tenant contact
sheets, current delinquency report and most recent year-end reconciliation of
pass-throughs to tenants.
8
(b) A copy of all building
plans and specifications (civil, architectural and structural) for the
Building, including current as-builts, photographs, CAD drawings, mechanicals
and identification of utility meters and submeters in Seller’s possession.
(c) Copies of all existing
geotechnical, environmental, soils and building structural reports prepared for
Seller (collectively, the “Reports”).
(d) A copy of the existing
owner’s title insurance policy insuring Seller and copies of all of the
underlying title exception documents referenced therein which are in Seller’s
possession.
(e) A copy of the current
ALTA/ACSM plat of survey of the Property.
(f) A copy of the zoning
letter from the City of Gaithersburg dated November 4, 2002 stating that
the Property is zoned MXD, Mixed Use Development under the Zoning Ordinance of
the City of Gaithersburg.
(g) Copies of all Service
Contracts (including, without limitation, all leasing, commission and brokerage
agreements, all property management agreements and all employment agreements).
(h) A copy of the CD-Rom
which contains copies of all closing documents from the November 2002 Loan
closing with Lender, along with the subsequently executed Loan Modification
Agreement.
(i) Copies of all
guarantees and warranties relating to the construction of the building and its
components, including, but not limited to, any personal property, the roof,
elevators and the heating and air conditioning system, in Seller’s possession
that are still in effect.
(j) Copies of certificates
of insurance evidencing Seller’s insurance coverage for the Property.
(k) Copies of real estate
and personal property tax statements for the current and previous three (3) tax
years, and if received by Seller, the valuation notice issued with respect to
the Premises for the coming tax year.
(l) Copies of all utility
bills in Seller’s possession or the possession of Seller’s property manager.
(m) Copies of operating
budgets for the Property, including projected capital expenditures, for the
current year and the immediately subsequent year, copies of the income expense
statements, including capital expenditures, for the past three (3) years
accurately reflecting Seller’s cost of operation of the Property and copies of
the general ledger, solely as it relates to the Property and not to any other
properties of Seller or the Company, for the current year and the immediately
preceding calendar year.
(n) Schedule of
personal property, to be provided within ten (10) days of the Execution Date.
9
(o) Certificate of
Occupancy for shell space.
(p) Any other documentation
that is in Seller’s possession and is reasonably necessary for Purchaser to
complete its due diligence prior to the expiration of the Study Period and to
ensure that all matters relating to the Property are satisfactory to Purchaser.
At all times during the Study Period, and, if this
Agreement is not sooner terminated pursuant to the provisions hereof, through
Closing, Purchaser, its agents, employees, representatives and contractors, at
Purchaser’s sole cost and expense, shall have the following rights: (i) to
enter upon the Property during normal business hours upon giving reasonable notice
to Seller to perform such tests, inspections and examinations of the Property
as Purchaser deems advisable, including the structural condition of, and all
electrical and mechanical systems contained in, the Improvements, and to make
investigations with regard to title to the Property, matters of survey, flood
plain of the Property, environmental surveys, utilities availability, zoning
and building code and other applicable governmental requirements with regard to
the Property and the use thereof; and (ii) to investigate and review Seller’s
books and records relating to the Property and all documentation delivered to
Purchaser pursuant to the provisions of this Section. With respect to the foregoing investigations, Seller shall have
the right to have a representative present while such investigations are being
conducted by Purchaser and/or its agents, employees, representatives and
contractors. In conducting such
investigations, Purchaser, its agents, employees, representatives and
contractors, may enter upon the Property and do all things necessary in
connection therewith, provided they do not materially adversely affect the
Property or violate the rights of the tenants under the Tenant Leases or
unreasonably interfere with the use and occupancy of the Property by the
tenants. After completing the foregoing
investigations, Purchaser and its agents, employees, representatives and
contractors shall restore the Property to the same condition in which it
existed prior to conducting such investigations. Purchaser shall indemnify, defend and hold Seller harmless from and against all costs, loss,
liability, damage and expense, of every kind and nature, including reasonable
attorneys’ fees and costs, arising out of the activities of Purchaser and its
agents, employees, representatives and contractors upon the Property pursuant
to the terms of this Agreement. The
foregoing repair and indemnity provisions shall survive any termination of this
Agreement, and if this Agreement is not terminated, shall survive Closing.
During
the Study Period, Purchaser and Seller shall work together to diligently pursue
the approval of the reaffirmation of the Existing Mortgage and Seller’s release
from all liability under the Loan, except to the extent such liability arose
prior to the Closing Date, pursuant to Lender’s checklist, attached hereto as Schedule 3.1. To this end, Purchaser shall supply to the
holder or servicer of the Existing Mortgage such financial information,
background information and supporting data relating to the Purchaser as the
holder or servicer of the Existing Mortgage may request. Purchaser shall pay any fee charged by
Lender in connection with Purchaser’s reaffirmation of the Company’s
obligations under the Loan, provided, however, that such fee shall not be any
greater than .5% of the outstanding balance of the Loan, and make any deposits
of fees and costs as may be required to formally apply for the Lender’s
approval of Purchaser’s ownership of the Interests in the Company. In addition, Purchaser shall pay all of
Lender’s costs and expenses associated with Purchaser’s reaffirmation of the
Company’s obligations under the Loan, including Lender’s attorney’s fees, which
costs and expenses shall be paid pursuant to a separate written agreement
between Purchaser and Seller.
10
Seller has delivered or
will deliver pursuant to this Section 3.1, to Purchaser the most current
title insurance policy and the current survey with respect to the
Property. Purchaser shall obtain a
current commitment for title insurance (the “Commitment”), issued by
Anchor Title Company (the “Title Company”). Purchaser shall also obtain, at its sole
cost and expense, a new survey of the Property, or at Purchaser’s election,
Purchaser may obtain a recertification of the survey delivered to Purchaser by
Seller (in either case, the “Survey”).
Purchaser will have until the expiration of the Study Period to examine
title to the Property and to notify Seller in writing of any objections to
title that may be revealed by Purchaser’s examination (called herein the “Notice of Title Objections”). Purchaser will deliver to Seller, promptly
after its receipt by Purchaser, a copy of the Commitment and a copy of the
Survey. The Notice of Title Objections,
if and when delivered by Purchaser to Seller, shall enumerate all title
exceptions or objections that are unacceptable to Purchaser (and all such title
exceptions and objections that are not so enumerated as unacceptable to
Purchaser shall be deemed to be acceptable, shall become Permitted Exceptions
for all purposes of this Agreement). In
the event that Purchaser fails to give a Notice of Title Objections on or
before the expiration of the Study Period, then such failure to timely notify
Seller will constitute a waiver of such right to object to any title defects,
and this Agreement will remain in full force and effect in accordance with its
terms and the purchase and sale contemplated hereby will be closed as herein
provided, with all exceptions shown on the Commitment, being deemed acceptable
to Purchaser.
