EXHIBIT 10.27
GLADSTONE COMMERCIAL LIMITED PARTNERSHIP
PURCHASE AGREEMENT
2470 HIGHCREST ROAD, ROSEVILLE, MINNESOTA
DATED: NOVEMBER 23, 2005
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS............................................................... 1
ARTICLE II PURCHASE PRICE AND DEPOSIT............................................... 3
ARTICLE III STUDY PERIOD; CONFIDENTIALITY; AS-IS.................................... 4
ARTICLE IV TITLE.................................................................... 7
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................ 10
ARTICLE VI COVENANTS AND ADDITIONAL OBLIGATIONS OF OWNER............................ 15
ARTICLE VII ASSUMPTION OF THE EXISTING LOAN BY THE COMPANY.......................... 16
ARTICLE VIII [INTENTIONALLY OMITTED]................................................ 17
ARTICLE IX CONDITIONS PRECEDENT..................................................... 17
ARTICLE X CLOSING................................................................... 20
ARTICLE XI CLOSING MATTERS.......................................................... 20
ARTICLE XII PRORATIONS AND ADJUSTMENTS.............................................. 22
ARTICLE XIII DEFAULT................................................................ 24
ARTICLE XIV COORDINATION BETWEEN AGREEMENT AND OTHER CONTRACT....................... 25
ARTICLE XV DAMAGE, DESTRUCTION OR CONDEMNATION...................................... 25
ARTICLE XVI BROKERS................................................................. 26
ARTICLE XVII MISCELLANEOUS.......................................................... 27
ARTICLE XVIII CONFIDENTIALITY....................................................... 31
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EXHIBITS
Exhibit A Legal Description of the Land
Exhibit 1.4 Existing Loan Documents
Exhibit 1.8 Description of Lease
Exhibit 2.2 Form of Escrow Agreement
Exhibit 3.2.1 Due Diligence Previously Delivered by Owner
Exhibit 3.2.2 Due Diligence to be Delivered by Owner
Exhibit 4.1 Permitted Exceptions
Exhibit 4.2.1 Title Insurance Requirements
Exhibit 4.2.2 Form of Surveyor's Certification
Exhibit 5.1(iv) Existing Loan Balances
Exhibit 11.1(b) Deed
Exhibit 11.1(c) FIRPTA Certificate
Exhibit 11.1(f) Form of Assignment and Assumption Agreement
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SUMMARY OF TERMS
OWNER: Stonewater UIS Funding LLC
OWNER'S ADDRESS: c/o Drawbridge Special Opportunities Fund LLP
1251 Avenue of the Americas
16th Floor
New York, New York 10021
PURCHASE PRICE: Twenty-Nine Million Six Hundred Thousand and No/100
Dollars ($29,600,000.00)
TENANT: UNISYS Corporation
2470 Highcrest Road
Roseville, Minnesota
PURCHASE AGREEMENT
PREAMBLE:
THIS PURCHASE AGREEMENT (this "AGREEMENT") is made as of the 23rd day of
November, 2005 (the "EFFECTIVE DATE"), by and between Gladstone Commercial
Limited Partnership, a Delaware limited partnership (the "COMPANY"), as
purchaser and Stonewater UIS Funding LLC, a Delaware limited liability company
(the "OWNER"), as seller, of all of the fee simple interest of the Property.
RECITALS:
A. Owner is the owner of the property (the "PROPERTY"), which term
Property shall include the land described in Exhibit A attached hereto (the
"LAND") and all of the Improvements (as hereinafter defined) thereon, together
with all rights and appurtenances pertaining to the Land, including, without
limitation, all of Owner's rights, title and interest in and to all: (i)
minerals, oil, gas, and other hydrocarbon substances thereon; (ii) adjacent
strips, streets, roads, avenues, alleys and rights-of-way, public or private,
open or proposed, including any rights in vault space adjacent to or within the
boundaries of the Land; (iii) easements, covenants, privileges, and
hereditaments, whether or not of record, appurtenant to the Land; (iv) access,
air, water, riparian, development, utility, and solar rights; (v) signs,
appliances, security systems, fixtures, mechanical systems, landscaping and
other property owned by Owner located at the Property, but excluding items of
movable personal property attached to the Property that relate to the business
conducted on such Property and that may be readily removed without damage; (vi)
site plans, surveys, plans and specifications, and floor plans relating to the
Property in Owner's possession or control; (vii) warranties, guarantees and
bonds relating to the Property (to the extent assignable); and (viii) permits,
licenses, certificates of occupancy (if any) and other governmental approvals
which relate to the Property (to the extent assignable).
B. The Company desires to acquire, and Owner desires to sell, the
Property, upon and subject to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, unless the context otherwise requires, the
following terms shall have the meanings hereinafter set forth (such meanings to
be applicable to the singular and plural forms of such terms and the masculine
and feminine forms of such terms):
Section 1.1 "BUSINESS DAY" shall mean any day excluding Saturday, Sunday
and any day which on which banking institutions in the Commonwealth of Virginia
are authorized by law or by other governmental actions to close.
Section 1.2 "ENVIRONMENTAL LAW" shall mean any present and future law and
any amendments (whether common law, statute, rule, order, regulation or
otherwise), permits and other requirements or guidelines of governmental
authorities applicable to the Property and relating to the environment and
environmental conditions or to any Hazardous Material (including, without
limitation, CERCLA, 42 U.S.C. Section 9601 et seq., the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251 et seq., the Clean Air Act, 33
U.S.C. Section 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq., the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., the
Emergency Planning and Community Right-To-Know Act, 42 U.S.C. Section 1101 et
seq., the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., and
any so-called "Super Fund" or "Super Lien" law, any law requiring the filing of
reports and notices relating to hazardous materials, environmental laws
administered by the Environmental Protection Agency, and any similar state and
local laws, all amendments thereto and all regulations, orders, decisions, and
decrees now or hereafter promulgated thereunder concerning the environment,
industrial hygiene or public health or safety).
Section 1.3 "EXISTING LENDER" shall mean the owner and holder of the
Existing Loan.
Section 1.4 "EXISTING LOAN" shall mean a loan made by Greenwich Capital
Financial Products, Inc. to Owner in the original principal amount of
$20,860,000.
Section 1.5 "EXISTING LOAN DOCUMENTS" shall mean each of the loan
documents listed on Schedule 1.8 annexed hereto.
Section 1.6 "EXISTING MORTGAGE" shall mean that certain mortgage made by
Owner to Greenwich Capital Financial Projects, Inc. dated as of May 12, 2004 in
the amount of $20,860,000, which Existing Mortgage encumbers the Land and the
Improvements and secures the Existing Loan.
Section 1.7 "GOVERNMENTAL AUTHORITIES" shall mean any commission,
department or body of any municipality, township, city, county, state or Federal
governmental unit having jurisdiction over any of the Property or the ownership,
management, operation, use or improvement thereof.
Section 1.8 "IMPROVEMENTS" shall mean all buildings, improvements,
structures and fixtures located on the Land or within any easements appurtenant
thereto and owned by Owner, including, without limitation, sidewalks,
landscaping, parking lots and structures, roads, drainage and all above ground
and underground utility structures and conduits, equipment systems and other
so-called "infrastructure" improvements owned by Owner.
Section 1.9 "LEASE" shall mean the Lease described on Exhibit 1.9 attached
hereto
Section 1.10 "OTHER CONTRACT" shall mean that certain Purchase Agreement
of even date herewith between Stonewater Dox Funding LLC, as seller, and
Gladstone Commercial Limited Partnership, as purchaser, with respect to the sale
and purchase of the Other Property, as the same may be modified or amended from
time to time.
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Section 1.11 "OTHER PROPERTY" shall mean that certain property commonly
known as 2101 Fox Drive, 2301 Fox Drive, 2109 Fox Drive, 2201 Fox Drive and 2215
Fox Drive, Champaign, Illinois.
Section 1.12 "OWNER'S KNOWLEDGE" means the actual knowledge of Jeffrey
Toporek and David Stade following a reasonable review of Owner's files with
respect to the Property, and other knowledge of Messrs. Toporek and Stade
obtained through their usual and customary dealings with the Property Manager
and the Property and its operation in the ordinary course (but without any
special investigation or inquiry by either of them), which review and other
knowledge did not disclose any information contrary to the accuracy or veracity
of any such representation or warranty.
Section 1.13 "PURCHASE PRICE" means Twenty-Nine Million Six Hundred
Thousand and No/100 Dollars ($29,600,000.00).
Section 1.14 "TENANT" means Unisys Corporation, a Delaware corporation.
Section 1.15 "THE COMPANY'S DUE DILIGENCE AND CONTRACT COSTS" shall mean,
collectively and in the aggregate, all reasonable costs and expenses (including,
without limitation, reasonable attorneys' and accountants' fees and related
expenses) incurred by the Company in connection with the transactions
contemplated by this Agreement, including, without limitation, costs and
expenses incurred by the Company in connection with the assumption by the
Company of the Existing Loan.
ARTICLE II
PURCHASE PRICE AND DEPOSIT
Section 2.1 Purchase Price. On the terms and subject to the conditions of
this Agreement, at the Closing (as hereinafter defined), Owner shall sell,
transfer, convey, assign, and deliver to the Company, and the Company shall
purchase and accept from Owner all the right, title, and interest of Owner in
and to the Property for the Purchase Price.
Section 2.2 Deposit and Escrow Agreement. Simultaneously with its
execution of this Agreement, the Company shall place in escrow (by wire transfer
of immediately available federal funds) with First American Title Insurance
Company (the "TITLE COMPANY") the sum of Two Hundred Thousand and No/100 Dollars
($200,000.00), representing an initial deposit (the "INITIAL DEPOSIT"), to be
held in accordance with an Escrow Agreement (the "ESCROW AGREEMENT") in the form
attached hereto as Exhibit 2.2. Concurrently with the execution of this
Agreement, Owner, the Company and the Title Company shall enter into the Escrow
Agreement. Provided that this Agreement has not been terminated by the Company
on or before the expiration of the Study Period, then within two (2) Business
Days after the expiration of the Study Period the Company shall place in escrow
(by wire transfer of immediately available federal funds) the sum of One Hundred
Seventy-Five Thousand and No/100 Dollars ($175,000.00), representing an
additional deposit (the "ADDITIONAL DEPOSIT"; the Initial Deposit and the
Additional Deposit, together with accrued interest thereon, are herein referred
to as the "DEPOSIT"). The Deposit shall be disbursed by the Title Company in
accordance with the terms and conditions of this Agreement and the Escrow
Agreement
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Section 2.3 Payment of the Purchase Price. At the Closing, the Purchase
Price shall be paid by the Company to Owner as follows:
(a) Three Hundred Seventy-five Thousand and No/100 Dollars
($375,000) by release of the Deposit by the Title Company to the Owner;
(b) Twenty Million Four Hundred Thirty Three Thousand Six Hundred
Eighty Four and 65/100 Dollars ($20,433,684.65) by the Company's assumption of
the Existing Mortgage pursuant to the provisions of Article VII hereof; and
(c) Eight Million Seven Hundred Ninety One Thousand Three Hundred
Fifteen and 35/100 Dollars ($8,791,315.35) by wire transfer of immediately
available federal funds to a bank account designated by Owner, subject to
adjustment pursuant to the terms hereof, and as reduced by any interest that has
accrued on the Deposit and that is released to the Owner at the Closing (said
amount, as adjusted, being herein called the "CASH BALANCE").
If, as of the Closing, the outstanding principal balance of the Existing
Mortgage is less than the amount set forth in Section 2.3(b), then the
difference shall be both deducted from the amount set forth in Section 2.3(b)
above and added to the Cash Balance payable at Closing pursuant to Section
2.3(c) above. If, as of the Closing, the outstanding principal balance of the
Existing Mortgage is more than the amount set forth in Section 2.3(b), then the
difference shall be both added to the amount set forth in Section 2.3(b) above
and deducted from the Cash Balance payable at Closing pursuant to Section 2.3(c)
above.
ARTICLE III
STUDY PERIOD; CONFIDENTIALITY; AS-IS
Section 3.1 Term of Study Period. The term "STUDY PERIOD" shall mean the
period commencing on the Effective Date and ending at 5:00 p.m. (Eastern
Standard Time) on the date that is thirty (30) days from the Effective Date (the
"STUDY PERIOD EXPIRATION DATE"). During the Study Period, and subject to the
provisions of this Article III, the Company may conduct such reasonable due
diligence activities, inspections and studies of the Property as it deems
necessary or appropriate, and may examine and investigate all facts,
circumstances and matters relating to the Property relevant to its purchase
thereof, including, without limitation, the condition of the Land and
Improvements, title, survey matters and any other matters it deems necessary or
appropriate for purposes of consummating the transaction contemplated by this
Agreement. All such due diligence activities are sometimes referred to herein as
the "DUE DILIGENCE". If, prior to the Study Period Expiration Date, the Company
has not received all of the third party reports that the Company determines are
necessary in connection with its due diligence ("THIRD PARTY REPORTS"),
including but not limited to the Commitment, Survey (as such terms are
hereinafter defined), phase I environmental assessment, appraisal, property
condition assessment/engineering report and zoning report, then the Company
shall have a one time right to extend the Study Period Expiration Date for an
additional fifteen (15) days by written notice delivered by the Company to Owner
and the Title Company on or prior to the then current Study Period Expiration
Date, provided that such notice sets forth a description of the Third Party
Reports that have not yet been received by the Company. In no event, however,
shall the Study Period Expiration Date be later than forty-five (45) days from
(and including) the Effective Date.
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The Company's right, during any period for which the Study Period is so
extended, to terminate this Agreement as hereinafter provided in this Section
3.2 may only be exercised as a result of the Company's dissatisfaction (in its
sole discretion) with the Third Party Report(s) that gave rise to the need for
the extension of the Study Period Expiration Date. If on or before the Study
Period Expiration Date, the Company, in its sole and absolute discretion, shall
elect not to proceed to the Closing for any reason or for no reason, then the
Company shall have the right to terminate this Agreement by giving written
notice of termination to Owner and the Title Company on or before the Study
Period Expiration Date, as the same may have been extended, (time being of the
essence with respect to the giving of such notice), whereupon this Agreement
shall automatically terminate, the Deposit shall be returned to the Company, and
neither party shall have any further rights or obligations under this Agreement
(other than any rights and obligations which expressly are to survive a
termination of this Agreement).
Section 3.2 Due Diligence. (a) During the Study Period, Owner shall afford
the Company and its authorized representatives access to the Property at
agreed-upon times for reasonable and customary due diligence purposes, subject
in all respects to the rights of the Tenant under the Lease. The Company shall
provide Owner or its authorized representatives with not less than one (1)
Business Days' prior written notice that the Company desires access to the
Property. Owner may have one or more representatives of Owner and/or the Tenant
accompany the Company during any such entry. The Company shall conduct the Due
Diligence in a manner which is not disruptive to the business operations
currently being conducted at the Property. Owner has delivered to the Company
legible, true, correct and complete copies of the documents and instruments
listed in Exhibit 3.2.1 attached hereto, and Owner agrees to deliver to the
Company within seven (7) days of the Effective Date legible, true, correct and
complete copies of the documents and instruments listed in Exhibit 3.2.2
attached hereto, to the extent the same (i) have not heretofore been delivered
by Owner to the Company and (ii) are in the possession of Owner or are within
the reasonable control of Owner and can be obtained by Owner without additional
cost to Owner. In addition, Owner agrees to make available to the Company any
other documents and information relating to the Property, Owner and/or the
Existing Loan reasonably requested by the Company, provided that such documents
and information are in the possession of Owner or are within the reasonable
control of Owner and can be obtained by Owner without additional cost to Owner.
During the Study Period, Owner shall also afford the Company and its authorized
representatives access to the property manager retained by Owner to manage the
Property (the "PROPERTY MANAGER") and all records and files relating to the
Property (financial and otherwise) in the possession and/or control of the
Property Manager. The Company shall provide Owner or its authorized
representatives with not less than one (1) Business Days' prior written notice
that the Company desires access to the Property Manager. At the request of the
Company, Owner agrees to use commercially reasonable efforts to convene a
face-to-face meeting between senior representatives of the Company and the
Tenant. One or more representatives of Owner may attend all such meetings.
(b) The Company shall not conduct (or cause to be conducted) any
physically intrusive due diligence, such as sampling of soils, water or building
materials without the prior written consent of Owner, which consent shall not be
unreasonably withheld, conditioned and/or delayed. If the Company desires to
conduct (or to have conducted) any such physically intrusive due diligence, the
Company shall identify in writing with reasonable certainty what procedures the
Company desires to perform and request Owner's prior written consent with
respect thereto,
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which consent shall not be unreasonably withheld, conditioned and/or delayed.
Upon receipt of Owner's written consent, the Company shall, in performing such
due diligence, comply in all material respects (and shall cause its consultants
and representatives to comply in all material respects) with the agreed-upon
procedures and with any and all laws, ordinances, rules and regulations
applicable to the Property, and the rights of the Tenant under the Lease, and
shall not engage in any activities which would violate any permits or
Environmental Laws. Upon completion of any inspection or test, the Company shall
immediately restore the Property to the condition existing immediately prior to
such inspection or test. If the Company elects to terminate this Agreement
pursuant to Section 3.1 above, then upon request of Owner, the Company shall
provide Owner with a copy of each Third Party Report requested by Owner,
provided that Owner reimburses the Company for the reasonable costs incurred by
the Company to obtain such Third Party Reports so requested by Owner.
