PURCHASE AND SALE AGREEMENT SELLER: USAA REAL ESTATE COMPANY PURCHASER: HC GOVERNMENT REALTY HOLDINGS, L.P. PROPERTY: GSA-Social Security-Norfolk 5850 Lake Herbert Drive Norfolk, Virginia December 28, 2016
Exhbit 6.1
SELLER:
USAA
REAL ESTATE COMPANY
PURCHASER:
HC
GOVERNMENT REALTY HOLDINGS, L.P.
PROPERTY:
GSA-Social
Security-Norfolk
0000
Xxxx Xxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx
December
28, 2016
TABLE
OF CONTENTS
|
1
|
The
Property
|
1
|
|
1.1
|
Description
|
1
|
|
1.2
|
As-Is
|
2
|
|
1.3
|
Agreement
to Convey
|
3
|
|
2
|
Price
and Payment
|
4
|
|
2.1
|
Purchase
Price
|
4
|
|
2.2
|
Xxxxxxx
Money and Independent Consideration
|
4
|
|
2.3
|
Payment
|
4
|
|
2.4
|
Closing
|
4
|
|
2.5
|
Extension
|
5
|
|
3
|
Inspections
and Approvals
|
5
|
|
3.1
|
Inspections
|
5
|
|
3.2
|
Title
and Survey
|
7
|
|
3.3
|
Contracts
|
7
|
|
3.4
|
Permitted
Encumbrances
|
8
|
|
3.5
|
Miscellaneous
Property Information
|
8
|
|
3.6
|
Purchaser's
Right to Terminate
|
8
|
|
3.7
|
Tenant
Estoppels
|
9
|
|
4
|
Prior
to Closing
|
9
|
|
4.1
|
Insurance
|
9
|
|
4.2
|
Operation
|
9
|
|
4.3
|
New
Contracts
|
9
|
|
4.4
|
New
Leases
|
9
|
|
4.5
|
Build-out
Costs and Commissions
|
10
|
|
5
|
Representations
and Warranties
|
10
|
|
5.1
|
By
Seller
|
10
|
|
5.2
|
By
Purchaser
|
12
|
|
5.3
|
Broker
|
14
|
|
6
|
Costs
and Prorations
|
14
|
|
6.1
|
Seller's
Costs
|
14
|
|
6.2
|
Purchaser's
Costs
|
14
|
|
6.3
|
Prorations
|
15
|
|
6.4
|
Taxes
|
15
|
|
6.5
|
In
General
|
15
|
|
6.6
|
Purpose
and Intent
|
15
|
|
6.7
|
Credits
|
15
|
|
7
|
Damage,
Destruction or Condemnation
|
16
|
|
7.1
|
Material
Event
|
16
|
|
7.2
|
Immaterial
Event
|
16
|
|
7.3
|
Termination
and Return of Deposit
|
16
|
|
8
|
Notices
|
16
|
|
9
|
Closing
and Escrow
|
17
|
|
9.1
|
Escrow
Instructions
|
17
|
|
9.2
|
Seller's
Deliveries
|
17
|
|
9.3
|
Purchaser's
Deliveries
|
18
|
|
9.4
|
Possession
|
18
|
|
9.5
|
Insurance
|
18
|
|
9.6
|
Utility
Service and Deposits
|
19
|
|
9.7
|
Post-Closing
Collections
|
19
|
i
|
10
|
Default;
Failure of Condition
|
19
|
|
10.1
|
PURCHASER
DEFAULT
|
19
|
|
10.2
|
SELLER
DEFAULT
|
19
|
|
10.3
|
Failure
of Title Condition
|
20
|
|
10.4
|
Limited
Liability
|
20
|
|
10.5
|
Waiver
of Trial by Jury
|
20
|
|
11
|
GSA
Lease
|
20
|
|
12
|
Miscellaneous
|
21
|
|
12.1
|
Entire
Agreement
|
21
|
|
12.2
|
Severability
|
21
|
|
12.3
|
Applicable
Law
|
22
|
|
12.4
|
Assignability
|
22
|
|
12.5
|
Successors
Bound
|
22
|
|
12.6
|
Breach
|
22
|
|
12.7
|
No
Public Disclosure
|
22
|
|
12.8
|
Captions
|
23
|
|
12.9
|
Attorneys'
Fees
|
23
|
|
12.10
|
No
Partnership
|
23
|
|
12.11
|
Time
of Essence
|
23
|
|
12.12
|
Counterparts
|
23
|
|
12.13
|
Proper
Execution
|
23
|
|
12.14
|
Tax
Protest
|
23
|
|
12.15
|
Committee
Approval
|
23
|
|
12.16
|
Effective
Date Conditioned Upon Deposit
|
24
|
|
12.17
|
Time
to Execute and Deliver
|
24
|
|
12.18
|
Term
Sheet
|
24
|
|
12.19
|
Calculation
of Time Periods
|
24
|
|
12.20
|
No
Recording
|
24
|
|
12.21
|
No
Electronic Transactions
|
24
|
ii
LIST OF
EXHIBITS
|
Exhibit
1.1.1
|
Legal
Description
|
|
Exhibit
1.1.6
|
List of
Contracts as of the Effective Date
|
|
Exhibit
3.5
|
Miscellaneous
Property Information
|
|
Exhibit
5.1.1.3
|
Seller's Disclosure
Statement
|
|
Exhibit
9.2.1
|
Form of
Deed
|
|
Exhibit
9.2.2
|
Form of
Xxxx of Sale
|
|
Exhibit
9.2.3
|
Form of
Assignment and Assumption of Leases
|
|
Exhibit
9.2.4
|
Form of
Assignment and Assumption of Contracts
|
|
Exhibit
9.2.5
|
Form of
Assignment of Warranties and Guarantees
|
|
Exhibit
9.2.6
|
Form of
FIRPTA Affidavit
|
|
Exhibit
9.2.7
|
Form of
Incumbency Certificate
|
|
Exhibit
9.6
|
Notice
to Utility Company
|
TERM
SHEET*
|
SELLER:
|
|
USAA
Real Estate Company
|
|
NOTICE
ADDRESS:
|
Xxxxxxx
0
|
XXXX
Xxxx Xxxxxx Company
0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000-0000
Attention:
Xxxxx Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
E-mail:
xxxxx.xxxxxx@xxxxxxxx.xxx
With a
copy to:
Xxxx X.
Xxxxxxxxxx, Esquire
McGuireWoods
LLP
000 X.
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx
00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
E-mail:
xxxxxxxxxxx@xxxxxxxxxxxx.xxx
|
|
PURCHASER:
|
|
HC
Government Realty Holdings, L.P.
|
|
NOTICE
ADDRESS:
|
Section
8
|
Holmwood
Capital Advisors, LLC
0000
Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000, ext. 205
E-mail:
xxxxxxxx@xxxxxxxxxx.xxx
With
a copy to:
D.
Xxxxxxx Xxxxxxx, Esquire
Xxxxxx
Voekler Xxxxxxxxxx & Xxxxx, PLC
0000
Xxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
E-mail:
xxxxxxxx@xx-xxxxx.xxx
|
|
PROPERTY:
|
Section
1.1
|
GSA-Social
Security-Norfolk
0000
Xxxx Xxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx
|
|
PURCHASE
PRICE:
|
Section
2.1
|
Fourteen
Million Five Hundred Thousand and 00/100 Dollars
($14,500,000.00)
|
|
XXXXXXX
MONEY:
|
Section
2.2.1
|
Initial
Deposit: $150,000.00
Additional Deposit:
$100,000.00
|
|
VOID
DATE:
|
Section
12.17
|
December
30, 2016
|
|
TITLE
COMPANY/ESCROW
AGENT:
|
Section
2.2.2
|
First
American National Title Company
National
Commercial Services
000
Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Read Xxxxxxx
000-000-0000
|
|
APPROVAL
DATE:
|
Section
3.6
|
January
27, 2017
|
|
CLOSING
DATE:
|
Section
2.4
|
February
28, 2017
|
|
BROKER:
|
Section
5.3
|
CBRE,
Inc.
|
* To
the extent of any conflict between the terms and provisions of this
Term Sheet and the Purchase and Sale Agreement, the terms and
provisions of the Purchase and Sale Agreement shall govern and
control.
THIS
PURCHASE AND SALE AGREEMENT (this “Agreement”),
is made as of the 28th day of
December, 2016 (the “Effective
Date”), by and between
USAA REAL ESTATE COMPANY, a Delaware corporation
(“Seller”), with
an office c/o USAA Real Estate Company at 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-0000, and HC GOVERNMENT REALTY
HOLDINGS, L.P., a Delaware limited partnership (“Purchaser”),
with an office at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx
00000.
R E C I
T A L S:
Seller
desires to sell certain improved real property commonly known as
“GSA-Social Security-Norfolk” located at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx,
along with certain related personal and intangible property, and
Purchaser desires to purchase such real, personal and intangible
property.
NOW,
THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Purchaser agree as
follows:
1.
The Property.
1.1 Description. Subject to the terms and
conditions of this Agreement, and for the consideration herein set
forth, Seller agrees to sell and transfer, and Purchaser agrees to
purchase and acquire, all of Seller's right, title, and interest in
and to the following (collectively, the “Property”):
1.1.1 That
certain land located in Norfolk, Virginia, and more specifically
described in Exhibit
1.1.1 attached hereto (the “Land”);
1.1.2 The
buildings, parking areas, improvements, and fixtures now situated
on the Land (the “Improvements”)
(Seller's interest in and to the Land and the Improvements is
referred to collectively as the “Real
Property”);
1.1.3 All
furniture, personal property, machinery, apparatus, and equipment
currently used in the operation, repair and maintenance of the Real
Property and situated thereon (collectively, the
“Personal
Property”), excluding any personal property of
tenants. The Personal Property to be conveyed is subject to
depletions, replacements and additions in the ordinary course of
Seller's business;
1.1.4 All
easements, hereditaments, and appurtenances belonging to or inuring
to the benefit of Seller and pertaining to the Land, if
any;
1.1.5 The
leases or occupancy agreements, currently consisting only of the
(i) U.S. Government Lease for Real Property, Lease No.
GS-03B-05357, by and between Seller, as lessor and the United
States of America, as lessee (“Tenant”),
as amended by Supplemental Lease Agreement No. 1, Supplemental
Lease Agreement No. 2, and Supplemental Lease Amendment No. 3 and
(ii) U.S. Government Lease for Real Property, Lease Xx.
XX-00X-XXX00000, by and between Seller, as lessor and Tenant, as
lessee (collectively, the “GSA
Lease” or
sometimes “GSA
Leases”), copies of which
leases have been provided to Purchaser, and any new leases entered
into pursuant to Section 4.4, which as of the Closing (as hereinafter defined)
affect all or any portion of the Real Property (together with the
GSA Lease, the “Leases”);
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page 1
1.1.6
Subject to
Section 3.3, and to the
extent assignable, all contracts and agreements relating to the
operation or maintenance of the Real Property or Personal Property
the terms of which extend beyond midnight of the day preceding the
date of Closing, such contracts and agreements listed on
Exhibit
1.1.6 attached hereto (the “Contracts”);
1.1.7 Intentionally
left blank;
1.1.8
Assignable
warranties and guaranties issued in connection with the
Improvements or Personal Property, if any; and
1.1.9
All transferable consents, authorizations, variances or waivers,
licenses, permits and approvals from any governmental or
quasi-governmental agency, department, board, commission, bureau or
other entity or instrumentality solely with respect to the Real
Property (collectively, the “Approvals”).