If Purchaser has timely
given a Notice of Title Objections as set forth above, Seller will have the
right, but not the obligation (unless otherwise expressly set forth below in
this subsection), until on or before ten (10) calendar days after the date on
which Purchaser delivered its Notice of Title Objections (the “Title Objection Date”), within which to
cure any such objections. If Seller
cures such objections within the foregoing 10-day period, or, if such
objections are such that they cannot be cured within ten (10) calendar days,
and Seller has commenced curing such objections and thereafter diligently
proceeds to perfect such cure (but in no event beyond forty-five (45) days
unless agreed to by Purchaser), then this Agreement shall continue in force and
effect, and the Closing Date shall be adjusted accordingly. If Seller is unable to, or chooses not to,
cure such objections within the time permitted, then Purchaser may elect either
(i) to terminate this Agreement by written notice to Seller and Title Company,
in which event the Deposit shall be returned to Purchaser, this Agreement shall
terminate, and the parties shall have no further obligations or liabilities
hereunder (except for any obligations which expressly survive termination),
(ii) to pay over to the Title Company the amount necessary to cause the
applicable liens and Title Objection(s) to be removed from title, which amount
shall not exceed $50,000.00, in which event the Purchase Price payable
hereunder shall be reduced by a like amount, or (iii) to waive the unsatisfied
Title Objections and proceed to Closing, in which event the unsatisfied Title
Objections will become Permitted Exceptions.
Notwithstanding anything
set forth in this Agreement to the contrary, whether or not Purchaser objects
to the same, Seller shall have an obligation (i) to pay (at or prior to
Closing) any amount due in order to satisfy or remove from record title by
bonding off or otherwise any mortgages, deeds of trust and liens or
encumbrances that secure the payment of money (the “Monetary Liens”), other than the Existing Mortgage, and Seller
hereby irrevocably authorizes Escrow Agent to deduct from the Purchase Price at
Closing the amount necessary to pay off or discharge all such Monetary Liens,
and (ii) to cure and remove from record title (at or prior to
11
Closing) all liens and other title exceptions created or filed against
the Property after the Effective Date and not consented to in writing by
Purchaser (collectively, the “Mandatory Cure
Items”).
Any easements,
covenants, restrictions, exceptions of record (other than Mandatory Cure Items)
that are shown on the Commitment to which Purchaser has not objected as set
forth above, together with (a) all laws, ordinances, statutes, orders,
requirements and regulations to which the Property is subject, and (b) all
terms, conditions and provisions of all written leases of space for all or any
portion of the Property shown on Schedule 2.1(e)(i)
or entered into after the Effective Date in accordance with this Agreement, and
(c) any exception from an updated survey, are hereinafter collectively referred
to as “Permitted Exceptions.” If
Purchaser does not deliver the Termination Notice, Purchaser shall be deemed to
have approved the Permitted Exceptions.
Purchaser shall have until 5:00 p.m. on that date
that is thirty (30) days following the Effective Date, to complete its review
of the above information (the “Study Period”).
Should Purchaser in its sole and absolute discretion find exception to
any of the foregoing materials or for any other reason, Purchaser shall have
the right to terminate this Agreement by written notice to the Seller prior to
the expiration of the Study Period. In the event Purchaser does not elect to
terminate this Agreement prior to the expiration of the Study Period, the
Deposit shall become non-refundable except as otherwise provided herein, this
Agreement shall become firm, and the Purchaser and Seller shall proceed to
Closing in accordance with the terms of this Agreement. If prior to the
expiration of the Study Period, Purchaser notifies Seller it does not desire to
purchase the Interests then this Agreement shall be deemed terminated and
neither party shall have any liability to the other except for the obligation
to return the Deposit to Purchaser, Purchaser’s obligation to restore the
Property and the indemnity and confidentiality provisions expressly outlined
herein which survive termination and/or Closing.
Notwithstanding anything
in this Agreement to the contrary, in addition to Purchaser’s termination
rights set forth in this Section 3.1, after receipt by Purchaser of the
initial drafts of the documents required by Lender to assume the Loan (the
“Assumption Documents”), Purchaser shall have a fifteen (15) Day period to
review the terms, conditions and provisions thereof (the “Assumption Document Review Period”). If Purchaser determines within the Assumption Document Review Period that
it is not satisfied with the terms, conditions and provisions of the Assumption Documents, Purchaser shall
have the right to terminate this Agreement by delivering written notice to
Seller within the Assumption Document
Review Period, in which event, the Deposit shall be returned to
Purchaser, this Agreement shall terminate and no longer be of any force or
effect, and no party shall have any further liability or obligation hereunder
except for those obligations that expressly survive termination of this
Agreement. If Purchaser determines
after the Assumption Document Review Period
that it is not satisfied with the terms, conditions and provisions of the
Assumption Documents, Purchaser shall have the right to terminate this
Agreement by delivering written notice to Seller, in which event, the Deposit
shall be returned to Purchaser (less Two Hundred Thousand Dollars ($200,000.00)
which shall be delivered to Seller as liquidated damages), this Agreement shall
terminate and no longer be of any force or effect, and no party shall have any
further liability or obligation hereunder except for those obligations that
expressly survive termination of this Agreement.
12
Prior to Closing, Purchaser shall treat all
information obtained by Purchaser pursuant to the terms of this Agreement as
strictly confidential, shall not disclose any such information to any other
person and shall not use any such information for any purpose other than the
investigation of the Property so as to confirm its acceptability for purchase
hereunder. Notwithstanding the
foregoing, Purchaser shall have the right to disclose such information to
potential lenders, its attorneys, accountants, engineers, consultants, and
employees.
If Purchaser shall terminate this Agreement as
provided herein, within three (3) business days of such termination, Purchaser
shall return to Seller the originals and all copies of all material relating to
the Property furnished to Purchaser pursuant to this Agreement and shall not
make or retain any copies thereof.
Seller shall terminate,
effective as of Closing, all Service Contracts, including without limitation,
the Property Management Agreement with Broker (as defined in Section 2.1(i))
that are rejected pursuant to written notice delivered by Purchaser to Seller
no later than 5:00 P.M. on the last day of the Study Period. The parties shall prorate any costs incurred
to the extent Seller is unable to provide at least thirty (30) days’ notice of
termination to the applicable vendors under the Service Contracts.
Section 3.2. Conditions
to Purchaser’s Obligations. If
any of the following conditions are not satisfied on or before the Closing,
Purchaser may, at its option, waive any such condition in writing and proceed
to the Closing or terminate this Agreement by written notice to Seller, in
which case the Deposit shall be promptly refunded to Purchaser and thereafter
none of the parties shall have any further liabilities to the others hereunder
except for any provisions hereof that expressly survive termination of this
Agreement:
(a) All of the
representations and warranties of Seller hereunder shall be true and correct in
all material respects as of the date of Closing.