Section 3.3 Liability Insurance. As a condition to Owner's consenting to
the performance of the Due Diligence, in particular but without limitation to
entering upon the Property for the purpose of performing any physical
inspections and/or tests, the Company shall carry and maintain comprehensive
general liability insurance covering Owner, the Property Manager and Tenant
against claims for bodily injury or death or property damage occurring in, upon
or about the Property, in the amount of not less than Two Million ($2,000,000)
Dollars. Such insurance shall include blanket contractual liability coverage
insuring contractual liability under the indemnification set forth in Section
3.4 below (but such coverage or the amount thereof shall in no way limit such
indemnification). Prior to entering the Property to conduct the Due Diligence,
the Company shall provide Owner with a certificate of insurance evidencing that
such comprehensive general liability insurance is in effect. Owner, the Property
Manager and Tenant shall each be named as an additional named insured with
respect to such comprehensive general liability insurance. The Company shall
keep such insurance in full force and effect until the earlier of the Closing or
the termination of this Agreement.
Section 3.4 Indemnification. The Company shall indemnify Owner, the
Property Manager and Tenant, and hold Owner, the Property Manager and Tenant,
and their respective agents, representatives and employees, and the Property
harmless from and against all losses, costs, damages, claims and liabilities
(whether arising out of injury or death to persons or damage to the Property or
otherwise), including, but not limited to, mechanic's and materialmen's liens
and attorneys' fees, arising out of or relating to the Due Diligence and/or
entry upon the Property under this Article III, except to the extent any such
loss, cost, damage, claim and/or liability is caused by the negligence or
willful misconduct of Owner, the Property Manager or Tenant or their respective
employees, agents and/or representatives. This Section 3.4 shall survive the
Closing or earlier termination of this Agreement.
Section 3.5 Confidentiality. (a) All documents, materials, leases,
instruments, reports and written information heretofore or hereafter delivered
by Owner or the Property Manager to the Company with respect to the Property
(collectively, the "DUE DILIGENCE MATERIALS") shall be kept confidential and
shall not, without Owner's prior written consent, be disclosed by the Company,
or by its employees, agents, representatives or consultants, and shall not be
used by the Company, its employees, agents, representatives or consultants,
other than in connection with the proposed acquisition of the Property.
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(b) All copies of the Due Diligence Materials will be returned to
Owner immediately upon any termination or expiration of this Agreement for any
reason. All analyses, compilations, forecasts, studies, reports or other
documents prepared by the Company, its employees, agents, representatives or
consultants (including all Third Party Reports), will be held by the Company and
kept confidential (or at the option of the Company destroyed) if for any reason
(including the Company's election to terminate this Agreement in accordance with
Section 3.1 above) the Company does not acquire the Property.
(c) If the Company violates any of the terms of this Section 3.5,
Owner shall have the right (in addition to any other rights or remedies
available to Owner at law), to seek injunctive relief to restrain any breach or
threatened breach by the Company of the terms of this Section 3.5. If the
Company, for any reason (including the Company's election to terminate this
Agreement in accordance with Section 3.1 above) does not acquire the Property,
then the provisions of this Section 3.5 shall survive the termination of this
Agreement.
Section 3.6 As Is Condition of the Property. Other than the
representations and warranties of Owner specifically set forth herein, the
Company has not relied upon any oral or written information from Owner or its
employees, affiliates, agents, consultants, advisors or representatives,
including, without limitation, any appraisals, projections or evaluations of
credit quality prepared by Owner or any of its employees, affiliates, agents,
consultants, advisors or representatives. Without limiting the generality of the
foregoing, the Company acknowledges and agrees that, except as expressly set
forth herein, the Company is purchasing the Property "as is" and "where is" on
the Closing Date, and, except as expressly set forth herein, Owner is making no
representation or warranty, express or implied, and the Company has not relied
on any representation or warranty, express or implied, regarding the Property,
including, without limitation, any representation or warranty with respect to
(a) the business or financial condition of any tenant of the Property, (b) the
physical condition of any Improvement or personal property comprising all or a
part of any Property, or its fitness, merchantability or suitability for any use
or purpose, (c) the leases, rents, income or expenses of the Property, (d) the
compliance or non-compliance with any laws, codes, ordinances, rules or
regulations of any governmental authority (including, without limitation,
Environmental Laws), or (e) the current or future use of the Property,
including, but not limited to, any Property's use for commercial, retail,
industrial or other purposes. Owner is not liable or bound in any manner by any
verbal or written statements, representations, real estate brokers' "set-ups",
offering memorandum or information pertaining to any Property furnished by any
real estate broker, advisor, consultant, agent, employee, representative or
other person. The foregoing shall not be deemed to limit any of the Due
Diligence rights of the Company set forth in this Article III.
ARTICLE IV
TITLE
Section 4.1 State of Title. At the Closing, Owner shall sell the Property
to the Company, and the Company shall purchase the Property from the Owner,
subject only to (a) those matters set forth on Exhibit 4.1 annexed hereto, (b)
any exceptions and matters that are approved, waived or deemed to have been
approved or waived by the Company, (c) such title exceptions as the Title
Company shall be willing to, at its regular rates, omit as exceptions to
coverage, and (d) the standard exceptions and provisions contained in the form
of insuring
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agreement employed by Title Company (the liens, claims, encumbrances, exceptions
and matters set forth in subclauses (a) through (d) above being collectively
referred to as the "PERMITTED EXCEPTIONS").
Section 4.2 Title Commitment; Survey. Promptly after the Effective Date
the Company shall obtain at its expense: (i) a title commitment from the Title
Company, together with legible copies of documents referred to in such
commitment (a "COMMITMENT"), for an owner's policy of title insurance covering
the Property which shall in all material respects satisfy the requirements, and
include the endorsements, set forth in Exhibit 4.2.1 attached hereto, and (ii) a
current plat of survey of the Property, including the Improvements (a "SURVEY")
prepared by a licensed surveyor, which shall be certified to the Company, the
Company's assignee (if any), and the Title Company by means of a certificate
substantially in the form of Exhibit 4.2.2 attached hereto. The Company shall
(i) instruct the Title Company to deliver copies of the Commitment (and all
title continuations thereof) to Owner and its attorneys concurrently with the
delivery of the Commitment to the Company, and (ii) instruct the surveyor
preparing the Survey to deliver a copy of the Survey to each of Owner and its
attorneys concurrently with its delivery thereof to the Company.
Section 4.3 Permitted Exceptions. The Company shall have the right to
object, in its sole and absolute discretion, to any exceptions to title, or to
any matter shown on the Survey, which is not a Permitted Exception, by giving
written notice to Owner on or before the date that is five (5) Business Days
after the Company receives the Commitment and Survey (but in no event prior to
the expiration of the initial 30-day Study Period). In addition, the Company
shall have the right to object to any exception to title contained in any title
continuations which is not a Permitted Exception and is not otherwise set forth
in the Commitment, within five (5) Business Days after the Company receives such
title continuation (any such notice given pursuant to this Section 4.3 is herein
called a "TITLE OBJECTION NOTICE"). Any title exception set forth in the
Commitment, on the Survey or in a title continuation notice, which is not timely
objected to by delivery of a Title Objection Notice shall be deemed to be a
Permitted Exception, provided, however, that in no event shall any title defect
required to be discharged by Owner pursuant to Section 4.6 below or any
Violation required to be cured by Owner pursuant to Section 4.8 below, be for
any purpose considered a "Permitted Exception", nor shall the Company have any
obligation to object to any title defect required to be discharged by Owner
pursuant to Section 4.6 below or any Violation required to be cured by Owner
pursuant to Section 4.8 below.
Section 4.4 Owner's Rights. (a) Owner shall have the right, in its sole
discretion, upon written notice to the Company and the Title Company (the "TITLE
RESPONSE NOTICE") given within ten (10) days after Owner's receipt of any Title
Objection Notice, to elect to either (i) take such action as Owner deems
advisable to discharge those title exceptions which are not Permitted Exceptions
and are set forth in the Title Objection Notice (the "TITLE DEFECTS") or (ii)
terminate this Agreement, whereupon the Deposit (and any interest thereon) shall
be promptly refunded to the Company and thereafter neither party hereto shall
have any further obligation to the other party hereto, with the exception of
those obligations which expressly survive the termination of this Agreement. If
Owner fails timely to deliver the Title Response Notice, then Owner shall be
deemed to have elected to terminate this Agreement pursuant to clause (ii)
above. If Owner, in its Title Response Notice, elects to take action to remove,
remedy or comply with the Title Defects, Owner shall be entitled to one or more
adjournment(s) of the Closing for up to
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thirty (30) days in the aggregate, to discharge the Title Defects. If Owner is
unable to remove, remedy or comply with such Title Defects at the expiration of
such adjournment, then this Agreement shall be deemed to be terminated as of the
adjourned date of Closing. Upon such termination, the Deposit (and any interest
thereon) shall be promptly refunded to the Company and neither party hereto
shall have any further obligation to the other party hereto, with the exception
of those obligations which expressly survive the termination of this Agreement.
Except as set forth in Section 4.6 hereof, nothing in this Agreement shall be
deemed to require Owner to take or bring any action or proceeding or any other
steps to remove any defect in or objection to title or to expend any moneys
therefor, nor shall the Company have any right of action against Owner, at law
or in equity, therefor.
(b) If, at the Closing, there are any title exceptions which are not
Permitted Exceptions and which Owner is obligated by this Agreement or elects to
pay and discharge, Owner may use any portion of the Purchase Price or any other
sum to satisfy the same, provided that Owner shall have delivered to the Title
Company at the Closing instruments in recordable form sufficient to satisfy such
title exceptions of record, together with the cost of any applicable recording
or filing fees. The existence of any such liens or encumbrances shall not be
deemed objections to title if Owner shall comply with the foregoing
requirements, and so advises the Company in writing of its intent to do so.
Section 4.5 The Company's Right to Accept Title. The Company may, upon
written notice to Owner at any time on or before the Closing Date (as the same
may have been adjourned by Owner in accordance with the provisions of Section
4.4 hereof), elect to accept such title as Owner can convey, notwithstanding the
existence of any Title Defects. In such event, (i) this Agreement shall remain
in force and effect, (ii) the parties shall proceed to Closing and (iii) unless
otherwise agreed by the Company and Owner, the Company shall not be entitled to
any abatement of the Purchase Price, any credit or allowance of any kind or any
claim or right of action against Owner for damages or otherwise by reason of the
Title Defects.
Section 4.6 Owner's Obligations. Notwithstanding anything contained in
this Article IV to the contrary, Owner shall at or prior to Closing discharge
any Title Defects which are (i) knowingly and intentionally created by Owner
subsequent to the date hereof and (ii) liquidated in amount and may be
discharged solely by the payment of a sum of money, provided that in no event
shall Owner be required to expend in excess of One Hundred Thousand and No/100
Dollars ($100,000.00) in the aggregate to discharge any such liquidated Title
Defects and to cure Violations pursuant to Section 4.8 below.
Section 4.7 Title Affidavits, Etc. (a) If requested by the Title Company,
Owner shall deliver (i) one or more reasonable and customary title affidavits
executed by Owner, certifying to factual matters concerning Owner or the
Property which are within the knowledge of Owner, (including, without
limitation, any reasonable and customary affidavit which may be required in
order to omit from title insurance coverage any exceptions for judgments,
bankruptcies or other returns against persons or entities, other than Owner,
whose names are the same as or similar to Owner's name), (ii) documents
evidencing Owner's payment of franchise or unincorporated business taxes, as
applicable, and (iii) any other documents reasonably requested by the Title
Company to issue the title insurance required pursuant to this Agreement.
9
(b) If requested by the Title Company, the Company shall deliver (i)
one or more reasonable and customary title affidavits executed by the Company,
certifying to factual matters concerning the Company which are within the
knowledge of the Company (including without limitation any reasonable and
customary affidavit which may be required in order to omit from title insurance
coverage any exceptions for judgments, bankruptcies or other returns against
persons or entities, other than the Company, whose names are the same as or
similar to Company's name), (ii) documents evidencing Company's payment of
franchise or unincorporated business taxes, as applicable, and (iii) any other
documents reasonably requested by the Title Company to issue the title insurance
required pursuant to this Agreement.
Section 4.8 Violations. Owner shall cure, or cause to be cured, any
Violations, whether the same have been noted or issued as of the date hereof or
are first noted or issued after the date hereof, provided that in no event shall
Owner be required to expend in excess of One Hundred Thousand and No/100 Dollars
($100,000.00) in the aggregate to cure Violations and remove Title Defects
pursuant to Section 4.6 above. As used herein, the term "VIOLATION(S)" shall
mean any violation of any law or municipal ordinance, order or requirement noted
or issued against the Property by any federal, state or municipal department
having jurisdiction over the Property, other than any such violation that is the
responsibility of the Tenant to cure, comply with, remove or otherwise discharge
pursuant to the terms of the Lease or applicable law.
Section 4.9 No Limitation on Due Diligence Termination Rights. Nothing set
forth in this Article IV shall limit the Company's right to terminate this
Agreement as set forth in Article III.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of Owner. Owner represents and
warrants to the Company that the representations and warranties set forth below
are true and correct on and as of the Effective Date:
(a) Due Execution; Authority. (i) Owner is duly formed, validly
existing and in good standing as a limited liability company under the laws of
the State of Delaware; (ii) this Agreement is, and all the documents to be
executed and delivered by Owner pursuant to this Agreement (the "OWNER CLOSING
DOCUMENTS") will be, when executed by Owner, binding on and enforceable against
Owner in accordance with their respective terms; (iii) except for the Existing
Lender, there are no consents required from any third party to authorize Owner's
entry into and performance of this Agreement, the Owner Closing Documents and/or
the transactions contemplated hereby or thereby which have not been obtained;
(iv) this Agreement, the Owner Closing Documents and the transactions
contemplated hereby and thereby have been, or will have been prior to the
Closing, approved by all necessary action of Owner; and (v) the execution and
delivery of the Owner Closing Documents do not and will not constitute a breach
or default under any agreement by which Owner is bound, or by which any of
Owner's property is encumbered.
(b) Contracts. There are no contracts entered into by Owner or its
agents relating to the ownership, management, leasing, parking, operation,
maintenance or repair of the
10
Property that (i) have a monetary obligation of more than Twenty-five Thousand
and No/100 Dollars ($25,000) per year and (ii) are not cancelable without
penalty by Owner upon notice of ninety (90) days or less (any contracts
affecting the Property, together with all contracts entered into after the date
hereof pursuant to Section 6.1, are hereinafter collectively referred to as the
"CONTRACTS"). To Owner's Knowledge, Owner has performed all material obligations
required to be performed by Owner under the Contracts, and Owner has not
received any written notice of default under any of the Contracts which remains
uncured. There are no contracts for the sale, exchange or transfer of the
Property or any portion thereof other than this Agreement.
(c) The Lease. (i) No one other than Tenant has any right to occupy
any part of the Property. The Lease is the only lease or other right or grant of
occupancy of all or any part of the Property and Tenant has no right of first
refusal, option or other right to purchase all or any portion of the Property.
(i) Owner has performed or paid all material obligations
required to be performed or paid by it under the Lease and Owner has not
received any written notice of default of any of its obligations under the Lease
which remains uncured.
(ii) Tenant has no obligation to post a security deposit
pursuant to the Lease, and there are no escrow or similar accounts maintained by
Owner pursuant to the Lease.
(d) Leasing Commissions. There are no unpaid leasing commissions
outstanding with respect to the Lease.
(e) Condemnation. There are no pending or, to Owner's Knowledge,
threatened, condemnation proceedings affecting all or any part of the Land or
the Improvements.
(f) Permitted Exceptions. To Owner's Knowledge, Owner has performed
all material obligations under the terms and provisions of any of the covenants,
conditions, restrictions, rights-of-way and easements constituting one or more
of the Permitted Exceptions for the Property, and Owner has not received any
written notice of default with respect to the foregoing matters which remains
uncured.
(g) Litigation. No dispute, proceeding, suit or litigation relating
to the Lease, the Property or any part thereof is pending or, to Owner's
Knowledge, threatened in any tribunal.
(h) FIRPTA. Owner is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
(i) Existing Loan. (i) The proceeds of the Existing Loan have been
fully advanced.
(ii) Owner has not received any written notice of any default,
breach, violation or event of acceleration existing under or pursuant to any of
the Existing Loan Documents, and to Owner's Knowledge no event (other than
payments due but not yet delinquent) exists which, with the passage of time or
with notice and the expiration of any grace
11
or cure period, would constitute a default or event of acceleration of any of
the Existing Loan Documents.
(iii) Except as expressly set forth in the Existing Loan
Documents, no material term, covenant or condition of the Existing Loan
Documents has been waived, modified, altered, satisfied, canceled or
subordinated in any respect or rescinded.