1.2 “As-Is”. THE PROPERTY IS BEING SOLD IN AN “AS
IS, WHERE IS” CONDITION AND “WITH ALL FAULTS” AND
THE PURCHASE PRICE WAS BARGAINED FOR ON THAT BASIS AND REFLECTS THE
AGREEMENT OF THE PARTIES, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT AND THE WARRANTY OF TITLE STATED IN THE DEED (AS DEFINED
BELOW) TO THE CONTRARY. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT TO THE CONTRARY, NO REPRESENTATIONS OR WARRANTIES HAVE
BEEN MADE OR ARE MADE AND NO RESPONSIBILITY HAS BEEN OR IS ASSUMED
BY SELLER OR BY ANY PARTNER, OFFICER, PERSON, FIRM, AGENT OR
REPRESENTATIVE ACTING OR PURPORTING TO ACT ON BEHALF OF SELLER AS
TO (I) THE CONDITION OR STATE OF REPAIR OF THE REAL PROPERTY OR THE
PERSONAL PROPERTY; (II) THE COMPLIANCE OR NON-COMPLIANCE OF THE
PROPERTY WITH ANY APPLICABLE LAWS, REGULATIONS OR ORDINANCES
(INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE ZONING, BUILDING OR
DEVELOPMENT CODES); (III) THE VALUE, EXPENSE OF OPERATION, OR
INCOME POTENTIAL OF THE PROPERTY; (IV) THE CREDIT-WORTHINESS
OF ANY TENANT, VENDOR OR OTHER PERSON OR ENTITY; (V) ANY OTHER FACT
OR CONDITION WHICH HAS OR MIGHT AFFECT THE PROPERTY OR THE
CONDITION, STATE OF REPAIR, COMPLIANCE, VALUE, EXPENSE OF OPERATION
OR INCOME POTENTIAL OF THE PROPERTY OR ANY PORTION THEREOF; OR (VI)
WHETHER THE REAL PROPERTY OR PERSONAL PROPERTY CONTAINS ASBESTOS OR
HARMFUL OR TOXIC SUBSTANCES OR ANY OTHER HAZARDOUS MATERIALS OR
PERTAINING TO THE EXTENT, LOCATION OR NATURE OF
SAME.
THE
PARTIES AGREE THAT ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE
MADE BETWEEN THEM OR THEIR RESPECTIVE AGENTS OR REPRESENTATIVES ARE
MERGED IN THIS AGREEMENT, THE EXHIBITS HERETO ANNEXED AND THE
CLOSING DOCUMENTS, WHICH ALONE FULLY AND COMPLETELY EXPRESS THEIR
AGREEMENT, AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO AFTER FULL
INVESTIGATION, OR WITH THE PARTIES SATISFIED WITH THE OPPORTUNITY
AFFORDED FOR FULL INVESTIGATION, NEITHER PARTY RELYING UPON ANY
STATEMENT OR REPRESENTATION BY THE OTHER UNLESS SUCH STATEMENT OR
REPRESENTATION IS SPECIFICALLY EMBODIED IN THIS AGREEMENT, THE
EXHIBITS ANNEXED HERETO AND THE CLOSING DOCUMENTS.
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page 2
TO
THE EXTENT THAT SELLER HAS PROVIDED TO PURCHASER ANY SURVEYS, TITLE
COMMITMENTS, INSPECTION, ENGINEERING OR ENVIRONMENTAL REPORTS
(INCLUDING REPORTS CONCERNING ASBESTOS OR HARMFUL OR TOXIC
SUBSTANCES, OR ANY OTHER MATERIALS, INFORMATION OR DATA IN
CONNECTION WITH PURCHASER'S INSPECTION OF THE PROPERTY), SELLER
MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY
OR COMPLETENESS, METHODOLOGY OF PREPARATION OR OTHERWISE CONCERNING
THE CONTENTS OF SUCH REPORTS, MATERIALS, INFORMATION AND DATA
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. PURCHASER
ACKNOWLEDGES THAT ANY SUCH REPORTS, MATERIALS, INFORMATION AND DATA
MADE AVAILABLE TO PURCHASER ARE MADE AVAILABLE AS A CONVENIENCE AND
AN ACCOMMODATION ONLY, AND THAT SELLER HAS REQUESTED PURCHASER TO
INSPECT FULLY THE PROPERTY AND INVESTIGATE ALL MATTERS RELEVANT
THERETO AND TO RELY SOLELY UPON THE RESULTS OF PURCHASER'S OWN
INSPECTIONS OR OTHER INFORMATION OBTAINED OR OTHERWISE AVAILABLE TO
PURCHASER, RATHER THAN ANY INFORMATION THAT MAY HAVE BEEN PROVIDED
(OR HAVE BEEN MADE AVAILABLE FOR DOWNLOAD ELECTRONICALLY) BY SELLER
TO PURCHASER.
EXCEPT
FOR THOSE REPRESENTATIONS AND WARRANTIES SET FORTH IN SUBSECTION
5.1.1 AND WARRANTY OF TITLE SET FORTH IN THE DEED, PURCHASER WAIVES
AND RELEASES SELLER FROM ANY PRESENT OR FUTURE CLAIMS ARISING FROM
OR RELATING TO THE CONDITION, OPERATION OR ECONOMIC PERFORMANCE OF
THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OR
ALLEGED PRESENCE OF ASBESTOS OR HARMFUL OR TOXIC SUBSTANCES OR ANY
OTHER HAZARDOUS MATERIALS IN, ON, UNDER OR ABOUT THE REAL PROPERTY
INCLUDING, WITHOUT LIMITATION, ANY CLAIMS UNDER OR ON ACCOUNT OF
(I) THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT OF 1980, AS THE SAME MAY HAVE BEEN OR MAY BE AMENDED
FROM TIME TO TIME, AND SIMILAR STATE STATUTES, AND ANY REGULATIONS
PROMULGATED THEREUNDER; (II) ANY OTHER FEDERAL, STATE OR LOCAL LAW,
ORDINANCE, RULE OR REGULATION, NOW OR HEREAFTER IN EFFECT, THAT
DEALS WITH OR OTHERWISE IN ANY MANNER RELATES TO, ENVIRONMENTAL
MATTERS OF ANY KIND; OR (III) THE COMMON LAW.
THE
TERMS AND PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING
HEREUNDER.
/s/
RRK /s/
JP
Purchaser's
Initials
Seller's Initials
1.3 Agreement
to Convey
. Subject to the terms and conditions of this
Agreement, Seller agrees to assign, convey and transfer, and
Purchaser agrees to accept and assume, all of Seller's right, title
and interest in and to the Real Property, subject to the Permitted
Encumbrances as described in Section 3.4, and title to the Personal
Property, by xxxx of sale, without warranty as to the title or the
condition of such Personal Property, and Seller's right, title and
interest in the remainder of the Property, if any, as contemplated
by this Agreement.
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page 3
2.
Price and Payment.
2.1 Purchase
Price
. The total purchase price (the
“Purchase
Price”) to be paid by Purchaser to the Seller for the
sale and conveyance of the Property is FOURTEEN MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($14,500,000.00). All
references in this Agreement to dollars means United States Dollars.
2.2.1 Within
three (3) business days after the Effective Date of this Agreement,
Purchaser shall deposit xxxxxxx money with the Title Company/Escrow
Agent (as hereinafter defined) in the amount of ONE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($150,000.00) (the “Initial
Deposit”). In the event that Purchaser does not
exercise its right to terminate this Agreement pursuant to
Section 3.6 hereof on or
before the Approval Date, then Purchaser shall, no later than the
date that is three (3) business days after the Approval Date,
deposit with the Title Company/Escrow Agent additional xxxxxxx
money in the sum of ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($100,000.00) (the “Additional
Deposit”). The Initial Deposit and the Additional
Deposit are sometimes collectively referred to herein as the
“Deposit.” Upon
delivery of the Additional Deposit to the Title Company/Escrow
Agent, the Deposit shall be non-refundable (except as otherwise
specified herein). The Deposit shall be in good funds, either by
cashier’s check or by federal wire transfer and shall be
delivered to and held by the Title Company/Escrow Agent pursuant to
the terms, covenants and conditions of this Agreement. If Purchaser
fails to make the Deposit as and when required herewith, Seller may
terminate this Agreement by written notice to Purchaser, in which
case the parties shall have no further obligation to each other
except for any provisions that expressly survive the termination of
this Agreement.
2.2.2 The
Deposit will be placed with and held in escrow by First American
National Title Company, National Commercial Services, 000 Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, Attn:
Read Xxxxxxx, Escrow Agent, Phone: 000-000-0000, Fax: N/A
(the “Title Company/Escrow
Agent”), in immediately available funds in an interest
bearing account at a mutually acceptable banking institution. Any
interest earned by the Deposit shall be considered as part of the
Deposit. Except as otherwise provided in this Agreement, the
Deposit will be applied to the Purchase Price at
Closing.
2.2.3 Upon
deposit of the Initial Deposit, Purchaser will be deemed to have
irrevocably paid to Seller a portion thereof equal to ONE HUNDRED
AND NO/100 DOLLARS ($100.00) (“Independent Contract
Consideration”), which amount Seller and Purchaser
bargained for and agreed to as consideration for Seller's execution
and delivery of this Agreement. The Independent Contract
Consideration is non-refundable from and after said date of
delivery, and Seller shall retain the Independent Contract
Consideration notwithstanding any other provision of this Agreement
to the contrary and all references to
a return of the Deposit to Purchaser shall exclude the Independent
Contract Consideration.
2.3 Payment.
At Closing, Purchaser shall pay Seller the Purchase Price,
inclusive of the Deposit and subject to adjustment for application
of the deposit and other prorations as provided herein, to a bank
account designated by Seller via wire transfer in immediately
available funds.
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page 4
2.4 Closing. Payment of the Purchase Price
and the closing hereunder (the “Closing”) will
take place pursuant to an escrow closing on February 28, 2017 (the
“Closing
Date”) at the offices of the Title Company/Escrow
Agent at a time to be mutually agreed upon by the parties or at
such other time and place as may be agreed upon in writing by
Seller and Purchaser.
2.5 Extension.
Notwithstanding the foregoing, Purchaser shall be entitled to
extend the Closing Date by thirty (30) days upon prior written
notice to Seller and the payment by wire transfer of an additional
extension fee (the “Extension
Fee”) or ONE HUNDRED THOUSAND AND 00/100 DOLLARS
($100,000.00). The Extension Fee shall be non-refundable in all
respects, except in the event of a default by Seller hereunder, but
otherwise applied against the Purchase Price at Closing and
considered part of the Deposit.
3.
Inspections and
Approvals.