(b) There shall have been
no material, adverse change in the condition of the Property.
(c) Seller shall have
performed in all material respects all of its obligations required to have been
performed hereunder on or before the Closing.
(d) Seller and Purchaser
shall have obtained the consent of the holder of the Existing Mortgage to the
sale of the Interests and the reaffirmation of the Existing Mortgage by
Purchaser, as owner of the Interests in the Company. Seller and/or Purchaser shall each have the option of extending
the Closing Date by up to 60 days in order to obtain such consent by sending
written notice to the other party of this extension.
(e) Not later than five (5)
days prior to the Closing Date, Seller shall provide to Purchaser estoppel
certificates executed by tenants occupying not less than eighty (80%) of the
net rentable square foot area of the Building currently leased under the Tenant
Leases, as well as for all tenants leasing at least 10,000 square feet of the
Building, substantially in the same form as Exhibit
E attached hereto (unless the form or substance of an estoppel
certificate is otherwise provided in the corresponding Tenant Lease and the
applicable tenant requests that its form be utilized, or unless a tenant
requests the deletion of Sections 11 and/or 12, which request Purchaser hereby
agrees to
13
accept), the execution
and delivery of which shall be a condition precedent to Purchaser’s obligation
to proceed to Closing hereunder.
Section 3.3. Conditions
to Seller’s Obligations. If any
of the following conditions are not satisfied on or before the Closing, Seller
may, at its option, waive any such condition in writing and proceed to the
Closing or terminate this Agreement by written notice to Purchaser, and in the
case of such termination, the Deposit shall be promptly paid to Seller (except
for (iii) below, in which case the Deposit shall be promptly refunded to
Purchaser) and none of the parties shall thereafter have any further
liabilities to the others hereunder except for any provisions hereof that
expressly survive termination of this Agreement:
(a) All of the
representations and warranties of Purchaser hereunder shall be true and correct
in all material respects as of the date of the Closing.
(b) Purchaser shall have
performed in all material respects all of its obligations required to have been
performed hereunder on or before the Closing.
(c) Seller and Purchaser
shall have obtained the consent of the holder of the Existing Mortgage to the
sale of the Interests and the reaffirmation of the Existing Mortgage by
Purchaser, as owner of the Interests in the Company. Seller and/or Purchaser shall each have the option of extending
the Closing Date by up to 60 days in order to obtain such consent by sending
written notice to the other party of this extension.
Section 4.1. Date
and Place of Closing, Extensions of Closing. The closing of the transaction contemplated herein (the
“Closing”) shall take place at the offices of the Title Company (the
“Settlement Agent”) on that date that is the later to occur of (i) ten days
after Lender’s approval of Purchaser’s reaffirmation of the Loan as owner of
the Interests of the Company, and the
release of Seller from all liability under the Loan arising after the Closing
Date and (ii) ten (10) days after expiration of the Study Period, but in no
event later than March , 2004 (the “Closing
Date”), or at such other date and location as the parties may otherwise agree. Seller and Purchaser agree that neither
party shall have to attend Closing, provided that each such party satisfies its
closing obligations by delivering its closing requirements to Settlement Agent
on or prior to the Closing Date.
Section 4.2. Deliveries
at Closing.
(a) Deliveries by Seller. At the Closing, Seller shall deliver the
following documents to Purchaser, each of which shall be in form and substance
reasonably satisfactory to Purchaser:
(i) An assignment of
membership interests substantially in the form attached hereto as Exhibit F, duly executed and
acknowledged by Seller (the “Assignment”);
14
(ii) A standard affidavit as
to mechanics’ liens and rights of parties in possession in form and content
acceptable to Seller, such that Purchaser may obtain an Owner’s policy of title
insurance at standard rates with affirmative coverage against mechanics’ liens;
(iii) A certificate from
Seller to the effect that it is not a foreign entity subject to the withholding
requirements of the Foreign Investment in Real Property Tax Act;
(iv) Letters to the tenants
signed by Seller informing them of the sale of the Interests to Purchaser, in
substantially the form attached hereto as Exhibit
G;
(v) Certificate regarding
Seller’s representations and warranties required by Section 2.1, duly
executed and acknowledged by Seller substantially in the form attached hereto
as Exhibit H;
(vi) Originals of the Tenant
Leases which are in the Company’s possession and copies of lease files at the
Property, and originals of any maintenance and service contracts that are to be
assumed;
(vi) Keys and access codes
(as appropriate) for the Building;
(vii) For the Company, a
document by which Seller (i) resigns as Manager of the Company, (ii) elects (as
sole member) Purchaser (or its designee) as the new Manager, and (iii) waives
(to the extent necessary) any transfer conditions or restrictions of the
Operating Agreement therefor;
(viii) Certificate of Good
Standing for Company issued by the Delaware Secretary of State and a
certificate of foreign qualification for Company issued by the Maryland
Secretary of State; and
(ix) Such other documents as
are customary or which may be reasonably required to consummate the
transactions contemplated hereunder, including, without limitation an
affidavit/indemnity in the form in favor of Purchaser’s title insurance company
to obtain a “non-imputation endorsement” in Purchaser’s final policy of title
insurance.
(b) Deliveries by
Purchaser. At the Closing,
Purchaser shall deliver the following items to Seller:
(i) The Purchase Price as
provided in Section 1.3 of this Agreement, subject to any adjustments made
pursuant to Section 4.3 below.
(ii) Execute and deliver the
Assignment evidencing Purchaser’s assumption of the rights and obligations
associated with the Interests from and after the Closing Date;
(iii) All agreements and other
instruments required by the holder of the Existing Mortgage for Purchaser’s
reaffirmation of the Existing Mortgage and the release of Seller of all
obligations to the holder of the Existing Mortgage, to the extent those
obligations are incurred after the Closing Date;
15
(iv) Execute the letters to
the tenants signed by Seller informing them of the sale of the Interests to
Purchaser, in substantially the form attached hereto as Exhibit G;
(v) Certificate regarding
Purchaser’s representations and warranties required by Section 2.2, duly
executed and acknowledged by Purchaser substantially in the form attached
hereto as Exhibit H; and
(vi) Such other documents as
are customary or which may be reasonably required to consummate the
transactions contemplated hereunder.