(iv) As of the Effective Date, the outstanding principal
balance, accrued interest and any late fees or collection costs due and owing to
Existing Lender and the balance of any escrow and other accounts maintained by
or for the benefit of Existing Lender with respect to the Existing Loan are set
forth in Exhibit 5.1(iv).
(v) The Existing Loan is the only indebtedness of Owner
secured by the Property, and the only documents and instruments executed by
Owner in connection with the Existing Loan that encumber the Property are the
Existing Mortgage, a related assignment of leases and rents made by Owner in
favor of Lender and uniform commercial code financing statements naming Owner as
debtor and Lender as secured party.
(vi) Each of the Existing Loan Documents is the legal, valid
and binding obligation of Owner, enforceable in accordance with its terms,
except as such enforcement may be limited in the future by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(j) Material Change. Owner has not received written notice from any
Governmental Authority of any pending or contemplated change in any regulation,
code, ordinance or law, or private restriction applicable to the Property, or
any natural or artificial condition upon or affecting the Property, or any part
thereof, which would result in any material change in the condition of the
Property or any part thereof, or would in any way limit or impede the operation
or development of the Property.
(k) Accuracy of Documents. Owner has previously delivered to the
Company the documents and records listed on Exhibit 3.2.1 hereto, and shall to
the extent the same are within the possession and/or reasonable control of Owner
and have not heretofore been delivered to Owner, deliver to the Company within
seven (7) days of the Effective Date, the documents and information listed in
Exhibit 3.2.2. To the extent prepared by Owner or its employees, such documents
are true, correct and complete, and accurately reflect the matters contained
therein in every material respect. To the extent such documents have not been
prepared by Owner, to Owner's Knowledge there are no facts or circumstances that
would make any of such documents or records and the matters contained therein,
inaccurate in any material respect.
(l) Tax Matters. Owner has relied solely on its own counsel for
advice on any and all federal, state and local tax matters relating to this
Agreement and the transactions contemplated herein and has not relied on any
advice or representations of the Company, or its counsel with respect to any
federal, state and local tax matters relating to this Agreement or the
transactions contemplated herein.
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(m) Warranties. Owner has not released or modified any warranties of
builders, contractors, manufacturers or other trades persons that have been
given to Owner and to Owner's Knowledge all such warranties are in full force
and effect.
(n) Bankruptcy. Owner has not: (i) made a general assignment for the
benefit of creditors; (ii) filed any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition by Owner's creditors; (iii)
suffered the appointment of a receiver to take possession of all or
substantially all of Owner's assets; (iv) suffered the attachment, or other
judicial seizure of all, or substantially all, of Owner's assets; (v) admitted
in writing its inability to pay its debts as they come due; or (vi) made an
offer of settlement, extension or compromise to its creditors generally.
(o) Permits, Etc. To Owner's Knowledge, all permits, licenses,
authorizations and certificates of occupancy required by Governmental
Authorities for the management, occupancy, leasing and operation of the Property
are in full force and effect (it being acknowledged by the parties that Owner
does not have a copy of the certificate of occupancy for the Property, and that
Owner is relying on a letter dated April 1, 2004 from the City of Roseville,
Community Development Department to Greenwich Capital Financial Products, Inc.
(the "ZONING LETTER") which states that a certificate of occupancy was issued
for the Property; Owner has delivered a true copy of the Zoning Letter to the
Company);
(p) Compliance with Law Under the Lease. To Owner's Knowledge, there
does not currently exist any obligation to be taken or performed by the Tenant
pursuant to the Lease that if not taken or performed, would cause the Property
to be in non-compliance with any federal, state, municipal and other
governmental laws, ordinances, requirements, rules, regulations, notices, codes
and orders, or any agreements, covenants, conditions, easements and restrictions
currently in effect and relating to the Property.
(q) Zoning; Governmental Rules and Regulations Under the Lease and
Existing Loan Documents. To Owner's Knowledge as of the date hereof, there is no
requirement of applicable law, the Lease or Existing Loan Document that would
require Owner to sell, mortgage, pledge, hypothecate or otherwise transfer or
dispose of all or any part of the Property or any interest therein, or initiate,
consent to, approve or otherwise take any action with respect to zoning or any
other governmental rules or regulations presently applicable to all or any part
of the Property.
(r) Not Misleading. Without limiting any of the representations and
warranties of Owner set forth in this Agreement, such representations and
warranties do not make any untrue statement of a material fact, or to Owner's
Knowledge, omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
The Company agrees that, if (i) during the Study Period, the Company
shall discover any state of facts that differs from any of the representations
set forth in Section 5.1 above or that would make such representations untrue,
or (ii) if any of the documents listed in Exhibit 3.2.1 contains any facts or
statements that differ from any of the representations set forth
13
in Section 5.1 above or that would make such representations untrue, then the
Company shall promptly advise the Owner in writing of such different state of
facts.
Section 5.2 Representations and Warranties of The Company. The Company
represents and warrants to Owner that the representations and warranties set
forth below are true and correct on and as of the Effective Date:
(a) Due Execution; Authority. (i) The Company is duly formed,
validly existing and in good standing as a limited partnership under the laws of
the State of Delaware; (ii) this Agreement is, and all the documents to be
delivered by the Company pursuant to the express terms of this Agreement (the
"COMPANY CLOSING DOCUMENTS") will be, when executed by the Company, binding on
and enforceable against the Company in accordance with their respective terms;
(iii) there are no consents required from any third party to authorize the
Company's entry into and performance of this Agreement, the Company Closing
Documents and/or the transactions contemplated hereby or thereby; (iv) this
Agreement has been, the Company Closing Documents and the transactions
contemplated hereby and thereby have been, or will have been prior to the
Closing, approved by all necessary action of the Company; and (v) the execution
and delivery of the Company Closing Documents do not and will not constitute a
breach or default under any agreement by which the Company is bound or by which
any of the Company's property is encumbered.
(b) Bankruptcy. The Company has not: (i) made a general assignment
for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition by the Company's creditors; (iii)
suffered the appointment of a receiver to take possession of all or
substantially all of the Company's assets; (iv) suffered the attachment, or
other judicial seizure of all, or substantially all, of the Company's assets;
(v) admitted in writing its inability to pay its debts as they come due; or (vi)
made an offer of settlement, extension or compromise to its creditors generally
(c) Prohibited Person. The Company is not a Prohibited Person. For
purposes hereof, a "Prohibited Person" shall mean any of the following: (i) a
person or entity that is listed in the Annex to, or is otherwise subject to the
provisions of, Executive Order No. 13224 on Terrorist Financing (effective
September 24, 2001) (the "EXECUTIVE ORDER"); (ii) a person or entity owned or
controlled by, or acting for or on behalf of any person or entity that is listed
in the Annex to, or is otherwise subject to the provisions of, the Executive
Order; (iii) a person or entity that is named as a "specially designated
national" or "blocked person" on the most current list published by the U.S.
Treasury Department's Office of Foreign Assets Control ("OFAC") at its official
website, http://www.treas.gov/offices/enforcement/ofac; (iv) a person or entity
that is otherwise the target of any economic sanctions program currently
administered by OFAC; or (v) a person or entity that is affiliated with any
person or entity identified in any of clause(i), (ii), (iii) and/or (iv) above.
Section 5.3 Closing Certificates of The Company and Owner. (a) The
Company, on the Closing Date, shall execute and deliver to Owner an instrument
by which the Company shall remake the representations made pursuant to Section
5.2 above as of the Closing, provided that the Company, in such instrument,
shall (i) update such representations to reflect events occurring between the
date hereof and the Closing and (ii) correct such representations and warranties
to
14
reflect any discovered inaccuracy therein; such instrument being herein called
the "COMPANY'S REPRESENTATION CERTIFICATE".
(b) Owner, on the Closing Date, shall execute and deliver to the
Company an instrument in which Owner shall remake the representations and
warranties made pursuant to Section 5.1 above as of the Closing, provided that
Owner, in such instrument, shall (i) update such remade representations to
reflect events occurring between the date hereof and the Closing and (ii)
correct such remade representations to reflect any discovered inaccuracy
therein; such instrument being herein called "OWNER'S REPRESENTATION
CERTIFICATE".
ARTICLE VI
COVENANTS AND ADDITIONAL OBLIGATIONS OF OWNER
Section 6.1 Covenants of Owner. Owner agrees that from the date of this
Agreement to the Closing, it will:
(a) Insurance. Subject to the terms and conditions of the Lease (and
to the extent Owner is able to do so pursuant to the Lease), cause Tenant to
maintain in full force and effect all insurance required to be maintained
pursuant to the Lease.
(b) Contracts and Business Practice. Not become a party to any new
licenses, equipment leases, contracts or agreements of any kind relating to the
Property, except for such contracts or agreements as will be terminated at or
prior to the Closing without cost or expense to the Company or contracts which
the Company agrees in its sole discretion to assume at the Closing, without
having obtained in each case the prior written consent of the Company, which
consent shall not be unreasonably withheld or delayed. The Company agrees that
any requests for consent shall be responded to within five (5) Business Days of
receipt of request therefor. Except as otherwise provided in this Article VI,
Owner shall continue, and shall cause Tenant to continue (to the extent Owner is
able to do so pursuant to the Lease), to manage, maintain and operate the
Property in the same manner that Owner (or Tenant, as applicable) has been
managing, maintaining and operating the Property immediately prior to the
Effective Date; provided, however, that Owner shall not have any obligation to
make repairs or expenditures that are capital in nature.
(c) Compliance With Laws. Not knowingly take or fail to take any
action that will cause the Property to fail to comply with any federal, state,
municipal and other governmental laws, ordinances, requirements, rules,
regulations, notices, codes and orders, or any agreements, covenants,
conditions, easements and restrictions currently in effect relating to the
Property; provided that Owner shall not be required to take any such action, or
perform any such obligation, if and to the extent that such action is required
to be taken by the Tenant under the Lease or is otherwise the obligation of the
Tenant under the Lease.
(d) Notices. Promptly upon receipt, provide the Company with copies
of all written notices delivered to, or received by, the Tenant in connection
with the Property or the Lease, any insurance company which carries insurance on
the Property, or from any Governmental Authorities with respect to the Property
or any portion thereof.
15
(e) Conditions To The Closing. Use good faith efforts prior to the
Closing to satisfy all conditions to the Closing which are within Owner's
reasonable power to satisfy.
(f) No Sale or Encumbrance. Owner shall not sell, mortgage, pledge,
hypothecate or otherwise transfer or dispose of all or any part of the Property
or any interest therein, or initiate, consent to, approve or otherwise take any
action with respect to zoning or any other governmental rules or regulations
presently applicable to all or any part of the Property, except if and to the
extent required by law, the terms of the Lease or the terms of the Existing Loan
Documents.
(g) Lease. Owner shall not nor cause or permit Tenant to terminate,
modify, extend, amend or renew the Lease or enter into any new lease or other
letting arrangement without the prior written consent of the Company, which the
Company may withhold in its sole discretion.
(h) Existing Loan. Pay and perform all of its obligations pursuant
to the Existing Loan Documents, and use good faith efforts to cause Existing
Lender to consent to the assignment to, and assumption by the Company of, the
Existing Loan.
(i) Fulfillment of Obligation. To the extent Owner is obligated,
pursuant to any contract, agreement, covenant, lease, or other understanding
entered into prior to the Effective Date with any tenant, governmental
subdivision or any other third party, to effect any construction, make any
improvements or take any action, Owner shall cause any such construction,
improvements and/or action to be taken, completed and fully paid for by Owner,
at its expense, prior to the Closing. No such obligation shall be unfulfilled,
and no liability for or payment in respect of any obligation shall be
unsatisfied as of the Closing. Notwithstanding the foregoing, the Company
acknowledges that in connection with Owner's acquisition of the Property, Owner
entered into an Escrow and Disbursement Agreement dated as of May 12, 2004 among
Meritex Enterprises, Inc. ("MERITEX"), Owner and the Title Company (the
"IMPROVEMENTS ESCROW AGREEMENT"), pursuant to which Meritex agreed to (i)
complete certain improvements required under the Lease with respect to the Fire
Loop Conversion and Roadway Resurfacing and (ii) deposit $186,000 in escrow with
the Title Company to secure the cost of completing such improvements. Owner and
the Company agree that (x) Owner shall not be responsible for completing the
improvements to be completed by Meritex under the Improvements Escrow Agreement
and (y) if such improvements have not been completed by the Closing Date, then
at Closing Owner shall assign to the Company all of Owner's rights under the
Improvements Escrow Agreement.
ARTICLE VII
ASSUMPTION OF THE EXISTING LOAN BY THE COMPANY
Section 7.1 Assumption of Existing Loan. The Company recognizes and agrees
that, in connection with the Existing Loan, the Property presently is encumbered
by the Existing Mortgage. The Loan is evidenced by that certain promissory note
dated as of May 12, 2004 in the stated principal amount of $20,860,000 (the
"EXISTING NOTE") executed by Owner and payable to the order of Greenwich Capital
Financial Products, Inc. Owner has heretofore delivered a true, correct and
complete copy of the Existing Note and the other Existing Loan
16
Documents to the Company for its review. The Company agrees that, at the
Closing, the Company shall assume Owner's obligations under the Existing Note
and all of the other Existing Loan Documents and accept title to the Property
subject to the Existing Mortgage. It shall be a condition to the Owner's and the
Company's obligations hereunder that at Closing the Existing Lender shall
release Owner, as well as any guarantors and other obligated parties under the
Existing Loan Documents from all obligations under the Existing Loan Documents
(and any related guarantees or letters of credit), including, without
limitation, any obligation to make payments of principal and interest under the
Existing Note (the foregoing assumption of the Existing Loan and the release of
Owner and all guarantors thereunder being herein called the "LOAN ASSUMPTION AND
RELEASE"). The Company shall, within three (3) Business Days of the Effective
Date, submit to the Lender a completed application for the Loan Assumption and
Release (the "APPLICATION"). The Company and Owner each agree to use
commercially reasonable diligent efforts to cause the Loan Assumption and
Release to be consummated in the most timely and efficient manner. The Company
shall pay all fees and expenses imposed or charged by the Lender and its counsel
in connection with the Loan Assumption and Release, including, without
limitation, all servicing fees and charges, transfer fees, assumption fees,
title fees and endorsement fees and this obligation to pay fees and expenses
shall survive the Closing or any earlier termination of this Agreement. The
Company and Owner shall each pay their own legal fees and costs and expenses in
connection with the Loan Assumption and Release. In connection with the Loan
Assumption and Release, the Company shall form a subsidiary entity to take title
to the Property, which subsidiary entity shall be a bankruptcy remote single
purpose entity which satisfies the requirements of the Existing Loan Documents
and of the Existing Lender.
ARTICLE VIII
[INTENTIONALLY OMITTED]
ARTICLE IX
CONDITIONS PRECEDENT
Section 9.1 The Company's Conditions Precedent. The Company's obligation
to accept the conveyance of the fee simple title to the Property hereunder shall
be subject to the full and timely satisfaction of the following conditions (all
or any of which may be waived, in whole or in part, by the Company in writing in
its sole discretion) at or prior to the Closing:
(a) Title. The Company shall have received confirmation from the
Title Company that it is issuing to the Company at the Closing an owner's title
policy (bringing the title current to the date of the Closing) without
exceptions other than the Permitted Exceptions.
(b) Representations and Warranties. Owner's Representation
Certificate shall reflect that the representations and warranties made by Owner
in this Agreement (as the same may be deemed modified by the provisions of the
last paragraph of Section 5.1) are true and correct in all material respects as
of the Closing (with such modifications as may be necessary to reflect any
changes contemplated or permitted by this Agreement, such as a change to
subsection 5.1(i)(iv) to reflect any payments on the Existing Loan made after
the Effective Date).
17
(c) Performance of Obligations, etc. Owner shall have performed in
all material respects all covenants and obligations and complied with all
conditions, obligations and agreements required by this Agreement to be
performed or complied with by it at or before the Closing.
(d) Existing Loan. All right, title and interest of Owner under and
pursuant to the Existing Loan Documents shall be assigned to and assumed by the
Company, Existing Lender shall have consented to such assignment and assumption,
and all conditions to such assignment and assumption imposed by Existing Lender
shall have been satisfied or waived by Existing Lender.
(e) Tenant Estoppel Certificate. The Company shall have received an
executed estoppel certificate from the Tenant in the form prescribed by the
Lease.
(f) Closing Under the Other Contract. The Closing under this
Agreement and the closing of the transactions contemplated by the Other Contract
occur simultaneously.
(g) Construction/Improvement Work at the Property. The Company shall
have received confirmation reasonably satisfactory to it that with regard to any
construction/improvement work at the Property (the "Improvement Work"): (i) all
licenses, permits and similar authorizations required by all Governmental
Authorities relating to ongoing Improvement Work are in full force and effect;
and (ii) all applicable certificates (including, without limitation,
certificates of inspection), permits and/or licenses relating to the inspection
and completion of Improvement Work during or after the expiration of the Study
Period required by all Governmental Authorities.
(h) Violations. All Violations shall have been cured to the
satisfaction of the applicable Governmental Authorities.
Section 9.2 The Owner's Conditions Precedent Owner's obligation to close
on the Closing Date is subject to the satisfaction of the following conditions
precedent, any or all of which may be waived in writing by Owner:
(a) Representations and Warranties. The Company's Representation
Certificate shall reflect that the representations and warranties made by the
Company in this Agreement are true and correct in all material respects as of
the Closing.