3.1.1 During
the period between the Effective Date through the Approval Date,
Seller agrees to allow Purchaser and Purchaser's engineers,
architects, employees, agents and representatives, upon not less
than one (1) business day’s notice, reasonable access during
normal business hours to the Real Property and to the records
located at the Property which pertain to the Property, if any,
maintained by Seller or Seller's property management company or
otherwise within the possession or control of Seller or its
representatives. Such access shall be solely for the purposes of
(i) reviewing the Leases and any records relating thereto; (ii)
reviewing records relating to operating expenses; and (iii)
inspecting the physical condition of the Real Property and
conducting non-intrusive physical and environmental tests and
inspections of the Real Property including the conducting on a
standard “Phase I” environmental study conducted in
accordance with the ASTM Standard for Conducting Phase I
Environmental Assessments E1527-13. Notwithstanding anything to the
contrary herein, Seller shall not be required to provide, copy or
make available to Purchaser any internal memoranda, appraisals,
valuation reports and similar information, or any information
covered by the attorney-client privilege. PURCHASER SHALL NOT CONDUCT OR ALLOW ANY
PHYSICALLY INTRUSIVE TESTING OF, ON OR UNDER THE REAL PROPERTY
WITHOUT FIRST OBTAINING SELLER'S WRITTEN CONSENT AS TO THE TIMING
AND SCOPE OF WORK TO BE PERFORMED, WHICH CONSENT MAY BE WITHHELD IN
SELLER’S SOLE AND ABSOLUTE DISCRETION. Notwithstanding anything contained herein to the
contrary, all access by Purchaser, Purchaser’s engineers,
architects, employees, agents and representatives, shall be subject
to and in accordance with access rights afforded to the landlord
pursuant to the terms of the Lease(s).
Notwithstanding
anything contained above, if Purchaser’s Phase I
environmental assessment recommends that additional testing,
including invasive testing, be conducted on or under the Land or
the Improvements and Seller withholds its consent, Seller shall
reimburse Purchaser for its reasonable out-of-pocket expenses
incurred in connection with this transaction up to a maximum
aggregate amount of $50,000.00.
3.1.2 Purchaser
agrees that, in making any inspections of, or conducting any
testing of, on or under, the Property, Purchaser and all
representatives of Purchaser entering onto the Real Property shall
each carry (a) not less than $2,000,000 commercial general
liability insurance and (b) umbrella liability insurance in excess
of the commercial general liability insurance with limits of not
less than $4,000,000 per occurrence/$4,000,000 aggregate, insuring
all activity and conduct of Purchaser and such representatives
while exercising such right of access. Purchaser represents and
warrants that it carries not less than the coverage set forth in
paragraphs (a) and (b) of this Section 3.1.2 with contractual liability
endorsement which insures Purchaser's indemnity obligations
hereunder, and, upon request of Seller, will provide Seller with
written evidence of same.
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3.1.3 Purchaser
agrees that in exercising its right of access hereunder, Purchaser
will use (and cause its representatives to use) its best efforts
not to interfere with the activity of tenants or any persons
occupying or providing service at the Real Property. Purchaser
shall give Seller not less than one (1) business day’s prior
notice of its intention to conduct any inspections or tests, so
that Seller shall have a reasonable opportunity to have a
representative present during any such inspection or test, and
Seller expressly reserves the right to have such a representative
present. Purchaser agrees to cooperate with any reasonable request
by Seller in connection with the timing of any such inspection or
test; provided, however, Seller shall not cause any material delay
in the timing of Purchaser’s inspections hereunder. Purchaser
agrees (which agreement shall survive Closing or the termination of
this Agreement) to provide Seller with a copy of any written
inspection or test report or summary upon Seller's request
therefor.
3.1.4 Unless
Seller specifically and expressly otherwise agrees in writing,
Purchaser agrees that (a) the results of all inspections, tests,
analyses, studies and similar reports relating to the Property
prepared by or for Purchaser utilizing any information acquired in
whole or in part through the exercise of Purchaser's inspection
rights; and (b) all information regarding the Property (the
“Proprietary
Information”) of whatsoever nature made available to
Purchaser by Seller or Seller's agents or representatives is
confidential and shall not be disclosed to any other person except
those assisting Purchaser with the transaction, or Purchaser's
lender, if any, and then only upon Purchaser making such person
aware of the confidentiality restriction and procuring such
person’s agreement to be bound thereby, or as otherwise
required by applicable law. Purchaser agrees not to use or allow to
be used any such information for any purpose other than to
determine whether to proceed with the contemplated purchase, or if
same is consummated, in connection with the operation of the
Property post-Closing. Further, if the purchase and sale
contemplated hereby fails to close for any reason whatsoever,
Purchaser agrees to return to Seller, or cause to be returned to
Seller, all Proprietary Information. Notwithstanding any other term of this
Agreement, the provisions of this Section 3.1.4 shall survive
Closing or the termination of this Agreement.
3.1.5
Purchaser shall, at its sole cost and expense, promptly restore any
physical damage or alteration of the physical condition of the Real
Property which results from any inspections or testing conducted by
or on behalf of Purchaser which obligation shall survive the
termination of this Agreement; provided, however, Purchaser shall
have no obligation to repair any damage to the Property caused by
the mere discovery by Purchaser or its contractors of a
pre-existing condition on the Property. All inspections and testing
shall be conducted at Purchaser's sole cost and expense and in
strict accordance with all requirements of applicable
law.
3.1.6
Except as otherwise expressly set forth herein, Seller makes no
representations or warranties as to the truth, accuracy or
completeness of any materials, data or other information supplied
to Purchaser in connection with Purchaser's inspection of the
Property (e.g., that such materials are complete, accurate or the
final version thereof, or that such materials are all of such
materials as are in Seller's possession). It is the parties'
express understanding and agreement that such materials are
provided only for Purchaser's convenience in making its own
examination and determination prior to the Approval Date as to
whether it wishes to purchase the Property, and, in doing so,
Purchaser shall rely exclusively on its own independent
investigation and evaluation of every aspect of the Property and
not on any materials supplied by Seller. Purchaser expressly
disclaims any intent to rely on any such materials provided to it
by Seller in connection with its inspection and agrees that it
shall rely solely on its own independently developed or verified
information.
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3.1.7
PURCHASER AGREES (WHICH AGREEMENT SHALL SURVIVE CLOSING OR
TERMINATION OF THIS AGREEMENT) TO INDEMNIFY, DEFEND, AND HOLD
SELLER FREE AND HARMLESS FROM ANY LOSS, INJURY, DAMAGE, CLAIM,
LIEN, COST OR EXPENSE, INCLUDING ATTORNEYS' FEES AND COSTS, ARISING
OUT OF PURCHASER'S EXERCISE OF ITS RIGHTS OF INSPECTION OR ARISING
OUT OF A BREACH OF THE FOREGOING AGREEMENTS BY PURCHASER IN
CONNECTION WITH THE INSPECTION AND TESTING OF THE PROPERTY. THE
TERMS AND PROVISIONS OF THIS SECTION 3.1 SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT OR CLOSING HEREUNDER.
3.2 Title
and Survey
. Seller has delivered to Purchaser an ALTA/ASCM
Land Title Survey of the Land (the “Survey”)
prepared by American Engineering / Xxxx Xxxxxxx and a title
commitment (the “Title
Commitment”) issued by the Title Company/Escrow
Agent, as Agent for First
American National Title Company (“Title Insurer”), for a standard ALTA form of Owner's
Title Insurance Policy with respect to Seller's interest in the
Real Property, together with copies of all documents and
instruments referred to as exceptions to title in the Title
Commitment. Purchaser shall have five (5) business days prior to
the Approval Date to provide written notice to Seller of any
matters shown by the Title Commitment or Survey which are not
satisfactory to Purchaser, which notice (the “Title Notice”)
must specify the reason such matter(s) are not satisfactory and the
curative steps necessary to remove the basis for Purchaser's
disapproval. The parties shall then have until the Approval Date to
make such arrangements or take such steps as they shall mutually
agree to satisfy Purchaser's objection(s); provided, however,
except as otherwise provided herein, Seller shall have no
obligation whatsoever to expend or agree to expend any funds, to
undertake or agree to undertake any obligations or otherwise to
cure or agree to cure any title or survey objections, and except as
otherwise expressly set forth below, Seller shall not be deemed to
have any obligation to cure unless Seller expressly undertakes such
an obligation by a written notice to or written agreement with
Purchaser given or entered into on or prior to the Approval Date
and which recites that it is in response to a Title Notice.
Notwithstanding the foregoing, all exceptions to title shown on the
Title Commitment or otherwise arising prior to the Closing which
evidence (i) mortgages or deeds of trust created by Seller
encumbering Seller’s fee interest in the Real Property; (ii)
judgment liens evidencing non-appealable judgments rendered against
Seller and encumbering Seller’s fee interest in the Real
Property; or (iii) mechanic’s or materialmen’s liens
encumbering Seller’s fee interest in the Real Property and
arising from any work performed or materials furnished for or on
behalf of Seller (items i, ii, and iii above collectively referred
to as “Lien
Exceptions”), shall, in each instance, be deemed
objected to without any notice by Purchaser and cured by Seller
(which, in the case of a mechanic’s or materialmen’s
lien shall include, at Seller’s option, bonding around or
insuring-over the mechanic’s or materialmen’s lien) at
or prior to Closing. Except as otherwise provided with respect to
Lien Exceptions, Purchaser's sole right with respect to any Title
Commitment or Survey matter to which it objects in a Title Notice
given in a timely manner shall be to elect on or before the
Approval Date to terminate this Agreement pursuant to Section 3.6 hereof. All matters shown on
the Title Commitment and/or Survey with respect to which Purchaser
fails to give a Title Notice on or before the last date for so
doing, or with respect to which a timely Title Notice is given but
Seller fails to undertake an express obligation to cure as provided
above, shall be deemed to be approved by Purchaser and
“Permitted
Encumbrances” as provided in Section 3.4 hereof, subject, however, to
Purchaser's termination right provided in Section 3.6 hereof.
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3.3 Contracts. On or before the Approval
Date, Purchaser shall notify Seller in writing if Purchaser elects
not to assume at Closing any of the Contracts. If Purchaser does
not notify Seller prior to the Approval Date that it elects not to
assume any of the Contracts, Purchaser shall be deemed to have
accepted and agreed to assume all of the Contracts. If Purchaser
exercises its right not to assume one or more Contracts at Closing,
Seller shall give notice of termination of such disapproved
contract(s); provided, if by the terms of the disapproved contract
Seller has no right to terminate same on or prior to Closing, or if
any fee or other compensation is due thereunder as a result of such
termination, Purchaser shall be required at Closing to assume all
obligations thereunder until the effective date of the termination
and to assume the obligation to pay or to reimburse Seller for the
payment of the termination charge.