Section 4.3. Prorations
and Closing Costs. Real estate
taxes for the current fiscal tax year in which
the Closing occurs, all storm water assessments and all other charges
and assessments of every kind and nature relating to the Property shall be
prorated as of the Closing Date (subject to lease provisions). All rents and operating expenses payable
pursuant to existing Tenant Leases for the month in which Closing occurs, as
estimated in good faith by Seller and reasonably acceptable to Purchaser, shall
be prorated as of the Closing Date. Purchaser shall be considered the owner of
the Interests, and accordingly, owner of the Property as of 12:01 a.m. (local
time at the Property) on the Closing Date for purpose of the prorations, as if
Purchaser were vested with title to the Interests the entire Closing Date. Seller shall pay: (i) the costs of preparing the Assignment and other documents
Seller is required to deliver at the Closing pursuant to this Agreement and
(ii) ½ of any and all State and local recordation, transfer taxes and any sales
taxes or fees imposed upon or payable based on the purchase and sale of the
Interests, if any, the costs of filing the amendments to the Certificates of
Formation and ½ of any and all closing or escrow fees of the Escrow
Agent;. Purchaser shall pay all other
costs in connection with acquisition of the Interests, including, but not
limited to, (i) examining title to the Property and obtaining title insurance
or endorsing Seller’s current title insurance policy; (ii) survey fees and any
fees and charges for any investigations conducted by Purchaser during the Study
Period; (iii) ½ of any and all State and local recordation, transfer taxes and
any sales taxes or fees imposed upon or payable based on the purchase and sale
of the Interests, if any, the costs of filing the amendments to the
Certificates of Formation and ½ of any closing or escrow fees of the Escrow
Agent (iv) any and all recording fees,
including, state and local recordation taxes and clerk’s fees for recording of
any Loan or documents required by Lender to evidence the reaffirmation of the
Loan); and (v) any and all fees and expenses, if any, charged by the Lender in
connection with Purchaser’s reaffirmation of Company’s obligations under the
Loan, including but not limited to Lender’s “Assumption” Fee, which shall not
exceed .5% of the outstanding amount of the Loan as of the Closing Date. Each party shall pay its own legal fees and
costs. Seller shall credit Purchaser
with an amount, to be applied to the Purchase Price, equal to the aggregate
amount of unapplied rent abatements provided to Tenants under the Tenant
Leases. Those unapplied rent abatements
shall be pro-rated as of the Closing Date, and are shown on Schedule 4.3. The prorations to be made at
Closing shall be made on the basis of a written statement or statements and all
reasonable supporting documentation, including without limitation, invoices,
delivered to Purchaser by Seller not less than three (3) business days prior to
the Closing Date and approved by Purchaser.
4.3.1 Real
estate, personal property and ad valorem taxes for the year of Closing will be
prorated between Seller and Purchaser as of Closing Date on the basis of actual
bills therefor, if available. If such
bills are not available, then such taxes shall be prorated on the basis of the
most currently available tax bills and, thereafter, promptly re-prorated upon
the availability of
16
actual bills for the period. All rebates or reductions in taxes received subsequent to
Closing, net of costs of obtaining the same, shall be prorated as of the
Closing, when received. The current
installment of all special assessments, if any, which are a lien against the
Property at the time of Closing and are being or may be paid in installments
shall be prorated as of the Closing Date.
4.3.2 Water,
sewer, electric and other utility charges shall be prorated as of the Closing
Date. If consumption of any of the
foregoing is measured by meter, Seller shall, prior to the Closing Date, obtain
a reading of each such meter and a final bill as of the Closing Date. If there is no such meter or if the bill for
any of the foregoing will not have been issued as of the Closing Date, the
charges therefor shall be adjusted at the Closing Date on the basis of the
charges of the prior period for which such bills were issued and shall be
further adjusted between the parties when the bills for the correct period are
issued and, pending receipt of final bills therefor, reasonably estimated
prorated amounts paid by Seller shall be held in escrow by the Title
Company. Seller shall receive, at
closing, an amount equal to any utility security deposits posted by the
Company.
4.3.3 Premiums
on insurance policies will not be adjusted.
As of the Closing Date, Seller will cause the Company to terminate their
insurance coverage and receive, at Closing, an amount equal to any prepaid
premiums, and Purchaser will affect its own insurance coverage.
4.3.4 All
Cash Accounts by the Company, and all insurance refunds, utility deposits, and
all other prepaid items which are capable of being refunded on cancellation of
a contract, shall be distributed to Seller immediately prior to Closing or
retained by the Company following Purchaser’s acquisition of the Interests and
provided as a credit to Seller at Closing.
4.3.5 The
charges and deposits under any transferable and assumed Service Contracts or
permitted renewals or replacements thereof shall be prorated and adjusted as of
the Closing Date.
4.3.6 All Tenant Security
Deposits (together with any accrued interest thereon as may be required by law
or contract) shall be credited to Purchaser as of the date of Closing, and to
extent Seller has any security deposits held in the form of a letter of credit,
such letters of credit shall be assigned to Purchaser as of the Closing Date.
4.3.7 It is agreed that
adjustment billings to tenants for operating expenses, common area maintenance
charges, taxes or insurance premiums for calendar year 2003 shall be billed by
Seller no later than April 30, 2004 and shall be adjusted between Seller
and Purchaser based upon the respective percentages of the total related
expenses paid by each of Purchaser and Seller for calendar year 2003. When any item of proration which has been
adjusted on an estimated basis becomes capable of exact determination, the
party in possession of the facts necessary to make the determination shall send
the other party a detailed report which adjusts the proration to exact amounts
and the parties shall adjust the prior estimate within thirty (30) days after
both parties have received said reports.
4.3.8 If any tenant under a
Tenant Lease is in arrears in the payment of rent or any other charges
(collectively, “Rent”) due from such tenant as of the Closing Date for any
periods prior thereto, then any amounts received from such tenant subsequent to
the Closing Date shall be applied
17
in the following order of
priority whether such rent be received by Seller or Purchaser:
(a) first,
to any rent due for the month in which the Closing occurs;
(b) second,
to the rent due for any month subsequent to the Closing which rent is not a
prepayment at the time paid; and
(c) third,
to all months prior to the month in which the Closing occurred. The parties
shall promptly calculate those amounts due to Seller and deliver them to Seller
with the monthly accounting described in Section 5.4.
Purchaser shall not be
obligated to incur any cost or expense or institute any litigation to collect
delinquent rents or other costs or charges owed to Seller, but to the extent
Purchaser collects any such delinquent amounts, Purchaser shall promptly remit
to Seller, any rents or other amounts, less reasonable out-of-pocket costs of
collection, due Seller for the period prior to the Closing. If Purchaser fails
to use reasonable efforts to collect delinquent rents, Seller shall be entitled
to undertake action including legal proceedings (strictly for money damages
expressly excluding, however, any unlawful detainer or other eviction proceeding)
to collect any rents or other amounts due Seller for the period prior to the
Closing so long as the rents are applied in accordance with this
Section 4.3.
4.3.9 The remaining balances held in the reserve funds
by Lender pursuant to the Loan Agreement between the Company and Lender dated
as of November 19, 2002, shall be provided as a credit to Seller at
Closing. The names and current amounts
of those funds are shown on Schedule 4.3.9. These amounts are subject to change, and
Purchaser and Seller agree that the amount of the credit shall be the balances
in those funds as of the Closing Date.