(b) Performance of Obligations, etc. The Company shall have
satisfied and complied with (or at the Closing shall satisfy and comply with)
all of its obligations hereunder (including, without limitation, its obligations
to pay the Cash Balance and to execute and/or deliver each and all of the
documents to be executed and/or delivered by the Company pursuant to this
Agreement);
(c) Existing Loan. All right, title and interest of Owner under and
pursuant to the Existing Loan Documents shall be assigned to and assumed by the
Company, Existing Lender shall have consented to such assignment and assumption,
the Company and the Existing Lender have entered into the Loan Assumption and
Release, all conditions to such assignment
18
and assumption imposed by Existing Lender shall have been satisfied or waived by
Existing Lender, and the Existing Lender shall have released Owner, as well as
any guarantors and other obligated parties under the Existing Loan Documents
from all obligations under the Existing Loan Documents (and any related
guarantees or letters of credit), including, without limitation, any obligation
to make payments of principal and interest under the Existing Note; and
(d) The Closing under this Agreement and the closing of the
transactions contemplated by the Other Contract occur simultaneously.
Section 9.3 Failure of Conditions. (a) If any condition described in
Section 9.1 is not satisfied as of the Closing Date, then Company may, at its
sole option and as its sole and exclusive remedy: (i) extend the Closing Date
for up to an additional thirty (30) days to allow for the satisfaction of such
conditions, by written notice thereof to Owner and the Title Company; (ii)
proceed to Closing without any abatement or reduction in the Purchase Price; or
(iii) terminate this Agreement by written notice thereof to Owner and the Title
Company at any time on or before the Closing. If the Company so extends the
Closing Date and any such conditions remain unsatisfied at the end of such
extended period, then the Company shall have the option, in its sole discretion,
to either: (i) terminate this Agreement by written notice thereof to Owner and
the Title Company; or (ii) proceed to the Closing without abatement or reduction
in the Purchase Price. Upon termination of this Agreement pursuant to this
Section 9.3, the Deposit shall be returned to the Company, and neither party
shall have any further rights, obligations or liabilities under this Agreement,
except for the obligations set forth in this Agreement that expressly survive
termination of this Agreement. The conditions set forth in this Section 9.3 are
for the Company's sole benefit, and the Company may, in its sole discretion,
waive (conditionally or absolutely) the fulfillment of any one or more of the
conditions, or any part thereof. Owner shall not take or authorize, directly or
indirectly, any action that modifies or changes the circumstances upon which the
conditions set forth in Section 9.1 were deemed satisfied or waived by the
Company without the Company's prior written consent.
(b) If any condition described in Section 9.2 is not satisfied as of
the Closing Date, then Owner may, as its sole and exclusive remedy, (i) extend
the Closing Date for up to an additional thirty (30) days to allow for the
satisfaction of such conditions, by written notice thereof to the Company; (ii)
terminate this Agreement by written notice thereof to the Company at any time on
or before the Closing; or (iii) proceed to the Closing without any abatement or
reduction in the Purchase Price. If the Owner so extends the Closing Date and
any such conditions remain unsatisfied at the end of such extended period, then
the Owner shall have the option, in its sole discretion, to either: (i)
terminate this Agreement by written notice thereof to Owner and the Title
Company; or (ii) proceed to the Closing without abatement or reduction in the
Purchase Price. Upon termination of this Agreement under this Section 9.3(b),
the Deposit shall be returned to the Owner, and thereafter neither party shall
have any further rights, obligations or liabilities under this Agreement, other
than with respect to those rights and obligations that are expressly to survive
a termination of this Agreement. The conditions set forth in this Section 9.3(b)
are for Owner's sole benefit, and Owner may, in its sole discretion, waive the
fulfillment of any one or more of the conditions, or any part thereof. Company
shall not take or authorize, directly or indirectly, any action that modifies or
changes the circumstances upon which the conditions set forth in Section 9.2
were deemed satisfied or waived by the Owner without the Owner's prior written
consent.
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(c) In addition to and without limiting the provisions of Section
9.3(a) and (b) above, Owner and the Company agree that each shall have the
unilateral right upon written notice to the other and the Title Company, to
extend the Closing Date for such period of time as may be necessary for the
Existing Lender to finally approve or disapprove the Application.
ARTICLE X
CLOSING
Section 10.1 Closing. Closing of the transactions contemplated hereby (the
"CLOSING") shall be consummated by mail through the offices of First American
Title Insurance Company, 1801 K Street, N.W., Suite 200-K, Washington, D.C.
20006, on the date that is twenty (20) days after the expiration of the Study
Period (such date, as the same may be extended pursuant to the terms of this
Agreement, being herein called the "CLOSING DATE"; if the then scheduled Closing
Date is not a Business Day, then the Closing Date shall be the next succeeding
Business Day). Time shall be of the essence with respect to the obligations of
Owner and the Company to be performed on the Closing Date.
ARTICLE XI
CLOSING MATTERS
Section 11.1 Owner's Obligations. At the Closing, Owner shall:
(a) Affidavits. Execute and deliver to the Title Company such
affidavits and indemnity agreements as required by Section 4.7(a) above.
(b) Deed. Execute and deliver to the Company a Deed in the form
attached hereto as Exhibit 11.1(b).
(c) FIRPTA Certificate. Execute and deliver to the Company a FIRPTA
Certificate substantially in the form attached hereto as Exhibit 11.1(c).
(d) Owner's Representation Certificate. Execute and deliver to the
Company the Owner's Representation Certificate as required by Section 5.3 above.
(e) Further Assurances. Execute (as applicable) and deliver (or
cause to be delivered) to the Company the Owner Closing Documents.
(f) Assignment and Assumption of Lease. Execute and deliver to the
Company an Assignment and Assumption of Lease in the form attached hereto as
Exhibit 11.1(f).
(g) Assignment of Existing Loan. Execute and deliver to the Company,
Existing Lender and the Title Company the documents and instruments necessary to
effect the assignment to the Company of the Existing Loan and Existing Loan
Documents, the assumption of the Owner's obligations under the Existing Loan
Documents, and the release of Owner, as well as any guarantors and other
obligated parties, under the Existing Loan Documents from all obligations under
the Existing Loan Documents and any related guarantees.
20
(h) Possession. Give full possession of the Property to the Company
(subject to the rights of the Tenant under the Lease), and in connection
therewith, turn over to the Company all keys, access codes and other equipment
and information necessary for the Company to have full and complete access to
the Property, subject only to the rights of Tenant under the Lease
(i) Notice Letter to Tenant. Execute and deliver a letter to the
Tenant notifying the Tenant of the sale of the Property and indicating the new
address for notices under the Lease.
(j) Transfer Tax Forms. Execute and deliver all requisite transfer
tax forms and other documents required by law in order to consummate the
conveyance of the Property from Owner to the Company pursuant to this Agreement.
Section 11.2 The Company's Obligations. At the Closing, the Company
shall:
(a) Cash Balance. Deliver the Cash Balance to the Owner (as provided
in Section 2.3 above);
(b) Affidavits Execute and deliver to the Title Company such
affidavits and indemnity agreements as required by Section 4.7(b) above .
(c) The Company's Representation Certificate. Execute and deliver to
Owner the Company's Representation Certificate as required by Section 5.3 above.
(d) Further Assurances. Execute (as applicable) and deliver (or
cause to be delivered) to the Owner the Company's Closing Documents.
(e) Assignment and Assumption of Lease. Execute and deliver to the
Owner an Assignment and Assumption of Lease in the form attached hereto as
Exhibit 11.1(f).
(f) Assumption of Existing Loan. Execute and deliver to the Owner,
Existing Lender and the Title Company the documents and instruments reasonably
necessary to effect the assumption by the Company of the Owner's obligations
under the Existing Loan and Existing Loan Documents and the release of Owner, as
well as any guarantors and other obligated parties, under the Existing Loan
Documents from all obligations under the Existing Loan Documents and any related
guarantees, and pay to the Existing Lender all assumption fees, costs and
expenses required by the Existing Loan Documents to effect such assumption by
the Company and requisite consent by the Existing Lender.
(g) Transfer Tax Forms. Execute and deliver all requisite transfer
tax forms and other documents required by law in order to consummate the
conveyance of the Property from Owner to the Company pursuant to this Agreement.
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ARTICLE XII
PRORATIONS AND ADJUSTMENTS
Section 12.1 Prorations and Adjustments. (a) Rents. All rents payable by
the Tenant to Owner under the Lease shall, at the Closing, be apportioned
between Owner and the Company as of 11:59 p.m. of the day immediately prior to
the Closing Date.
(b) Existing Loan Payments. Any current payments of principal and
interest, and any reserve amounts, due pursuant to the Existing Loan for the
month in which the Closing occurs shall at the Closing, be apportioned between
Owner and the Company as of 11:59 p.m. of the day immediately prior to the
Closing Date. All other payment items with respect to the Existing Loan shall be
brought current at the Closing by Owner.
(c) Reserves, etc. The Company shall reimburse Owner for all
reserves, impounds and other sums assigned to the Company that are then on
deposit with the Lender and required to be maintained by the borrower under the
Existing Loan Documents in connection with the Existing Loan.
(d) Other Items. All other items which are customarily apportioned
in connection with the purchase and sale of real property similar to the
Property in the jurisdiction in which the Property is located shall, at the
Closing, be apportioned between the Owner and the Company as of 11:59 p.m. of
day immediately prior to the Closing; provided, however, that in no event shall
any item of expense be apportioned hereunder if, and to the extent that, such
expense item is the obligation of the Tenant under the Lease (it being agreed
that each of Owner and the Company shall look solely to the Tenant for the
payment of such expense during their respective periods of ownership).
(e) Tax Refunds. Notwithstanding the foregoing, any refunds of real
property taxes for tax years beginning prior to the Closing Date shall belong to
Tenant, and if paid to the Company shall be promptly refunded by the Company to
Tenant in accordance with the provisions of the Lease.
(f) Rent Step Up Adjustment. If the Closing shall occur prior to
January 1, 2006, then at Closing the Company shall receive a credit against the
Cash Balance in an amount equal to the product of (i) two hundred and forty six
and 26/100 dollars ($246.26) times (ii) the number of days in the period
commencing on (and including) the Closing Date and ending on December 31, 2005.
(g) Overage Rent.
(i) All reimbursements or payments in respect of operating
expenses, real estate taxes, and other charges (collectively, "OVERAGE RENT")
paid pursuant to the Lease for the accounting period in which the Closing occurs
shall when received be apportioned between Owner and the Company as of 11:59
P.M. of the day preceding the Closing Date. Owner shall be entitled to receive
the proportion of such Overage Rent (less any reasonable costs and expenses
incurred in the collection of such Overage Rent), that the portion of such
accounting period prior to the Closing Date bears to the entire such accounting
period. The Company shall
22
be entitled to receive the proportion of such Overage Rent (less any reasonable
costs and expenses incurred in the collection of such Overage Rent) that the
portion of such accounting period from and after the Closing Date bears to the
entire such accounting period. If, prior to the Closing, Owner shall receive any
installments of Overage Rent attributable to Overage Rent for periods from and
after the Closing Date, such sum shall be credited against the Cash Balance
payable by the Company at the Closing. As to Overage Rent in respect of an
accounting period that shall have expired prior to the Closing, but which shall
be paid after the Closing, the Company agrees that it will pay the entire amount
over to Owner upon receipt thereof, less the Company's reasonable costs of
collection reasonably allocable thereto. The Company agrees that it shall
promptly render bills for any Overage Rent in respect of an accounting period
that shall have expired prior to Closing but which shall be payable after the
Closing, and use commercially reasonable efforts in the collection of Overage
Rent, provided, however, that the Company shall have no obligation to commence
any legal actions or proceedings to collect any such Overage Rent. Owner shall
furnish to the Company all information relating to the period prior to the
Closing that is reasonably necessary for the billing of such Overage Rent. The
Company shall deliver to Owner, concurrently with the delivery to Tenant, copies
of all statements relating to Overage Rent for periods prior to the Closing.
(ii) To the extent that any portion of the Overage Rent is
required to be paid monthly or on another periodic basis, by Tenant on account
of estimated amounts for the current period, and at the end of each calendar
year (or, if applicable, at the end of each lease year or tax year, as the case
may be), such estimated amounts are to be recalculated based upon the actual
expenses, taxes and other relevant factors for that calendar (lease or tax)
year, with the appropriate adjustments being made with Tenant, then such portion
of the Overage Rent paid shall be prorated between Owner and the Company at the
Closing, based on such estimated payments (i.e., with Owner entitled to retain
all monthly and other periodic installments of such amounts paid with respect to
periods prior to the calendar month or other relevant period in which the
Closing Date occurs, Owner to pay to the Company at the Closing all monthly or
other relevant period installments of such amounts paid with respect to periods
following the calendar month or other relevant period in which the Closing
occurs and Owner and the Company shall apportion all monthly installments of
such amounts with respect to the calendar month in which the Closing occurs) and
at the time(s) of final calculation and collection from (or refund to) Tenant of
the amounts in reconciliation of actual Overage Rent for a period for which
estimated amounts have been prorated, there shall be a reproration between Owner
and the Company, with the net credit resulting from such reproration being
payable to the appropriate party (i.e., to Owner if the recalculated amounts
exceed the estimated amounts and to the Company if the recalculated amounts are
less than the estimated amounts).
Section 12.2 Costs and Expenses. Except as otherwise provided in this
Agreement, the Company shall be solely responsible for the following: (a) all
costs of preparation of the Survey for the Property; (b) all costs of conducting
all environmental tests and other Due Diligence of and with respect to the
Property; (c) all costs associated with the issuance to the Company of the new
owner's policy of title insurance and all endorsements thereto, including
without limitation, the premium for such policy, and the cost and expense of
title examination, title clearance and issuance of the Commitment; and (d) all
costs and fees in connection with the assumption of the Existing Loan. Owner
shall pay all costs associated with: (i) any costs of state, county, city,
local, municipal and township recording, transfer and similar taxes and
impositions with respect
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to the conveyance of the Property; (ii) repaying any indebtedness secured by the
Property (other than the Existing Loan); and (iii) any gains taxes, income taxes
or similar taxes owing as a result of the transactions contemplated hereby. The
Company and Owner shall share equally escrow fees and other closing costs. The
Company and Owner shall each pay their respective legal fees and expenses
incurred in connection with the negotiation of this Agreement and all related
documents, and in addressing each such party's tax and securities issues.
ARTICLE XIII
DEFAULT
Section 13.1 Default By The Company. If (i) any of the representations and
warranties made by the Company in this Agreement (as updated by the Company's
Representation Certificate) are inaccurate or incorrect in any material respect
on the date made or deemed made, or (ii) if the Company fails to perform its
covenants, obligations or agreements under this Agreement and such failure is
not cured on or before the earlier of ten (10) days after written notice by
Owner to Company or the Closing Date, or (iii) the purchaser under the Other
Contract (the "OTHER PURCHASER") fails to perform its covenants, obligations or
agreements under the Other Contract and the seller under the Other Contract (the
`OTHER SELLER") terminates the Other Contract as a result of such failure, then
in any of such events, Owner's sole and exclusive remedy shall be the right to
cancel and terminate this Agreement and receive and retain the Deposit
(provided, however, that if the Company is then obligated to post the Additional
Deposit but has not done so, then Owner shall have a right to receive the
Initial Deposit and shall have a post termination damage claim against the
Company for the Additional Deposit and all expenses incurred by owner in
collecting same, including reasonable attorneys' fees). Upon such termination,
each party shall be released from all duties or obligations contained herein
except as may otherwise be expressly set forth in this Agreement as surviving a
termination of this Agreement, and the Title Company shall immediately pay the
Deposit to Owner as liquidated damages as the sole and exclusive remedy of
Owner, it being understood and agreed that Owner is hereby releasing and/or
waiving any right it might have to either specifically enforce this Agreement or
to sue for damages (other than to collect the Additional Deposit, as aforesaid,
if the same had not been delivered to the Title Company when due). Owner has
agreed to this liquidated damage provision because of the difficulty of
ascertaining Owner's actual damages given the uncertainties of the real estate
market, fluctuating property values and differences of opinion with respect to
such matters.
Section 13.2 Default By Owner. If (i) any of the representations and
warranties made by Owner in this Agreement (as updated by Owner's Representation
Certificate) are inaccurate or incorrect in any material respect on the date
made or deemed made, or (ii) if Owner fails to perform its covenants,
obligations or agreements under this Agreement and such failure is not cured on
or before the earlier of ten (10) days after written notice by the Company to
Owner or the Closing Date, or (iii) the Other Seller fails to perform its
covenants, obligations or agreements under the Other Contract and the Other
Purchaser terminates the Other Contract as a result of such failure, then the
Company shall have the right, at its sole option, to: (a) terminate this
Agreement, whereupon the Deposit shall be returned to the Company and neither
party shall have any further right or liability to the other under this
Agreement except as may be otherwise expressly set forth in this Agreement; (b)
waive the default, misrepresentation or failure to
24
perform and proceed with the Closing without any adjustment or reduction in the
Purchase Price; or (c) receive the Deposit from the Title Company and pursue an
action for specific performance.