3.4 Permitted
Encumbrances
. Unless Purchaser terminates this Agreement
pursuant to Section 3.6
hereof following its opportunity fully to inspect the Property, the
state of title thereto and all other matters relating to the
Property, including its feasibility for Purchaser's intended use
and its suitability as an investment, Purchaser shall be deemed to
have approved and to have agreed to purchase the Property subject
to the following:
3.4.1
All exceptions to
title shown in the Title Commitment or matters shown on the Survey
which Purchaser has approved or is deemed to have approved pursuant
to Section 3.2
hereof;
3.4.2
All contracts and
leases which Purchaser has approved or is deemed to have approved
pursuant to Sections 3.3, 4.3 and
4.4 hereof;
3.4.3
The lien of
non-delinquent real and personal property taxes and assessments, to
the extent not yet due and payable;
3.4.4
Rights of parties
in possession not shown by the public records;
3.4.5
Discrepancies,
conflicts in boundary lines, shortages in area, encroachments, and
any state of facts which an inspection of the premises would
disclose and which are not shown by the public
records;
3.4.6
Easements or claims
of easements not shown by the public records;
3.4.7
Any service,
installation, connection, maintenance or construction charges due
after Closing, and subject to the proration provisions hereof, for
sewer, water, electricity, telephone, cable television or
gas;
3.4.8
Rights of vendors
and holders of security interests on personal property installed
upon the Real Property by tenants and rights of tenants to remove
trade fixtures at the expiration of the term of the leases of
tenants; and
3.4.9
The
Lease.
All of
the foregoing are referred to herein collectively as
“Permitted
Encumbrances.”
3.5
Miscellaneous Property
Information. Seller has provided Purchaser with the
information listed in Exhibit 3.5
(“Miscellaneous Property
Information”), or otherwise made such information
available to Purchaser for Purchaser's review, to the extent such
information exists and is within the possession or control of
Seller.
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3.6 Purchaser's
Right to Terminate. Purchaser shall have the right,
for any reason or no reason, by giving Seller written notice (the
“Termination
Notice”) on or before 5:00 p.m. Central Time on
January 27, 2017 (the “Approval
Date”) to terminate its obligation to purchase the
Property. If the Termination Notice is timely given, the Title
Company/Escrow Agent shall return the Deposit to Purchaser and
neither party shall have any further liability hereunder except for
the obligations of Purchaser that survive the termination of this
Agreement. If Purchaser fails, for any or no reason, to timely
deliver the Termination Notice, Purchaser will be deemed to have
elected to waive Purchaser’s right to terminate under this
Section 3.6.
3.7
Tenant
Estoppels. Seller shall
endeavor to secure and deliver to Purchaser, no later than three
(3) business days prior to the Closing Date, a “Statement of
Accounts” in the form required by the GSA Lease and the
rules, policies and regulations of the General Services
Administration (“GSA”) (collectively, the
“Tenant
Estoppel”). Purchaser
shall only have the right to comment upon the completed portions of
the Tenant Estoppel form not the form itself, and the form Tenant
Estoppel will be deemed approved by Purchaser for all purposes if
Purchaser fails to provide Seller with written objections thereto
within three (3) business days following the date Seller delivers
same to Purchaser. In no event shall Seller be obligated to deliver
updates to the Tenant Estoppel. Seller will deliver Purchaser
copies of the signed Tenant Estoppel promptly following
Seller’s receipt thereof. If the Tenant Estoppel is not in
the form required by this Section 3.7 and Purchaser fails to furnish Seller with a
written notice of disapproval (which notice, in order to be
effective, must include Purchaser’s specific objections),
within three (3) business days following the date of Seller’s
delivery thereof, such Tenant Estoppel will be deemed approved by
Purchaser. In the event Seller has not provided the Tenant Estoppel
on or before three (3) business days prior to the Closing Date,
Seller shall have the right to delay the Closing for up to thirty
(30) days upon written notice to Purchaser delivered not less than
three (3) business days prior to the scheduled Closing Date. If the
foregoing requisite Tenant Estoppel is not delivered to Purchaser
at least three (3) business days prior to the Closing Date, as may
have been delayed as provided above, then Purchaser’s sole
right with respect thereto shall be to elect to terminate this
Agreement upon written notice thereof delivered to Seller at least
one (1) business day prior to the Closing Date. If such termination
notice is properly given, the Title Company shall immediately
return the Deposit to Purchaser and neither party shall have any
further liability hereunder except for the obligations of Purchaser
that survive the termination of this Agreement. If Purchaser fails,
for any or no reason, to timely deliver any such termination
notice, Purchaser will be deemed to have elected to waive
Purchaser’s right to terminate under this Section 3.7.
4.
Prior to Closing. Until
Closing, Seller or Seller's agent shall:
4.1 Insurance.
Maintain any insurance required to be maintained by Seller, as
Landlord, under the GSA Lease.
4.3 New
Contracts
. Enter into only those third-party contracts
which are necessary to carry out its obligations under Section 4.2 and which shall be
cancelable on thirty (30) days' written notice. If Seller enters
into any such contract, it shall promptly provide written notice
thereof to Purchaser and unless Purchaser, within seven (7) days
thereafter, notifies Seller in writing of its intention to assume
such contract, it shall be treated as a contract disapproved by
Purchaser under Section 3.3
hereof.
4.4 New
Leases
. Not execute any new
leases or amend, terminate or accept the surrender of any existing
tenancies or approve any subleases without the prior written
consent of Purchaser, which consent shall not be unreasonably
withheld, except that the Seller is authorized to enter into
renewal or expansion amendments in accordance with the existing
options set forth in the leases. Failure of Purchaser to consent or
expressly withhold its consent stating with specificity the basis
of its objection within forty-eight (48) hours after written
request for such consent shall be deemed to constitute
consent.
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4.5 Build-out
Costs and Commissions. It is acknowledged that the second
GSA Lease to become effective June 27, 2017 provides for a
build-out allowance in the amount of $1,011,820.00
(“Tenant
Improvement Allowance”) and for Building Specific
Amortized Capital allowance in the amount of $303,546.00
(“BSAC
Allowance”) for a total of $1,315,366.00.
Notwithstanding anything contained herein to the contrary,
Purchaser shall be responsible for the Tenant Improvement Allowance
and BSAC Allowance under the second GSA Lease after Closing, but
shall receive a credit back at Closing in the amount equal to the
Tenant Improvement Allowance and the BSAC Allowance.
5.
Representations and
Warranties.
5.1.1
Seller represents and warrants to Purchaser that:
5.1.1.1 Seller
is a Delaware corporation, duly organized, validly existing, and is
authorized to do business in the State in which the Real Property
is located;
5.1.1.2 Seller
is not a “foreign person” within the meaning of Section
1445 of the Internal Revenue Code of 1986, as amended;
and
5.1.1.3 To
Seller's knowledge, except as otherwise indicated on the Disclosure
Statement attached hereto as Exhibit
0.0.0.0:
(i) Litigation.
There is no current action, suit, litigation or proceeding to which
Seller is a party the outcome of which could materially adversely
affect the Property pending or being prosecuted in any court or
before any federal, state, county or municipal department,
commission, bureau, agency or other governmental instrumentality,
other than tax contests, if any;
(ii) Leases.
A complete copy of the Leases in effect as of the Effective Date
have been provided or made available to Purchaser. As of the
Effective Date, no portion of the Real Property is subject to a
lease to which Seller is a party other than the
Leases;
(iii) Contracts.
Complete copies of all Contracts to which Seller is a party, in
effect as of the Effective Date have been provided to
Purchaser;
(iv)
Condemnation. No
condemnation proceedings have been instituted against the Real
Property and Seller has not received any written notice and has no
knowledge that any such proceedings or suits are contemplated;
and
(v) Proceedings.
Seller has received no correspondence or other written information
to indicate that there is any pending or threatened (a) violation
of law, (b) environmental, zoning or other land use regulation
proceeding, or (c) tax levy or special assessment proceedings
against the Property or any portion thereof.
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5.1.2
Each of the representations and warranties of Seller contained in
Section 5.1.1: (i) is made
as of the Effective Date; (ii) will be deemed to be remade by
Seller, and to be true in all material respects, as of Closing,
subject to other matters expressly permitted in this Agreement or
otherwise specifically approved in writing by Purchaser; and
(iii) will survive for a period of six (6) months after the
Closing (“Claims
Period”). Any claim that Purchaser may have at any
time against Seller for a breach of any such representation or
warranty, whether known or unknown, which is not specifically
asserted by the commencement and service of a lawsuit in a court of
competent jurisdiction before the expiration of the Claims Period
will not be valid or effective, and Seller will have no liability
with respect thereto. Additionally, any claim actually known by
Purchaser on or prior to Closing shall be deemed waived by
Purchaser if Purchaser does not terminate this Agreement on account
thereof, but proceeds to Closing despite such breach.
Notwithstanding anything to the contrary contained herein, with
respect to any lawsuit filed after Closing but before the end of
the Claims Period (1) in no event will Seller have any
liability to Purchaser for a breach of any covenant, representation
or warranty under this Agreement or any Closing documents executed
pursuant hereto (the “Closing
Documents”) in excess of Three Hundred Fifty Thousand
and No/100 Dollars ($350,000.00) (“Claims
Ceiling”), and (2) no claim by Purchaser alleging
a breach by Seller of any covenant, representation or warranty
contained herein or in any of the Closing Documents may be made,
and Seller shall not be liable for any judgment in any action based
upon any such claim, unless and until such claim, either alone or
together with any other claims by Purchaser alleging a breach by
Seller of any such representation or warranty is for an aggregate
amount in excess of Twenty-five Thousand and No/100 Dollars
($25,000.00) (the “Claims
Floor”), in which event Seller’s liability
respecting any final judgment concerning such claim or claims shall
be for the entire amount thereof, subject to the limitation set
forth in clause (1) above; provided, however, that if any such
final judgment is for an amount that is less than or equal to the
Claims Floor, then Seller shall have no liability with respect
thereto. The provisions of this
Section 5.1.2 shall survive Closing.
5.1.3 The
continued accuracy in all material respects of the aforesaid
representations and warranties is a condition precedent to
Purchaser’s obligation to close. If any of said
representations and warranties is not correct in all material
respects at the time the same is made or as of Closing, and Seller
had no knowledge of such inaccuracy when the representation or
warranty was made, or when remade at Closing, or if such warranty
or representation becomes inaccurate on or prior to Closing other
than by reason of Seller’s default hereunder, Purchaser may,
upon being notified of such occurrence on or prior to Closing and
after the expiration of the cure period provided under Section 11.6 hereof, either
(a) terminate this Agreement without liability on the part of
Seller or Purchaser, subject to Purchaser’s obligations that
survive the termination of this Agreement and the Deposit will be
returned to Purchaser, or (b) waive such matter and proceed to
Closing, by notice to Seller given within ten (10) days after the
expiration of the cure period in which event Seller shall have no
liability with respect to any such inaccuracy. If Purchaser fails
to give any notice within the required time period, Purchaser will
be deemed to have elected to waive such matter and to proceed to
Closing. If any of said representations and warranties are not
correct in all material respects at the time the same is made or as
of Closing, and Seller had actual knowledge of such inaccuracy when
the representation or warranty was made, or, by its default
hereunder caused the representation or warranty to be inaccurate
when remade at Closing, Purchaser may, after the expiration of the
cure period, if any, provided under Section 11.6 hereof, either (a) exercise
its remedies under Section
10.2, or (b) terminate this Agreement, subject to its
obligations that survive the termination of this
Agreement, and receive a
return of the Deposit or (c) waive the breach and its rights
under clauses (a) and (b) and proceed to Closing, by notice to
Seller given within ten (10) days after expiration of the cure
period, but in no event later than Closing, in which event Seller
shall have no liability with respect to any such inaccuracy. If
Purchaser fails to give any notice within the required time period,
Purchaser will be deemed to have elected to waive such matter and
to proceed to Closing.
