PURCHASE AGREEMENT (2200, 2222 and 2230 East Imperial Highway, El Segundo, California)
(2200,
2222 and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇)
This
Agreement (the “Agreement”), dated as of December 17, 2007 (the
“EffectiveDate”), is between ▇▇▇▇▇▇▇
Segair
L.P., a Delaware limited partnership, successor by merger to Segair Associates
Limited Partnership, a Connecticut limited partnership
(“Segair”) and NK-LCB Property LLC, a Delaware limited
liability company (“LCB”; collectively, Segair and LCB are
sometimes referred to herein as the “Seller”), and ▇▇▇▇▇ REIT
El Segundo LP, a Delaware limited partnership (the
“Buyer”).
ARTICLE
1
PURCHASE
AND SALE OF PROPERTY
Section
1.1 Property
Sold
. Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, subject
to
the terms, covenants and conditions set forth herein, the following property
(the “Property”):
(a) Real
Property. Fee simple title to that certain real property
described in Exhibit A attached hereto and made a part
hereof, together with (1) all buildings, parking lots, sidewalks, landscaping
and other improvements located thereon, including without limitation, all of
Seller’s interest in all mechanical systems, fixtures and equipment; electrical
systems, fixtures and equipment; heating fixtures, systems and equipment; and
plumbing fixtures, systems and equipment and any other improvements owned by
Seller located on the real property (the “Improvements”), and (2) all of
Seller’s right, title and interest in and to all rights, benefits, privileges,
easements, tenements, herditaments, rights-of-way and other appurtenances
thereon or in any way appertaining thereto (the “Real
Property”).
(b) Leases. All
of Seller’s interest in and to that certain: (i) Amended and Restated Sublease
Agreement dated as of June 1, 1984, by and between LCB, as successor in interest
to LCB Limited Partnership, as successor in interest to Segair, as successor
in
interest to Elgun Leasing Corp., as landlord, and Raytheon Company, as successor
in interest by merger with ▇▇▇▇▇▇ Aircraft Company, as tenant
(“Raytheon”), as amended by First Amendment to Amended and
Restated Sublease Agreement, dated as of December 20, 2002, Second Amendment
to
Amended and Restated Sublease Agreement dated as of March 15, 2006, and Third
Amendment to Amended and Restated Sublease Agreement dated as of October 25,
2006 (collectively referred to herein as the “Raytheon Lease”), and (ii) Lease
Agreement, dated as of September 12, 2006, between LCB, as landlord, and
DirecTV, Inc., a California corporation, as tenant (“DIRECTV”;
collectively, Raytheon and DIRECTV are sometimes referred to herein as the
“Tenants”), and the Guaranty of Lease given by DIRECTV Holdings
LLC, a Delaware limited liability company (collectively, the “DIRECTV
Lease”; collectively, the Raytheon Lease and the DIRECTV Lease are
sometimes referred to herein as the “Leases”).
(c) Documents. All
of Seller’s right, title and interest in and to all architectural and
engineering plans within Seller’s possession, and service and maintenance
contracts to which Seller is a party, if any, which pertain to the Property
(“Documents”).
(d) Personal
Property. Any personal property now or hereafter owned by
Seller and situated on the Property (“Personal
Property”).
(e) Licenses. All
permits, certificates of occupancy, approvals or other governmental
authorizations possessed by Seller, if any, with regard to the operation of
the
Property or Personal Property (“Licenses”).
Section
1.2 Purchase
Price
.
(a) The
purchase price of the Property is One Hundred Twenty Million Dollars
($120,000,000) (the “Purchase Price”).
(b) The
Purchase Price will be paid as follows:
(1) ▇▇▇▇▇▇▇
Money. Within three (3) business days after the execution of
this Agreement by Seller and Buyer, Buyer shall deposit with Land
America-Commonwealth Land Title Insurance Company, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇
▇▇▇▇, Vice President and Senior National Commercial Closer (the “Title
Company”), in good funds immediately collectible by the Title Company,
the sum of Ten Million Dollars ($10,000,000.00), as ▇▇▇▇▇▇▇ money (the
“▇▇▇▇▇▇▇ Money”) to be held in accordance with this Agreement,
including the provisions of Section 10.16 herein. Buyer’s delivery of
the ▇▇▇▇▇▇▇ Money to the Title Company within the prescribed time period is
a
condition precedent to the effectiveness of this Agreement; and, if Buyer fails
to deliver the ▇▇▇▇▇▇▇ Money to the Title Company within the time prescribed,
this Agreement will be of no further force and effect. The ▇▇▇▇▇▇▇
Money shall be held in an interest bearing account and all interest thereon
shall be deemed a part of the ▇▇▇▇▇▇▇ Money. Should Buyer elect to
cancel and terminate this Agreement pursuant to Section 3.3 below, then the
▇▇▇▇▇▇▇ Money will be will be returned to Buyer. If the Closing as
contemplated hereunder should occur, then any cash held by the Title Company
will be paid by the Title Company to Seller at the Closing, and any such cash
portion of the ▇▇▇▇▇▇▇ Money will be credited against the Purchase Price payable
by Buyer to Seller at the Closing. From and after the expiration of
the Contingency Period (as defined herein), all of the ▇▇▇▇▇▇▇ Money will be
non-refundable to Buyer in all respects; notwithstanding the foregoing, all
of
the ▇▇▇▇▇▇▇ Money will be refundable to Buyer if this Agreement is canceled
and
terminated by Buyer under Section 9.7 (“Buyer’s Closing
Conditions”), Section 9.8 (“Seller’s Closing
Condition”) or Section 10.1 (“Remedies”) below, or
under Section 5.3 (“Title Objections”), Section 6.1
(“Casualty”) or Section 6.2 below
(“Condemnation”).
(2) Loan
Assumption. Buyer shall assume (and receive a credit against
the Purchase Price for the amount of) the outstanding principal balance of
that
certain promissory note dated as of November 17, 2006 (the
“Note”) in the original principal balance of $55,000,000 issued
by Seller to IXIS Real Estate Capital Inc. (the “Lender”) in
connection with a loan made by Lender to Seller on such date (the
“Loan”) (which will have a principal balance after the January
5, 2008 payment of approximately $54,220,950).
(3) Balance. The
balance of the Purchase Price, subject to adjustment for all credits, prorations
and closing costs provided for in this Agreement, will be paid to the Title
Company in cash or by wire transfer of other immediately available funds at
the
Closing hereunder (as defined below).
Seller
and Buyer acknowledge that, in order for Buyer to assume the Loan as
contemplated in Section 1.2(b)(2) above, Seller must obtain the Lender’s
approval for Buyer’s assumption of the Loan encumbering the Property (the
“Assumption Approval”). Buyer acknowledges receipt
of the Note, that certain Loan Agreement (the “Loan Agreement”)
and Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing securing the Note (the “Mortgage”) and all other
ancillary loan and other closing documents set forth on Schedule 1
attached hereto (collectively, the “Loan
Documents”). At Closing, Buyer will pay the amounts required
to be paid to Lender under Section 5.16 of the Loan Agreement (the
“Transfer Provision”) in connection with the Assumption
Approval request, including without limitation, an amount equal to one-half
of
one percent (1/2%) of the then outstanding principal balance of the Note (the
“Transfer Fee”) and all other out-of-pocket costs and expenses
incurred by Lender in connection therewith, including the fees and expenses
of
Lender’s counsel (but not Seller’s counsel fees); provided, however in the event
Closing occurs after January 15, 2008, Seller will pay the Transfer
Fee. In addition, Buyer will remit the application fee required by
Lender upon submittal of the information required by Lender in evaluating the
Assumption Approval request. Buyer hereby agrees to cooperate and
promptly deliver (but in all events no later than three (3) business days after
receiving written request therefor) all information concerning Buyer reasonably
required by Lender to evaluate the transfer request, including without
limitation, all information required by the Transfer Provision; however, so
long
as Buyer is seeking such information with due diligence, Buyer’s failure to
provide such information within the three (3) business day period shall not
constitute a default hereunder. Seller hereby agrees to cooperate and
promptly deliver (but in all events no later than three (3) business days after
receiving written request therefor) all information concerning Seller and the
Property reasonably required by Lender to evaluate the transfer request,
including without limitation, all information required by the Transfer
Provision; however, so long as Seller is seeking such information with due
diligence, Seller’s failure to provide such information within the three (3)
business day period shall not constitute a default hereunder. Buyer
shall be obligated to accept the terms and conditions of the Assumption Approval
if the Loan is on the same economic terms and conditions as currently exist
(i.e., monthly payments of $318,349.42, interest rate of 5.675%, maturity date
of December 5, 2016 and a principal balance after the January 5, 2008 payment
of
approximately $54,220,950), and Buyer agrees to comply, at its sole cost and
expense, with the provisions of the Transfer Provision applicable to the Buyer,
including without limitation, forming a so called “special purpose
entity” to acquire title, the delivery of legal opinions concerning
Buyer as the Lender may reasonably require, and Buyer (or other credit worthy
affiliate) assuming the obligations under any existing guaranty or indemnity
agreements accruing or arising from or related to events occurring from and
after the Closing. The assumption of the Loan by Buyer is also
contingent upon the Lender releasing Seller and any guarantor from any and
all
liabilities under the Loan other than those accruing or arising from or related
to events occurring prior to the Closing.
ARTICLE
2
REVIEW
AND INSPECTIONS
Section
2.1 Documents
to be Delivered
. To
the extent not previously provided to Buyer, within two (2) business days after
Buyer delivers the ▇▇▇▇▇▇▇ Money to the Title Company, Seller will provide
Buyer
with copies of the following, all of which will be provided, except as otherwise
specifically provided for in Section 4.1 herein or Seller’s Closing Documents,
without any representations or warranties including, without limitation, any
representations or warranties as to the accuracy or completeness thereof, or
the
fitness thereof for any particular purpose (herein collectively the
“Property Information”):
(a) Complete
copies of the Leases.
(b) To
the
extent in Seller’s possession, copies of the Documents and the
Licenses.
(c) Copies
of
the Commitment (as defined herein).
(d) Any
survey in Seller’s possession (the “Existing
Survey”).
(e) Any
existing environmental reports in Seller’s possession.
(f) Copies
of
the Loan Documents.
Section
2.2 Contingency
Period
. The
period of time commencing from the date hereof and ending at 5:00 pm New York
time on December 27, 2007 is referred to herein as the “Contingency
Period”.
Section
2.3 Buyer’s
Inspections and Review
. From
the date hereof, through the end of the Contingency Period and thereafter in
the
event Buyer has not terminated this Agreement during the Contingency Period,
upon no less than two (2) business days advance written notice to Seller (or
such shorter period of time as may be approved by Seller), and subject at all
times to the rights of the Tenants and the requirements of the Leases, Buyer
or
its agents may make inspections, tests, surveys, audits or reviews of
the Property or the books and records of Seller related thereto, all
at Buyer’s sole cost and expense, and without disturbing or interfering with the
Tenants. Buyer shall also be permitted to interview the Tenants under
the Leases, accompanied by the Seller (if the Seller so chooses), upon no less
than two (2) business days advance written notice to Seller, at a time and
place
agreed to by the Tenants. Seller will allow Buyer and its agents
reasonable access, upon such prior notice, to the Property or such books and
records for said inspections. Buyer agrees to repair any physical
damage to the Property caused by Buyer’s activities under this Section, which
obligation of Buyer will survive any termination of this
Agreement. Prior to, and as a condition to any entry on the Property
by Buyer or its agents for the purposes set forth in this Section 2.3, Buyer
shall deliver to Seller a certificate of insurance evidencing commercial general
liability coverage (including coverage for contractual indemnities) with a
combined single limit of at least $1,000,000.00 per occurrence and $2,000,000.00
aggregate, together with at least $5,000,000.00 excess and/or umbrella insurance
for any and all claims, in a form reasonably acceptable to Seller, covering
any
activity, accident or damage arising in connection with Buyer or agents of Buyer
on the Property, and naming Seller and the Tenants as an additional
insureds.
Section
2.4 Environmental
Inspections
. The
inspections under Section 2.3 may include non-invasive Phase I environmental
inspections of the Property (including air quality sampling), but no Phase
II
environmental inspections or other invasive inspections or sampling of soil,
ground water or construction materials will be performed without prior written
consent of Seller, which consent may be withheld in Seller’s sole discretion,
and if consented to by Seller, the proposed scope of work and the party who
will
perform the work will be subject to Seller’s approval. Buyer will
deliver to Seller without representation or warranty (at no cost to Seller)
copies of all environmental reports prepared by or for Buyer.