ARTICLE XIV
COORDINATION BETWEEN AGREEMENT AND OTHER CONTRACT
Section 14.1 Coordination of the Sale of the Property and the Other
Property. Owner and the Company acknowledge and agree that (i) the Property and
the Other Property are intended to be sold together as part of a single
integrated transaction, (ii) as a matter of convenience only, the parties have
agreed sell the Property and the Other Property pursuant to the terms of two
separate agreements (consisting of this Agreement and the Other Contract),
rather than pursuant to a single agreement, and (iii) cross defaulting this
Agreement and the Other Contract pursuant to Sections 13.1 and 13.2 is intended
to further the intent of the parties to consummate the sale of the Property and
the Other Property as a single integrated transaction. If the Other Contract is
terminated by the Other Seller or Other Purchaser thereunder for any reason
pursuant to the terms of the Other Contract (including, without limitation, if
the Other Purchaser terminates the Other Contract prior to the end of the due
diligence period under the Other Contract pursuant to Article III of the Other
Contract), then (i) this Agreement shall automatically terminate on the date on
which such Other Contract is so terminated, (ii) if, as a result of such
termination of such Other Contract, the deposit thereunder is payable to the
Other Seller, then the Deposit (and all interest accrued thereon) shall be paid
to Owner, (iii) if, as a result of such termination of the Other Contract, the
deposit thereunder is payable to the Other Purchaser, then the Deposit (and all
interest accrued thereon) shall be paid to the Company and (iv) thereafter
neither Owner nor the Company shall any further rights or obligations hereunder,
other than those which expressly survive the termination of this Agreement.
Section 14.2 Coordination of Closing Dates for the Sale of the Property
and the Other Property. Owner and the Company acknowledge that the intent of the
parties is that the Closing under this Agreement, and the closing under the
Other Contract, are all to occur simultaneously. If, as of any date, the then
current scheduled closing date under the Other Contract is, for any reason,
later than the then current scheduled Closing Date under this Agreement, then
and in such event, the scheduled Closing Date under this Agreement shall
automatically be adjourned to (and shall be) the then current scheduled closing
date under the Other Contract. In furtherance of the foregoing, if the Other
Seller or the Other Purchaser has any right to adjourn the closing date under
the Other Contract and exercises such right, then the scheduled Closing Date
under this Agreement shall automatically be extended to the scheduled closing
date under the Other Contract.
ARTICLE XV
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 15.1 Casualty. (a) If, between the date hereof and the Closing,
there shall occur a fire or other casualty affecting the Improvements which is
not a Major Casualty, then the Company shall have no right to terminate this
Agreement and shall purchase the Property in its damaged condition without
reduction of or offset against the Purchase Price or any other claim against
Owner. Owner shall assign to the Company the right to receive any insurance
proceeds
25
payable to Owner as a result of such fire or other casualty (inclusive of any
rental interruption proceeds payable with respect to any period from and after
the Closing); provided, however, that Owner shall be entitled to retain (to the
extent theretofore paid to Owner), and shall not be obligated to assign the
right to receive (to the extent not theretofore paid to Owner), an amount of
such insurance proceeds equal to Owner's reasonable expenses, if any, incurred
in collecting such proceeds and repairing the damage caused by fire or other
casualty. For purposes hereof, a "MAJOR CASUALTY" means a fire in or other
casualty to the Improvements which causes damage or injury that the repair or
replacement cost of which would exceed Five Hundred Thousand and No/100 Dollars
($500,000.00), as determined by the professional retained by the Company to
perform a structural and/or physical inspection of the Property in connection
with the Company's acquisition of the Property pursuant to this Agreement.
(b) If, between the date hereof and the Closing, there shall occur a
fire or other casualty affecting the Improvements which is a Major Casualty,
then the Company shall have the option, to be exercised by notice given to Owner
within ten (10) days after the Company has notice of such fir or other casualty,
to terminate this Agreement. If the Company shall so elect to terminate this
Agreement, then (i) the Company shall be entitled to the return of the Deposit
(and any interest thereon) and (ii) neither party hereto shall have any further
obligations or liabilities to the other with respect to the Property (or under
this Agreement), except for those which expressly survive the termination of
this Agreement. If the Company shall not elect to terminate this Agreement as
provided in this subsection (b), then this Agreement shall remain in full force
and effect with respect and the provisions of Section 15.1(a) above shall apply
to such damage and any insurance proceeds payable in connection therewith.
(c) Subject to the provisions of Section 15.1(a) and the applicable
provisions of the Lease, Owner shall not have any obligation to repair any
damage or destruction to the Improvements
Section 15.2 Condemnation or Taking. If, prior to the Closing, the
Property or any part thereof shall be condemned or taken and such condemnation
or taking materially interferes with the existing business use of the Property,
the Company may (a) terminate this Agreement, or (b) complete the transactions
contemplated by this Agreement notwithstanding such condemnation. If the Company
elects to complete the transactions contemplated hereby, the Company shall be
entitled to receive the condemnation proceeds and Owner shall, at the Closing
and thereafter, execute and deliver to the Company all required assignments of
claims and other similar items. If the Company elects to terminate this
Agreement, then upon written notice to Owner and without further action of the
parties, this Agreement shall become null and void and no party shall have any
rights or obligations under this Agreement.
ARTICLE XVI
BROKERS
Section 16.1 Brokers. Owner, on the one hand, and the Company, on the
other, hereby represent and warrant each to the other that it has not authorized
any broker, agent or finder to act on its behalf in connection with the
transaction contemplated by this Agreement except CB Richard Ellis and
Transwestern Commercial Services (the "BROKERS"), who have been engaged
26
by Owner pursuant to separate written agreements, and shall be paid by Owner, it
being agreed that the Company shall have no liability for any commissions, fees
payments or other sums payable to the Brokers or either of them. Each party
agrees that it shall indemnify, defend and save the other harmless from and
against any cost, expense, claim, loss, liability or damages, including
reasonable attorneys' fees and court costs, resulting from a breach of the
foregoing representation and warranty. The terms and provisions of this Section
16.1 shall survive the Closing or any earlier termination of this Agreement.
ARTICLE XVII
MISCELLANEOUS
Section 17.1 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given/received: (a) on the date delivered if delivered personally; (b) on
the date sent if sent by facsimile, with a copy sent by one of the other methods
of delivery described in this Section; (c) the next Business Day after deposit
with a recognized overnight courier service when marked for delivery on the next
Business Day; or (d) five (5) days after mailing if sent by registered or
certified United States mail, properly addressed and postage pre-paid, and
addressed to the party for whom it is intended at the address hereinafter set
forth:
If to Owner : Stonewater UIS Funding LLC
c/o Drawbridge Special Opportunities
Fund LLP
1251 Avenue of the Americas LLC
16th Floor
New York, New York 10020
Attn: Dean Dakolias
Fax: (212) 202-3685
with a copy to each of : Stonewater Partners
237 Mamaroneck Avenue
Suite 406
White Plains, New York 10605
Attn: Jeff Toporek
Fax: (914)-470-4011
and
Bryan Cave LLP
1290 Avenue of the Americas
New York, New York 10104
Attn: Sandor A. Green
Fax: (212) 541-1449
27
If to the Company: Gladstone Commercial Limited Partnership
c/o Gladstone Commercial Corporation
1521 Westbranch Drive
Second Floor
McLean, VA 22102
Attn: Mr. Christopher Massey
Fax: (703) 287-5801
with a copy to: Dickstein Shapiro Morin & Oshinsky LLP
2101 L Street, N.W.
Washington, D.C. 20037
Attn: James D. Kelly, Esq.
Fax: 202-887-0689
Either party may designate a change of address by written notice to the other in
accordance with the provisions set forth above, which notice shall be given at
least ten (10) days before such change of address is to become effective. The
attorney for either party may send notices on that party's behalf.
Section 17.2 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective personal representatives, heirs,
successors and assigns of the parties. Owner shall not have any right to assign
its rights or obligations under this Agreement without the prior written consent
of the Company. The Company shall have no right to assign its rights or
obligations under this Agreement without the prior written consent of Owner.
Notwithstanding the foregoing; Company may assign its rights and obligations
under this Agreement to any person or entity that is an affiliate of the
Company, without the consent of Owner, provided that (i) the Company is not
released from its liability hereunder, (ii) such assignee assumes all of the
obligations of the Company under this Agreement, (iii) the Company delivers a
copy of the assignment and assumption agreement to the Owner at or prior to
Closing, (iv) the assignee is a single purpose bankruptcy remote entity that
meets the requirements set forth in the Existing Loan Documents for the borrower
thereunder, and (v) such assignee has been approved by the holder of the
Existing Loan as the new borrower under the Existing Loan. As used herein, an
affiliate is a person or entity controlled by, under common with, or
controlling, another person or entity. Any assignment or attempted assignment of
this Agreement or the rights and obligations hereunder other than strictly in
accordance with the provisions of this Section 17.2 shall be null and void and
of no force or effect.
Section 17.3 1031 Exchange. Owner hereby advises the Company that the sale
of the Property may be part of a tax-free exchange under Section 1031 of the
Internal Revenue Code for Owner. The Company hereby agrees to take all
reasonable steps on or before the Closing Date to facilitate such exchange if
requested by Owner, provided that (a) the Company shall not be required to
acquire any substitute property, (b) such exchange shall not affect the
representations, warranties, liabilities and obligations of the parties to each
other under this Agreement, (c) the Company shall not incur any additional cost,
expense or liability in connection with such exchange, and (d) no dates in this
Agreement will be extended as a result thereof. Notwithstanding anything to the
contrary contained in the foregoing, if Owner so elects
28
to close the transfer of the Property as an exchange, then (i) Owner, at its
sole option, may delegate its obligations to transfer the Property under this
Agreement, and may assign its rights to receive the Purchase Price from the
Company, to a deferred exchange intermediary (an "INTERMEDIARY") or to an
exchange accommodation titleholder, as the case may be; (ii) such delegation and
assignment shall in no way reduce, modify or otherwise affect the obligations of
Owner pursuant to this Agreement; (iii) Owner shall remain fully liable for its
obligations under this Agreement as if such delegation and assignment shall not
have taken place; (iv) Intermediary or exchange accommodation titleholder, as
the case may be, shall have no liability to the Company; and (v) the closing of
the transfer of the Property to the Company shall be undertaken by direct deed
from Owner to the Company or to exchange accommodation titleholder, as the case
may be.
Section 17.4 Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the state in which the Property is located,
excluding conflicts of laws principles.
Section 17.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument; provided, however, in no
event shall this Agreement be effective unless and until signed by all parties
hereto.
Section 17.6 Further Assurances. In addition to the obligations required
to be performed hereunder by Owner and the Company at or prior to the Closing,
each party, from and after the Closing, shall execute, acknowledge and/or
deliver such other instruments, as may reasonably be requested in order to
effectuate the purposes of this Agreement; provided, however, that the foregoing
provisions of this Section 17.6 shall not obligate either party to execute,
acknowledge or deliver any instrument which would or might impose upon such
party any additional liability or obligations (beyond that imposed upon on it
under the documents delivered by such party at the Closing and the other
provisions of this Agreement which survive the Closing).
Section 17.7 Recitals; Exhibits. Each and all of the recitals set forth
above and the exhibits attached hereto are hereby incorporated into this
Agreement by reference.
Section 17.8 Rules of Construction. Section captions used in this
Agreement are for convenience only and shall not affect the construction of the
Agreement. All references to "Articles" and "Sections," without reference to a
document other than this Agreement are intended to designate articles and
sections of this Agreement, and the words "herein," "hereof," "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular Section, unless specifically designated otherwise. The use of the
term "including" shall mean in all cases "including but not limited to," unless
specifically designated otherwise. No rules of construction against the drafter
of this Agreement shall apply in any interpretation or enforcement of this
Agreement, any documents or certificates executed pursuant hereto, or any
provisions of any of the foregoing.
Section 17.9 Time of Essence; Force Majeure. Time is important to all
parties in the performance of this Agreement, and the parties have agreed that
strict compliance is required as
29
to any date set out in this Agreement. Notwithstanding the foregoing, in the
event that Owner or the Company shall be delayed, hindered in or prevented from
the performance of any act or obligation required under this Agreement by reason
of acts of God, strikes, lockouts, labor troubles or disputes, inability to
procure or shortage of materials or labor, failure of power or utilities (that
are not due to the negligence or willful misconduct of Owner, the Company or
their respective agents), delay in transportation, fire, vandalism, accident,
flood, severe weather, other casualty, requirements imposed by Governmental
Authorities, riot, insurrection, civil commotion, sabotage, explosion, war,
natural or local emergency, acts or omissions of others, including the other
party, or other reasons of a similar or dissimilar nature not solely the fault
of, or under the exclusive control of such party, then performance of such act
or obligation shall be excused for the period of the delay and the period for
the performance of any such act or obligation shall be extended for the period
equivalent to the period of such delay. Provided, however, none of the Company's
monetary obligations under this Agreement shall be so excused or abated as a
result of the provisions of this Section 17.9.
Section 17.10 Entire Agreement. This Agreement and the exhibits attached
hereto and thereto contain the entire agreement between the parties relating to
the Property, all prior negotiations between the parties, including, without
limitation, any letter of intent, access agreement and confidentiality agreement
(including all amendments or modifications thereof), are merged in this
Agreement, and there are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between them
other than as herein set forth. No change or modification of this Agreement
shall be valid unless the same is in writing and signed by the parties hereto.
No waiver of any of the provisions of this Agreement and other agreements
referred to herein shall be valid unless in writing and signed by the party
against whom it is sought to be enforced.
Section 17.11 No Third Party Beneficiary. This Agreement and each of the
provisions hereof are solely for the benefit of Owner and the Company and their
permitted assigns. No provisions of this Agreement, or of any of the documents
and instruments executed in connection herewith shall be construed as creating
in any person or entity other than Owner and the Company and their permitted
assigns any rights of any nature whatsoever
Section 17.12 Severability. If any provision in this Agreement is found by
a court of competent jurisdiction to be in violation of any applicable law, and
if such court should declare such provision of this Agreement to be unlawful,
void, illegal or unenforceable in any respect, the remainder of this Agreement
shall be construed as if such unlawful, void, illegal or unenforceable provision
were not contained therein, and the rights, obligations and interests of the
parties hereto under the remainder of this Agreement shall continue in full
force and effect undisturbed and unmodified in any way.
Section 17.13 Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES,
IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER
OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS
OR CERTIFICATES EXECUTED IN CONNECTION HEREWITH, THE PROPERTIES, OR ANY CLAIMS,
DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE
FOREGOING.
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Section 17.14 Attorneys' Fees. In the event that there shall be a dispute
under this Agreement resulting in the institution of any action or proceeding by
Owner or the Company against the other, the prevailing party shall be entitle to
receive from the other party reasonable attorneys' fees and disbursements and
all court costs and expenses incurred in connection with such action or
proceeding.
Section 17.15 No Recording. Neither this Agreement nor any memorandum
hereof shall be recorded. Each party hereby agrees to indemnify and hold
harmless the others for all liabilities, losses, damages, liens, suits, claims,
costs and expenses (including reasonable attorneys' fees) incurred by the others
by reason of a breach of the foregoing covenant.
Section 17.16 Survival. All representations, warranties, covenants,
agreements and indemnities set forth in or made pursuant to this Agreement and
any indemnification related thereto shall remain operative, and shall survive
the Closing under this Agreement, only with respect to claims made in writing
not later than twelve (12) months after the Closing.
ARTICLE XVIII
CONFIDENTIALITY
Section 18.1 Public Announcements. Except as provided otherwise in this
Section 18.1, Owner and the Company hereby agree that they will not, and shall
direct their respective employees, officers, agents and representatives not to,
directly or indirectly, release or cause or permit to be released to the public
prior to the Closing any press notices, publicity (oral or written) or
advertising promotion relating to, or otherwise publicly announce or disclose or
cause or permit to be publicly announced or disclosed, in any manner whatsoever,
the terms, conditions or substance of this Agreement or the transactions
contemplated herein, without first obtaining the consent of the Company and the
Owner, which consent shall not be unreasonably withheld. It is understood that
the foregoing shall not (i) preclude any party from discussing the substance or
any relevant details of the transactions contemplated in this Agreement on a
confidential basis with any of its partners, attorneys, officers, directors,
employees, accountants, professional consultants, financial advisors, rating
agencies, or potential lenders, as the case may be (the "REPRESENTATIVES")
provided that such Representatives have been informed of the parties'
obligations hereunder and the obligations of the parties under securities laws
with respect to disclosure of information and trading in the stock of Company or
its Affiliates or (ii) prevent it from complying with applicable laws,
including, without limitation, governmental regulatory, disclosure, tax and
reporting requirements. Owner and the Company shall each have the right to seek
and obtain equitable relief to enforce the provisions of this Article XVIII.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
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WITNESS: OWNER:
STONEWATER UIS FUNDING LLC, a Delaware limited
liability company
By: ___________________________ By: ________________________________________
Name: _________________________ Name: ______________________________________
Title: ________________________ Title: Authorized Signatory
THE COMPANY:
GLADSTONE COMMERCIAL LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Gladstone Commercial Partners, LLC
By: Gladstone Commercial Corporation
By: ___________________________ By: __________________________________
Name: _________________________ Name: Christopher Massey
Title: ________________________ Title: Principal and Managing Director
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EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
The land referred to is situated in the County of Ramsey, State of Minnesota,
and is described as follows:
PARCEL 1:
The South 1024 feet of the West 700 feet of the Northwest Quarter of Section 8,
Township 29, Range 23, Ramsey County, Minnesota.