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5.1.4
As used in this Section 5.1
and elsewhere in this Agreement, the phrase “to Seller’s
knowledge” or phrases of similar import mean and are
limited to the actual current knowledge of Seller’s asset
manager for the Property (Xxxxx Xxxxxxxx), without any independent
investigation or inquiry having been made, and not to any
constructive or imputed knowledge of the foregoing individuals or
of Seller or any investment advisor to Seller, any entity that is a
partner in such investment advisor, or any affiliates of any
thereof, or to any officer, agent, representative, or employee of
Seller or such investment advisor, any such constituent partner, or
any such affiliate. Seller, during the term of this Agreement,
agrees to notify Purchaser in writing promptly in the event Seller
obtains actual knowledge of any change affecting any such
representations or warranties.
5.2.1
Purchaser is a Delaware limited partnership duly organized, validly
existing and in good standing under the laws of the State of its
organization, is authorized to do business in the State in which
the Real Property is located, has duly authorized the execution and
performance of this Agreement, and such execution and performance
will not violate any material term of its certificate of formation
or bylaws/company agreement/partnership agreement; or result in a
breach of or default under any document, instrument, order or
agreement to which Purchaser is a party or by which Purchaser is
bound;
5.2.2
Purchaser is acting as principal in this transaction with authority
to close the transaction;
5.2.3
No petition in bankruptcy (voluntary or otherwise), assignment for
the benefit of creditors, or petition seeking reorganization or
arrangement or other action under federal or state bankruptcy laws
is pending against or contemplated by Purchaser;
5.2.4
Unless otherwise disclosed to Seller in writing, neither Purchaser
nor any affiliate of or principal in Purchaser is other than a
citizen of, or partnership, corporation or other form of legal
person domesticated in, the United States of America;
and
5.2.5
ERISA.
(a) (i)
The Property is not being acquired by or on behalf of an
“employee benefit plan” within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”),
or a “plan” within the meaning of Section 4975(e)(1) of
the Code, which is subject to ERISA or section 4975 of the Code,
respectively (hereinafter referred to collectively as the
“Plan”);
and (ii) the assets being used to acquire the Property or to
otherwise discharge Purchaser’s obligations hereunder are not
“plan assets” within the meaning of Department of Labor
Regulation section 2510.3-101 as amended by Section 3(42) of
ERISA;
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(b) Purchaser
shall not assign its interest hereunder to any person or entity
which does not expressly make the representations and warranties
set forth in this Section
5.2.5; and
(c) Purchaser
covenants that in the event it determines that the representations
and warranties of Purchaser made in this Section 5.2.5
have ceased to be accurate in any
material respect, Purchaser shall notify Seller of such
determination as promptly as practicable and in any event within
ten (10) days after such determination is made. In the event, in
Seller’s reasonable judgment, any such change in information
occurs and makes this transaction a sale to a
“party-in-interest” or otherwise prohibited by either
section 4975(d) of the Code or section 406 or 407 of ERISA, Seller
may terminate this Agreement without liability arising on the part
of either Seller or Purchaser (provided such change in information
does not occur as a result of a default by
Purchaser).
5.2.6
Neither Purchaser nor any of its
affiliates and the shareholders, members, investors or partners of
each of them and any permitted assignees of Purchaser hereunder
(“Purchaser
Related Parties”), or, to
the best of Purchaser’s knowledge, any broker or agent
representing Purchaser, if any, have engaged in any dealings
or transactions, directly or indirectly (i) in contravention of any
U.S. international or other money laundering regulations or
conventions, including, without limitation, the United States Bank
Secrecy Act, the United States Money Laundering Control Act of
1986, the United States International Money Laundering Abatement
and Anti-Terrorist Financing Act of 2001, Trading with the Enemy
Act (50 U.S.C. Section 1 et seq., as amended), or any foreign asset
control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation
or executive order relating thereto. Purchaser represents and
warrants to, and covenants with Seller that (i) neither Purchaser
nor any of its owners or affiliates currently are, or shall be at
any time during the term hereof, in violation of any laws relating
to terrorism or money laundering (collectively, the
“Anti-Terrorism
Laws”), including without limitation Executive Order
No. 13224 on Terrorist Financing, effective September 24, 2001, and
regulations of the U.S. Treasury Department's Office of Foreign
Assets Control (OFAC) related to Specially Designated Nationals and
Blocked Persons (SDN’s (OFAC Regulations), and/or the Uniting
and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)
(the “USA
Patriot Act”); (ii) neither Purchaser nor any of its
owners, affiliates, investors, officers, directors, employees,
vendors, subcontractors or agents is or shall be during the term
hereof a “Prohibited
Person” which is defined as follows: (1) a person or
entity owned or controlled by, affiliated with, or acting for or on
behalf of, any person or entity that is identified as an SDN on the
then-most current list published by OFAC at its official website,
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/x00xxx.xxx
or at any replacement website or other replacement official
publication of such list, and (2) a person or entity who is
identified as or affiliated with a person or entity designated as a
terrorist, or associated with terrorism or money laundering
pursuant to regulations promulgated in connection with the USA
Patriot Act; and (iii) Purchaser has taken appropriate steps to
understand its legal obligations under the Anti-Terrorism Laws and
has implemented appropriate procedures to assure its continued
compliance with such laws. Purchaser hereby agrees to defend, indemnify,
and hold harmless Seller, it officers, directors, agents and
employees, from and against any and all claims, damages, losses,
risks, liabilities and expenses (including attorney's fees and
costs) arising from or related to any breach of the foregoing
representations, warranties and covenants. At any time and
from time-to-time during the term, Purchaser shall deliver to
Seller within ten (10) days after receipt of a written request
therefor, a written certification or such other evidence reasonably
acceptable to Seller evidencing and confirming Purchaser's
compliance with this Section
5.2.6. If at any time this representation becomes false then
it shall be considered a default under this Agreement and Seller
shall have the right to exercise all of the remedies set forth in
this Agreement in the event of a default or to terminate this
Agreement immediately; and
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5.2.7 Except
for the express representations and warranties of Seller found
in Section5.1.1, Purchaser is acquiring the Property on an
“AS IS, WHERE IS” basis, without any representation or
warranty of any kind or nature whatsoever, express or implied, and
Purchaser acknowledges that no such representations
or warranties have been made except as
set forth in writing herein. In deciding whether to acquire the
Property, Purchaser is relying solely on Purchaser’s
investigation of the Property.
5.3
Broker. Seller and
Purchaser each represents to the other that it has had no dealings,
negotiations, or consultations with any broker, representative,
employee, agent or other intermediary in connection with the
Agreement or the sale of the Property except CBRE, INC.
(“Broker”).
Seller and Purchaser agree that each will indemnify, defend and
hold the other free and harmless from the claims of any broker(s),
representative(s), employee(s), agent(s) or other intermediary(ies)
claiming to have represented Seller or Purchaser, respectively, or
otherwise to be entitled to compensation in connection with this
Agreement or in connection with the sale of the Property other than
Broker. Broker will be compensated by Seller pursuant to the terms
of a separate agreement between Seller and Broker.
The
terms and provisions of this Section 5 shall survive Closing
hereunder.
6.
Costs and
Prorations.
6.1.1 The
fees and disbursements of Seller's counsel;
6.1.2 The
cost of the title commitment, title search fees, and
costs;
6.1.3 The
cost of the Survey; and
6.1.4 Grantor’s
Tax. The Grantor’s Tax on the deed transferring the
property.
6.2.1 The
fees and disbursements of its counsel, inspecting architect and
engineer, if any;
6.2.2
The cost of a
standard coverage ALTA form of owner's title insurance policy,
without endorsement or amendment, in the amount of the Purchase
Price, issued in connection with this transaction, whether pursuant
to the Title Commitment or otherwise and all requested endorsements
thereto, as well as the cost of any lender’s policy of title
insurance;
6.2.3 All
escrow fees, recording fees and real estate transfer, stamp or
documentary tax(es);
6.2.4 All
sales or use taxes relating to the transfer of personal property to
Purchaser;
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6.2.5 The
cost of any updates to the Survey and the cost of any survey
obtained by Purchaser;
6.2.6 The
cost of recordation of the Deed;
6.2.7 Any
other expense(s) incurred by Purchaser or its representative(s) in
inspecting or evaluating the Property or closing this transaction;
and
6.2.8 The
“Grantee’s Tax” on the deed together with any
other taxes, all State, County and local transfer taxes payable
upon the transfer of the Real Property to Purchaser (excluding the
Grantor’s Tax).
6.2.9 Any
updates to the Survey delivered to Purchaser contemporaneously with
execution of this Agreement.
6.3 Prorations. Rents and any other amounts
payable by tenants, personal property taxes, installment payments
of special assessment liens, vault charges, sewer charges, utility
charges and normally prorated operating expenses actually
collected, billed or paid as of the date of Closing shall be
prorated as of the date of Closing and be adjusted against the
Purchase Price due at the Closing, provided that within sixty (60)
days after the Closing, Purchaser and Seller will make a further
adjustment for such rents, taxes or charges which may have accrued
or been incurred prior to the date of Closing, but not collected or
paid at that date. All prorations shall be made on a 360-day
calendar year basis, thirty (30) days to the month. Seller shall be
responsible for all leasing commissions and other leasing costs due
and payable prior to the Effective Date with respect to leases,
renewals, or expansions executed prior to the Effective Date.
Purchaser shall be responsible for all leasing commissions and
other leasing costs attributable to any new leases or the renewal
or expansion of any existing lease after the Effective Date and/or
due and payable with respect to any existing lease after the
Closing. If Seller has, prior to the Closing, paid any leasing
commissions or other leasing costs which are Purchaser’s
responsibility hereunder, the Seller will receive a credit for same
from Purchaser at the Closing. The
terms and provisions of this section shall survive Closing
hereunder.
6.4 Taxes. General real estate taxes and
special assessments relating to the Real Property payable during
the year in which Closing occurs shall be prorated as of the
Closing date. If Closing shall occur before the actual taxes and
special assessments payable during such year are known, the
apportionment of taxes shall be upon the basis of taxes for the
Real Property payable during the immediately preceding year, provided that, if the taxes and special
assessments payable during the year in which Closing occurs are
thereafter determined to be more or less than the taxes payable
during the preceding year (after any appeal of the assessed
valuation thereof is concluded). Seller and Purchaser promptly (but
no later than June 30 of the year following the Closing Date,
except in the case of an ongoing tax protest) shall adjust the
proration of such taxes and special assessments, and Seller or
Purchaser, as the case may be, shall pay to the other any amount
required as a result of such adjustment and this covenant shall not
merge with the deed delivered hereunder but shall survive the
Closing.
6.5 In
General
. Any other costs or charges of closing this
transaction not specifically mentioned in this Agreement shall be
paid by Purchaser.