4.3.10 Notwithstanding anything
contained herein to the contrary, six months after the Closing Date, all
adjustments and prorations shall become final and no further adjustments or
prorations shall be done. The provisions of this Section 4.3 shall
survive closing.
Section 4.4. Risk
of Loss; Possession. The risk
of loss or damage to the Property by fire or other casualty before Closing
shall be assumed by Seller. Seller
shall deliver possession of the Interests to Purchaser on the date of Closing
and the condition of the Property shall be in the condition required by this
Agreement. The risk of loss or damage
to the Property by fire or other casualty after Closing shall be assumed by
Purchaser.
Section 4.5. “As-Is”
Purchase. Other than as
expressly set forth in this Agreement, the transfer of control over the
Property effectuated by virtue of the sale of the Interests from Seller to
Purchaser is in an “AS IS, WHERE IS” condition and “WITH ALL FAULTS” as of the
date of this Agreement and as of the Closing.
Except as expressly set forth in this Agreement, no representations or
warranties have been made or are made and no responsibility has been or is
assumed by Seller or by any partner, officer, manager, member, person, firm,
agent or representative acting or purporting to act on behalf of Seller as to
the condition or repair of the Property or the value, expense of operation, or
income potential thereof or as to any other fact or condition which has or
might affect the Property or the condition, repair, value, expense of operation
or income potential of the Property
18
or any portion thereof. The parties agree that all understandings and agreements
heretofore made between them or their respective agents or representatives are
merged in this Agreement and the Exhibits and the Schedules hereto annexed,
which alone fully and completely express their agreement, and that this
Agreement has been entered into after full investigation, or with the parties
satisfied with the opportunity afforded for investigation, neither party
relying upon any statement or representation by the other unless such statement
or representation is specifically embodied in this Agreement or the Exhibits or
the Schedules annexed hereto. To the
extent that Seller has provided or hereafter may provide to Purchaser
information from any inspection, engineering or environmental reports
concerning asbestos or harmful or toxic substances, Seller makes no
representations or warranties with respect to the accuracy or completeness,
methodology of preparation or otherwise concerning the contents of such
reports. Purchaser acknowledges that
Seller has requested Purchaser to inspect fully the Property and investigate
all matters relevant thereto and to rely upon the results of Purchaser’s own
inspections or other information obtained or otherwise available to Purchaser,
as well as Seller’s representations set forth in this Agreement. The terms and provisions of this paragraph
shall survive Closing or any termination of this Agreement.
Section 5.1. Real
Estate Commissions. Seller and
Purchaser each represent and warrant that no person or entity is entitled to
any brokerage commission, finder’s fee or similar compensation in connection
with the execution and delivery of this Agreement or the consummation of the
transaction herein contemplated except as provided in Section 2.1(d) and
2.2(b) hereof. Seller and Purchaser
agree to indemnify and hold harmless the other from and against any and all
costs and expenses, including court costs and reasonable attorney’s fees,
arising out of or related to any claim, demand, or cause of action made or
asserted by any other real estate agent, broker or sales person claiming to be
entitled to compensation as a result of this transaction or arising out of the
acts of the indemnitor. The foregoing
indemnity provision shall survive Closing on the Interests.
Section 5.2. Eminent
Domain. If any portion of the
Property shall be taken by eminent domain or be the subject of pending or
threatened eminent domain proceedings on or before the Closing, Purchaser at
its option, within five days of such event, may either terminate this
Agreement, in which event the Deposit shall be promptly refunded to Purchaser,
or proceed to the Closing, in which event Purchaser shall receive all awards
paid or payable with respect to such taking.
Section 5.3. Interim
Operating Covenants. Seller
covenants to Purchaser that Seller will cause the Company to do the following:
(a) Operations. From the Effective Date until the earlier of
the termination of this Agreement or Closing, continue to operate, manage and
maintain the Improvements in the ordinary course of the Company’s business and
substantially in accordance with the Company’s present, first class practice,
subject to ordinary wear and tear;
19
(b) Maintain Insurance. From the Effective Date until the earlier of
the termination of this Agreement or Closing, maintain the Company’s current
level of insurance coverage on the Property;
(c) Service Contracts. From the Effective Date until the earlier of
the termination of this Agreement or Closing, not enter into any service
contract other than in the ordinary course of business, provided, in all events
such service contract is terminable on thirty (30) days notice without penalty
or unless Purchaser consents thereto in writing;
(d) Notices. To the extent received by Seller, from the
Effective Date until the earlier of the termination of this Agreement or
Closing, promptly deliver to Purchaser copies of written default notices,
notices of lawsuits and notices of violations affecting the Property and any
and all notices delivered or received from tenants in connection with the
Tenant Leases;
(e) Market Property. Between the Effective Date and the Closing
Date, not market the Property or the Interests for sale to any other party;
(f) New Leases. Between the Effective Date and the Closing
Date, not enter into any new Tenant Leases or amend any existing Tenant Leases
without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld, conditioned or delayed, except that the Company may,
without Purchaser’s consent, enter new Tenant Leases, so long as: (i) the term is at least five (5) years;
(ii) the rent per square foot is at least $23.50 on a gross basis; and (iii)
the tenant improvement allowance does not exceed $30.00 per square foot for
first generation space or $15.00 per square foot for second generation space
and (iv) Seller immediately provides a copy of the applicable lease documents
to Purchaser.
(g) No New Title
Conditions. Between the Effective
Date and the Closing Date, not voluntarily create any liens, easements or other
conditions affecting any portion of the Property or the Interests without the
prior written consent of Purchaser, which shall not be unreasonably withheld.
(h) Maintenance of Loan. Between Effective Date and the Closing Date,
make all payments of principal and interest required by the Loan to be made
prior to Closing and perform all of the obligations, terms and provisions
thereof on the part of the Seller to be performed.
Section 6.1. Default
by Seller. In the event of any
default by Seller under this Agreement, Purchaser may as its sole and exclusive
alternate remedies, (i) terminate this Agreement and (a) receive a refund of
the Deposit and (b) solely in the event of Seller’s willful default, payment to
Purchaser of all of its actual third party costs and expenses incurred in
connection with this transaction, (ii) commence an action for specific
performance of this Agreement, or (iii)
waive all claims on account of such default and proceed to Closing. Election of one or more of the aforesaid
remedies shall preclude an election of others.
20
Section 6.2. Default
by Purchaser/Liquidated Damages.
If Purchaser defaults in its obligations under this Agreement, Seller
shall be entitled to receive the Deposit as Seller’s sole and exclusive remedy,
which is hereby agreed to be adequate liquidated damages for Purchaser’s default
hereunder, and Seller shall have no other rights or remedies.
Section 6.3. Notice
of Default. In the event
of a default by either party hereto of any representation or warranty which
shall survive Closing, the non-defaulting party shall give the defaulting party
not less than ten (10) days written notice of default in the manner required by
Section 8.2 hereof, during which time, the defaulting party shall be
entitled to cure the default.