Section
2.5 Entry
and Indemnity
. In
connection with any entry by Buyer, or its agents, employees or contractors
onto
the Property, Buyer will give Seller reasonable advance notice of such entry
and
will conduct such entry and any inspections in connection therewith (a) during
normal business hours to the extent practical, (b) so as to minimize, to the
greatest extent possible, interference with Seller’s business and the business
of the Tenants, (c) in compliance with the Leases and Tenants’ requirements and
all applicable laws, and (d) otherwise in a manner reasonably acceptable to
Seller.
Buyer
will indemnify and hold Seller harmless from and against any costs, damages,
liabilities, losses, expenses, liens or claims (including, without limitation,
court costs and reasonable attorneys’ fees and disbursements) arising out of or
relating to any entry on the Property by Buyer, its agents, employees or
contractors in the course of performing the inspections, testings or inquiries
provided for in this Agreement, including, without limitation, any damage to
the
Property; provided that Buyer will not be liable to Seller solely as a result
of
the discovery by Buyer of a pre-existing condition on the Property except to
the
extent the activities of Buyer, its agents, representatives, employees,
contractors or consultants exacerbate the condition. Buyer’s indemnification
obligations under this Section 2.5 will survive any cancellation or termination
of this Agreement for a period of one (1) year.
ARTICLE
3
CONDITIONS
Section
3.1 Buyer’s
Contingencies
. Buyer’s
obligations to Close and purchase the Property are contingent upon the waiver
or
satisfaction of each of the following conditions precedent by the end of the
Contingency Period:
(a) Environmental. At
Buyer’ sole cost, Buyer will have reviewed any existing Phase I Report, and will
have obtained such environmental assessments and studies of the Property as
deemed necessary by Buyer, disclosing that the environmental condition of the
Property is acceptable to Buyer, in its sole discretion.
(b) Inspection. Buyer
will have determined, based on the inspections provided in Section 2.3, and
the
review of the Property Information provided under Section 2.1, that the Property
is acceptable to Buyer, in its sole discretion.
(c) Permitted
Encumbrances. Buyer will have determined that the title
exceptions disclosed by the Commitment (as defined herein) are acceptable to
Buyer, in Buyer’s sole discretion.
Section
3.2 Cooperation
. Seller
and Buyer agree to use their good faith efforts to cooperate with and assist
each other in attempting to satisfy each of the foregoing
contingencies. Without limiting the foregoing, Seller will submit the
form of tenant estoppel certificates to the Tenants as contemplated by Section
9.7 herein for Tenants’ review, completion and execution promptly after the
Effective Date, and Seller will use its commercially reasonable efforts to
obtain such certificates as soon as practical thereafter; provided, however
this
act by Seller places no duty or obligation upon Seller except to deliver the
form of tenant estoppel certificates with such request as provided above and
use
reasonable efforts to obtain the same on or before Closing.
Section
3.3 Approval;
Non-Satisfaction
. Buyer
may waive the satisfaction of any one or more of the foregoing contingencies,
in
Buyer’s sole discretion.
If
at any
point prior to the end of the Contingency Period Buyer determines that any
of
the contingencies specified in Section 3.1 above will not be satisfied or (if
waivable) waived by the expiration of the Contingency Period or the Property
is
found to be unsatisfactory to Buyer, in its sole judgment and discretion, for
any reason, then Buyer may, by written notice to Seller, for no reason or any
reason, cancel and terminate this Agreement (“Buyer’s Cancellation
Notice”) and, upon Seller’s receipt of the Buyer’s Cancellation Notice,
the ▇▇▇▇▇▇▇ Money, together with any interest accrued thereon, will be refunded
to Buyer, and the parties will be mutually released from all liabilities and
obligations hereunder, save and except that Buyer will promptly return to Seller
all copies of the Property Information provided to Buyer, and Buyer will
continue to be liable under Section 2.5 hereof.
ARTICLE
4
WARRANTIES
Section
4.1 Representations
and Warranties of Seller
.
Seller
hereby makes the following representations and warranties to Buyer (herein
collectively “Seller Warranties”):
(a) Seller
has been duly organized, is validly existing, and is in good standing in the
State of its formation, and is qualified to do business in the State in which
the Property is located. Seller has the power and authority to enter
into this Agreement and all documents executed by Seller which are to be
delivered to Buyer at Closing and to perform its obligations hereunder and
thereunder.
(b) This
Agreement has been, and all documents executed by Seller which are to be
delivered to Buyer at Closing will be, duly authorized, executed and delivered
by Seller, and this Agreement does not and such other documents will not violate
any provision of any agreement or judicial order to which Seller is a party
or
to which Seller or the Property is subject. This Agreement
constitutes a legal, valid and binding obligation of Seller in accordance with
its terms, subject to equitable principles and principles governing creditors’
rights generally.
(c) True
and
complete copies of all documents comprising the Raytheon Lease have been
provided by Seller to Buyer as part of the Property Information. The
Raytheon Lease is in full force and effect. As of the date hereof,
LCB has no knowledge of any monetary defaults by Raytheon under the Raytheon
Lease, and LCB has not sent written notice to Raytheon under the Raytheon Lease
claiming that such tenant is in default under the terms of the Raytheon
Lease. All leasing commissions due and payable with respect to the
Raytheon Lease have been or will be paid prior to Closing, and there are no
amounts due by LCB under the Raytheon Lease for any tenant improvements, except
as set forth in Section 7 of the Second Amendment to Amended and Restated
Sublease Agreement and as may be disclosed in the Raytheon Estoppel Certificate
delivered by Raytheon. Except for the Raytheon Lease, DIRECTV
Lease or otherwise disclosed by the Commitment, Seller has granted no other
leases, licenses or other occupancy agreements with respect to the
Property.
(d) True
and
complete copies of all documents comprising the DIRECTV Lease have been provided
by Seller to Buyer as part of the Property Information. The DIRECTV
Lease is in full force and effect. As of the date hereof, LCB has no
knowledge of any monetary defaults by DIRECTV under the DIRECTV Lease, and
LCB
has not sent written notice to DIRECTV under the DIRECTV Lease claiming that
such tenant is in default under the terms of the DIRECTV Lease. All
leasing commissions due and payable with respect to the DIRECTV Lease have
been
or will be paid prior to Closing, and there are no amounts due by LCB under
the
DIRECTV Lease for any tenant improvements, except as set forth in Section 9.23
of the DIRECTV Lease and as may be disclosed in the DIRECTV Estoppel Certificate
delivered by DIRECTV.
(e) There
are
no effective equipment leases, building service agreements, or other agreements
relating to the operation of the Property to which Seller is a party except
as
otherwise disclosed by the Commitment.
(f) Seller
is
not a “foreign person” as defined in Section 1445 of the Internal Revenue Code
of 1986, as amended and any related regulations.
(g) To
the
best of Seller’s knowledge, there is no litigation or governmental proceeding
(including, but not limited to any condemnation proceeding) pending or,
threatened with respect to the Property.
(h) To
the
best of Seller’s knowledge, there is no litigation or governmental proceeding
pending or, threatened with respect to Seller which impairs Seller’s ability to
perform its obligations under this Agreement.
(i) Seller
has received no written notice within the past twelve (12) months from any
governmental authority of any violation of any law applicable to the Property
that has not been corrected, or is otherwise the obligation of Raytheon under
the Raytheon Lease to remedy.
(j) Except
as
set forth in the Raytheon Lease and (1) that certain Right of First Refusal,
dated December 10, 1983, by and between Raytheon, and ▇▇▇▇▇▇ Industries, a
California corporation (“▇▇▇▇▇▇”), (2) that certain Deed, dated
as of December 20, 2002, from Raytheon to Segair, (3) that certain Purchase
and
Sale Agreement, dated as of December 20, 2002, by and between Raytheon and
Segair, (4) that certain Deed of Trust, dated as of December 20, 2002, from
Segair, as trustor, for the benefit of Raytheon, as beneficiary
(“Raytheon Deed of Trust”), and (5) that certain Right of First
Refusal, dated December 10, 1983, by and between Segair and ▇▇▇▇▇▇ (the
“KilroyROFR Agreement”), Seller has not
granted and has no knowledge of any right of first refusal or other option
to
purchase the Property which has not been waived or expired by its
terms.
(k) True
and
complete copies of all of the Loan Documents relating to the Loan have been
delivered by Seller to Buyer prior to the Effective Date. As of the Effective
Date, Seller is not in default in its obligations as borrower or guarantor
or
indemnitor under any of the Loan Documents.
(l) To
Seller’s knowledge, and except as otherwise disclosed in any environmental
reports obtained, delivered or made available to Buyer during the Contingency
Period; (i) Seller has not received written notice from any governmental entity
of any violation of any Environmental Laws (as defined in Section 4.6(d) herein)
related to the Property, or of the presence or release of Hazardous Materials
(as defined in Section 4.6(d) herein) on or from the Property and (ii) there
are
not present on the Property any Hazardous Materials or any toxic wastes,
substances or materials (including, without limitation, asbestos) in violation
of Environmental Laws.
(m) Seller
is
not the subject of any existing, pending, threatened or contemplated bankruptcy,
solvency or other debtor’s relief proceeding.
(n) Seller
is
not acting, directly or indirectly for, or on behalf of, any person, group,
entity or nation named by any Executive Order of the President of the United
States of America (including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism) or the United States Treasury Department, as
a
terrorist, “Specially Designated National and Blocked Person,”
or other banned or blocked person, entity, or nation pursuant to any law that
is
enforced or administered by the United States Office of Foreign Assets Control,
and is not engaging in this transaction, directly or indirectly, on behalf
of,
or instigating or facilitating this transaction, directly or indirectly, on
behalf of, any such person, group, entity or nation.
(o) Seller
is
not a “governmental plan” within the meaning of section 3(32) of the Employee
Retirement Income Security Act of 1974, as amended, and the execution of this
Agreement and the sale of the Property by Seller is not, as a result of the
structure and ownership of Seller, subject to state statutes regulating
investments of and fiduciary obligations with respect to governmental
plans.
Each
of
the representations and warranties of Seller contained in this Section 4.1
is
true as of the date of this Agreement, and will be deemed remade by Seller,
and
will be true in all material respects as of the date of Closing, subject in
each
case to any Exception Matters (as defined below).
Section
4.2 Enforcement
. If
the Closing occurs, Seller’s Warranties will survive the Closing hereunder, for
the benefit of Buyer, for a period ending at 5:00 p.m. on the one (1) year
anniversary of the Closing Date (the “Warranty Expiration
Date”). No claim for a breach of any Seller Warranties, or
the failure or default of a covenant or agreement of Seller that survives
Closing, other than claims arising under Sections 7.3 and 9.6 hereof, shall
be
actionable or payable unless the valid claims for all such breaches collectively
aggregate more than One Hundred Thousand and No/100 Dollars ($100,000.00),
in
which event the full amount of such claims shall be
actionable. Seller will not be liable or responsible in any
circumstances for any consequential damages or lost profits, and Buyer hereby
releases and waives all claims for consequential damages and lost
profits. If, on or prior to the Warranty Expiration Date, Buyer has
not notified Seller, in writing, of any claim Buyer has against Seller for
breach of any of Seller’s Warranties and commenced an action against Seller,
Buyer will be forever barred and precluded from making a claim based upon any
breach of the Seller’s Warranties, and Seller will be deemed released from all
liabilities and obligations with respect thereto.
Section
4.3 No
Liability for Exception Matters
. As
used herein, the term “Exception Matter” will refer to (i) a
fact, circumstance, potential claim, or other matter disclosed to Buyer by
Seller in writing before the expiration of the Contingency Period or (ii) a
fact, circumstance, potential claim, or other matter actually discovered by
Buyer before the expiration of the Contingency Period, that would make a
representation or warranty of Seller contained in this Agreement untrue or
incorrect, including matters disclosed in any Tenant Estoppel
Certificate. Buyer and Seller will promptly notify each other in
writing of any Exception Matter of which either obtains knowledge before the
Closing. If Buyer’s obtain knowledge of any Exception Matter before
the Closing, but Buyer nonetheless elects to proceed with the acquisition of
the
Property, Buyer will consummate the acquisition of the Property subject to
and
by accepting such Exception Matter and Seller will have no liability with
respect to such Exception Matter, notwithstanding any contrary provision,
covenant, representation or warranty contained in this Agreement.
Section
4.4 Seller’s
Knowledge
. For
purposes of Seller’s Warranties whenever the phrase “to the best of Seller’s
knowledge” or the “knowledge” of Seller or words of similar import are used,
they will be deemed to mean and are limited to the current actual knowledge
only
of ▇▇▇▇ ▇▇▇▇▇▇▇, who is the employee of Seller with the most significant
knowledge of the Property and the daily operations thereof, and ▇▇▇▇ ▇▇▇▇,
for
periods prior to January 1, 2007, and not any implied, imputed or constructive
knowledge of such individuals or of Seller; it being understood and agreed
that
such individuals will have no personal liability in any manner whatsoever
hereunder or otherwise related to the transactions contemplated
hereby.