(Torrens property, Certificate No. 541911)
PARCEL 2:
Non-exclusive easement for pedestrian and vehicular access, ingress and egress,
as contained in Declaration of Road Easement dated May 7, 2004, recorded July 6,
2004, as Document No. 1824998.
EXHIBIT 1.4
EXISTING LOAN DOCUMENTS
1. Acknowledgement of Rent Bank Account
2. Assignment and Assumption of Lease
3. Assignment of Leases and Rents
4. Cash Management Agreement
5. Certificate of Borrower
6. Conditional Assignment of Management Agreement
7. Environmental Indemnity Agreement
8. Exceptions to Non-Recourse Guaranty
9. Mortgage, Assignment of Leases and Rents, and Security Agreement
10. Notice to Tenant
11. Operations and Maintenance Agreement
12. Post-closing Letter Agreement re Operations and Maintenance Agreement
13. Promissory Note
14. Replacement Reserve and Security Agreement
15. Subordination, Non-disturbance, and Attornment Agreement
16. Tenant Estoppel Certificate
17. TI and LC Reserve and Security Agreement
18. Letter Agreement re Operations and Maintenance Agreement
EXHIBIT 1.8
DESCRIPTION OF LEASE
Lease dated August 14, 1998 between Space Center Enterprises, Inc., as landlord,
and Unisys Corporation, as tenant for space located at 2505 Walnut Street,
Roseville, Minnesota; as amended by that certain First Amendment of Lease
executed effective as of November 30, 1999 between Meritex Enterprises, Inc.
(f/k/a Space Center Enterprises, Inc.), as landlord, and Unisys Corporation, as
tenant; as further amended by that certain Second Amendment to Lease executed
effective as of March 26, 2003 between Meritex Enterprises, Inc. (f/k/a Space
Center Enterprises, Inc.), as landlord, and Unisys Corporation, as tenant; as
further amended by that certain Third Amendment to Lease executed effective as
of May 7, 2004 between Meritex Enterprises, Inc. (f/k/a Space Center
Enterprises, Inc.), as landlord, and Unisys Corporation, as tenant; as further
amended by that certain Fourth Amendment to Lease executed effective as of
August 10, 2004 between Stonewater UIS Funding LLC (successor in interest to
Space Center Enterprises, Inc.), as landlord, and Unisys Corporation, as tenant.
EXHIBIT 2.2
FORM OF ESCROW AGREEMENT
This Escrow Agreement (this "AGREEMENT") is made and entered into this ___
day of November, 2005, among STONEWATER UIS FUNDING LLC, a Delaware limited
liability company ("OWNER"), and GLADSTONE COMMERCIAL LIMITED PARTNERSHIP, a
Delaware limited partnership (the "COMPANY"), and FIRST AMERICAN TITLE INSURANCE
COMPANY ("ESCROW AGENT"). Reference is made to that certain Purchase Agreement
dated as of November __, 2005 (the "CONTRACT"), between Owner and the Company.
The defined terms used in this Agreement shall have the meanings set forth in
the Contract.
The Company and Owner have agreed to select Escrow Agent to serve as
escrow agent with respect to the Deposit to be made by the Company pursuant to
the Contract. The purpose of this Agreement is to prescribe instructions
governing the services of Escrow Agent with respect to the Deposit and the
Closing.
1. Owner and the Company hereby engage Escrow Agent to serve as
escrow agent with respect to the Deposit made by the Company pursuant to the
terms of the Contract, a copy of which has been delivered to and received by
Escrow Agent. Escrow Agent hereby accepts such engagement.
2. Escrow Agent acknowledges receipt of the Deposit and agrees to
place the Deposit into an interest-bearing escrow account and to notify the
Company and Owner of the location and number of such interest-bearing account.
Interest shall be maintained in the escrow account as a part of the Deposit and
credited to the Company for tax purposes. The Company's Federal Taxpayer
Identification Number is 91-2198700.
3. Escrow Agent shall disburse the Deposit and any interest earned
thereon in accordance with the terms and conditions of the Contract, provided
that Escrow Agent shall first give each party ten (10) days written notice in
accordance with Section 17.1 of the Contract of Escrow Agent's intent to
disburse, and upon receipt of written objection to such disbursement by either
party, Escrow Agent shall act in accordance with Section 4 herein. At the time
of the Closing, if any, if the Deposit has not been disbursed previously in
accordance with the Contract, then Escrow Agent shall disburse the Deposit and
interest thereon to Owner to be credited against the Purchase Price.
4. In the event that there is a dispute regarding the disbursement
or disposition of the Deposit or the interest earned thereon, or in the event
Escrow Agent shall receive conflicting written demands or instructions with
respect thereto, then Escrow Agent shall withhold such disbursement or
disposition until notified by both parties that such dispute is resolved or
Escrow Agent may file a suit of interpleader at the cost and expense of Owner
and the Company.
5. Escrow Agent shall not be liable for any damage, liability or
loss arising out of or in connection with the services rendered by Escrow Agent
pursuant to this Agreement unless the same results from the negligence, gross
negligence, or willful misconduct of Escrow Agent.
6. Copies of all notices given by any party hereunder shall be
delivered in person or mailed, postage prepaid, to all other parties hereto, to
the following addresses:
(1) If to the Company Gladstone Commercial Limited Partnership
c/o Gladstone Commercial Corporation
1521 Westbranch Drive
Second Floor
McLean, VA 22102
Attn: Mr. Christopher Massey
Fax: (703) (703) 287-5801
with a copy to: Dickstein Shapiro Morin & Oshinsky LLP
2101 L Street, N.W.
Washington, D.C. 20037
Attn: James D. Kelly, Esq.
Fax: (202) 887-0689
(2) If to the Owner: Stonewater UIS Funding LLC
1251 Avenue of the Americas
16th Floor
New York, New York 10020
Attn: Mr. Dean Dakolias
Fax: 212-202-3685
with a copy to each of: Stonewater Partners
237 Mamaroneck Avenue
Suite 406
White Plains, New York 10605
Attn: Jeff Toporek
Fax: (914)-470-4011
and
Bryan Cave LLP
1290 Avenue of the Americas
New York, New York 10104
Attn: Sandor A. Green
Fax: 212-541-1449
7. The instructions contained herein may not be modified, amended or
altered in any way except by a writing (which may be in counterpart copies)
signed by Owner, the Company and Escrow Agent. Notices for Owner and the Company
may be given by the respective attorneys for each such party.
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8. The Company and Owner reserve the right, at any time and from
time to time, to jointly substitute a new escrow agent in place of Escrow Agent.
9. This Agreement is intended solely to supplement and implement the
provisions of the Contract and is not intended to modify, amend or vary any of
the rights or obligations of the Company or Owner under the Contract.
10. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument; provided, however, in no event shall
this Agreement be effective unless and until signed by all parties hereto.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES FOLLOW ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
WITNESS: OWNER:
STONEWATER UIS FUNDING LLC,
a Delaware limited liability company
By:______________________________ By:______________________________________
Name: ___________________________ Name:____________________________________
Title:___________________________ Title: Authorized Signatory
THE COMPANY:
GLADSTONE COMMERCIAL LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Gladstone Commercial Partners, LLC
By: Gladstone Commercial Corporation
By: _____________________________ By: _________________________________
Name: ___________________________ Name: Christopher Massey
Title:___________________________ Title: Principal and Managing Director
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:______________________________________
Name: Michael Hillman
Title: Vice President
EXHIBIT 3.2.1
DOCUMENTS PREVIOUSLY DELIVERED BY OWNER
Date Sent Format
--------- ------
Loan Documents:
Acknowledgement of Rent Bank Account 10/17 PDF
Assignment and Assumption of Lease 10/17 PDF
Assignment of Leases and Rents 10/17 PDF
Cash Management Agreement 10/17 PDF
Certificate of Borrower 10/17 PDF
Conditional Assignment of Management Agreement 10/17 PDF
Environmental Indemnity Agreement 10/17 PDF
Exceptions Guaranty by Stonewater Funding 10/17 PDF
Mortgage, Assignment of Leases and Rents, and Security Agreement 10/17 PDF
Notice to Tenant 10/17 PDF
Operations and Maintenance Agreement 10/17 PDF
Post-closing Letter Agreement re Operations and Maintenance Agreement 10/17 PDF
Promissory Note 10/17 PDF
Replacement Reserve and Security Agreement 10/17 PDF
Subordination, Non-disturbance, and Attornment Agreement 10/17 PDF
Tenant Estoppel 10/17 PDF
TI and LC Reserve and Security Agreement 10/17 PDF
Letter Agreement re Operations and Maintenance Agreement 10/17 PDF
Leases:
Unisys Lease (includes four amendments) 10/17 PDF
Unisys Lease (page one of first amendment) 10/17 PDF
Unisys Lease (third amendment) 10/17 PDF
Title:
Title Policy 10/17 PDF
Receipt and Release - McGough Construction 10/17 PDF
Zoning Certificate 10/17 PDF
Property:
Insurance Certificates 10/17 PDF
Survey 10/17 PDF
Third Party Reports:
Property Condition Report 10/17 PDF
Environmental Report - 10/19 PDF
EXHIBIT 3.2.2
SCHEDULE OF DOCUMENTS TO BE DELIVERED TO THE COMPANY
(1) The Lease, including without limitation, amendments, side letters, option
exercise letters and other documents, certificates or instruments applicable to
the Lease, subleases or similar instruments pursuant to which a person occupies
the Property; and copies of all pending lease proposals.
(2) A current rent roll, certified as accurate by Owner's chief financial
officer or an equivalent officer or official, together with all correspondence
between Owner and Tenant with regard to the Lease and Tenant's occupancy of the
Property.
(3) Existing studies, reports and appraisals, if any, relating to the Property
and in the possession and/or control of Owner.
(4) Financial information for Tenant.
(5) Full year 2004-2006 operating budget for and with respect to the Property,
together with financial information and records for the Property (including,
without limitation, financial statements, containing, at a minimum, statements
of profit and losses and balance sheets) for the last three (3) calendar years,
together with the books and records for the Property, including historical
property and operating statements, tax bills, capital expenditure records,
renovation budget(s) and maintenance records of the Property. Such statements
shall properly reflect the profit and loss from the management, leasing,
maintenance, repair and operation of the Property for three (3) years.
(6) Zoning reports.
(7) As-built plans and specifications for the Improvements on the Property, to
the extent reasonably available.
(8) Copies of all contracts, agreements, equipment leases, service and
maintenance agreements, and vendor contracts related to the Property.
(9) Copies of Owner's existing title policy for the Property, together with a
complete legal description and legible copies of all documents referred to in
the title reports or policies.
(10) Copies of existing "as-built" surveys of the Property, any readily
available topographical information and traffic studies in Owner's or its
property manager's possession.
(11) All environmental reports and studies in Owner's possession (including,
without limitation, all analytical data, remediation design, modeling, boring
logs, correspondence, directives, submissions and responses to or from
Governmental Authorities and environmental consultants) and notices and asbestos
reports and all reports, proposals and/or notices relating to the physical
condition of the Property, including, without limitation, any soils reports,
engineering, architectural or other structural reports or studies and similar
data relating to the Property in Owner's possession.
(12) Existing fire and casualty insurance policies (or summaries thereof) and
current certificates evidencing such coverage.
(13) All information concerning any pending real estate tax assessment appeals,
protests and proceedings.
(14) All agreements relating to leasing commissions affecting the Property, and
a list of leasing commissions to be discharged by Owner.
(15) Copies of all of the Existing Loan Documents.
(16) Copies of all construction contracts or other agreements to which Owner or
its agent is a party relating to ongoing construction work, repairs or
renovations being done to any Improvements at the Property.
(17) Copies of all agreements, proffers, if any, and other non-public documents
relating to land use restrictions or other conditions limiting or otherwise
affecting development of the Property.
(18) Copies of all unexpired warranties and guaranties covering the personal
property and the roof, elevators, heating and air conditioning systems and any
other components of the Improvements, and a list and description of any material
third party bonds, warranties and guaranties which will be in effect after the
Closing with respect to the Property, including, without limitation, the
Improvements.
(19) Copies of all certificates of occupancy, approvals, licenses and permits.
(20) Copies of any and all written claims, demands or notices from any third
party which concern or otherwise affect the Property received by Owner during
the prior three (3) years, or earlier if unresolved, including, without
limitation, written notice of potential litigation, written notices from any
Governmental Authority, copies of any reports issued by the local Fire Marshal
regarding inspection of the Improvements during Owner's ownership of the
Property and a list of major repairs (excluding tenant improvements) and major
casualties occurring during Owner's ownership of the Property, together with any
internal lists of claims or anticipated litigation related to the Property
prepared by or on behalf of Owner.
(21) True and complete copies of Owner's organizational documents, as well as
any fictitious name or similar filings, including all amendments to the
foregoing, certified as true and complete.
(22) All of the records of the architects, engineers and consultants related to
the Property in Owner's possession or in the possession of such architects,
engineers and consultants.
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EXHIBIT 4.1
PERMITTED EXCEPTIONS
1. Building and zoning codes, ordinances and laws.
2. Utility and drainage easements of record which do not interfere with the
current use of the real estate.
3. Any reservation of minerals or mineral rights to the State of Minnesota.
4. The lien of real estate taxes and installments of special assessments not yet
due and payable.
5. The Declaration of Road Easement dated May 7, 2004, recorded July 6, 2004 as
Document No. 1824998.
6. Lease to Unisys Corporation dated June 1, 1998, as amended by First Amendment
to Lease dated November 30, 1999, Second Amendment to Lease dated March 26,
2003, Third Amendment to Lease dated May 7, 2004 and Fourth Amendment to Lease
dated August 10, 2004.
7. The reference in the Certificate of Title for the Real Property to the rights
of the public in County Road B-2.
8. Possible fence encroachment along the western boundary of the Real Property,
as shown on the survey dated May 6, 2004 by Egan, Field & Nowak (the "Survey").
9. Possible encroachment of concrete steps on the north boundary line, as shown
on the Survey.
10. Mortgage, Assignment of Rents and Security Agreement dated May 12, 2004,
recorded July 6, 2004, as Ramsey County Registrar of Titles Document No.
1825000, executed by Stonewater UIS Funding LLC, a Delaware limited liability
company, as mortgagor, to Greenwich Capital Financial Products, Inc., a Delaware
corporation, as mortgagee, to secure the original principal amount of
$20,680,000.00
11. Assignment of Leases and Rents dated May 12, 2004, recorded July 6, 2004, as
Document No. 1825001, by Stonewater UIS Funding LLC, a Delaware limited
liability company, as assignor, to Greenwich Capital Financial Products, Inc., a
Delaware corporation, as assignee.
EXHIBIT 4.2.1
[TITLE INSURANCE REQUIREMENTS AND ENDORSEMENTS]
This Memorandum will provide you with a checklist of standard title
insurance requirements for projects being acquired by Gladstone Commercial
Corporation, or an affiliated company ("GCC"). Additional or different
requirements may be specified for your particular transaction.
1. GENERAL:
(a) The maximum single risk assumed by any single title insurer may
not exceed 25% of that company's capital, surplus and statutory reserves. Excess
amounts may be covered by appropriate reinsurance arrangements with other
acceptable title insurance companies.
(b) The title insurance policy must be written by an insurer that
has an acceptable rating from at least one of the following independent rating
agencies:
- a "Financial Stability Rating" of "S" (Substantial) or better
or a "Statutory Accounting Rating" of "C" (Average) or better
from Demotech, Inc.;
- a "BBB" or better rating from Duff and Phelps Credit Rating
Company;
- a "C" or better rating from LACE Financial Corporation;
- a "Baa" or better rating from Moody's Investors Service; or
- a "BBB" or better rating from Standard and Poor's, Inc.
(c) Each title insurance policy must be written by an insurer
authorized to do business in the jurisdiction where the property is located.
(d) Subject to the satisfaction of other requirements set forth
herein, GCC will accept the standard 1992 ALTA form of loan title insurance
policy or the 1990, 1987 or 1970 (amended October 17, 1970, and October 17,
1984) form of owner's policies. GCC must receive and approve a commitment and a
pro forma owner's title insurance policy. Copies of all documents and/or surveys
referred to in the legal description or in the exceptions in Schedule B-I must
be submitted with the commitment. The title insurance company must remove (by
endorsement or written waiver) any creditors' rights exception or exclusion.
(e) If the 1990 or 1987 ALTA form of policy or a policy containing
similar arbitration provisions is used, the title insurance company must agree
that the compulsory arbitration provisions of the policy do not apply for any
claims by or on behalf of the insured.