Section 6.4. Seller’s
Indemnification. To the extent
not covered by insurance, Seller agrees to indemnify, to defend and to hold
Purchaser harmless from and against any and all losses, costs, liabilities,
expenses and damages (including, without limitation, reasonable attorneys’ fees
and expenses) incurred on account of any action, proceeding, demand or claim
asserted by a third party (a “Third Party Claim”) caused by Seller’s ownership,
use, or operation of the Company or (indirectly) the Property prior to the
Closing.
Section 6.5. Purchaser’s
Indemnification. To the extent
not covered by insurance, Purchaser agrees to indemnify, to defend and to hold
Seller harmless from and against any and all losses, costs, liabilities,
expenses and damages (including, without limitation, reasonable attorneys’ fees
and expenses) incurred on account of any Third Party Claim caused by
Purchaser’s ownership, use, or operation of the Company or (indirectly) the
Property after the Closing.
Section 6.6. Defense
of Third Party Claims. Any
person entitled to indemnification hereunder (an “Indemnified Party”) shall
give prompt written notice to any person who is obligated to provide
indemnification hereunder (an
“Indemnifying Party”) of the commencement or assertion of any Third Party Claim
in respect of which such Indemnified Party shall seek indemnification
hereunder. Any failure so to notify an
Indemnifying Party shall not relieve such Indemnifying Party from any liability
that it may have to such Indemnified Party under this Section 6.6 if the
Indemnified Party can demonstrate that the failure to give such notice did not
materially prejudice such Indemnifying Party.
The Indemnifying Party shall have the right to assume control of the
defense of, settle, or otherwise dispose of such Third Party Claim on such
terms as it deems appropriate; provided, however, that:
(a) The Indemnified Party shall be entitled,
at its own expense, to participate in the defense of such Third Party Claim.
(b) The Indemnified Party shall obtain the
prior written approval of the Indemnified Party before entering into or making
any settlement, compromise, admission, or acknowledgement of the validity of
such Third Party Claim or any liability in respect thereof, which written
approval will not be unreasonably withheld.
(c) The Indemnifying Party shall not be
entitled to control (but shall be entitled to participate at its own expense in
the defense of), and the Indemnified Party shall be entitled to have sole
control over, the defense or settlement, compromise, admission, or
acknowledgement of any Third Party Claim
(i) as to which the Indemnifying Party
21
fails to assume the defense within a reasonable length of time or (ii)
to the extent the Third Party Claim seeks an order, injunction, or other
equitable relief against the
Indemnified Party which, if successful, would materially adversely
affect the business, operations, assets, or financial condition of the
Indemnified Party; provided, however, that the
Indemnified Party shall make no settlement, compromise, admission, or
acknowledgement which would give rise to liability on the part of any
Indemnifying Party without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld.
The parties hereto
shall extend reasonable cooperation in connection with the defense of any Third
Party Claim pursuant to this Article 6 and, in connection therewith, shall
furnish such records, information, and testimony and attend such conferences,
discovery proceedings, hearings, trials, and appeals, as may be reasonably
requested.
Section 6.7. Survival,
Limit. The indemnification
obligations set forth in this Article 6 shall survive the Closing for a
period of one (1) year following Closing, except for such obligations with
respect to the matters identified in Schedule 2.1(g), the survival
of which shall not be so limited.
Seller’s and Purchaser’s maximum obligation under Sections 6.4, 6.5 and
6.6 shall be $250,000.00.
Section 7.1. Assignment/Successors
and Assigns. Purchaser’s rights
under this Agreement shall be assignable by Purchaser, without consent of
Seller, to its parent entity, Corporate Office Properties Trust (“COPT”),
Corporate Office Properties, L.P. (“COPLP”) or to any entity or affiliate in
which either COPT or COPLP shall have at least 10% equity ownership
interest. This assignment may be
accomplished by Purchaser without the express written consent of Seller, but
with notice to Seller, and with strict proof made by Purchaser. No such assignment
shall operate to relieve Purchaser from any obligation hereunder. Any further
or other assignment by Purchaser shall require Seller’s prior written consent,
which Seller may grant or withhold in its sole discretion. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
Section 7.2. Notices. All notices required or permitted to be
given hereunder shall be in writing and sent by overnight delivery service
(such as Federal Express), in which case notice shall be deemed given on the
day after the date sent, or by personal delivery, in which case notice shall be
deemed given on the date received, or by certified mail, in which case notice
shall be deemed given three (3) days after the date sent, or by fax (with copy
by overnight delivery service), in which case notice shall be deemed given on
the date sent, to the appropriate address indicated below or at such other
place or places as any party may, from time to time, respectively, designate in
a written notice given to the other in the manner described above.
|
To Seller:
|
|
CROWN
POINT, L.L.C.
c/o Robinson Development Group, Inc.
150 West Main Street, Suite 1100
Norfolk, Virginia 23510
Attention: Timothy S. Culpepper
Telefax: (757) 490-1200
|
22
|
With a copy to:
|
|
F.
Brian Schneiderman
Troutman Sanders LLP
150 West Main Street, Suite 1600
Norfolk, Virginia 23510
Telefax: (757) 687-1506
|
|
|
|
|
|
To Purchaser:
|
|
COPT
Acquisitions, Inc.
c/o Corporate Office Properties Trust
8815 Centre Park Drive, Suite 400
Columbia, MD 21045-2272
Attention: General Counsel
|
|
|
|
Fax
No.: 410-740-1174
|
|
|
|
Telephone
No.: 410-730-9092
|
|
|
|
|
|
To
Escrow Agent:
|
|
Pioneer
Title
Columbus Centre
Virginia Beach, VA 23462
|
|
|
|
Fax
No.: (757) 671-7540
|
|
|
|
Telephone
No.: (757) 623-1996
|
23
Section 7.3. Governing
Law. This Agreement shall be
governed by the laws of Maryland, excluding its choice of law provisions.
Section 7.4. Merger. This Agreement constitutes the entire
agreement between the parties, supersedes any prior written or oral
understanding or agreements and may not be modified except by written
instrument executed by all of the parties hereto. Except for the Representations and Warranties of Seller and the
provision for survival thereof all as provided in Section 2.1, and the
survival of the provisions set forth in 3.1, 4.5 and 5.1 hereof, this Agreement shall be terminated at Closing by
merger with the delivery of the Deed.
Section 7.5. 1031
Exchange. Purchaser hereby
acknowledges that Seller may utilize the tax laws of the United States, as
promulgated and enforced by the Internal Revenue Service, to later effect a
“like kind” tax deferred exchange under Internal Revenue Code (I.R.C.)