Section
4.5 Representations
and Warranties of Buyer
. Buyer
represents and warrants to Seller as follows:
(a) Buyer
has
been duly organized, is validly existing and is in good standing in the State
in
which it was formed, and is, or will be prior to Closing, qualified to do
business in the State in which the Property is located. This
Agreement has been, and all documents executed by Buyer which are to be
delivered to Seller at Closing will be, duly authorized, executed and delivered
by Buyer.
(b) Buyer
represents and warrants to Seller that this Agreement and all documents executed
by Buyer which are to be delivered to Seller at Closing do not and at the time
of Closing will not violate any provision of any agreement or judicial order
to
which Buyer is a party or to which Buyer is subject. There is no
action or proceeding pending or, to Buyer’s knowledge, threatened against Buyer
which challenges or impairs Buyer’s ability to execute or perform its
obligations under this Agreement. This Agreement constitutes a legal,
valid and binding obligation of Buyer in accordance with its terms, subject
to
equitable principles and principles governing creditors’ rights
generally.
(c) Other
than Seller’s Broker (as defined below), Buyer has had no contact with any
broker or finder with respect to the Property.
(d) Buyer
is
not acting, directly or, to Buyer’s knowledge, indirectly for, or on behalf of,
any person, group, entity or nation named by any Executive Order of the
President of the United States of America (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions With Persons
Who
Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury
Department, as a terrorist, “Specially Designated National and Blocked
Person,” or other banned or blocked person, entity, or nation pursuant
to any law that is enforced or administered by the United States Office of
Foreign Assets Control, and is not engaging in this transaction, directly or,
to
Buyer’s knowledge, indirectly, on behalf of, or instigating or facilitating this
transaction, directly or, to Buyer’s knowledge, indirectly, on behalf of, any
such person, group, entity or nation.
(e) Buyer
will not use “plan assets” as defined in the Labor Department Regulations to pay
the Purchase Price.
Section
4.6 Buyer’s
Independent Evaluation
. As
of the expiration of the Contingency Period, Buyer will have, or will have
had
ample opportunities to have to the extent Buyer deems necessary:
(a) Examined
and inspected the Property and will know and be satisfied with the physical
condition, quality, quantity and state of repair of the Property in all
respects, and by proceeding with this transaction following the expiration
of
the Contingency Period will be deemed to have determined that the same is
satisfactory to Buyer;
(b) Reviewed
the Raytheon Lease, the DIRECTV Lease, the Loan Documents and all other Property
Information, and Buyer, by proceeding with this transaction following the
expiration of the Contingency Period, will be deemed to have determined that
the
same and the information and data contained therein and evidenced thereby are
satisfactory to Buyer;
(c) Reviewed
all applicable laws, ordinances, rules and governmental regulations (including,
but not limited to, those relating to building, zoning and land use) affecting
the development, use, occupancy or enjoyment of the Property, and Buyer, by
proceeding with this transaction following the expiration of the Contingency
Period, will be deemed to have determined that the same are satisfactory to
Buyer; and
(d) Investigated,
examined and approved the presence or absence of Hazardous Materials (as defined
below) in, on or under the Property, and the presence of lead-containing dust
in
the building, which investigations, examinations or audits will be performed
or
arranged by Buyer, at Buyer’s sole expense, prior to the end of the Contingency
Period. For purposes of this Agreement, “Hazardous
Materials” will mean inflammable explosives, radioactive materials,
asbestos, asbestos–containing materials, polychlorinated biphenyls, lead,
lead-based paint, radon, under and/or above ground tanks, hazardous materials,
hazardous wastes, hazardous substances, mold, oil, or related materials, which
are listed or regulated in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 6901,
etseq.), the Resources Conservation and Recovery Act of 1976 (42
U.S.C. Section 6901, etseq.), the Clean Water Act (33 U.S.C.
Section 1251, etseq.), the Safe Drinking Water Act (14 U.S.C.
Section 1401, etseq.), the Hazardous Materials Transportation Act
(49 U.S.C. Section 1801, etseq.), the Toxic Substance Control Act
(15 U.S.C. Section 2601, etseq.), or any other applicable federal,
state or local laws (collectively, “Environmental
Laws”).
Section
4.7 AS-IS
. EXCEPT
FOR SELLER’S WARRANTIES IN SECTION 4.1 OF THIS AGREEMENT AND SELLER’S CLOSING
DOCUMENTS, THIS SALE IS MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY
OF
ANY KIND (WHETHER EXPRESS OR IMPLIED) BY SELLER. AS A MATERIAL PART
OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER AGREES TO ACCEPT THE PROPERTY
ON
AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION
OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS. EXCEPT FOR
SELLER’S WARRANTIES IN SECTION 4.1 OF THIS AGREEMENT AND SELLER’S CLOSING
DOCUMENTS, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR
ANY
PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION
OR
INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE
OF HAZARDOUS OR TOXIC SUBSTANCES, THE PRESENCE OF LEAD-CONTAINING DUST, ABSENCE
OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT
LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING,
WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS
ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS
OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE,
AND
LEGAL CONDITION OF THE PROPERTY. BUYER EXPRESSLY WAIVES THE BENEFITS
OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY IT MUST HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE
DEBTOR.”
_____________
Buyer’s
Initials
ARTICLE
5
TITLE
MATTERS
Section
5.1 Commitment
. Seller
has delivered to Buyer a current title commitment (the “Commitment”) for an ALTA
Form B Owner’s Title Policy issued by the Title Company showing the status of
title of the Real Property and all exceptions, including liens, encumbrances,
easements, restrictions, rights-of-way, covenants, reservations and other
conditions, if any, affecting the Property, together with legible copies of
all
documents affecting the Property and referred to in the Commitment.
Section
5.2 Survey
. The
Existing Survey of the Property has been delivered to Buyer as part of the
Property Information. Buyer may have an updated survey prepared for
the Property (collectively, the “Survey”), at Buyer’s sole cost
and expense, to include the surveyor’s certification to
Buyer and the Title Company dated subsequent to the date of this Agreement
confirming that such Survey has been prepared in compliance with the
most recent Survey Standards of the ALTA and ACSM.
Section
5.3 Title
Objections
. If
the Commitment or the Existing Survey or Survey shows exceptions or defects
that
Buyer does not consent to, Buyer will provide Seller with written notice of
the
objections to title raised by such matters by the expiration of the Contingency
Period. Buyer’s failure to make such objections within said period
will constitute a waiver by Buyer of any objections to the marketability of
title; provided that Buyer will be permitted to raise as title objections
(within five (5) business days of Buyer’s notification thereof) matters
affecting title which Buyer first becomes aware of by an amendment, update
or
continuation of the Commitment or Survey. If Buyer does timely
provide written notice to Seller of objections to title as disclosed by the
Commitment or Existing Survey (or update as aforesaid), then Seller shall
provide written notice to Buyer within three (3) business days of Seller’s
receipt of Buyer’s objections stating whether Seller will cure such title
defects. If Seller elects to cure such title defects, then Seller
will have fifteen (15) days after Buyer makes written objection to Seller to
use
commercially reasonable efforts to (but no obligation to) cure such
defects. Seller will be deemed to have duly cured any such defects in
title if Seller causes the Title Company to agree to provide Buyer, at Closing
(at no cost to Buyer), with specific title insurance insuring Buyer over any
loss occasioned by such defects, pursuant to an endorsement reasonably
satisfactory to Buyer. If Seller has not been able to cure such title
defects within fifteen (15) days from the date of written objection thereto
or
elects not to cure such title defects, as above provided, and Buyer does not
waive the curing of such defects, then this Agreement will be voidable, at
Buyer’s option, upon written notice to Seller, in which event the entire ▇▇▇▇▇▇▇
Money and interest earned thereon will be immediately refunded to
Buyer. Notwithstanding the foregoing, Seller agrees to satisfy any
mortgages (other than the Loan), or other liens against title to the Property
of
parties claiming by, through or under the Seller (but not the Tenant under
the
Lease) which are curable solely by the payment of money either prior to Closing
or simultaneously with Closing by using proceeds from the sale, and the Raytheon
Deed of Trust shall be deemed a permitted exception.
ARTICLE
6
RISK
OF LOSS AND INSURANCE PROCEEDS
Section
6.1 Casualty
. The
risk of loss or damage or destruction to the Property by fire or other casualty
is assumed by Seller until the Closing. In the event such casualty
results in damage to the Property in the amount of $1,000,000.00 or more (a
“Major Casualty”), Buyer will have the option, exercisable
within fifteen (15) days of Seller’s notice, of either (i) declaring this
Agreement terminated in which event Title Company will refund to Buyer the
entire ▇▇▇▇▇▇▇ Money whereupon this Agreement and all rights of Buyer hereunder
and to the Property will terminate and neither Seller nor Buyer will have any
further claim against the other (except for claims under Section 2.5, which
will
survive), or (ii) closing title in accordance with this Agreement and paying
in
full the Purchase Price, without any abatement thereof or claim against Seller
for such loss or damage (except solely that Seller will credit the purchase
price by the amount of its insurance deductible, if Seller maintains the
property insurance), and accepting an assignment, without recourse, of Seller’s
rights, if any, to any payments to be made under any applicable hazard insurance
policies together with any payments under such policies made to Seller prior
to
the Closing and not expended to repair or replace such loss, damage or
destruction. If Buyer will have failed to timely make an election
pursuant to the foregoing sentence Buyer will be deemed to have elected to
proceed with the purchase of the Property in accordance with (ii) above. This
paragraph will govern to the extent inconsistent with any applicable
law.
Section
6.2 Condemnation
. If
prior to the Closing, all of the Property will be taken by condemnation, eminent
domain or deed in lieu thereof or such a taking will be threatened in writing
by
the applicable governmental authority having jurisdiction over the Property,
this Agreement will be automatically canceled, the entire ▇▇▇▇▇▇▇ Money together
with any interest thereon will be returned to Buyer and thereupon neither party
will have any further liability or obligation to the other (except for claims
under Section 2.5, which will survive). If, prior to the Closing, a
Material Portion, but less than all, of the Property will be taken by
condemnation, eminent domain or deed in lieu thereof or such a taking will
be
threatened in writing by the applicable governmental authority having
jurisdiction over the Property, then in such event Buyer may cancel this
Agreement by sending written notice thereof to Seller within fifteen (15) days
of Buyer’s receipt of notice of such condemnation, eminent domain, or other
taking, in which event the Title Company will return to Buyer the ▇▇▇▇▇▇▇ Money
and thereupon neither party will have any further liability or obligations
to
the other (except for claims under Section 2.5, which will
survive). If this Agreement is not canceled, Buyer will accept title
to the Property subject to the condemnation, eminent domain or taking, in which
event on the Closing Date the net proceeds of the award or payment (after
payment of all actual reasonable collection costs) will be assigned by Seller
to
Buyer and net monies theretofore received by Seller in connection with such
condemnation, eminent domain or taking will be paid over to Buyer or allowed
as
a credit against the Purchase Price hereunder. “Material Portion” as
used herein shall mean any one or more of the following: (i) any of the parking
on the Property, (ii) ingress and egress rights to the Property, (iii) a
condemnation which permits either Tenant to terminate its lease, or (iv) a
taking of a portion of the Property which would cost $1,000,000.00 or more
to
restore.
ARTICLE
7
BROKERS
Section
7.1 Warranty
. Seller
represents and warrants to Buyer that no broker or finder was instrumental
in
arranging or bringing about this transaction except for Eastdil Secured
(“Seller’s Broker”).
Section
7.2 Payment
of Commission
. At
Closing, Seller will pay the commission due, if any, to Seller’s Broker, which
will be paid pursuant to a separate agreement between Seller and Seller’s
Broker.
Section
7.3 Indemnity
. If
any other person brings a claim for a commission or finder’s fee based upon any
contact, dealings or communication with Buyer or Seller, then the party through
whom such person makes his claim will defend the other party (the “Indemnified
Party”) from such claim, and will indemnify the Indemnified Party and hold the
Indemnified Party harmless from any and all costs, damages, claims, liabilities
or expenses (including without limitation, court costs and reasonable attorneys’
fees and disbursements) incurred by the Indemnified Party in defending against
the claim. The provisions of this Section will survive the Closing
or, if the purchase and sale is not consummated, any termination of this
Agreement.