(f) The policy must include an Environmental Protection Lien
Endorsement (ALTA Form 8.1). Subparagraph (b) of ALTA Form 8.1 may take
exception for an entire state statute that provides for environmental protection
liens that could take priority, only if specific sections or subsections are
referenced. A reference solely to a general statute is acceptable only if
approved in writing by GCC prior to closing. If no such statutes exist, "None"
should be entered in the space below subparagraph (b).
(g) The policy must include a Comprehensive Endorsement (ALTA Form
9).
2. SCHEDULE A - DESCRIPTION:
(a) The amount of the title insurance policy must equal at least the
original purchase price of the property.
(b) The effective date of the title policy must be as of the date
(and time, where available) of the recordation of the Deed.
(c) The policy must name as the insured the entity designated by GCC
as the owner.
(d) Schedule A must include a description of the Deed, with the
complete name of the instrument, the date of execution, recordation date and
recordation information.
(e) The legal description of the property in the title insurance
policy must precisely conform to that shown on the survey of the property.
Alternatively, the title insurance policy may be endorsed to provide that the
legal description is the same as shown on the survey.
(f) Any appurtenant easements (such as access or utility easements)
must be set forth in the legal description and affirmatively insured under
Schedule A as a separate insured interest in land.
(g) The title insurance policy must include, as an informational
note, in Schedule A (i) the recorded plat number (and recording information), if
any, and (ii) the property parcel number(s) or tax identifying number(s), as
applicable, for the property, if such numbers are available in the jurisdiction
in which the property is located.
3. SCHEDULE B-I - TITLE EXCEPTIONS:
(a) Standard exceptions (such as for parties in possession, other
matters not shown on public records and for filed and unfiled mechanics' and
materialmen's liens) must be deleted.
(b) The title insurance company must remove (by endorsement or
written waiver) any creditor's rights exception to or exclusion from the title
insurance policy.
(c) If the title insurance policy includes any exception for taxes,
assessments or other lienable items, it must expressly insure that such taxes,
assessments or items are not yet due and payable.
(d) The title insurance policy must contain no exception for any
filed or unfiled mechanics' or materialmen's liens.
(e) The standard survey exception to the title policy, if any, must
be deleted. Exceptions to specific matters shown in a recorded plat must be
specifically described and affirmative coverage must be obtained for any matters
listed.
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(f) Any lien, encumbrance, condition, restriction or easement must
be included in the policy and must be described in sufficient detail so that its
nature, width and location, as applicable is readily discernible in the written
description. All exceptions which regard easement rights of others to the
property must be listed as an "Easement ...". The policy must affirmatively
insure that improvements do not encroach upon the listed easements or
affirmatively insure against loss or damage due to such encroachment.
(g) All easements listed in Schedule B-I must appear on the survey
noted by deed book and page number. If Schedule B-I indicates the presence of
any easements that are not specifically located, the title policy must provide
affirmative insurance against any loss resulting from the exercise by the holder
of such easement of its right to use or maintain that easement.
4. SCHEDULE B-II - SUBORDINATE MATTERS:
Tenants in possession under unrecorded leases must be listed as such
on Schedule B, Part II or included as an exception in Schedule B, Part I as
"rights of tenants in possession as of the date hereof, as tenant's only, under
unrecorded leases."
5. REQUIRED ENDORSEMENTS:
(a) ALTA 9 Comprehensive Endorsement
(b) Survey Endorsement
(c) ALTA 3.1 Zoning Endorsement (with additional coverage for number
and type of parking spaces)
(d) Doing Business Endorsement (as applicable)
(e) Access Endorsement
(f) Separate Tax Lot Endorsement
(g) Environmental Protection Lien Endorsement
(h) Subdivision Endorsement
(i) Contiguity Endorsement
(j) Creditor's Rights Endorsement (as applicable)
(k) Tax Deed Endorsement (as applicable)
(l) Mechanics' Lien Endorsements (as applicable)
(m) Non-Imputation Endorsement (as applicable)
3
(n) Fairways Endorsement (as applicable)
(o) Condominium Endorsement (as applicable)
4
EXHIBIT 4.2.2
[FORM OF SURVEYOR CERTIFICATION]
[NAME], a registered land surveyor, License No. [NUMBER], in and for the
State of __________ and legally doing business in __________ County, does hereby
certify to Gladstone Commercial Corporation, a Delaware corporation, its
successors and assigns] and [TITLE COMPANY] and [LENDER]:
1. The accompanying survey ("SURVEY") represents a true and correct survey made
by me on ________________, 200_ of the land therein particularly described.
2. The Survey and the information, courses and distances shown thereon are
correct.
3. The title lines and lines of actual possession are the same.
4. The land described in the Survey is the same as described in the title
insurance commitment described below.
5. The area of the subject property and the size, location and type of buildings
and improvements and any other matters situated on the subject property are as
shown and all buildings and improvements are within the boundary lines and
applicable set-back lines of the property.
6. There are no violations of zoning ordinances, restrictions or other rules and
regulations with reference to the location of said buildings and improvements.
7. There are no easements or uses affecting this property appearing from a
careful physical inspection of the same, other than those shown and depicted on
the Survey.
8. There are no encroachments on the adjoining properties, streets, or alleys by
any of said buildings, structures and improvements, other than as shown on the
Survey.
9. There are no party walls or visible encroachments on said described property
by streets, alleys or buildings, structures or other improvements situated on
adjoining property, except as shown on the Survey.
10. All utility services required for the operation of the premises either enter
the premises through adjoining public streets, or the Survey shows the point of
entry and location of any utilities that pass through or are located on
adjoining land.
11. The Survey shows the location and direction of all visible storm drainage
systems for the collection and disposal of all roof and surface drainage.
12. Any discharge into streams, rivers or other conveyance system is shown on
the Survey.
13. The subject property [INSERT "DOES" OR "DOES NOT"] lie within a Special
Flood Hazard Area ("SFHA") as defined by the Federal Emergency Management
Agency; the property lies within Zone(s) __________ [ONLY ZONES WITH PREFIXES OF
"A" OR "V" ARE IN SFHAS] of the Flood Insurance Rate Map identified as Community
Panel No. ____________, bearing an effective date of__________
14. The subject property has access to and from a duly dedicated and accepted
public street or highway [IF NOT, SO STATE].
15. [EXCEPT AS SHOWN ON THE SURVEY,] the subject property does not serve any
adjoining property for drainage, utilities or ingress or egress.
16. The record description of the subject property forms a mathematically closed
figure [IF NOT, SO STATE].
17. The undersigned has received and examined a copy of [COMPANY] Title
Company's Commitment No. [NUMBER]; and the location of any matter shown thereon,
to the extent it can be located, has been shown on this Survey with the
appropriate recording reference.
18. The parties listed above are entitled to rely on the survey and this
certificate as being true and accurate.
19. This Survey is made in accordance with the 1999 "Minimum Standard Detail
Requirements for Land Title Surveys" jointly established and adopted by American
Land Title Association ("ALTA") and American Congress on Surveying and Mapping
("ACSM") and meets the requirements of an Urban Survey, as defined in the
current accuracy standards jointly adopted by ALTA and ACSM and includes items
1, 2, 3, 4, 6, 7(a,b,&c), 8, 9, 10, 11(a), 13 (including uses), 14, 15, and 16
of Table A thereof.
20. [IF THE CERTIFICATE IS ATTACHED TO RATHER THAN TYPED OR OTHERWISE REPRODUCED
ON THE FACE OF THE SURVEY, ADD A PARAGRAPH SPECIFICALLY IDENTIFYING THE SURVEY
(SUCH AS BY DATE, PROPERTY DESCRIPTION AND SURVEY NUMBER) TO WHICH THE
CERTIFICATE RELATES.]
____________________________________________
[SIGNATURE]
____________________________________________
[TYPE NAME OF SURVEYOR BELOW SIGNATURE LINE]
Registration No.____________________________
Date:_____________________
[SEAL]
2
EXHIBIT 5.1(IV)
[EXISTING LOAN BALANCES]
LOAN BALANCE: $20,459,571.03
TAX RESERVE: 59,182.14
CAPITAL RESERVE: 51,078.19
INSURANCE RESERVE: 868.20
EXHIBIT 11.1(b)
Form of Deed
WARRANTY DEED FORM 9-M Minnesota Conveyancing Blanks (6/17/97)
Corporation or Partnership
or Limited Liability Company
to Corporation, Partnership
or Limited Liability Company
No delinquent taxes and transfer
entered; Certificate of Real Estate
Value ( ) filed ( ) not required
Certificate of Real Estate Value No.
__________________, 20___
__________________________________
County Auditor
by________________________________
Deputy
DEED TAX DUE HEREON: $___________
Date: _______________________,
2005
(reserved for recording data)
FOR VALUABLE CONSIDERATION, ________________________________________________, a
__________________________ under the laws of _______________________, Grantor,
hereby conveys and warrants to ____________________________, Grantee, a
_________________________ under the laws of _____________________, real property
in ____________ County, Minnesota, described as follows:
together with all hereditaments and appurtenances belonging thereto, subject to
the following exceptions:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES FOLLOW ON NEXT PAGE]
Check box if applicable:
[ ] The Seller certifies that the Seller does not know of any wells on the
described real property.
[ ] A well disclosure certificate accompanies this document.
[ ] I am familiar with the property described in this instrument and I
certify that the status and number of wells on the described real property
have not changed since the last previously filed well disclosure
certificate.
___________________________________
Affix Deed Tax Stamp Here By ___________________________________
Its __________________________________
By ___________________________________
Its __________________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF ________________ )
This instrument was acknowledged before me on ___________________________,
by ____________________ and ________________________, the
________________________ and ____________________ of ____________________, a
__________________________ under the laws of _____________________, on behalf of
the ________________________.
NOTARIAL STAMP OR SEAL (OR
OTHER TITLE OR RANK)
_________________________________________
SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT
Check here if part or all of the land is
Registered (Torrens) [ ]
THIS INSTRUMENT WAS DRAFTED BY
(NAME AND ADDRESS): Tax Statements for the real property
described in this instrument should be
sent to (include name and address of
Grantee):
2
EXHIBIT A TO EXHIBIT 11.1(b)
Legal Description
The land referred to is situated in the County of Ramsey, State of Minnesota,
and is described as follows:
PARCEL 1:
The South 1024 feet of the West 700 feet of the Northwest Quarter of Section 8,
Township 29, Range 23, Ramsey County, Minnesota.
(Torrens property, Certificate No. 541911)
PARCEL 2:
Non-exclusive easement for pedestrian and vehicular access, ingress and egress,
as contained in Declaration of Road Easement dated May 7, 2004, recorded July 6,
2004, as Document No. 1824998.
3
EXHIBIT B TO EXHIBIT 11.1(b)
Permitted Exceptions
1. Building and zoning codes, ordinances and laws.
2. Utility and drainage easements of record which do not interfere with the
current use of the real estate.
3. Any reservation of minerals or mineral rights to the State of Minnesota.
4. The lien of real estate taxes and installments of special assessments not yet
due and payable.
5. The Declaration of Road Easement dated May 7, 2004, recorded July 6, 2004 as
Document No. 1824998.
6. Lease to Unisys Corporation dated June 1, 1998, as amended by First Amendment
to Lease dated November 30, 1999, Second Amendment to Lease dated March 26,
2003, Third Amendment to Lease dated May 7, 2004 and Fourth Amendment to Lease
dated August 10, 2004.
7. The reference in the Certificate of Title for the Real Property to the rights
of the public in County Road B-2.
8. Possible fence encroachment along the western boundary of the Real Property,
as shown on the survey dated May 6, 2004 by Egan, Field & Nowak (the "Survey").
9. Possible encroachment of concrete steps on the north boundary line, as shown
on the Survey.
10. Mortgage, Assignment of Rents and Security Agreement dated May 12, 2004,
recorded July 6, 2004, as Ramsey County Registrar of Titles Document No.
1825000, executed by Stonewater UIS Funding LLC, a Delaware limited liability
company, as mortgagor, to Greenwich Capital Financial Products, Inc., a Delaware
corporation, as mortgagee, to secure the original principal amount of
$20,680,000.00
11. Assignment of Leases and Rents dated May 12, 2004, recorded July 6, 2004, as
Document No. 1825001, by Stonewater UIS Funding LLC, a Delaware limited
liability company, as assignor, to Greenwich Capital Financial Products, Inc., a
Delaware corporation, as assignee.
4
EXHIBIT 11.1(c)
[FIRPTA CERTIFICATE]
Section 1445 of the Internal Revenue Code of 1986, as amended (the
"CODE"), provides that a transferee of a U.S. real property interest must
withhold tax if the transferor is a foreign person or entity. To inform the
transferee that withholding of tax is not required upon the disposition of a
U.S. real property interest by ____________________, _________ (the "COMPANY"),
the undersigned hereby certifies the following on behalf of the Company:
1. The Company is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferor is not a disregarded entity as defined in Section 1.1445 -
2(b)(2)(iii);
3. The Company's U.S. Employer identification number is ___________; and
4. The Company's office address is:
__________________________________
__________________________________
__________________________________
The undersigned, as ______________ of the Company, understands that this
certification may be disclosed to the Internal Revenue Service by the transferee
and that any false statement contained herein could be punished by fine,
imprisonment or both.
Under penalties of perjury, the undersigned, as _____________ of the
Company, declares that the undersigned has examined this certification and that,
to the best of the undersigned's knowledge and belief, it is true, correct and
complete, and the undersigned further declares that the undersigned has
authority to sign this document on behalf of the Company.
________________________________
a ______________________________
By: ________________________
Name: ________________________
Title: ________________________
EXHIBIT 11.1(f)
Form of Assignment and Assumption Agreement
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "ASSIGNMENT") is made as of
the ___ day of ______________, 200_ by STONEWATER UIS FUNDING LLC, a Delaware
limited liability company, having an address at c/o Drawbridge Special
Opportunities Fund, LLC, 1251 Avenue of the Americas, New York, New York 10021
("ASSIGNOR"), in consideration of Ten ($10.00) Dollars and for other good and
valuable consideration paid by __________________, a ________
__________________, having an office at _____________________ ("ASSIGNEE").
Assignor hereby assigns to Assignee all of Assignor's right, title and
interest in and to the following documents (the "LEASE"):
Lease dated August 14, 1998 between Space Center Enterprises, Inc., as
landlord, and Unisys Corporation, as tenant for space located at 2505
Walnut Street, Roseville, Minnesota; as amended by First Amendment of
Lease dated effective as of November 30, 1999 between Meritex Enterprises,
Inc. (f/k/a Space Center Enterprises, Inc.), as landlord, and Unisys
Corporation, as tenant; as further amended by that certain Second
Amendment to Lease dated effective as of March 26, 2003; as further
amended by that certain Third Amendment to Lease executed effective as of
May 7, 2004; as further amended by that certain Fourth Amendment to Lease
executed effective as of August 10, 2004 between Stonewater UIS Funding
LLC (successor in interest to Space Center Enterprises, Inc, as landlord,
and Unisys Corporation, as tenant.
TO HAVE AND TO HOLD, unto Assignee and its successors and/or assigns. This
assignment is made without any recourse and without representation or warranty
of any kind, express or implied.
And Assignee hereby assumes all of the obligations of Assignor under the
Lease and assumes due performance of all of the terms and provisions of the
Lease on Assignor's part to be performed and observed thereunder.
This Assignment may be signed in multiple counterparts which, when
taken together and signed by all parties and delivered to any other party
hereto, shall constitute a binding instrument between the parties.
This instrument shall be governed by and construed in accordance
with the laws of the State of Minnesota.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
agreement as of the date above written.
WITNESS: ASSIGNOR:
STONEWATER UIS FUNDING LLC, a Delaware
limited liability company
By: _________________________ By: ________________________________
Name: _________________________ Name: ________________________________
Title: _________________________ Title: Authorized Signatory
ASSIGNEE:
GLADSTONE COMMERCIAL LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Gladstone Commercial Partners, LLC
By: Gladstone Commercial Corporation
By: _________________________ By: _______________________________
Name: _________________________ Name: Christopher Massey
Title: _________________________ Title: Principal and Managing Director
2
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as of December
22, 2005, and is by and between Stonewater UIS Funding LLC, a Delaware limited
liability company ("Seller") and Gladstone Commercial Limited Partnership, a
Delaware limited partnership ("Purchaser").
RECITAL
Seller and Purchaser are parties to that certain Purchase Agreement dated
November 23, 2005 (the "Agreement"). Seller and Purchaser desire to amend the
Agreement upon and subject to the terms and conditions of this Amendment.
Therefore, in consideration of the premises and of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser, intending to
be legally bound, agree to amend the Agreement as follows:
THE FIRST SENTENCE OF SECTION 3.1 IS HEREBY DELETED AND THE FOLLOWING IS
INSERTED IN LIEU THEREOF: "THE TERM "Study Period" SHALL MEAN THE PERIOD
COMMENCING ON THE EFFECTIVE DATE AND ENDING AT 5:00 P.M. (EASTERN STANDARD TIME)
ON DECEMBER 30, 2005 ("STUDY PERIOD EXPIRATION DATE)." NOTWITHSTANDING ANYTHING
CONTAINED IN THE AGREEMENT TO THE CONTRARY, PURCHASER SHALL NOT HAVE ANY RIGHT
TO EXTEND THE STUDY PERIOD EXPIRATION DATE.