Section 1031 in order to reduce, mitigate or otherwise defer the tax
liability to Seller as a consequence of the sale and acquisition contemplated
hereby. Purchaser agrees to cooperate
with Seller, and at the instruction of tax counsel of Seller, to assist in the
accomplishment of any such tax planning and 1031 “like kind” exchange;
provided, however, (i) Purchaser shall not be required to acquire or take title
to any exchange property, (ii) Purchaser shall not be required to incur any
expense or liability whatsoever in connection with the exchange, including,
without limitation, any obligation for the payment of any escrow, title,
brokerage or other costs including attorneys’ fees incurred with respect to the
exchange, (iii) Seller shall not be released from any of its obligations,
warranties or representations set forth in this Agreement or from liability for
any prior or subsequent default under this Agreement, which obligations shall
continue as the obligations of a principal and not of a surety or guarantor,
(iv) Seller shall give Purchaser at least five (5) days prior notice of the
proposed changes required to effect such exchange and the identity of any party
to be substituted in the escrow, (v) Seller shall be responsible for preparing
all additional agreements, documents and escrow instructions (collectively, the
“Exchange Documents”) required by the exchange, at its sole cost and expense,
(vi) Seller shall be responsible for making all determinations as to the legal
sufficiency, tax considerations and other considerations relating to the
proposed exchange, the Exchange Documents and the transactions contemplated
thereby, and Seller shall in no event be responsible for, or in any way be
deemed to warrant or represent any tax or other consequences of the exchange
transaction, and (vii) the election to effect such an exchange shall not delay
or postpone the Closing of the transaction as defined herein. In connection with any “like kind” exchange,
Purchaser agrees that Seller’s rights, interests and obligations under this
Agreement may be assigned to a “qualified intermediary” as such term is defined
in the regulations issued under Internal Revenue Code Section 1031;
provided, however, any such assignment shall not release Seller from any of its
obligations, warranties or representations set forth in this Agreement or from
liability for any prior or subsequent default under this Agreement, which
obligations shall continue as obligations of a principal and not a surety or
guarantor.
24
Seller hereby
acknowledges that Purchaser may utilize the tax laws of the United States, as
promulgated and enforced by the Internal Revenue Service, to later effect a “like
kind” tax deferred exchange under Internal Revenue Code (I.R.C.)
Section 1031 in order to reduce, mitigate or otherwise defer the tax
liability to Purchaser as a consequence of the sale and acquisition
contemplated hereby. Seller agrees to
cooperate with Purchaser, and at the instruction of tax counsel of Purchaser,
to assist in the accomplishment of any such tax planning and 1031 “like kind”
exchange; provided, however, (i) Seller shall not be required to acquire or
take title to any exchange property, (ii) Seller shall not be required to incur
any expense or liability whatsoever in connection with the exchange, including,
without limitation, any obligation for the payment of any escrow, title,
brokerage or other costs including attorneys’ fees incurred with respect to the
exchange, (iii) Purchaser shall not be released from any of its obligations,
warranties or representations set forth in this Agreement or from liability for
any prior or subsequent default under this Agreement, which obligations shall
continue as the obligations of a principal and not of a surety or guarantor,
(iv) Purchaser shall give Seller at least five (5) days prior notice of the
proposed changes required to effect such exchange and the identity of any party
to be substituted in the escrow, (v) Purchaser shall be responsible for
preparing all additional agreements, documents and escrow instructions
(collectively, the “Exchange Documents”) required by the exchange, at its sole
cost and expense, (vi) Purchaser shall be responsible for making all
determinations as to the legal sufficiency, tax considerations and other
considerations relating to the proposed exchange, the Exchange Documents and
the transactions contemplated thereby, and Purchaser shall in no event be
responsible for, or in any way be deemed to warrant or represent any tax or
other consequences of the exchange transaction, and (vii) the election to
effect such an exchange shall not delay or postpone the Closing of the
transaction as defined herein. In
connection with any “like kind” exchange, Seller agrees that Purchaser’s
rights, interests and obligations under this Agreement may be assigned to a
“qualified intermediary” as such term is defined in the regulations issued
under Internal Revenue Code Section 1031; provided, however, any such
assignment shall not release Purchaser from any of its obligations, warranties
or representations set forth in this Agreement or from liability for any prior
or subsequent default under this Agreement, which obligations shall continue as
obligations of a principal and not a surety or guarantor.
Section 7.6. Counterparts. This Agreement may be executed in several
counterparts, including by facsimile, each of which shall be deemed an
original, but such counterparts together shall constitute one and the same
instrument.
Section 7.7. Severability. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is declared by a
court of competent jurisdiction to be illegal or invalid, such illegal or
invalid term or provision shall not affect the other terms and provisions
hereof, which terms and provisions shall remain binding and enforceable.
Section 7.8. Interpretation. The captions and headings throughout this
Agreement are for convenience and reference only and the words contained
therein shall in no way be held to define or add to the interpretation,
construction or meaning of any provision of this Agreement.
Section 7.9. Recordation. Neither this Agreement nor any memorandum
hereof may be recorded or filed. Any
attempted recordation of this Agreement or a memorandum hereof by either party
shall constitute a material default by such party.
25
Section 7.10. Attorney’s
Fees. If any party files an
action to enforce the provisions of this Agreement and said party prevails in
connection with the action, said party shall be entitled to recover reasonable
legal fees and costs incurred by it in connection with such action from the
non-prevailing party.
Section 7.11. Authority. Each of the parties to this Agreement
represents and warrants that it has full power and authority to execute this
Agreement and to perform its obligations herein, and that any and all consents
and approvals necessary or required in connection therewith have been obtained.
Section 7.12. Calculation
of Time Periods. Unless
otherwise specified herein, in computing any period of time, the day of the act
or event after which the designated period of time beings to run is not be to
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or a nationally recognized legal holiday or
a legal holiday under the laws of the state in which 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 final day of any such period shall be deemed to end at 5:00 p.m.
Eastern Standard Time (EST).
Section 7.13. SEC Reporting Requirements. For the period commencing on the date hereof
and continuing through the first anniversary of the Closing Date, and without
limitation of other document production otherwise required of Seller hereunder,
Seller shall, from time to time, upon reasonable advance written notice from
Purchaser, provide Purchaser and its representatives, with (i) all financial,
leasing and other information pertaining to the period of Seller’s ownership of
the Interests and operation of the Property, which information is relevant and
reasonably necessary, in the opinion of Purchaser’s outside, third party
accountants (the “Accountants”), to enable Purchaser and its Accountants to
prepare financial statements and to conduct audits of such financial statements
in accordance with generally accepted auditing standards, such that Purchaser
shall be in compliance with any or all of (a) Rule 3-05 or 3-14 of Regulation
S-X of the Securities and Exchange Commission (the “Commission”), as
applicable; (b) any other rule issued by the Commission and applicable to
Purchaser; and (c) any registration statement, report or disclosure statement
filed with the Commission by, or on behalf of Purchaser; and (ii) a
representation letter, signed by the individual(s) responsible for Seller’s
financial reporting, as prescribed by generally accepted auditing standards
promulgated by the Auditing Standards Division of the American Institute of
Certified Public Accountants, which representation letter may be required by
the Accountants to render an opinion concerning Seller’s financial
statements. Purchaser shall pay all of
Seller’s costs and expenses incurred in fulfilling these obligations.