Section
7.4 Marketing
by Seller
. From
and after the Effective Date hereof, and prior to the expiration of the
Contingency Period, Seller may continue to market the Property for sale through
Seller’s Broker provided that any prospective purchaser or other interested
party will be advised, in writing, that the Property is currently “under
contract,” and no binding agreement will be executed with any third party
purchaser unless and until this Agreement is canceled and terminated as provided
herein.
ARTICLE
8
OPERATIONS
Section
8.1 Ongoing
Operations
. During
the pendency of this Agreement, but subject to the limitations set forth below,
Seller will carry on its businesses and activities relating to the Property
substantially in the same manner as it did before the date of this
Agreement.
Section
8.2 New
Contracts
. Following
the Effective Date, Seller will not enter into any contract that could create
an
obligation affecting the Property subsequent to the Closing, without the prior
consent of the Buyer.
Section
8.3 Leases
. Seller
may not enter into amendments, expansions or renewals of the Leases without
Buyer’s prior written consent, which shall not be unreasonably withheld;
provided, however, no such consent shall be required and Seller shall have
the
right to enter into any amendments, expansions or renewals or waive any such
provisions or grant any consents thereunder that are required in accordance
with
the current terms of the Leases.
Section
8.4 Loan
. Seller
shall punctually perform its obligations under the Loan, including making all
payments of principal and interest and paying any other costs of the Loan from
the Effective Date to the date of Closing as same shall become due and payable
pursuant to the Loan Documents. Seller shall comply with all of Seller’s
requirements and obligations under the Loan Documents with respect to the Loan
from the Effective Date to the date of Closing and will not allow the Loan
to go
into default.
Section
8.5 Cooperation
with Buyer’s Auditors and SEC Filing Requirements
. Seller
shall provide to Buyer (at Buyer’s expense) copies of, or shall provide Buyer
access to, such factual information as may be reasonably requested by Buyer,
and
in the possession or control of Seller, or its property manager or accountants,
to enable Buyer’s auditor (Deloitte & Touche LLP or any successor auditor
selected by Buyer) to conduct an audit of the income statements of the Property
for the year to date of the year in which the Closing occurs plus up to the
three prior calendar years. Buyer shall be responsible for all
out-of-pocket costs associated with this audit. Seller shall
cooperate (at no cost to Seller) with Buyer’s auditor in the conduct of such
audit. In addition, Seller agrees to provide to Buyer’s auditor, if
requested by such auditor, existing historical financial statements for the
Property, including income and balance sheet data for the Property, whether
required before or after Closing. Without limiting the foregoing, (i)
Buyer or its designated independent or other auditor may audit Seller’s
operating statements of the Property, at Buyer’s expense, and Seller shall
provide such documentation as Buyer or its auditor may reasonably request in
order to complete such audit, and (ii) Seller shall furnish to Buyer such
financial and other information as may be reasonably required by Buyer or any
affiliate of Buyer to make any required filings with the Securities and Exchange
Commission or other governmental authority; provided, however, that the
foregoing obligations of Seller shall be limited to providing such information
or documentation as may be in the possession of, or reasonably obtainable by,
Seller, its property manager or accountants, at no material cost to Seller,
and
in the format that Seller (or its property manager or accountants) have
maintained such information, and Seller shall not be deemed to make any
representation or warranty regarding such matters and Buyer shall have no claim
with respect to such matters under Section 4.1 hereof. Seller’s
obligations as set forth in this Section 8.5 shall survive for a period of
twelve (12) months from the Closing Date.
ARTICLE
9
CLOSING
Section
9.1 Closing
Date
. Provided
that all conditions thereto have been satisfied, the consummation of the sale
and purchase contemplated hereby will be held on or before 1:00 pm New York
time
on the date which is ten (10) business days after the later of: (i) the
expiration of the Contingency Period, or (ii) Assumption Approval, and if same
is not a business day, then on the next business day after such date; provided,
in all events Closing shall occur no later than April 30, 2008, unless the
parties otherwise mutually agree; provided, however, Seller, upon three (3)
business days prior written notice to Buyer, shall have the right to extend
the
then scheduled Closing Date for one additional period of up to thirty (30)
days
to permit additional time to satisfy Seller’s Closing Conditions set forth in
Section 9.8 herein. Notwithstanding the foregoing, Buyer, upon five
(5) business days prior written notice to Seller and upon the satisfaction
of
all closing conditions, shall have the right to accelerate the then scheduled
Closing Date. The Closing will take place in escrow through the
offices of the Title Company. The date of Closing is herein referred
to as the “Date of Closing” or the “Closing.”
Section
9.2 Seller’s
Closing Documents
. Seller
shall deliver to Buyer at Closing all of the following items:
(a) Properly
executed and acknowledged recordable grant deeds from Seller in the forms
attached as Exhibit C conveying title to the Real
Property and the Improvements and all of Seller’s right, title and interest in
and to all rights, benefits, privileges, easements, tenements, herditaments,
rights-of-way and other appurtenances thereon or in any way appertaining thereto
to Buyer.
(b) A
▇▇▇▇ of
Sale in the form attached as Exhibit D, duly executed
and acknowledged by Seller, conveying to Buyer title to any Personal
Property.
(c) Seller’s
properly executed affidavits in the customary form pertaining to liens,
judgments, mechanic liens, bankruptcies, brokerage fees, etc. which affect
the
Property.
(d) An
Assignment and Assumption of the Lease for each of the Raytheon and DIRECTV
Leases in the form attached as Exhibit E (“Lease
Assignment”) duly executed and acknowledged by Seller together with the
original, executed Tenant Estoppel Certificates if delivered by the
Tenants.
(e) An
Assignment in the form attached as Exhibit F duly
executed and acknowledged by Seller by which Seller will assign, without
recourse, all of Seller’s rights to Buyer in and under: (i) all guaranties and
warranties made by any contractor, subcontractor, materialman, supplier, or
other person or entity with respect to the Improvements; (ii) the Documents;
and
(iii) the Licenses (the “General Assignment”).
(f) A
sworn
statement provided by Seller that it is not a foreign person and containing
such
other information as may be required by Section 1445 of the Internal Revenue
Code and regulations thereunder.
(g) A
letter
to each of the Tenants from Seller advising them of the sale and directing
them
to pay all future rent to Buyer, at such address as Buyer directs.
(h) The
original Leases if in Seller’s possession and control, together with all
exhibits referenced therein.
(i) All
original guaranties, warranties, licenses and service contracts in Seller’s
possession and control bearing on the Property.
(j) All
construction drawings, plans and specifications in Seller’s possession or
control.
(k) All
keys
to the Property which are in Seller’s possession.
(l) Possession
of the Property, subject only to the rights of Raytheon and DIRECTV pursuant
to
their respective Leases.
(m) A
1099
form.
(n) The
Title
Company’s closing statement, duly executed by Seller.
(o) Documents
reasonably required by the Title Company to consummate the transaction
contemplated hereby, including such documentation as the Title Company may
reasonably require to evidence the authority of the Seller to convey the
Property to Buyer.
Section
9.3 Buyer’s
Closing Documents
. Buyer
will deliver to Seller at Closing all of the following items:
(a) Any
documents, instruments or authorizations necessary so as to cause the Title
Company to forward the ▇▇▇▇▇▇▇ Money, and all interest earned thereon, to the
Seller by wire transfer.
(b) The
cash
payment required by Section 1.2 above, subject only to the prorations, credits
and adjustments specified herein.
(c) The
Lease
Assignment duly executed and acknowledged by Buyer.
(d) The
General Assignment duly executed and acknowledged by Buyer.
(e) The
Title
Company’s closing statement, duly executed by Buyer.
(f) Such
other and further documentation reasonably required by the Title
Company.
Section
9.4 Closing
Costs
.
The
following costs and expenses will be paid as follows in connection with the
Closing:
(a) Seller
will pay:
(1) The
cost
of preparation of the Deed and other documents of conveyance.
(2) All
State, County and City transfer taxes upon delivery to Buyer of the
Deed.
(3) Any
filing fee to record the Deed.
(4) The
premium and all other costs and charges for the standard owner’s title insurance
policy, excluding any endorsements or supplemental coverage Buyer may choose
to
obtain.
(5) Seller’s
attorneys’ fees.
(6) One-half
of the escrow fee charged by the Title Company.
(7) All
amounts required to obtain releases of any mortgages, contracts for deed,
mechanic’s liens, or other liens and encumbrances against the Property which
Seller is obligated to remove of record.
(8) The
Transfer Fee to the extent provided for under Section 1.2(b) herein, if
any.
(9) Such
other costs as are allocated to Seller under this Agreement.
(b) Buyer
will pay:
(1) Buyer
attorney’s fees.
(2) The
cost
to obtain the Survey.
(3) The
premium and all other costs and charges for any endorsements and additional
coverage Buyer may chose to obtain for the owner’s title insurance policy, and
any lender’s title insurance policy and endorsements or supplemental coverage
obtained by Buyer.
(4) All
costs, fees, expenses, and mortgage registration taxes incurred in connection
with any mortgage financing obtained or assumed by Buyer.
(5) One-half
of the escrow fee charged by the Title Company.
(6) The
Transfer Fee to the extent provided for under Section 1.2(b) herein, if
any.
(7) Such
other costs as are allocated to Buyer under this Agreement.
Section
9.5 Taxes
and Special Assessments
. Real
estate taxes and any other assessments affecting the Property shall not be
prorated as of the Date of Closing (as such taxes are payable by Raytheon under
the Raytheon Lease).
Section
9.6 Proration
of Income and Expenses
.
(a) Rents. All
rent under the Raytheon Lease will be prorated by the parties on a per diem
basis to the Date of Closing as follows: Seller will be entitled to
all income and rentals accrued prior to 12:01 a.m. on the Date of Closing and
will be obligated for all expenses payable prior to the Date of Closing; and
Buyer will be entitled to collect and retain all rental accrued after the
Closing and will be obligated to pay all expenses payable on and after the
Closing. Notwithstanding the foregoing, Buyer shall receive a rent
subsidy payment in an amount equal to $37,595.56 per day for each day after
January 21, 2008 until Closing, which shall be payable on June 30, 2008 at
the
time the Rent adjustment is made pursuant to the following
sentence. Buyer hereby acknowledges that Raytheon pays a semi-annual
installment of Rent in arrears on June 30, 2008, and that Rents shall be
adjusted between Seller and Buyer at such time. Seller hereby
acknowledges that such prorated Rent shall be paid to Seller two (2) business
days following receipt by Buyer of the semi-annual installment of Rent from
Raytheon.
(b) Utilities. Water,
sewage, fire protection inspection services, electric, telephone and all other
utility charges will not be prorated as they are payable directly by
Raytheon.
(c) Loan
Interest; Reserves. Interest payable under the Note for the
month of Closing shall be prorated as of 12:01 am on the Closing
Date. Seller shall be entitled to a credit against the Purchase Price
for all reserves held by Lender, including those held to pay future tenant
improvement allowances due Raytheon and DIRECTV, pursuant to Section 7 of the
Second Amendment to Amended and Restated Sublease Agreement dated as of March
15, 2006 and Section 9.23 of the DIRECTV Lease, respectively.
(d) Subsequent
Adjustments. If on the Closing Date, the precise figures
necessary for any of the foregoing adjustments are not capable of determination,
then those adjustments will be made on the basis of good faith estimates of
Seller and Buyer using currently available information, and final adjustments
will be made promptly after precise figures are determined or
available.
Section
9.7 Buyer’s
Closing Conditions
. Buyer’s
obligations hereunder are subject to the satisfaction of the following
conditions precedent and the compliance by Seller with the following
covenants:
(a) Seller’s
Deliveries. Seller shall have delivered to the Title Company
or the Buyer, as the case may be, on or before the date of Closing, all of
the
documents called for by this Agreement, including without limitation Section
9.2
hereof.
(b) Seller’s
Representations and Warranties. All of Seller’s
representations and warranties made in this Agreement shall be true and correct
as of the Effective Date and as of Date of Closing as if then made in all
material respects, except for Exception Matters, and Seller shall have performed
all of its covenants and other obligations under this Agreement.
(c) Title
Policy. The Title Company shall be irrevocably bound and committed to
issue at Closing (or prepared to unconditionally commit to issue at Closing,
with no “gap”) its title policy to Buyer, in the form agreed to in accordance
with Article 5 herein, subject only to the payment of its premiums (at standard
rates) for such policy as set forth herein.
(d) Assumption
Approval. Assumption Approval shall have been
obtained.
(e) Loan. No
event of default, or event which with the passage of time or notice or both
would result in an event of default, shall have occurred and be continuing
under
the Loan at Closing.