EXCEPT AS EXPRESSLY MODIFIED BY THIS AMENDMENT, THE AGREEMENT SHALL BE AND
REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT, AND AS MODIFIED BY THIS
AMENDMENT, THE AGREEMENT IS HEREBY RATIFIED AND CONFIRMED BY SELLER AND
PURCHASER. THIS AMENDMENT MAY BE ENTERED INTO IN COUNTERPARTS, AND ALL SUCH
COUNTERPARTS WHEN TAKEN TOGETHER SHALL CONSTITUTE A SINGLE INSTRUMENT.
3
GLADSTONE COMMERCIAL LIMITED PARTNERSHIP
BY: GLADSTONE COMMERCIAL PARTNERS, LLC
BY: GLADSTONE COMMERCIAL CORPORATION
BY: _________________________
NAME: ROBERT J. CORRY
TITLE: PRINCIPAL AND MANAGING
DIRECTOR
Stonewater UIS Funding LLC
By: __________________________________
Name: __________________________________
Title: Authorized Signatory
4
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as of December
30, 2005, and is by and between Stonewater UIS Funding LLC, a Delaware limited
liability company ("Seller") and Gladstone Commercial Limited Partnership, a
Delaware limited partnership ("Purchaser").
RECITAL
Seller and Purchaser are parties to that certain Purchase Agreement dated
November 23, 2005, as the same has been modified by that certain Amendment to
Purchase Agreement dated December 22, 2005 (as so modified, the "Agreement").
Seller and Purchaser desire to further amend the Agreement upon and subject to
the terms and conditions of this Amendment. Therefore, in consideration of the
premises and of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller and Purchaser, intending to be legally bound, agree to
amend the Agreement as follows:
THE FIRST SENTENCE OF SECTION 3.1 IS HEREBY DELETED AND THE FOLLOWING IS
INSERTED IN LIEU THEREOF: "THE TERM "Study Period" SHALL MEAN THE PERIOD
COMMENCING ON THE EFFECTIVE DATE AND ENDING AT 5:00 P.M. (EASTERN STANDARD TIME)
ON JANUARY 6, 2006 ("STUDY PERIOD EXPIRATION DATE")." NOTWITHSTANDING ANYTHING
CONTAINED IN THE AGREEMENT TO THE CONTRARY, PURCHASER SHALL NOT HAVE ANY RIGHT
TO EXTEND THE STUDY PERIOD EXPIRATION DATE.
5
EXCEPT AS EXPRESSLY MODIFIED BY THIS AMENDMENT, THE AGREEMENT SHALL BE AND
REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT, AND AS MODIFIED BY THIS
AMENDMENT, THE AGREEMENT IS HEREBY RATIFIED AND CONFIRMED BY SELLER AND
PURCHASER. THIS AMENDMENT MAY BE ENTERED INTO IN COUNTERPARTS, AND ALL SUCH
COUNTERPARTS WHEN TAKEN TOGETHER SHALL CONSTITUTE A SINGLE INSTRUMENT.
Gladstone Commercial Limited Partnership
By: Gladstone Commercial Partners, LLC
By: Gladstone Commercial Corporation
By: _______________________
Name: Robert J. Corry
Title: Principal and Managing Director
Stonewater UIS Funding LLC
By: _____________________________________
Name: _____________________________________
Title: Authorized Signatory
6
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as of January 6,
2006, and is by and between Stonewater UIS Funding LLC, a Delaware limited
liability company ("Seller") and Gladstone Commercial Limited Partnership, a
Delaware limited partnership ("Purchaser").
RECITAL
Seller and Purchaser are parties to that certain Purchase Agreement dated
November 23, 2005 (as the same has been modified by that certain Amendment to
Purchase Agreement dated December 22, 2005 and that certain Amendment to
Purchase Agreement dated December 30, 2005, the "Agreement"). Seller and
Purchaser desire to further amend the Agreement upon and subject to the terms
and conditions of this Amendment. Therefore, in consideration of the premises
and of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Seller and Purchaser, intending to be legally bound, agree to amend the
Agreement as follows:
THE FIRST SENTENCE OF SECTION 3.1 IS HEREBY DELETED AND THE FOLLOWING IS
INSERTED IN LIEU THEREOF: "THE TERM "Study Period" SHALL MEAN THE PERIOD
COMMENCING ON THE EFFECTIVE DATE AND ENDING AT 5:00 P.M. (EASTERN STANDARD TIME)
ON JANUARY 13, 2006 ("STUDY PERIOD EXPIRATION DATE")." NOTWITHSTANDING ANYTHING
CONTAINED IN THE AGREEMENT TO THE CONTRARY, PURCHASER SHALL NOT HAVE ANY RIGHT
TO EXTEND THE STUDY PERIOD EXPIRATION DATE.
ARTICLE I NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION 3.1 OF
THE AGREEMENT, PURCHASER HEREBY WAIVES ANY RIGHT TO TERMINATE THE AGREEMENT
BASED ON THE INFORMATION DISCLOSED BY (I) THE STRUCTURAL/ENGINEERING/PROPERTY
CONDITION REPORT, ENVIRONMENTAL REPORT, APPRAISAL REPORT, TITLE
REPORT/COMMITMENT AND SURVEY RECEIVED WITH RESPECT TO THE PROPERTY (AS SUCH TERM
IS DEFINED IN THE AGREEMENT); AND (II) CREDIT UNDERWRITING OF UNISYS
CORPORATION. PURCHASER HEREBY ACCEPTS THE LEASE MORE PARTICULARLY DESCRIBED IN
EXHIBIT A.
EXCEPT AS EXPRESSLY MODIFIED BY THIS AMENDMENT, THE AGREEMENT SHALL BE AND
REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT, AND AS MODIFIED BY THIS
AMENDMENT, THE AGREEMENT IS HEREBY RATIFIED AND CONFIRMED BY SELLER AND
PURCHASER. THIS AMENDMENT MAY BE ENTERED INTO IN COUNTERPARTS, AND ALL SUCH
COUNTERPARTS WHEN TAKEN TOGETHER SHALL CONSTITUTE A SINGLE INSTRUMENT.
7
GLADSTONE COMMERCIAL LIMITED PARTNERSHIP
Stonewater UIS Funding LLC
BY: GLADSTONE COMMERCIAL PARTNERS, LLC
BY: __________________________________
NAME: _________________________________ BY: GLADSTONE COMMERCIAL CORPORATION
TITLE: AUTHORIZED SIGNATORY
BY: _______________________
NAME: ROBERT J. CORRY
TITLE: PRINCIPAL/MANAGING DIRECTOR
8
EXHIBIT A
[Description of Lease]
Lease - Building 3 dated August 14, 1998 and effective as of June 1, 1998
between Stonewater UIS Funding, LLC (as successor to Meritex Enterprises, Inc.,
the successor-in-interest to Space Center Enterprises, Inc.) and Unisys
Corporation, as amended by (i) that certain First Amendment to Lease effective
as of November 30, 1999, (ii) that certain Second Amendment to Lease effective
as of March 26, 2003, (iii) that certain Third Amendment to Lease effective as
of May 7, 2004, and (iv) that certain Fourth Amendment to Lease effective as of
August 10, 2004
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as of January
13, 2006, and is by and between Stonewater UIS Funding LLC, a Delaware limited
liability company ("Seller") and Gladstone Commercial Limited Partnership, a
Delaware limited partnership ("Purchaser").
RECITAL
Seller and Purchaser are parties to that certain Purchase Agreement dated
November 23, 2005 (as the same has been modified by that certain Amendment to
Purchase Agreement dated December 22, 2005, that certain Amendment to Purchase
Agreement dated December 30, 2005 and that certain Amendment to Purchase
Agreement dated January 6, 2006, the "Agreement"). Seller and Purchaser desire
to further amend the Agreement upon and subject to the terms and conditions of
this Amendment. Therefore, in consideration of the premises and of the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser,
intending to be legally bound, agree to amend the Agreement as follows:
THE FIRST SENTENCE OF SECTION 3.1 IS HEREBY DELETED AND THE FOLLOWING IS
INSERTED IN LIEU THEREOF: "THE TERM "Study Period" SHALL MEAN THE PERIOD
COMMENCING ON THE EFFECTIVE DATE AND ENDING AT 7:00 P.M. (EASTERN STANDARD TIME)
ON JANUARY 17, 2006 ("STUDY PERIOD EXPIRATION DATE")." NOTWITHSTANDING ANYTHING
CONTAINED IN THE AGREEMENT TO THE CONTRARY, PURCHASER SHALL NOT HAVE ANY RIGHT
TO EXTEND THE STUDY PERIOD EXPIRATION DATE.
EXCEPT AS EXPRESSLY MODIFIED BY THIS AMENDMENT, THE AGREEMENT SHALL BE AND
REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT, AND AS MODIFIED BY THIS
AMENDMENT, THE AGREEMENT IS HEREBY RATIFIED AND CONFIRMED BY SELLER AND
PURCHASER. THIS AMENDMENT MAY BE ENTERED INTO IN COUNTERPARTS, AND ALL SUCH
COUNTERPARTS WHEN TAKEN TOGETHER SHALL CONSTITUTE A SINGLE INSTRUMENT.
GLADSTONE COMMERCIAL LIMITED PARTNERSHIP
Stonewater UIS Funding LLC
BY: GLADSTONE COMMERCIAL PARTNERS, LLC
BY: __________________________________
NAME: _________________________________ BY: GLADSTONE COMMERCIAL CORPORATION
TITLE: AUTHORIZED SIGNATORY
BY: _______________________
NAME: ROBERT J. CORRY
TITLE: PRINCIPAL/MANAGING DIRECTOR
2
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as of January
17, 2006, and is by and between Stonewater UIS Funding LLC, a Delaware limited
liability company ("Seller") and Gladstone Commercial Limited Partnership, a
Delaware limited partnership ("Purchaser").
RECITAL
Seller and Purchaser are parties to that certain Purchase Agreement dated
November 23, 2005 (as the same has been modified by that certain Amendment to
Purchase Agreement dated December 22, 2005, that certain Amendment to Purchase
Agreement dated December 30, 2005, that certain Amendment to Purchase Agreement
dated January 6, 2006 and that certain Amendment to Purchase Agreement dated
January 13, 2006, the "Agreement"). Seller and Purchaser desire to further amend
the Agreement upon and subject to the terms and conditions of this Amendment.
Therefore, in consideration of the premises and of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser, intending to
be legally bound, agree to amend the Agreement as follows:
THE FIRST SENTENCE OF SECTION 3.1 IS HEREBY DELETED AND THE FOLLOWING IS
INSERTED IN LIEU THEREOF: "THE TERM "Study Period" SHALL MEAN THE PERIOD
COMMENCING ON THE EFFECTIVE DATE AND ENDING AT 7:00 P.M. (EASTERN STANDARD TIME)
ON JANUARY 20, 2006 ("STUDY PERIOD EXPIRATION DATE")." NOTWITHSTANDING ANYTHING
CONTAINED IN THE AGREEMENT TO THE CONTRARY, PURCHASER SHALL NOT HAVE ANY RIGHT
TO EXTEND THE STUDY PERIOD EXPIRATION DATE.
EXCEPT AS EXPRESSLY MODIFIED BY THIS AMENDMENT, THE AGREEMENT SHALL BE AND
REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT, AND AS MODIFIED BY THIS
AMENDMENT, THE AGREEMENT IS HEREBY RATIFIED AND CONFIRMED BY SELLER AND
PURCHASER. THIS AMENDMENT MAY BE ENTERED INTO IN COUNTERPARTS, AND ALL SUCH
COUNTERPARTS WHEN TAKEN TOGETHER SHALL CONSTITUTE A SINGLE INSTRUMENT.
GLADSTONE COMMERCIAL LIMITED PARTNERSHIP
Stonewater UIS Funding LLC
BY: GLADSTONE COMMERCIAL PARTNERS, LLC
BY: __________________________________
NAME: _________________________________ BY: GLADSTONE COMMERCIAL CORPORATION
TITLE: AUTHORIZED SIGNATORY
BY: _______________________
NAME: CHRISTOPHER MASSEY
TITLE: PRINCIPAL/MANAGING DIRECTOR
3
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as of
January 20, 2006 by and between Stonewater UIS Funding LLC, a Delaware limited
liability company ("Seller") and Gladstone Commercial Limited Partnership, a
Delaware limited partnership ("Purchaser").
RECITAL
Seller and Purchaser are parties to that certain Purchase Agreement dated
November 23, 2005 (as the same has been modified by that certain Amendment to
Purchase Agreement dated December 22, 2005, that certain Amendment to Purchase
Agreement dated December 30, 2005, that certain Amendment to Purchase Agreement
dated January 6, 2006, that certain Amendment to Purchase Agreement dated
January 13, 2006 and that certain Amendment to Purchase Agreement dated January
17, 2006 (collectively the "Agreement"). Seller and Purchaser desire to further
amend the Agreement upon and subject to the terms and conditions of this
Amendment. All capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed thereto in the Agreement.
Now, therefore, in consideration of the premises and of the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficient of which is hereby acknowledged, Seller and Purchaser
intending to be legally bound, agree to further amend the Agreement as follows:
1. Purchaser hereby acknowledges and agrees that the Study Period has
expired and that Purchaser has no further right to terminate the Agreement
pursuant to Section 3.1 thereof.
2. The following is hereby added to Article II of the Agreement:
Section 2.4 Amendment to Lease. Notwithstanding anything contained herein
to the contrary, unless on or prior to the Closing Date the Seller, as
landlord, and the Tenant, shall have executed and delivered an amendment to
the Lease which has been approved by the Existing Lender and (i) modifies
section 12.5 of the Lease to provide that the Landlord shall provide all of
the insurance (including, without limitation the specified coverage limits and
specified deductibles) required by Section 5 of the Existing Mortgage, (ii)
provides that Tenant shall reimburse Landlord, as additional rent, for all of
the insurance premiums payable by Landlord from time to time to obtain such
insurance, (iii) modifies section 10.1 of the Lease to reinstate in its
entirety the provisions of section 10.1 of the original lease dated August 14,
1998 (effective as of June 1, 1998) between Space Center Enterprises, Inc., as
Landlord, and Tenant, with respect to the Property (without giving any further
effect to Section 2 and Section 3 of the Forth Amendment to Lease dated as of
August 10, 2004 between Seller, as landlord, and Tenant), (iv) reduces the
annual minimum rent by $10,000, and (v) otherwise is in a form reasonably
satisfactory to Purchaser, then at the Closing the Purchase Price shall be
reduced by two hundred thirty-five thousand ($235,000) dollars
4
(and accordingly, the Cash Balance payable by the Company shall be reduced
by $235,000).
3. Subsection 9.1(e) of the Agreement is hereby deleted and the following
is hereby substituted in lieu thereof:
(e) Tenant Estoppel Certificate. The Company shall have received an
executed estoppel certificate from the Tenant in substantially the form annexed
hereto as Exhibit 9.1(e), with no material changes.
4. Except as expressly modified by this Amendment, the Agreement shall be
and remain unchanged and in full force and effect, and as modified by this
Amendment, the Agreement is hereby ratified and confirmed by Seller and
Purchaser. This Amendment may be entered into in counterparts, and all such
counterparts when taken together shall constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the day and year first above written.
SELLER: STONEWATER UIS FUNDING LLC
By: ___________________________
Name:
Title
PURCHASER: GLADSTONE COMMERCIAL LIMITED PARTNERSHIP
By: Gladstone Commercial Partners, LLC
By: Gladstone Commercial Corporation
By: _________________________
Christopher Massey
Principal/Managing Director
5
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made as of
February ___, 2006 by and between Stonewater UIS Funding LLC, a Delaware limited
liability company ("Seller") and Gladstone Commercial Limited Partnership, a
Delaware limited partnership ("Purchaser").
RECITAL
Seller and Purchaser are parties to that certain Purchase Agreement dated
November 23, 2005, as the same has been modified by that certain Amendment to
Purchase Agreement dated December 22, 2005, that certain Amendment to Purchase
Agreement dated December 30, 2005, that certain Amendment to Purchase Agreement
dated January 6, 2006, that certain Amendment to Purchase Agreement dated
January 13, 2006, that certain Amendment to Purchase Agreement dated January 17,
2006 and that certain Amendment to Purchase Agreement dated January 20, 2006
(collectively the "Agreement"). Capitalized terms used herein and not defined
shall have the meanings ascribed to them in the Agreement.
AGREEMENT
Now, therefore, in consideration of the promises and of the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser
agree that the Closing Date, as set forth in Section 10.1 of the Agreement,
shall be February 17, 2006. Nothing contained herein shall be deemed to modify
or limit the rights of Seller or Purchaser to extend the Closing Date pursuant
to the express terms of the Agreement.
This Amendment may be executed in any number of counterparts, each of
which shall constitute an original but all of which, taken together, shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the day and year first above written.
SELLER: STONEWATER UIS FUNDING LLC
By: ______________________
Name:
Title
PURCHASER: GLADSTONE COMMERCIAL LIMITED PARTNERSHIP
By: Gladstone Commercial Partners, LLC
By: Gladstone Commercial Corporation
6
By: _________________________
Robert J. Corry
Principal/Managing Director
7