Section 7.14. Confidentiality. Seller and Purchaser each covenant that (i)
prior to Closing it shall not issue any press release or public statement (a “Release”)
with respect to the transactions contemplated by this Agreement without the
prior consent of the other, except to the extent required by law or the
regulations of the Securities and Exchange Commission, and (ii) after Closing,
any Release issued by Seller or Purchaser shall be subject to the review and
approval of the other (which approval shall not be unreasonably withheld). If Seller or Purchaser is required by law to
issue a Release, such party shall, at least two (2) Business Days prior to the
issuance of the same, deliver a copy of the proposed Release to the other for
review.
26
WITNESS the
following signatures and seals.
|
SELLER:
|
|
|
|
|
|
|
|
|
|
|
|
|
CROWN POINT, L.L.C.
|
|
|
|
|
A
Delaware limited liability company
|
|
|
|
|
|
|
|
|
By:
|
/s/
Thomas E. Robinson
|
|
|
|
|
|
|
|
|
By:
|
CROWN POINT MANAGER, INC.
|
|
|
|
|
a
Maryland corporation
Sole Manager
|
|
|
|
|
|
|
|
|
By:
|
/s/
Thomas E. Robinson
|
|
|
|
|
Name:
|
Thomas
E. Robinson
|
|
|
|
|
Title:
|
President
|
|
|
|
|
Date:
|
November 21,
2003
|
|
|
|
|
|
|
|
|
CROWN POINT MANAGER, INC.
|
|
|
|
|
a
Maryland corporation
|
|
|
|
|
|
|
|
|
By:
|
/s/
Thomas E. Robinson
|
|
|
|
|
Name:
|
Thomas
E. Robinson
|
|
|
|
|
Title:
|
President
|
|
|
|
|
Date:
|
November 21,
2003
|
|
|
|
|
|
|
|
|
/s/
Thomas E. Robinson
|
|
|
|
Thomas
E. Robinson
|
(date)
|
|
|
|
|
|
|
|
PURCHASER:
|
|
|
|
COPT
ACQUISITIONS, INC.
|
|
|
|
a
Delaware corporation
|
|
|
|
|
|
|
|
By:
|
/s/
Roger A. Waesche, Jr.
|
(SEAL)
|
|
|
|
|
|
|
|
|
|
Name:
|
Roger
A. Waesche, Jr.
|
|
|
|
|
Title:
|
Senior
Vice President
|
|
|
|
|
Date:
|
November 24,
2003
|
|
|
|
|
|
|
27
LIST
OF EXHIBITS
|
Exhibit A
|
|
Organizational
Documents
|
|
|
|
|
|
Exhibit B
|
|
Legal Description
|
|
|
|
|
|
Exhibit C
|
|
Intentionally Deleted
|
|
|
|
|
|
Exhibit D
|
|
Intentionally Deleted
|
|
|
|
|
|
Exhibit E
|
|
Form of Tenant Estoppel
Certificate
|
|
|
|
|
|
Exhibit F
|
|
Form of Assignment of
Membership Interests
|
|
|
|
|
|
Exhibit G
|
|
Form of Notice to
Tenant
|
|
|
|
|
|
Exhibit H
|
|
Form of Certificate of
Representations and Warranties for Seller
|
LIST
OF SCHEDULES
|
Schedule 1.2(d)
|
|
Excluded Personal
Property
|
|
|
|
|
|
Schedule 1.3(b)
|
|
Loan Documents
|
|
|
|
|
|
Schedule 2.1(e)(i)
|
|
Rent Roll &
Security Deposit Ledger
|
|
|
|
|
|
Schedule 2.1(g)
|
|
Litigation
|
|
|
|
|
|
Schedule 2.1(h)
|
|
Service Contracts
|
|
|
|
|
|
Schedule 2.1(i)
|
|
Leasing Commissions
|
|
|
|
|
|
Schedule 2.1(l)
|
|
Financial Information
of the Company
|
|
|
|
|
|
Schedule 2.1(p)
|
|
Tenant Inducement Costs
|
|
|
|
|
|
Schedule 3.1
|
|
Lender’s Assumption
Checklist
|
|
|
|
|
|
Schedule 4.3.9
|
|
Reserve Funds
|
28
EXHIBIT B
LEGAL
DESCRIPTION
BEING KNOWN AND DESIGNATED as Lot Numbered Six (6) in Block Lettered
“A” in the subdivision known as “GAITHERSBURG NORTH RESEARCH AND DEVELOPMENT
CENTER”, as per Plat thereof recorded in Plat Book 189 at Plat No. 20777, among
the Land Records of Montgomery County, Maryland.
(Said property being formerly known as: Lots
numbered Four (4) and Five (5) in Block lettered “A” in the subdivision known
as “GAITHERSBURG NORTH RESEARCH AND DEVELOPMENT CENTER”, as per plat thereof
recorded in Plat Book 155 at Plat 17604, among the Land Records of Montgomery
County, Maryland.)
The plat of resubdivision that created Lot 6, Block
A, (from Lots 4 and 5, Block A), GAITHERSBURG NORTH RESEARCH AND DEVELOPMENT
CENTER was properly prepared and recorded July 7, 1998 in Plat Book 189 at
Plat 20777 among the Land Records of Montgomery County, Maryland.
TOGETHER WITH easements as contained in the Declaration of Covenants, Conditions and
Restrictions for Crown Point Corporate Center dated February 19, 1986 and
recorded February 21, 1986 among the aforementioned Land Records in Liber
7027, folio 401 as supplemented and amended by Notice of Addition of Real
Property subject to the Declaration of Covenants, Conditions and Restrictions
for Crown Point Corporate Center dated May 29, 1986 and recorded in Liber 7138,
folio 200 and by Second Notice of Addition of Real Property subject to the
Declaration of Covenants, Conditions and Restrictions for Crown Point Corporate
Center dated May 29, 1987 and recorded in Liber 7724, 156 and by Third Notice
of Addition of Real Property subject to the Declaration of Covenants, Conditions
and Restrictions for Crown Point Corporate Center dated December 1, 1987
and recorded in Liber 8048, folio 216 and by Fourth Notice of Addition of Real
Property subject to the Declaration of Covenants, Conditions and Restrictions
for Crown Point Corporate Center dated March 16, 1988 and recorded in
Liber 8191, folio 536 and by Fifth Notice of Addition of Real Property subject
to the Declaration of Covenants, Conditions and Restrictions for Crown Point
Corporate Center dated May 27, 1988 and recorded in Liber 8296, folio 889.
29