(f) Tenant
Estoppel Certificates. Buyer will have received, reviewed
and approved a completed, executed tenant estoppel certificate from Raytheon
substantially in the form attached herein as Exhibit B,
or in such other form as is required by the Raytheon
Lease, free from material and adverse exception, qualification or modification
(the “Raytheon Estoppel Certificate”).
Buyer
will also have received, reviewed and approved a completed, executed tenant
estoppel certificate from DIRECTV substantially in the form attached herein
as
Exhibit B, or in such other form
as is required by the DIRECTV Lease, free from material and adverse exception,
qualification or modification. (the “DIRECTV Estoppel
Certificate”) (collectively, the Raytheon Estoppel Certificate and the
DIRECTV Estoppel Certificate are referred to herein as the “Tenant
Estoppel Certificates”).
(g) Raytheon’s
ROFR. With respect to the Property, Raytheon shall have
waived in writing (which may be satisfied by receipt of the executed Raytheon
Estoppel Certificate), or the forty five (45) day period shall have expired
without Raytheon electing to exercise, its option to purchase the Property
in
accordance with Paragraph 3.6 of the Raytheon Lease. If Raytheon’s
option to purchase the Property has expired, Seller shall provide a certificate
representing same prior to or at Closing.
(h) ▇▇▇▇▇▇’▇
ROFR. With respect to the Property, ▇▇▇▇▇▇ shall have waived
in writing, or the forty five (45) day period shall have expired without ▇▇▇▇▇▇
electing to exercise, its option to purchase the Property in accordance with
the
▇▇▇▇▇▇ ROFR Agreement. If ▇▇▇▇▇▇’▇ option to purchase the Property
has expired, Seller shall provide a certificate representing same prior to
or at
Closing.
If
at
Closing Buyer determines that any of the contingencies specified in this Section
9.7 have not been satisfied or (if waivable) waived by Buyer, then Buyer may,
by
written notice to Seller, cancel and terminate this Agreement (“Buyer’s
Termination Notice”) and, upon the delivery of the Buyer’s Termination
Notice, the entire ▇▇▇▇▇▇▇ Money will be delivered to Buyer, and thereafter,
the
parties will be mutually released from all liabilities and obligations
hereunder, save and except that Buyer will promptly return to Seller all copies
of the Property Information provided to Buyer, and Buyer will continue to be
liable under Section 2.5 hereof; provided, however, that Buyer’s receipt and
acceptance of the ▇▇▇▇▇▇▇ Money will not prejudice, waive or in any manner
affect any and all remedies available to Buyer under Section 10.1 herein in
the
event the failure to satisfy any such condition is the result of a
Seller’s default under the terms of this Agreement, which will survive such
cancellation.
Section
9.8 Seller’s
Closing Condition
. Seller’s
obligations hereunder are subject to the satisfaction of the following condition
precedents:
(a) Raytheon’s
ROFR. With respect to the Property, Raytheon shall have
waived in writing (which may be satisfied by receipt of the executed Raytheon
Estoppel Certificate), or the forty five (45) day period shall have expired
without Raytheon electing to exercise, its option to purchase the Property
in
accordance with Paragraph 3.6 of the Raytheon Lease. If Raytheon’s
option to purchase the Property has expired, Seller shall provide a certificate
representing same prior to or at Closing.
(b) ▇▇▇▇▇▇’▇
ROFR. With respect to the Property, ▇▇▇▇▇▇ shall have waived
in writing, or the forty five (45) day period shall have expired without ▇▇▇▇▇▇
electing to exercise, its option to purchase the Property in accordance with
the
▇▇▇▇▇▇ ROFR Agreement. If ▇▇▇▇▇▇’▇ option to purchase the Property
has expired, Seller shall provide a certificate representing same prior to
or at
Closing.
(c) Assumption
Approval. Assumption Approval shall have been
obtained.
If
at
Closing Seller determines that any of the contingencies specified in this
Section 9.8 have not been satisfied or (if waivable) waived by Seller, then
Seller may, by written notice to Buyer, cancel and terminate this Agreement
(“Seller’s Termination Notice”) and, upon the delivery of the
Seller’s Termination Notice, the ▇▇▇▇▇▇▇ Money will be remitted to Buyer, and
thereafter, the parties will be mutually released from all liabilities and
obligations hereunder, save and except that Buyer will promptly return to Seller
all copies of the Property Information provided to Buyer, and Buyer will
continue to be liable under Section 2.5 hereof. Notwithstanding the
foregoing or any other provision contained in this Agreement, in the event
this
Agreement is terminated by Seller as a result of the exercise by Raytheon of
its
right to purchase the Property pursuant to Section 9.8(a) above,
Seller shall reimburse Buyer for its actual out of pocket costs incurred in
connection with its potential purchase of the Property upon presentation of
paid
receipts in an amount not to exceed $150,000 in the aggregate.
ARTICLE
10
MISCELLANEOUS
Section
10.1 Remedies
. IN
THE EVENT THE CLOSING OF THE PURCHASE AND SALE TRANSACTION PROVIDED FOR HEREIN
DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER, SELLER
MAY
TERMINATE THIS AGREEMENT AND THE TITLE COMPANY WILL PAY SELLER ALL OF THE
▇▇▇▇▇▇▇ MONEY WHICH SELLER MAY RETAIN, WHICH AMOUNT IS AGREED UPON BY AND
BETWEEN SELLER AND BUYER AS LIQUIDATED DAMAGES DUE TO THE DIFFICULTY AND
INCONVENIENCE OF ASCERTAINING AND MEASURING ACTUAL DAMAGES AND THE UNCERTAINTY
THEREOF; AND NO OTHER DAMAGES, RIGHTS OR REMEDIES AT LAW OR IN EQUITY SHALL
IN
ANY CASE BE COLLECTIBLE, ENFORCEABLE OR AVAILABLE TO SELLER, BUT SELLER SHALL
ACCEPT SAID CASH PAYMENT AS SELLER’S TOTAL DAMAGES AND RELIEF; PROVIDED,
HOWEVER, THAT SELLER’S RECEIPT AND ACCEPTANCE OF THE ▇▇▇▇▇▇▇ MONEY WILL NOT
PREJUDICE, WAIVE OR IN ANY MANNER AFFECT ANY AND ALL REMEDIES AVAILABLE AT
LAW,
IN EQUITY, OR HEREUNDER WITH RESPECT TO ENFORCING BUYER’S OBLIGATIONS UNDER
SECTIONS 2.5 AND 10.4, WHICH WILL SURVIVE SUCH CANCELLATION.
IN
THE
EVENT THE CLOSING OF THE PURCHASE AND SALE TRANSACTION PROVIDED FOR HEREIN
DOES
NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF SELLER, THE BUYER
MAY
EITHER: (I) CANCEL AND TERMINATE THIS AGREEMENT BY WRITTEN NOTICE, AND UPON
SUCH
TERMINATION, THE TITLE COMPANY WILL PAY BUYER ALL OF THE ▇▇▇▇▇▇▇ MONEY AND
THEREAFTER NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY HEREUNDER EXCEPT
FOR
BUYER’S OBLIGATIONS UNDER SECTION 2.5 HEREIN OR, (II) AS AN ALTERNATIVE REMEDY
TO SUCH CANCELLATION, BUYER MAY APPLY FOR A DECREE OF SPECIFIC PERFORMANCE
TO
ENFORCE PERFORMANCE OF THE TERMS HEREOF PROVIDED THAT ANY SUIT FOR SPECIFIC
PERFORMANCE MUST BE BROUGHT WITHIN THIRTY (30) DAYS OF SELLER’S DEFAULT, BUYER
WAIVING THE RIGHT TO BRING SUIT AT ANY LATER DATE. IN NO EVENT WILL
SELLER BE LIABLE OR RESPONSIBLE FOR (AND BUYER HEREBY WAIVES) ALL CLAIMS TO
RECOVER ANY MONETARY DAMAGES WHATSOEVER, WHETHER GENERAL, SPECIAL, INCIDENTAL
OR
CONSEQUENTIAL ALLEGEDLY ARISING FROM ANY BREACH OF THIS CONTRACT BY SELLER,
EXCEPT AS PROVIDED IN THIS SECTION AND SECTIONS 4.2 AND 10.4, BUT SUBJECT TO
THE
LIMITATIONS OF SECTION 10.13.
_____________ _____________
Buyer’s
Initials Seller’s
Initials
Section
10.2 Notices
. Any
notices required or permitted to be given hereunder will be given in writing,
signed by the party giving the same, and will be delivered (a) in person, (b)
by
certified mail, postage prepaid, return receipt requested, (c) by a commercial
overnight courier that guarantees next business day delivery and provides a
receipt, or (d) by facsimile (when followed by delivery via nationally
recognized overnight courier), and such notices will be addressed as
follows:
|
|
To
Seller:
|
Lexington
Realty Trust
|
|
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
with
copy to:
|
Lexington
Realty Trust
|
|
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
|
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esquire
|
|
|
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
with
a copy to:
|
Post
▇▇▇▇▇▇▇ & Koffler LLP
|
|
|
Two
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇▇▇
▇. Post, Esquire
|
|
|
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
To
Buyer:
|
c/o
Hines Interests Limited Partnership
|
|
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
|
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
with
a copy to:
|
▇▇▇▇▇
Advisors Limited Partnership
|
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
|
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. - Legal
Department
|
|
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
And
|
▇▇▇▇▇
▇▇▇▇▇ L.L.P.
|
|
|
One
Shell Plaza
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
To
Title Company:
|
Commonwealth
Land Title
|
|
|
Insurance
Company
|
|
|
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇
▇▇▇ ▇▇▇▇
|
|
|
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
or
to
such other address as either party may from time to time specify in writing
to
the other party. Any notice, personally delivered, will be effective
upon delivery. Any such communication, if mailed as provided herein,
will be deemed to have been received three (3) business days after
mailing. Any such communication, if sent via overnight recognized
courier (e.g., Fedex, AirBorne) next day delivery as provided herein, will
be
deemed to have been received one (1) business day after mailing. Any
such communication, if sent via facsimile, will be deemed to have been given
and
received on the day indicated on the confirmed facsimile delivery transmission
(provided duplicate copy is also sent via overnight courier). If the
last day of a period within which either party is required or allowed to provide
a notice, demand, offer, election, acceptance or other communication hereunder
should fall upon a Saturday, Sunday or legal holiday then, the next full
business day will be included in such period and such notice, offer, demand,
request or communication may be made and given on such next full business
day. Notices may be delivered on behalf of the parties by their
respective attorneys.
Section
10.3 Entire
Agreement
. This
Agreement, together with the Exhibits and schedules hereto, contains all
representations, warranties and covenants made by Buyer and Seller and
constitutes the entire understanding between the parties hereto with respect
to
the subject matter hereof. Any prior correspondence, memoranda or
agreements are replaced in total by this Agreement together with the Exhibits
and schedules hereto.
Section
10.4 Attorneys’
Fees
. If
either party hereto fails to perform any of its obligations under this Agreement
or if any dispute arises between the parties hereto concerning the meaning
or
interpretation of any provision of this Agreement, then the defaulting party
or
the party not prevailing in such dispute, as the case may be, will pay any
and
all reasonable costs and expenses incurred by the other party on account of
such
default and/or in enforcing or establishing its rights hereunder, including,
without limitation, court costs and reasonable attorneys’ fees and
disbursements.
Section
10.5 Assignment
. Buyer’s
rights and obligations hereunder will not be assignable without the prior
written consent of Seller in Seller’s sole
discretion. Notwithstanding the foregoing, Buyer will have the right,
without the necessity of obtaining Seller’s consent but with prior written
notice to Seller, to assign its right, title and interest in and to this
Agreement to a separate entity under common control with Buyer, at any time
before the Closing Date. Buyer will not be released from any of its
obligations or liabilities hereunder in connection with any
assignment.
Section
10.6 Signatures
in Counterparts and By Facsimile/E-mail
. The
undersigned agree that this instrument may be signed in any number of
counterparts, each of which will constitute an original, and that a facsimile
copy or e-mail copy of any signature of any party will be deemed as enforceable
and effective as an original signature. All such counterparts
together will constitute one and the same instrument.