6.6 Purpose
and Intent
. Except as expressly provided herein, the purpose
and intent as to the provisions of prorations and apportionments
set forth in this Section 6
and elsewhere in this Agreement is that Seller shall bear all
expenses of ownership and operation of the Property and shall
receive all income therefrom accruing through midnight at the end
of the day preceding the Closing and Purchaser shall bear all such
expenses and receive all such income accruing
thereafter.
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6.7 Credits.
At Closing, Purchaser shall receive a credit or reduction in the
final acquisition price equal to the amount of (i) the Tenant
Improvement Allowance ($1,011,820.00) (see Section 4.5), (ii) the BSAC Allowance
($303,546.00) (see Section
4.5) and (iii) the “free rent” provided in the
Second GSA Lease in the amount of $582,808.32.
7.
Damage, Destruction or
Condemnation.
7.1 Material
Event
. If, prior to Closing, fifteen percent (15%) or
more of the net rentable area of the building(s) or of the parking
spaces on the Real Property or all access to the Real Property is
rendered completely untenantable, or is destroyed or taken under
power of eminent domain, then (i) Purchaser may elect to terminate
this Agreement by giving written notice of its election to Seller
within ten (10) days after receiving Seller’s notice of such
destruction or taking (“Seller’s
Notice”) or (ii) Seller may elect to terminate this
Agreement by including such election in the Seller’s Notice.
If Seller does not elect to terminate in the Seller’s Notice
or Purchaser does not give written notice in response to the
Seller’s Notice within the ten (10) day response period, then
this transaction shall be consummated on the date and at the
Purchase Price provided for in Section 2, and Seller will assign to
Purchaser the physical damage proceeds of any insurance policy(ies)
payable to Seller, or Seller's portion of any condemnation award,
in both cases, up to the amount of the Purchase Price, and, if an
insured casualty, pay to Purchaser the amount of any deductible but
not to exceed the amount of the loss.
7.2 Immaterial
Event
. Except upon the occurrence of a material event
as set forth in Section 7.1
above, Purchaser shall close this transaction on the date and at
the Purchase Price agreed upon in Section 2, and Seller will assign to
Purchaser the physical damage proceeds of any insurance policies
payable to Seller, or Seller's portion of any condemnation award,
in both cases, up to the amount of the Purchase Price and, if an
insured casualty, pay to Purchaser the amount of any deductible but
not to exceed the amount of the loss.
7.3
Termination and Return of
Deposit
. If Purchaser elects to terminate this Agreement
pursuant to this Section 7,
and if Purchaser is not, on the date of such election, in default
under the Agreement, Seller shall promptly direct the Title
Company/Escrow Agent to return the Deposit to Purchaser, and
neither party shall have any further liability hereunder except for
the obligations of Purchaser that survive the termination of this
Agreement.
8.
Notices.
All
notices or other communications hereunder shall be in writing and
shall be deemed duly given if addressed and delivered to the
respective parties' addresses, as set forth below: (i) in person;
(ii) by Federal Express or similar overnight carrier service; (iii)
mailed by certified or registered mail, return receipt requested,
postage prepaid; or (iv) sent by facsimile with electronic
confirmation of receipt thereof and with concurrent notice given by
another method permitted hereunder. Such notices shall be deemed
received upon the earlier of receipt or, if mailed by certified or
registered mail, three (3) days after such mailing or, upon
delivery if sent via facsimile on or before 5:30 p.m. c.s.t. on a
business day or, if delivered after that time or on a day other
than a business day, on the following business day. Seller and
Purchaser may from time to time by written notice to the other
designate another address for receipt of future
notices.
If to
Seller:
USAA Real Estate
Company
0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000-0000
Attention:
Xxxxx Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
E-mail:
Xxxxx.xxxxxx@xxxxxxxx.xxx
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With a
copy to:
USAA
Real Estate Company
0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx
X. Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
E-mail:
xxxxxxx.xxxxxxx@xxxxxxxx.xxx
Xxxx X.
Xxxxxxxxxx, Esquire
McGuireWoods
LLP
000 X.
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx
00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
E-mail:
xxxxxxxxxxx@xxxxxxxxxxxx.xxx
If
to
Purchaser:
Holmwood
Capital Advisors, LLC
0000
Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000, ext. 205
E-mail:
xxxxxxxx@xxxxxxxxxx.xxx
With a
copy to:
D.
Xxxxxxx Xxxxxxx, Esquire
Xxxxxx
Voekler Xxxxxxxxxx & Xxxxx, PLC
0000
Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx
00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
E-Mail:
xxxxxxxx@xx-xxxxx.xxx
Telephone numbers
are for informational purposes only. Effective notice will be
deemed given only as provided above.
9.
Closing and
Escrow.
9.1 Escrow
Instructions
. Upon execution of this Agreement, the parties
shall deliver an executed counterpart of this Agreement to the
Title Company/Escrow Agent to serve as the instructions to the
Title Company/Escrow Agent as the escrow holder for consummation of
the transaction contemplated herein. Seller and Purchaser agree to
execute such additional and supplementary escrow instructions as
may be appropriate to enable the Title Company/Escrow Agent to
comply with the terms of this Agreement; provided, however, that in
the event of any conflict between the provisions of this Agreement
and any supplementary escrow instructions, the terms of the
Agreement shall prevail.
9.2 Seller's
Deliveries
. Unless otherwise specified, Seller shall deliver
either at the Closing or by making available at the Real Property,
as appropriate, the following original documents, each executed
and, if required, acknowledged:
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9.2.1
a special warranty
deed to the Real Property, in the form attached hereto as
Exhibit
9.2.1, subject only to the Permitted
Encumbrances;
9.2.2 a
xxxx of sale in the form attached hereto as Exhibit
9.2.2 conveying the Personal Property;
9.2.3
(i) a current
listing of any tenant security deposits and prepaid rents held by
Seller with respect to the Real Property; and (ii) an assignment
and assumption agreement in the form attached hereto as
Exhibit
9.2.3, subject only to the Permitted
Encumbrances;
9.2.4
an assignment to
Purchaser of all contracts relating to the Property which Purchaser
has elected to assume or which are not terminable by Seller on or
before the date of Closing by way of an assignment and assumption
agreement, in the form attached hereto as Exhibit
9.2.4;
9.2.5
an assignment of
all transferable warranties and guarantees then in effect, if any,
with respect to the Improvements or any repairs or renovations to
such improvements and Personal Property being conveyed hereunder,
which assignment is in the form attached hereto as Exhibit
9.2.5;
9.2.6
an affidavit
pursuant to the Foreign Investment and Real Property Tax Act in the
form attached hereto as Exhibit
9.2.6;
9.2.7
an incumbency
certificate in the form attached hereto as Exhibit
9.2.7;
9.2.8
such other
documents as may reasonably be required by the Title Company in
connection with the title policy including, without limitations
owner’s affidavits;
9.2.9
Tenant Estoppels,
to the extent obtained by Seller, in accordance with the terms of
Section 3.7;
and
9.2.10
all books and
records at the Real Property held by or for the account of Seller,
including, without limitation, plans and specifications, as
available.
9.3.1
pay Seller the Purchase Price;
9.3.2
execute the agreements referred to in Sections 9.2.3(ii), 9.2.4, 9.2.5, 9.2.8,
and the ERISA certificate attached hereto as Exhibit
9.3.2; and
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9.3.3
deliver a written acknowledgement of the transfer of obligations
under any stormwater management agreements recorded against the
Property for the benefit of the City of Norfolk.
9.4 Possession.
Purchaser shall be entitled to possession of the Property upon
conclusion of the Closing.
9.5 Insurance. Seller shall terminate its
policies of insurance as of noon on the date of Closing, and
Purchaser shall be responsible for obtaining its own insurance
thereafter.
9.6 Utility
Service and Deposits. Seller shall be entitled to the
return of any deposit(s) posted by it with any utility company, and
Purchaser shall notify each utility company serving the Real
Property to terminate Seller's account, effective at noon on the
date of Closing, such notice to be in the form attached hereto as
Exhibit
9.6.
9.7 Post-Closing
Collections
. Purchaser shall use its best efforts during the
six (6) month period immediately following Closing to collect and
promptly remit to Seller rents or other amounts due Seller for the
period prior to Closing. Purchaser shall apply such rents or other
amounts received, first for the account of Purchaser for amounts
currently due to Purchaser; second, to Seller for any and all
amounts due to Seller for periods prior to Closing; and the balance
to be retained by Purchaser. Notwithstanding any other term of this Agreement,
the provisions of this Section 9.7 shall survive Closing.
10.1
PURCHASER
DEFAULT
. IF PURCHASER
SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE
BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE
PERIOD, IF ANY, PROVIDED IN SECTION 12.6 HEREOF, SELLER SHALL ELECT
AS ITS SOLE REMEDY HEREUNDER TO (A) TERMINATE THIS AGREEMENT
WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED
DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM
ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR OBLIGATIONS OF PURCHASER
THAT SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF
LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH OBLIGATIONS
PURSUANT TO SECTION 12.9 HEREOF; OR (B) WAIVE THE DEFAULT, PRIOR TO
OR AT THE CLOSING, AND PROCEED TO CLOSE THE TRANSACTION
CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF.
SELLER AND PURCHASER AGREE THAT THE DEPOSIT IS A FAIR AND
REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED
DAMAGES IN LIGHT OF SELLER'S REMOVAL OF THE PROPERTY FROM THE
MARKET AND THE COSTS INCURRED BY SELLER AND SHALL NOT CONSTITUTE A
PENALTY OR A FORFEITURE. NOTWITHSTANDING THE FOREGOING, ANY
CONFLICT BETWEEN THE PROVISIONS OF THIS SECTION AND SECTION 5.1.2
WITH REGARD TO A BREACH OF SELLER’S REPRESENTATIONS OR
WARRANTIES SHALL BE RESOLVED BY THE PROVISIONS OF SECTION
5.1.2.
/s/ RRK
/s/
JP
Purchaser's
Initials Seller's
Initials
10.2 SELLER
DEFAULT.
IF SELLER SHALL REFUSE OR FAIL TO
CONVEY THE PROPERTY AS HEREIN PROVIDED FOR ANY REASON OTHER THAN
(I) A DEFAULT BY PURCHASER AND THE EXPIRATION OF THE CURE PERIOD,
IF ANY, PROVIDED UNDER SECTION 12.6 HEREOF, (II) THE EXISTENCE OF A
PENDING DEFAULT (AS DEFINED IN AND CONTEMPLATED BY SECTION 12.6),
(III) THE FAILURE OF A TITLE CONDITION AS PROVIDED IN SECTION 10.3
OR (IV) ANY OTHER PROVISION OF THIS AGREEMENT WHICH PERMITS SELLER
TO TERMINATE THIS AGREEMENT OR OTHERWISE RELIEVES SELLER OF THE
OBLIGATION TO CONVEY THE PROPERTY, PURCHASER SHALL ELECT AS ITS
SOLE REMEDY HEREUNDER TO (A) TERMINATE THE AGREEMENT AND RECOVER
THE DEPOSIT; (B) SEEK SPECIFIC PERFORMANCE OF SELLER'S OBLIGATION
TO EXECUTE AND DELIVER THE DOCUMENTS REQUIRED TO CONVEY THE
PROPERTY TO PURCHASER (BUT NOT TO ENFORCE ANY OTHER OBLIGATION
UNDER THIS AGREEMENT); OR (C) WAIVE THE DEFAULT, PRIOR TO OR AT THE
CLOSING, AND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY
IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. NOTWITHSTANDING THE
FOREGOING, ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SECTION AND
SECTION 5.1.2 WITH REGARD TO A BREACH OF SELLER’S
REPRESENTATIONS OR WARRANTIES SHALL BE RESOLVED BY THE PROVISIONS
OF SECTION 5.1.2.