Section
10.7 Governing
Law
. This
Agreement is delivered in, relates to real and personal property located in,
and
shall be governed by and construed according to the substantive laws and
judicial decisions of State of California (regardless of the place of business,
residence, location or domicile of the parties hereto or any of their
constituent members, partners or principals). Each party hereby
submits to personal jurisdiction in the State of California for the enforcement
of this Agreement and hereby waives any claim or right under the laws of any
other state or of the United States to object to such jurisdiction. If such
litigation is commenced, each party agrees that service of process may be made
by serving a copy of the summons and compliant upon each party, through any
lawful means, including upon its registered agent within the State of
California, whom each party hereby appoints as its agent for this
purpose. The means of obtaining personal jurisdiction and perfecting
service of process set forth above are not intended to be exclusive but are
in
addition to all other means of obtaining personal jurisdiction and perfecting
service of process now or hereafter provided by applicable
law. Seller and Buyer hereby irrevocably and unconditionally waive
any and all right to trial by jury in any action, suit or counterclaim arising
in connection with, out of or otherwise relating to, this
Agreement. The provisions of this Section 10.7 shall survive the
Closing or termination hereof.
Section
10.8 Confidentiality
and Return of Documents
. Buyer
and Seller will each maintain as confidential any and all material obtained
about the other or, in the case of Buyer, about the Property, this Agreement
or
the transactions contemplated hereby, and will not disclose such information
to
any third party except as set forth herein. Buyer will have the right
to disclose information with respect to the Property to its officers, directors,
employees, attorneys, accountants, environmental auditors, engineers, potential
partners and lenders, and permitted assignees under this Agreement and other
consultants to the extent necessary for Buyer to evaluate its acquisition of
the
Property provided that all such persons are told that such information is
confidential and agree to keep such information confidential. If
Buyer acquires the Property from Seller, Seller and Buyer will have the right,
subsequent to the Closing of such acquisition, to publicize the transaction
provided Buyer will not use the name of Seller or any derivative name of
Lexington Realty Trust in any such press release without the express written
consent of Seller. Without otherwise limiting the foregoing: (a) this
Section 10.8 shall not apply to any information obtained from third parties
or
available to the general public; nor (b) shall it apply to any and all
disclosures required by law or to disclosures to direct and indirect members
and
partners in Seller. Additionally, notwithstanding anything to the
contrary contained herein, Buyer (its affiliates or any entity advised by
Buyer’s affiliates) shall be permitted to disclose this transaction and/or the
terms of this transaction and any such information relating to the Property
in
any document as may be necessary to comply with any applicable federal or state
securities laws, rules or regulations or to comply with the requirements of
the
Securities and Exchange Commission, the New York Stock Exchange or any similar
agency or body. Buyer’s initial disclosure of the transactions
contemplated hereby shall not include a copy of this Purchase
Agreement.
The
provisions of this paragraph will survive the Closing or any termination of
this
Agreement.
Section
10.9 Interpretation
of Agreement
. The
article, section and other headings of this Agreement are for convenience of
reference only and will not be construed to affect the meaning of any provision
contained herein. Where the context so requires, the use of the
singular will include the plural and vice versa and the use of the masculine
will include the feminine and the neuter. The term “person” will
include any individual, partnership, joint venture, corporation, trust,
unincorporated association, any other entity and any government or any
department or agency thereof, whether acting in an individual, fiduciary or
other capacity.
Section
10.10 Amendments
. This
Agreement may be amended or modified only by a written instrument signed by
Buyer and Seller.
Section
10.11 No
Recording
. This
Agreement, a memorandum of this Agreement, or any other document that would
constitute an exception to Seller’s title shall not be recorded and the
provisions hereof shall not constitute a lien on the Property, except in
connection with a specific performance action to enforce this Agreement;
provided, however, that Buyer may file this Agreement with federal and state
commissions and such filings shall not be considered title encumbrances for
purposes of the next sentence. In the event Buyer encumbers title to
the Property in violation of this Section 10.11, Seller shall be entitled to
a
payment by Buyer of liquidated damages in the amount of the lesser
of: (a) $500,000, or (b) the maximum amount permitted by law,
together with reasonable attorneys’ fees incurred in the enforcement of this
section; provided, however in the event Buyer removes any encumbrance against
title to such Property within ten (10) days after written demand from
Seller, no such payment shall become due. Such amount is agreed upon
by and between Seller and Buyer as liquidated damages due to the difficulty
and
inconvenience of ascertaining and measuring actual damages and the uncertainty
thereof associated with Buyer’s breach of this Section 10.11 of the
Agreement. Buyer hereby appoints Seller as Buyer’s true and lawful
attorney-in-fact, coupled with an interest, for the purposes of the execution
of
any documents and doing any acts as shall be necessary to effect the discharge
of the recording of this Agreement or any other exception to the Commitment
or
any update thereof.
Section
10.12 No
Third Party Beneficiary
. The
provisions of this Agreement are not intended to benefit any third
parties.
Section
10.13 Limitation
on Liability
.
(a) Notwithstanding
anything to the contrary contained herein, after the Closing, except for claims
based upon intentional fraud, the maximum aggregate liability of Seller, and
the
maximum aggregate amount which may be awarded to and collected by Buyer under
this Agreement or any documents executed pursuant hereto or in connection
herewith, will under no circumstances whatsoever exceed Two Million Five Hundred
Thousand Dollars ($2,500,000.00), except for claims arising under Section 7.3
and for prorations of rent and expenses under Section 9.6 herein.
(b) Buyer
hereby acknowledges that the obligations of Seller hereunder are those solely
of
the Seller and not of its partners, members, managers, officers, directors,
shareholders, subsidiaries or affiliates (collectively, the “Seller
Affiliates”). Buyer hereby agrees that its sole recourse for
any actions, claims, liabilities, damages and demands of every nature
whatsoever, whether known or unknown, arising out of any matter in connection
with or under this Agreement or the transactions contemplated hereby, to the
extent specifically provided for by this Agreement, shall be to Property and
that Buyer shall have no right to seek such damages from, or allege a cause
of
action against, the Seller Affiliates. Notwithstanding the foregoing,
Seller agrees to cause Lexington Realty Trust (“LRT”), and by
acknowledging this Agreement where indicated below, LRT hereby agrees, to be
obligated for (and hereby guarantees) any claim of Buyer against Seller arising
in accordance with the terms of this Agreement or any of Seller’s Closing
Documents in an amount not to exceed Two Million Five Hundred Thousand Dollars
($2,500,000.00), which agreement shall survive the Closing. LRT shall
be jointly and severally liable for any breach of Seller’s representations and
warranties set forth in Section 4.1, subject to the limitations of this Section
10.13. Seller shall cause LRT to execute a joinder to this Agreement
to evidence LRT’s agreement to be jointly and severally liable to Buyer for any
breach of Seller’s representations and warranties set forth in Section 4.1,
subject to the limitations of this Section 10.13.
(c) Seller
hereby acknowledges that the obligations of Buyer hereunder are those solely
of
the Buyer and not of its partners, members, managers, officers, directors,
shareholders, subsidiaries or affiliates (collectively, the “Buyer
Affiliates”). Seller hereby agrees that its sole recourse
for any actions, claims, liabilities, damages and demands of every nature
whatsoever, whether known or unknown, arising out of any matter in connection
with or under this Agreement or the transactions contemplated hereby, to the
extent specifically provided for by this Agreement, shall be to Buyer and that
Seller shall have no right to seek such damages from, or allege a cause of
action against, the Buyer Affiliates.
Section
10.14 §1031
Exchange
. Notwithstanding
Section 10.5, either Buyer or Seller may designate the Property as part of
a
1031 Exchange under the Internal Revenue Code of 1986, as amended. In
such event, Buyer and Seller respectively agree to cooperate with the other
in
such transaction, including, but not limited to, executing any commercially
reasonable documents requested by the designating party and cooperating in
a
commercially reasonable manner with any facilitator in such transaction,
provided that (i) the nondesignating party shall not incur any liability in
connection with the exchange, (ii) the nondesignating party shall not be
obligated to take title to any real property, (iii) the Date of Closing shall
not be extended to accommodate nor shall the Closing be conditioned on
consummation of the exchange, and (iv) any and all additional costs and charges
attributable to the exchange including, without limitation, actual attorneys’
fees, brokers’ commissions and other transaction-related expenses shall be paid
for by the designating party immediately upon demand by the nondesignating
party.
Section
10.15 Survival
. Except
as expressly set forth to the contrary herein, no representations, warranties,
covenants or agreements of Seller contained herein will survive the
Closing.
Section
10.16 Escrow
Agent
. (i) Title
Company shall accept the ▇▇▇▇▇▇▇ Money with the understanding of the parties
that Title Company Agent is not a party to this Agreement except to the extent
of its specific responsibilities hereunder, and does not assume or have any
liability for the performance or non-performance of Buyer or Seller hereunder
to
either of them.
(ii) The
Title Company shall be protected in relying upon the accuracy, acting in
reliance upon the contents, and assuming the genuineness of any notice, demand,
certificate, signature, instrument or other document which is given to the
Title
Company without verifying the truth or accuracy of any such notice, demand,
certificate, signature, instrument or other document.
(iii) The
Title Company shall not be bound in any way by any other agreement or
understanding between the parties hereto, whether or not the Title Company
has
knowledge thereof or consents thereto unless such consent is given in
writing.
(iv) The
Title Company’s sole duties and responsibilities under as escrow agent for the
▇▇▇▇▇▇▇ Money shall be to hold and disburse the ▇▇▇▇▇▇▇ Money in accordance
with
this Agreement.
(v) The
Title Company shall not be liable for any action taken or omitted by the Title
Company in good faith and believed by the Title Company to be authorized or
within its rights or powers conferred upon it by this Agreement, except for
damage caused by the fraud or gross negligence of the Title
Company.
(vi) Upon
the disbursement of the ▇▇▇▇▇▇▇ Money in accordance with this Agreement, the
Title Company shall be relieved and released from any liability under this
Agreement.
(vii) The
Title Company may resign at any time upon at least ten (10) days prior written
notice to the parties hereto. If, prior to the effective date of such
resignation, the parties hereto shall all have approved, in writing, a successor
escrow agent, then upon the resignation of the Title Company, the Title Company
shall deliver the ▇▇▇▇▇▇▇ Money to such successor escrow agent. From
and after such resignation and the delivery of the ▇▇▇▇▇▇▇ Money to such
successor escrow agent, the Title Company shall be fully relieved of all of
its
duties, responsibilities and obligations under this Agreement, all of which
duties, responsibilities and obligations shall be performed by the appointed
successor escrow agent. If for any reason the parties hereto shall
not approve a successor escrow agent within such period, the Title Company
may
bring any appropriate action or proceeding for leave to deposit the ▇▇▇▇▇▇▇
Money with a court of competent jurisdiction, pending the approval of a
successor escrow agent, and upon such deposit the Title Company shall be fully
relieved of all of its duties, responsibilities and obligations under this
Agreement.
(viii) Seller
and Buyer hereby agree to, jointly and severally, indemnify, defend and hold
the
Escrow Agent harmless from and against any liabilities, damages, losses, costs
or expenses incurred by, or claims or charges made against, the Title Company
(including reasonably attorneys’ fees, expenses and court costs) by reason of
the Title Company’s acting or failing to act in connection with any of the
matters contemplated by this Agreement in its capacity as escrow agent for
the
▇▇▇▇▇▇▇ Money or in carrying out the terms of this Agreement, except as a result
of the Title Company’s fraud or gross negligence.
(ix) In
the event that a dispute shall arise in connection with this Agreement, or
as to
the rights of any of the parties in and to, or the disposition of, the ▇▇▇▇▇▇▇
Money the Title Company shall have the right to (w) hold and retain all or
any
part of the ▇▇▇▇▇▇▇ Money until such dispute is settled or finally determined
by
litigation, arbitration or otherwise, or (x) deposit the ▇▇▇▇▇▇▇ Money in an
appropriate court of law, following which the Title Company shall thereby and
thereafter be relieved and released from any liability or obligation under
this
Agreement, or (y) institute an action in interpleader or other similar action
permitted by stakeholders in the State in which the Real Property is located,
or
(z) interplead any of the parties in any action or proceeding which may be
brought to determine the rights of the parties to all or any part of the ▇▇▇▇▇▇▇
Money.
(x) The
Title Company shall not have any liability or obligation for loss of all or
any
portion of the ▇▇▇▇▇▇▇ Money by reason of the insolvency or failure of the
institution of depository with whom the escrow account is
maintained.
[REMAINDER
OF THIS PAGE LEFT INTENTIONALLY BLANK]
The
parties hereto have executed this Agreement as of the date set forth in the
first paragraph of this Agreement.
SELLER:
NK-LCB
PROPERTY LLC,
a
Delaware limited liability company
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By:
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NK-LCB
Property Manager LLC,
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its
managing member
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By:
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Name:
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Title:
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▇▇▇▇▇▇▇
SEGAIR L.P.,
a
Delaware limited partnership
By: ▇▇▇▇▇▇▇
Segair GP LLC,
its
general partner
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By
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MLP
Manager Corp.,
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its
manager
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By:
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Name:
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Title:
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BUYER:
▇▇▇▇▇
REIT EL SEGUNDO LP,
a
Delaware limited partnership
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By:
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▇▇▇▇▇
REIT El Segundo GP LLC,
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its
general partner
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By:
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Name:
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Title:
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JOINDER
BY LEXINGTON REALTY TRUST
The
undersigned joins herein solely to evidence the undersigned’s agreement to the
provisions of Section 10.13, and the undersigned shall have no other
responsibility under this Agreement.
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LEXINGTON
REALTY TRUST
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Date: ________,
2007
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By:
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Name:
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Title:
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The
Agreement has been received by the Title Company this _____ day of ______,
2007. By its execution of this Agreement, below, the Title Company
hereby and agrees to be bound by the terms hereof to the extent that the
Agreement imposes duties upon the Title Company.
Commonwealth
Land Title Insurance Company
By:
Name:
Title:
EXHIBITS
TO
EXHIBIT
A Real
Property Description
EXHIBIT
B Tenant
Estoppel Certificate
EXHIBIT
C Form
of Grant Deed
EXHIBIT
D Form
of ▇▇▇▇ of Sale
EXHIBIT
E Form
of Lease Assignment
EXHIBIT
F Form
of General Assignment
EXHIBIT
A
Real
Property Description
EXHIBIT
B
Raytheon
Estoppel Certificate
To: ___________________,
its successors and assigns (the “Buyer”)
|
Re:
|
Amended
and Restated Sublease Agreement (the “Original Lease”)
dated as of June 1, 1984, by and between NK-LCB Property LLC, as
successor
in interest to LCB Limited Partnership, as successor in interest
to Segair
Associates Limited Partnership, as successor in interest to Elgun
Leasing
Corp. pursuant to Paragraph 7.3 of the Original Lease, as Landlord
(“Lessor”), and Raytheon Company, as successor in
interest by merger with ▇▇▇▇▇▇ Aircraft Company
(“▇▇▇▇▇▇”), as Tenant (“Lessee”), as
amended by First Amendment to Amended and Restated Sublease Agreement,
dated as of December 20, 2002 (the “First Amendment”), as
amended by Second Amendment to Amended and Restated Sublease Agreement
dated as of March 15, 2006 (the “Second Amendment”), as
amended by Third Amendment to Amended and Restated Sublease Agreement
dated as of October 25, 2006 (the “Third Amendment”)
concerning the premises located at 2200, 2222, and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
(“Property”). The Original Lease, First
Amendment, Second Amendment and Third Amendment are collectively
referred
to herein as the
“Lease”.
|
The
undersigned does hereby certify to you as follows:
1. A
true, correct and complete copy of the above-referenced Lease is attached hereto
marked as Exhibit A; and there are no other oral or written agreements relating
to the Property to which Lessee is a party other than (i) that certain Right
of
First Refusal, dated December 10, 1983, by and between Lessee, as successor
in
interest to ▇▇▇▇▇▇, and ▇▇▇▇▇▇ Industries, a California corporation, (ii) that
certain Deed, dated as of December 20, 2002, from Lessee to ▇▇▇▇▇▇▇ Segair
L.P.,
a Delaware limited partnership (“▇▇▇▇▇▇▇”), (iii) that certain
Purchase and Sale Agreement, dated as of December 20, 2002, by and between
Lessee and ▇▇▇▇▇▇▇, and (iv) that certain Deed of Trust, dated as of December
20, 2002, from ▇▇▇▇▇▇▇, as trustor, for the benefit of Lessee, as
beneficiary.
2. Terms
capitalized herein shall have the same meaning as set forth in the
Lease.
3. The
Primary Lease Term expires on December 31, 2008. Pursuant to the
Second Amendment, Lessee has exercised its right to extend the Lease for
Buildings 2200 and 2222 until December 31, 2018. Lessee’s extension
right for Building 2230 has been waived in accordance with, and pursuant to,
the
terms of the Third Amendment.
4. Lessee
has not prepaid any Rent or other amounts to Lessor.
5. The
Fixed Rent payable semi-annually through and including December 31, 2008 is
$10,692,741.25. For the purpose of Schedule C to the Original Lease,
the Basic Amount is $98,213,697.63, and the current period ending December
30,
2007 (one day prior to the next Rent payment date of December 31, 2007) is
48. Lessee confirms receipt from Lessor of the first, second and
third TI Allowance payments due March 17, 2006, September 15, 2006, and June
30,
2007, respectively, as set forth in Section 7 of the Second Amendment, as
amended by Section 5 of the Third Amendment. The remaining TI
Allowance is $3,500,000 due on June 30, 2008 and $8,000,000 due on June 30,
2009.
6. Lessor
holds no security deposit.
7. Lessee
has, pursuant to the Second Amendment, exercised its one (1) ten (10) year
option as it relates to Buildings 2200 and 2222 and has four (4) five (5) year
options remaining as to these buildings. The annual Fixed Rent for
Buildings 2200 and 2222 during the first five (5) years of the First Extended
Term is $4,921,620 payable in monthly installments and for the second five
(5)
years is $5,267,004 payable in monthly installments. The Fixed Rent
for Building 2200 and 2222 during the remaining four (4) five (5) year options
will be fair market value determined in accordance with the First
Amendment.
8. The
Lease has not been modified, orally or in writing, since its execution, except
as hereinabove identified. The Lease is in full force and effect and
the Lease and other documents referred to in Section 1 above, collectively
contain the entire agreement between Lessor and Lessee.
9. There
are no uncured defaults by Lessee or, to Lessee’s actual knowledge, Lessor under
the Lease, and the undersigned is not aware of the existence of any
circumstances that would constitute a default under the Lease if not cured
within the applicable grace period after written notice by either Lessor or
Lessee to the other party. The phrase “to Lessee’s actual knowledge”
as used herein shall mean and be limited to the actual personal knowledge of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant General Counsel and Director of Corporate Services,
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, respectively, of Lessee, and not any implied, constructive
or imputed knowledge.
10. Lessee
has no dispute with Lessor concerning the Lease, the Property or the
improvements therein.
11. Except
as set forth in Paragraphs 3.2, 3.5 and 3.6 of the Original Lease, as amended
by
the terms of the First Amendment, the Second Amendment and the Third Amendment,
Lessee, solely in its capacity as lessee under the Lease, has no right to
purchase the Property, or outstanding options, rights of first refusal or rights
of first offer to purchase the Property or any part thereof or property of
which
the Property are a part, or any part thereof. The foregoing shall not
affect, modify or impair Lessee’s rights (held in a capacity other than as
lessee under the Lease) to repurchase the remainder interest in the
Land. Lessee has waived its right to purchase the Property in
accordance with Section 3.6 of the Original Lease as it pertains to the sale
of
the Property to Buyer.
12. The
undersigned representative of Lessee is duly authorized and fully qualified
to
execute this instrument on behalf of Lessee thereby binding Lessee.
13. Lessee
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware and is duly qualified and in good standing as
a
foreign corporation authorized to do business in the State of
California.
14. Lessee
acknowledges and confirms that at the time of Lessee’s merger with ▇▇▇▇▇▇ and in
accordance with Paragraph 7.4 of the Original Lease, Lessee assumed all
obligations, covenants and responsibilities of ▇▇▇▇▇▇ under any and all
instruments executed by ▇▇▇▇▇▇ relating to the Property and the
Lease.
15. The
undersigned is aware that the addressee set forth herein will rely upon the
statements made in this Tenant Estoppel and Agreement, and the undersigned
has
therefore adjusted the language of this Tenant Estoppel and Agreement as
necessary to make it an accurate statement of the current facts concerning
the
Lease. If no such adjustments have been made, said parties may rely
upon the statements in this form as printed.
Dated: ________________,
2007
“LESSEE”
RAYTHEON
COMPANY,
a
Delaware corporation
By:
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Assistant General Counsel
and
Director
of
Corporate Services
DIRECTV
Estoppel Certificate
______________,
2007
|
|
Re:
|
Lease
Agreement dated as of September 12, 2006 by and between NK-LCB Property
LLC, a Delaware limited liability company, as landlord (the
“Landlord”) and, DirecTV, INC., a California corporation,
as tenant (the “Tenant”) (the
“Lease”)
|
Ladies
and Gentlemen:
Tenant
understands that _______________ (“Buyer”) has entered into a
purchase contract to acquire the property located at 2200, 2230 and ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the “Property”) from
Landlord. Landlord has requested the undersigned to deliver this
Tenant Estoppel Certificate to Buyer. The undersigned, as tenant
under the Lease, hereby certifies to Landlord and Buyer, and their successors
and assigns, as of the date hereof as follows:
1. The
Tenant is the tenant under the Lease by and between Tenant and Landlord covering
the premises described therein (the “Premises”).
2. The
Lease, a true and correct copy of which is attached hereto, constitutes the
full
and complete agreement of Tenant and Landlord with respect to the leasing of
the
Premises, and it has not been modified or amended. The Lease is in
full force and effect and is binding upon, and enforceable against, Tenant
in
accordance with its terms.
3. The
Term of the Lease commences on January 1, 2009 and expires on December 31,
2013.
4. There
is no security deposit held by Landlord under the Lease.
5. As
of the date hereof, Tenant has paid to Landlord all rent and other charges
due
under the Lease. No rent has been prepaid more than one month in
advance. No free rent or other concessions have been granted by
Landlord to Tenant. Tenant has no defenses, setoffs, or counterclaims against
Landlord arising out of the Lease, or in any way relating thereto.
6. No
default on the part of Tenant exists under the Lease, and no event that with
the
giving of notice or the passage of time, or both, would constitute a default
by
Tenant under the Lease has occurred.
7. To
the best knowledge of Tenant, no default by Landlord of any of its obligations
under the Lease has occurred and remains uncured, and no circumstance or
condition now exists which, with the giving of notice or the passage of time
(or
both), would constitute a default by Landlord of any of its obligations under
the Lease, give rise to any defense or right of offset by Tenant against its
obligations under the Lease, or violate any condition of Tenant’s obligations
under the Lease.
8. Tenant
has not assigned, sublet or transferred its interest in the Lease or the
Property, or any part thereof.
9. The
improvements and space required to be furnished by Landlord have been furnished
and completed by Landlord. No funds are owed by Landlord to Tenant in
connection with any improvements to the Premises except for the TI Allowance
in
the amount of $2,000,000 payable by Landlord to Tenant in accordance
with Section 9.23 of the Lease.
10. Tenant
has no option to extend the term of the Lease except for two (2) consecutive
terms of five (5) years each in accordance with Section 1.3 of the
Lease.
11. Tenant
does not have any purchase or other option or right of first refusal to purchase
the Premises or the Property.
12. Neither
Tenant or, to Tenant’s knowledge, Landlord has commenced any action, or received
any notice, with respect to the termination of the Lease.
Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
to
them in the Lease.
Tenant
makes the above certifications and representations for the benefit and
protection of Buyer and understands that Buyer will be relying on the statements
made herein in its decision to acquire the Property. Tenant also
makes the above certifications and representations for the benefit of Landlord
with the understanding that they will be relied upon by Landlord.
DATED
this _____ day of _______________, 2007.
DirecTV,
INC., a California corporation
By
Name:
Title:
AFFIRMATION
OF GUARANTOR
The
undersigned is the guarantor under that certain Guaranty of Lease dated as
of
September 12, 2006 (the “Guaranty”) which guarantees the prompt
and faithful performance by Tenant of certain terms, covenants and conditions
to
be performed by Tenant under the terms of the Lease as enumerated in such
Guaranty, and hereby certifies to Buyer and its respective successors and
assigns, that the Guaranty is in full force and effect and that it has no claim,
defense or offset to the enforcement thereof, and hereby ratifies the matters
set forth in the Estoppel Certificate set forth above.
Signed
as
of this _______ day of __________,
200 .
DIRECTV
HOLDINGS, LLC,
a
Delaware limited liability company
By:
Name:
Title:
EXHIBIT
C
WHEN
RECORDED MAIL THIS DEED AND,
UNLESS
OTHERWISE SHOWN BELOW,
MAIL
TAX
STATEMENTS TO:
SPACE
ABOVE THIS LINE FOR RECORDER’S USE
A.P.N.
▇▇▇▇-▇▇▇-▇▇▇& ▇▇▇▇-▇▇▇-▇▇▇
GRANT
DEED
FOR
A
VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
▇▇▇▇▇▇▇
SEGAIR L.P., a Delaware limited partnership having an address c/o Lexington
Realty Trust, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(“Grantor”),
hereby
GRANTS to ________________________, a ____________________ (the
“Grantee”),
its
remainder interest commencing on January 3, 2011, together with all rights
and
appurtenances thereto, in and to the real property located in the City of El
Segundo, County of Los Angeles, State of California, as more particularly
described on Exhibit A attached hereto, subject only to those validly existing
encumbrances, easements, conditions and restrictions relating to the hereinabove
described property as now reflected by the land records of the County of Los
Angeles, California (the “Land”).