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10.3 Failure
of Title Condition. If, prior to Closing, Seller
discloses to Purchaser or Purchaser discovers that title to the
Property is subject to defects, limitations or encumbrances other
than (i) the Permitted Encumbrances; (ii) any matter caused by
Purchaser or any person or entity claiming by, through or under
Purchaser; or (iii) any other matter that a commercially reasonable
purchaser of substantially similar properties would not determine
to be material and adverse, then Purchaser shall promptly give
Seller written notice of its objection thereto (each a
“Supplemental Objection”). Such written notice shall
specify such title defect in reasonable detail and notify Seller
that the Agreement may be terminated if such title defect is not
removed, bonded or insured-over in a commercially reasonable manner
prior to the Closing Date. In such event, Seller may elect to
postpone the Closing for thirty (30) days and attempt to cure such
Supplemental Objection. The parties acknowledge and agree that
Seller shall have no obligation to cure any such Supplemental
Objection, unless such Supplemental Objection constitutes a Lien
Exception as set out in Section
3.2. If Purchaser fails to waive any such Supplemental
Objection within ten (10) days after notice from Seller that Seller
will not cure the Supplemental Objection, this Agreement will
terminate automatically and Seller shall promptly direct the Title
Company/Escrow Agent to return the Deposit to Purchaser, provided
that Purchaser and Seller shall not be in default hereunder, and
neither party shall have any liability to the other except for the
obligations of Purchaser that survive the termination of this
Agreement. For the purposes of this Agreement, any title defect,
limitation or encumbrance, other than those enumerated in (i)
– (iii) above, shall be deemed cured if the Title
Company/Escrow Agent or another title company reasonably acceptable
to Purchaser and authorized to do business in the State in which
the Real Property is located will agree to issue a standard ALTA
owner's title insurance policy to Purchaser for the Purchase Price,
which policy takes no exception for such defect, limitation or
encumbrance and is issued for no additional premium or for an
additional premium if Seller agrees to pay such additional premium
upon Closing.
10.4 Limited
Liability
. The obligations of Seller are binding only on
Seller’s interest in the Property and shall not be personally
binding upon, nor shall any resort be had to, any other assets of
Seller nor the private properties of any of the partners, officers,
directors, shareholders or beneficiaries of Seller, or of any
partners, officers, directors, shareholders or beneficiaries of any
partners of Seller, or of any of Seller's employees or agents. All
documents executed by Seller shall be deemed to contain (even if
not expressly stated) the foregoing exculpation.
10.5 Waiver
of Trial by Jury
. The respective parties hereto shall and hereby
do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this
Agreement, or for the enforcement of any remedy under any statute,
emergency or otherwise.
11.
GSA Lease. The
parties recognize the Property is subject to two leases with the
General Services Administration, an agency of the United States of
America (“GSA”), the
first of which is currently in effect (“Original GSA
Lease”) and the second of which commences as of June
27, 2017 (“New GSA
Lease”) (collectively the “GSA Leases” or
sometimes collectively “GSA Lease”).
The GSA Leases are not assignable with the consent of the GSA
except in accordance with the terms of the GSA Leases and the
Federal Acquisition Regulations (“FAR”),
specifically FAR Subpart 42.12 (the “FAR
Regulations”).
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Accordingly, to
comply with the GSA Lease provisions and the FAR Regulations, the
parties agree as follows:
11.1
Purchaser, promptly upon execution of this Agreement shall gather
and supply to the GSA or other applicable agency the materials and
other information required by the GSA Lease, the FAR Regulations or
otherwise required by the GSA in the form and format required by
the Lease, the FAR Regulations, the GSA or other applicable agency
to allow for an “assignment” or “novation”
of the GSA Lease such that a transfer of the GSA Lease is permitted
unconditionally and Seller is released from any and all liabilities
under the GSA Lease. Purchaser shall use its full best efforts to
provide the necessary information and otherwise comply with the
requirements of the Lease, the GSA and the FAR Regulations so that
a “novation” or other consent to assignment can be
obtained from the GSA without any residual liability remaining with
the Purchaser.
11.2
It shall be a condition of Seller’s obligation to close under
this Agreement that Seller receive assurances satisfactory to
Purchaser, in its sole discretion, that the GSA will approve the
transfer of the GSA Lease and execute a “novation”
thereof releasing the Seller of all liability thereunder. If Seller
is not able to receive such assurances, Seller may terminate this
Agreement at any time prior to Closing and, provided that Purchaser
has fully complied with its obligations under Section 11.1 above, Purchaser shall
receive a full refund of the Deposit.
11.3
If Seller receives any Rent after Closing applicable to either GSA
Lease which is not applicable to a period prior to Closing, all
such amounts shall within five (5) Business Days after the receipt
thereof be paid over to the Purchaser and applied by Purchaser as
provided in this Section
11.3, and Seller shall, if Purchaser requires and such
notice is permitted under the terms of the existing GSA Lease, send
notice to the GSA directing that Rent be paid to an address or bank
account controlled by Purchaser or its lender. Seller and Purchaser
agree that all Rent received by Seller or Purchaser from and after
the Closing Date, shall be applied first to current Rent and then
to delinquent Rent, if any, in the inverse order of maturity. In
the event that there shall be any Rents or other charges under the
GSA Lease which, although relating to a period prior to the
Closing, do not become due and payable until after the Closing or
are paid prior to the Closing but are subject to adjustment after
the Closing (such as Rent from GSA, which is paid in arrears, and
year end common area expense reimbursements and the like), then any
Rents or charges of such type received by Purchaser or its agents
or Seller or its agents subsequent to the Closing shall, to the
extent applicable to a period extending through the Closing, be
prorated between Seller and Purchaser as of the Closing and
Seller’s portion thereof shall be remitted promptly to Seller
by Purchaser.
12.
Miscellaneous.
12.1 Entire
Agreement
. This Agreement, together with the Exhibits
attached hereto, all of which are incorporated by reference, is the
entire agreement between the parties with respect to the subject
matter hereof, and all prior negotiations, term sheets, letters of
intent, instruments or writings between the parties with respect to
the subject matter hereof are of no further force or effect, and no
amendment, modification or interpretation hereof shall be binding
unless in writing and signed by both parties.
12.2 Severability. If any provision of this
Agreement or application to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the
application of such provision to such person or circumstances,
other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent
permitted by law.
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page
21
12.3 Applicable
Law
. This Agreement shall be construed and enforced
in accordance with the laws of the Commonwealth of
Virginia.
12.4 Assignability. Purchaser may not assign this
Agreement without first obtaining Seller's written consent, which
consent may be withheld in Seller’s sole and absolute
discretion. Any assignment in contravention of this provision shall
be void. If Purchaser requests Seller's written consent to any
assignment, Purchaser shall (1) notify Seller in writing of the
proposed assignment; (2) provide Seller with the name and address
of the proposed assignee; (3) provide Seller with financial
information including financial statements of the proposed
assignee; and (4) provide Seller with a copy of the proposed
assignment. Notwithstanding any of the foregoing, Purchaser may
assign this Agreement without Seller’s consent to an
Affiliate (as hereinafter defined). For the purposes of this
paragraph, the term “Affiliate” means any entity that
directly or indirectly controls, is controlled by, or is under
common control with Purchaser, and the term “control”
means the power to direct the management of such entity through
voting rights, ownership or contractual obligations. If Purchaser
assigns this Agreement to an Affiliate, Purchaser shall (i) notify
Seller in writing of the proposed assignment; (ii) provide Seller
with the name and address of the proposed assignee; and (iii)
provide Seller with a copy of the proposed assignment. No
assignment shall release the Purchaser herein named from any
obligation or liability under this Agreement. Any assignee shall be
deemed to have made any and all representations and warranties made
by Purchaser hereunder, as if the assignee were the original
signatory hereto.
12.5 Successors
Bound
. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective
successors and permitted assigns.
12.6 Breach. Should either party be in
breach of or default under or otherwise fail to comply with any of
the terms of this Agreement, the complying party shall have the
option to cancel this Agreement upon twenty (20) days written
notice to the other party and such other party’s failure to
cure such breach within such twenty (20) day period. The date of
Closing shall be extended to the extent necessary to afford the
defaulting party the full twenty-day period within which to cure
such breach, default or failure; provided, however, that the
failure or refusal by a party to perform on the scheduled date of
Closing (except in respect of a Pending Default by the other party)
shall be deemed to be an immediate default without the necessity of
notice or opportunity to cure; and provided further, that if the
date of Closing shall have been once extended as a result of
default by a party, such party shall not be entitled to any further
notice or cure rights with respect to that or any other default.
For purposes of this Section
12.6, a “Pending
Default” shall be a default for which (i) written
notice was given by the non-defaulting party prior to the Closing,
and (ii) the cure period extends beyond the scheduled date of
Closing.
12.7 No
Public Disclosure
. Neither Seller nor Purchaser will release or
cause or permit to be released any press notices, or publicity
(oral or written) or advertising promotion relating to, or
otherwise announce or disclose or cause or permit to be announced
or disclosed, in any manner whatsoever, the terms, conditions or
substance of this Agreement without first obtaining the written
consent of the other party. The foregoing shall not preclude either
party from discussing the substance or any relevant details of such
transactions with any of its attorneys, accountants, professional
consultants, lenders, partners, investors, or any prospective
lender, partner or investor, as the case may be, or prevent either
party hereto from complying with laws, rules, regulations and court
orders, including without limitation, governmental regulatory,
disclosure, tax and reporting requirements. Purchaser and Seller
may disclose this transaction or any aspect or information related
to this transaction or disclosure or other notice as its attorneys
deem is reasonably necessary to comply with applicable law. In
addition to any other remedies available to a party, each party
shall have the right to seek equitable relief, including without
limitation, injunctive relief or specific performance, against the
other party in order to enforce the provisions of this Section 12.7. The provisions of this Section 12.7 shall
survive closing or the termination of this
Agreement.
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page
22
12.8 Captions. The captions in this
Agreement are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this
Agreement or the scope or content of any of its
provisions.
12.9 Attorneys'
Fees
. In the event of any litigation arising out of
this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and costs.
12.10
No
Partnership
. Nothing contained in this Agreement shall be
construed to create a partnership or joint venture between the
parties or their successors in interest.
12.12
Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one
and the same instrument. This Agreement may be executed by a
party’s signature transmitted by facsimile or e-mail, and
copies of this Agreement executed and delivered by means of faxed
or e-mailed signatures shall have the same force and effect as
copies hereof executed and delivered with original signatures. All
parties hereto may rely upon faxed or e-mailed signatures as if
such signatures were originals. All parties hereto agree that a
faxed or e-mailed signature page may be introduced into evidence in
any proceeding arising out of or related to this Agreement as if it
were an original signature page.