The
conveyance from Grantor to Grantee herein does not include the buildings,
improvements and fixtures (exclusive of trade fixtures) now located on the
Premises and hereafter erected thereon (collectively, the
“Improvements”), and the estate for years in the Premises to
and including January 2, 2011 (all of the foregoing collectively referred to
as
the “Estate For Years and Improvements”).
This
deed
is one of two concurrently-recorded deeds to Grantee, one for an estate for
years in the Land and improvements and this deed for the remainder
interest. This Deed is delivered and accepted, along with the deed
recorded concurrently herewith from NK-LCB Property LLC, a Delaware limited
liability company, with the intent that all rights and interests between the
remainder estate and the estate for years in the herein described Land be merged
into the fee title of Grantee, including but not limited to, the merger and
termination of that certain Option to Lease and Subordination Agreement which
was recorded on December 23, 1983, as Instrument No. ▇▇-▇▇▇▇▇▇▇ in the Official
Records of Los Angeles County, California.
|
Dated
|
Signature
of Grantor
|
|
State
of New
York )
County
of
Nassau )
|
NK-LCB
PROPERTY LLC,
a
Delaware limited liability company
|
|
On
before me,
personally appeared
personally known to me to be the person whose name is subscribed
to the
within instrument and acknowledged to me that he executed the same
in his
authorized capacity and that by his signature on the instrument the
person, or the entity upon behalf of which the person(s) acted, executed
the instrument
|
By:NK-LCB
Property Manager LLC,
its
managing member
By:
Name:
Title:
|
|
Witness
my hand and official seal
|
|
|
Signature
|
WHEN
RECORDED MAIL THIS DEED AND,
UNLESS
OTHERWISE SHOWN BELOW,
MAIL
TAX
STATEMENTS TO:
SPACE
ABOVE THIS LINE FOR RECORDER’S USE
A.P.N.
▇▇▇▇-▇▇▇-▇▇▇& ▇▇▇▇-▇▇▇-▇▇▇
GRANT
DEED
FOR
A
VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
NK-LCB
PROPERTY LLC, a Delaware limited liability company with an
address c/o Lexington Realty Trust, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (“Grantor”),
hereby
GRANTS to
_________________________________________________________________(“Grantee”),
its
estate for years to and including January 2, 2011 in and to the real property
located in the City of El Segundo, County of Los Angeles, State of California,
as more particularly described on Exhibit A attached hereto, subject only to
those validly existing encumbrances, easements, conditions and restrictions
relating to the hereinabove described property as now reflected by the land
records of the County of Los Angeles, California (the
“Land”).
TOGETHER
WITH all right, title and interest of the Grantor in and to all buildings,
improvements and fixtures now located on the Premises and hereafter erected
thereon, whether below or above grade level, which are intended to be and remain
real property, and to become and remain the sole and exclusive property of
Grantee and its successors and assigns.
This
Deed
is one of two concurrently-recorded deeds to Grantee, this Deed for the estate
for years in the Land and the Improvements, and another for the remainder
interest in the Land. This Deed is delivered and accepted, along with
the deed recorded concurrently herewith from ▇▇▇▇▇▇▇ Segair L.P., a Delaware
limited partnership, with the intent that all rights and interests between
the
remainder estate and the estate for years in the herein described Land be merged
into the fee title of Grantee, including but not limited to, the merger and
termination of that certain Option to Lease and Subordination Agreement which
was recorded on December 23, 1983, as Instrument No. ▇▇-▇▇▇▇▇▇▇ in the Official
Records of Los Angeles County, California.
|
Dated
|
Signature
of Grantor
|
|
State
of New
York )
County
of
Nassau )
|
▇▇▇▇▇▇▇
SEGAIR L.P.,
a
Delaware limited partnership
|
|
On
before me,
personally appeared
personally known to me to be the person whose name is subscribed
to the
within instrument and acknowledged to me that he executed the same
in his
authorized capacity and that by his signature on the instrument the
person, or the entity upon behalf of which the person(s) acted, executed
the instrument
|
By:▇▇▇▇▇▇▇
Segair GP LLC,
its
general partner
By:MLP
Manager Corp.,
its
manager
By:
Name:
Title:
|
|
Witness
my hand and official seal
|
|
|
Signature
|
EXHIBIT
D
▇▇▇▇
OF SALE
For
good
and valuable consideration, the receipt of which is hereby acknowledged, NK-LCB
Property LLC; a Delaware limited liability company, with an address c/o
Lexington Realty Trust, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(“Seller”) hereby sells, assigns, transfers and conveys to
__________________, a______________ with an address
of ___________________________________________
(“Buyer”): (i) all fixtures, machinery, equipment
and furnishings, to the extent the same constitute personal property, all
contract rights, and all other personal property, including all licenses,
permits, certificates, rights to the use of names and logos and other tangible
and intangible property owned by Seller and used in connection with the property
located at 2200, 2230 and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
(the “Property”); (ii) all site plans, surveys, soil and
substrata studies, architectural renderings, plans and specifications,
engineering plans and studies, floor plans, landscape plans and other plans,
diagrams and studies of any kind owned by Seller which relate to the Property
or
the improvements thereon; and (iii) all of Seller’s interest in all claims
judgments, remedies, damages and causes of action pertaining to the
Property.
TO
HAVE
AND TO HOLD, the same unto Buyer, its successors and assigns,
forever.
[REMAINDER
OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN
WITNESS WHEREOF, Seller has executed this instrument as of the _________ day
of
_____________, 2008.
NK
LCP
PROPERTY LLC,
a
Delaware limited liability company
|
|
By:
|
NK-LCB
Property Manager LLC,
|
|
|
a
Delaware limited liability company,
|
|
|
its
managing member
|
By: ________________________
Name:
Title:
EXHIBIT
E
Lease
Assignment
ASSIGNMENT
AND ASSUMPTION OF LEASE
THIS
ASSIGNMENT AND ASSUMPTION OF LEASE is made this _____ day of ____________,
2008,
by and between NK-LCB Property LLC; a Delaware limited liability company
(“Assignor”), and __________________________________
(“Assignee”), with reference to the following
facts:
A. Assignor,
as lessor, has entered into the Lease described on Exhibit A attached
hereto (collectively, the “Lease”) covering the Property
located at [2200, 2230 and ▇▇▇▇] ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
identified on Schedule 1 hereto.
B. Pursuant
to the terms of that certain Purchase Contract entered into by Assignor, as
Seller, and Assignee, as Buyer dated as of ____________, 2007 (the
“Agreement”), Assignor now desires to assign and transfer to
Assignee all of Assignor’s interest as lessor in the Lease, subject to the
rentals, terms, covenants, obligations, easements and restrictions set forth
therein.
NOW
THEREFORE, in consideration of the mutual covenants and conditions herein below
set forth, it is agreed:
1. Effective
as of the date hereof (the “Effective Date”), Assignor assigns
and transfers to Assignee, all of Assignor’s right, title and interest as
lessor, accruing after the Effective Date, in and to the Lease [add guaranty
reference for DIRECTV], subject to the rentals, terms, covenants, obligations,
easements and restrictions set forth in the Lease.
2. Assignee
hereby accepts the assignment of the Lease as of the Effective Date, shall
be
entitled to all rights and benefits accruing to the landlord thereunder and
hereby assumes all obligations thereunder, including, without limitation, the
obligations of landlord regarding tenant allowances payable after the Effective
Date, and agrees to be bound by the terms of the Lease, from and after the
Effective Date.
3. Assignor
hereby agrees to indemnify and hold harmless Assignee from any and all
liability, loss, cost, damage or expense (including, without limitation,
reasonable attorneys’ fees) which Assignee incurs under the Lease, and from any
and all claims and demands whatsoever which are asserted against Assignee by
reason of any alleged obligation or undertaking on its part to perform or
discharge any of the terms, covenants or agreements contained therein, which
liability, loss, cost, damage, expense, claim or demand arises from acts, events
or omissions accruing on or before the Effective Date provided not in any way
attributable to Assignee, except to the extent such obligations were required
to
be performed by the tenant under the Lease.
4. Assignee
hereby agrees to indemnify and hold harmless Assignor from any and all
liability, loss, cost, damage or expense (including, without limitation,
reasonable attorneys’ fees) which Assignor incurs under the Lease, and from any
and all claims and demands whatsoever which are asserted against Assignor by
reason of any alleged obligation or undertaking on its part to perform or
discharge any of the terms, covenants or agreements contained therein, which
liability, loss, cost, damage, expense, claim or demand arises from acts, events
or omissions accruing after the Effective Date provided not in any way
attributable to Assignor.
5. The
indemnity provisions of Sections 3 and 4 herein shall survive for a period
of
one (1) year from the date hereof, and any claim made thereunder must be made
within such 1-year period. The indemnity provisions of Section 3
herein are subject to, and limited by, the provisions set forth in Sections
4.2
and 10.13(a) of the Agreement.
6. The
provisions of this instrument shall be binding upon and inure to the benefit
of
Assignor and Assignee and their respective successors and assigns.
7. This
Assignment and Assumption of Lease may be executed in counterparts which taken
together shall constitute one and the same instrument.
8. Assignor
hereby covenants that it will, at any time and from time to time, execute any
documents and take such additional actions as Assignee or its successors or
assigns shall reasonably require in order to more completely or perfectly carry
out the transfers intended to be accomplished by this Assignment and Assumption
of Lease.
[Signatures
on Following Page]
IN
WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and
Assumption of Lease as of the date set forth above.
ASSIGNOR:
NK
LCP
PROPERTY LLC,
a
Delaware limited liability company
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By:
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NK-LCB
Property Manager LLC,
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a
Delaware limited liability company,
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its
managing member
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By:
Name:
Title:
ASSIGNEE:
By:
Name:
Its:
EXHIBIT
A
EXHIBIT
F
GENERAL
ASSIGNMENT
THIS
GENERAL ASSIGNMENT (this “Agreement”) is made and entered into
this ____ day of ______________, 2008, by and between NK-LCB Property LLC,
a
Delaware limited liability company (the “Assignor”) and
__________________, a ______________ (the
“Assignee”).
WITNESSETH:
Assignor
for Ten Dollars ($10.00), and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, hereby assigns to Assignee
all
of Assignor’s right, title and interest in and to: (i) all guaranties and
warranties made by any contractor, subcontractor, materialman, supplier, or
other person or entity with respect to the Improvements; (ii) the Documents;
and
(iii) the Licenses (the items set forth in clauses (i) through (iii) above
are
hereinafter referred to collectively as the “Assigned
Matters”).
TO
HAVE
AND TO HOLD unto the Assignee and its successors and assigns to its and their
own use and benefit forever.
This
Agreement is made by Assignor without recourse and without any express or
implied representation or warranty whatsoever.
This
Agreement inures to the benefit of the parties hereto and their respective
successors and assigns.
All
capitalized terms used but not defined herein have the meanings ascribed to
them
in that certain Purchase Agreement, dated ______________, by and between
Assignor and __________________, a __________________, with respect to covering
the Property located at 2200, 2230 and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
This
Agreement may be executed in counterparts.
{REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK}
IN
WITNESS WHEREOF, the parties have executed this General Assignment on the day
and year first written above.
ASSIGNOR:
NK
LCP
PROPERTY LLC,
a
Delaware limited liability company
By: NK-LCB
Property Manager LLC,
a
Delaware limited liability company,
its
managing member
By: ________________________
Name:
Title:
ASSIGNEE:
_____________________________
By: ________________________
Name:________________________
Its: ________________________
Schedule
1
Loan
Documents
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1.
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LOAN
AGREEMENT
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2.
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PROMISSORY
NOTE
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3.
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DEED
OF TRUST
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4.
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ASSIGNMENT
OF LEASES AND RENTS
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5.
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ASSIGNMENT
OF AGREEMENTS, LICENSES, PERMITS AND
CONTRACTS
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6.
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UCC
FINANCING STATEMENTS
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7.
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GUARANTY
OF RECOURSE OBLIGATIONS
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8.
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DEPOSIT
ACCOUNT AGREEMENT
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9.
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POST
CLOSING AGREEMENT
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10.
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LENDER
LETTER RE: INSURANCE
MATTERS
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11.
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SUBORDINATION
AND INTERCREDITOR AGREEMENT RE: RAYTHEON
COMPANY
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