12.13
Proper
Execution
. The submission by Seller to Purchaser of this
Agreement in unsigned form shall be deemed to be a submission
solely for Purchaser's consideration and not for acceptance and
execution. Such submission shall have no binding force and effect,
shall not constitute an option, and shall not confer any rights
upon Purchaser or impose any obligations upon Seller irrespective
of any reliance thereon, change of position or partial performance.
The submission to Seller of this Agreement for execution by
Purchaser and the actual execution and delivery thereof by
Purchaser to Seller shall, together with the Deposit, similarly
have no binding force and effect on Seller unless and until Seller
shall have executed this Agreement and a fully executed counterpart
thereof, together with the Deposit, shall have been delivered to
the Title Company/Escrow Agent.
12.14
Tax Protest. If, as a
result of any tax protest or otherwise, any refund is paid or
reduction of any real property or other tax or assessment is made
available relating to the Property with respect to any period for
which, under the terms of this Agreement, Seller is responsible,
Seller shall be entitled to receive or retain such refund or the
benefit of such reduction, less the equitable prorated costs of
collection. Such refund shall be delivered to Seller within ten
(10) days of receipt. The terms and
provisions of this section shall survive closing
hereunder.
12.15
Committee
Approval
. The transaction contemplated in this Agreement
shall be subject to and contingent upon the approval of Seller's
Investment Committee and the Chairman of its parent company.
Purchaser agrees to submit to the Investment Committee all
information reasonably requested by the Investment Committee.
Seller agrees to notify Purchaser in writing promptly after the
decision of the Investment Committee. Seller agrees, subject to
Purchaser's submission of all information so requested by the
Investment Committee, to use its best efforts to obtain an
expeditious decision from the Investment Committee.
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page
23
12.16
Effective Date Conditioned
Upon Deposit
. This Agreement shall become effective only upon,
and all time periods not otherwise expressly set forth shall
commence to run, from the Effective Date, only if the Deposit has
been made.
12.17
Time to Execute and
Deliver
. This Agreement shall be void if one fully
executed copy is not received by Seller, along with confirmation
that the Initial Deposit has been received by the Title
Company/Escrow Agent, on or before 5:00 p.m. C.S.T. on December 30,
2016.
12.18
Term Sheet. The Term
Sheet attached to this Agreement and incorporated by reference
herein sets forth the basic terms of the transaction for the
benefit and convenience of the parties. Notwithstanding the
foregoing, to the extent of any conflict between the terms and
provisions of this Term Sheet and the Agreement, the terms and
provisions of the Agreement shall govern and control.
12.19
Calculation of Time
Periods
. Unless otherwise specified, in computing any
period of time described herein, the date of the act or event after
which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be
included, unless such last day is a Saturday, Sunday or legal
holiday for national banks in the location where the Real Property
is located, in which event the period shall run until the end of
the next day which is neither a Saturday, Sunday or legal holiday.
The last day of any period of time described herein shall be deemed
to end at 5:00 p.m. local time in the state in which the Property
is located.
12.20
No
Recording. Neither this Agreement nor any memorandum or
short form hereof shall be recorded or filed in any public land or
other public records of any jurisdiction, by either party and any
attempt to do so may be treated by the other party as a breach of
this Agreement.
12.21
No
Electronic Transactions.
The parties hereby acknowledge and agree this Agreement shall not
be entered into, altered, amended or modified by electronic means
except as specifically set forth in the “Notices” and
“Counterparts” section of this Agreement.
[SIGNATURES ON
FOLLOWING PAGE(S)]
{00869287.1}
PURCHASE AND SALE
AGREEMENT PAGE
GSA-Social
Security-Norfolk
Page
24
IN
WITNESS WHEREOF, Purchaser and Seller have executed this Agreement
on the date set forth below, effective as of the date set forth
above.
| SELLER: |
USAA REAL ESTATE
COMPANY,
a
Delaware corporation |
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By:
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/s/ Xxxx Xxxx |
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Name: | Xxxx Xxxx |
|
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Title:
|
Deputy CFO
|
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Date: |
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| PURCHASER: |
HC GOVERNMENT REALTY HOLDINGS, L.P.
a
Delaware limited partnership
|
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By:
|
/s/ Xxxxxx X. Xxxxxx,
Xx.
|
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Name: |
Xxxxxx X. Xxxxxx, Xx.
|
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Title: | Authorized Signatory |
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Date: |
December 28, 2016
|
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A
fully executed copy of this Agreement has been received by the
Title Company/Escrow Agent's agent this 29 day of December, 2016,
and by execution hereof the Title Company/Escrow Agent's agent
hereby covenants and agrees to be bound by the terms of this
Agreement.
|
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FIRST
AMERICAN NATIONAL TITLE COMPANY
|
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Name: |
Xxxxx X. Xxxxxxxx
|
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Title: |
Sr. Escrow Officer
|
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Receipt
of the Independent Consideration of $100 acknowledged this _____
day of ___________, 2016.
|
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FIRST
AMERICAN NATIONAL TITLE COMPANY
|
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By:
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/s/
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Name: |
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Title: |
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Receipt
of the Initial Deposit of $150,000.00 acknowledged this 3rd day of
January, 2017.
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FIRST
AMERICAN NATIONAL TITLE COMPANY
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By:
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/s/ Xxxxx X.
Xxxxxxxx
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Name: |
Xxxxx X. Xxxxxxxx
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Title:
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Sr. Escrow Officer
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{00869287.1
}
PURCHASE AND SALE
AGREEMENT
GSA-Social
Security-Norfolk
Page
25
EXHIBIT
1.1.1
LEGAL DESCRIPTION
{00869287.1} EXHIBIT
1.1.1
PURCHASE AND SALE
AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT
1.1.6
LIST OF CONTRACTS
AS OF THE EFFECTIVE DATE
SSA
Contract List
●
Management
Agreement dated April 1, 2015 by and between USSA Real Estate
Company and Xxxxxxx Xxxxxx Commercial Real Estate Services, Inc.
d/b/a DTZ
●
Service Agreement
dated July 6, 2016 by and between USSA Real Estate Company and
Waste Industries
●
Service Agreement
dated by and between USSA Real Estate Company and Red Coats
Inc
●
Service Agreement
dated June 29, 2016 by and between USSA Real Estate Company and
Xxxxxxxx Building Services
●
Service Agreement
dated June 30, 2016 by and between USSA Real Estate Company and
Nansmond Lawn & Garden
●
Service Agreement
dated July 15, 2016 by and between USSA Real Estate Company and
Xxxx Elevator
●
Service Agreement
dated July 5, 2016 by and between USSA Real Estate Company and
Xxxxxx Systems Inc
●
Service Agreement
dated July 13, 2016 by and between USSA Real Estate Company and
Orkin Commercial Services
●
National Agreement
by and between USSA Real Estate Company and Tecta
America
*Contracts which
will not be assigned
{00869287.1} EXHIBIT 1.1.6
PURCHASE
AND SALE AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT
3.5
MISCELLANEOUS PROPERTY INFORMATION
1.
Monthly operating
statements for the past twenty-four (24) months;
2.
Most recent
ad-valorem tax statements;
3.
List of pending or
threatened litigation, proceeding or controversy with respect to
the Property;
4.
Copies of equipment
and building warranties for the Property;
5.
List of proposed
leases/renewals/expansions being negotiated, showing proposed
effective/expiration dates, rental rates, expense stops, rent
concessions or abatements, tenant improvements and commissions, and
expected completion dates;
6.
Copies of local,
state and federal environmental or other notices Seller has
received; and
7.
Copies of site
plans, building plans and specifications, engineering plans,
certificates of occupancy, certificates of compliance and other
permits, if any, related to the Property.
[TO BE
REVIEWED BY CLIENT AND CONFORMED]
{00869287.1} EXHIBIT 3.5
PURCHASE
AND SALE AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT
9.2.1
Document prepared
by and
after recording
return to:
___________________
___________________
___________________
Tax Map No.:
___________________
SPECIAL
WARRANTY DEED
THIS SPECIAL
WARRANTY DEED is executed as of the ___ day of _____________, 201_,
by and between ____________________________, a
_____________________________, having a mailing address of
________________________________________________ ("Grantor"), and
____________________________, a _____________________________,
having a mailing address of
________________________________________________
("Grantee").
WITNESSETH:
THAT Grantor, for
and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, hereby GRANTS, BARGAINS, SELLS,
CONVEYS and CONFIRMS unto Grantee, its successors or assigns, with
SPECIAL WARRANTY, that
covenants of title, that certain tract or parcel of land in the
County of _______________, Commonwealth of Virginia more
particularly described in Exhibit "A" attached
hereto and incorporated herein by this reference, together with all
buildings and improvements located therein, and all rights, titles,
and interests appurtenant thereto (such land and interests are
hereinafter collectively referred to as the
"Property").
This conveyance is
made expressly subject to the restrictions, conditions, rights of
way and easements, if any, contained in the instruments contained
in the chain of title to the Property conveyed hereby, and to
matters visible upon inspection.
[Signature Appears
on Next Page]
{00869287.1} EXHIBIT
9.2.1
PURCHASE AND SALE
AGREEMENT
GSA-Social
Security-Norfolk
IN WITNESS WHEREOF,
the Grantor has executed this Special Warranty Deed as of the day
and year first hereinabove written.
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GRANTOR:
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a
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By:
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Name:
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Title:
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STATE/COMMONWEALTH
OF
____________________
)
CITY/COUNTY OF
____________________
)
ss:
I, a Notary Public
in and for the jurisdiction aforesaid, do hereby certify that
________________________________, personally appeared before me in
said jurisdiction, who, being by me first duly sworn, acknowledged
said instrument to be the act and deed thereof, and that by virtue
of the authority conferred upon him, executed and delivered the
same as such for the purposes therein contained.
WITNESS my hand and
official seal this _____day of _______________, 201_.
______________________________
Notary
Public
Name:
_________________________
My
Commission Expires:
________________________
Notary
Registration No:
________________________
{00869287.1} EXHIBIT
9.2.1
PURCHASE AND SALE
AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT 9.2.2
XXXX OF SALE
Date:
___________________,
[Closing Year]
Seller:
USAA REAL ESTATE
COMPANY, a Delaware corporation
Seller’s Mailing
Address:
0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000-0000
Xxx Xxxxxxx, Xxxxx 00000-0000
Purchaser:
[PURCHASER],
[Purchaser Entity]
Purchaser’s Mailing
Address:
[Purchaser
Address]
[Purchaser City, State Zip]
[Purchaser City, State Zip]
Definitions:
As used
herein, the following terms shall have the meanings assigned to
such terms in the following provisions:
“Improvements” means the buildings,
structures, fixtures and other improvements situated on the Land;
all rights and appurtenances pertaining to the Land; and all
fixtures and equipment attached to or located upon or within the
Land or the Improvements thereto.
“Land” means that certain tract of
land located in the City of Norfolk, [Property County] County,
Virginia, and legally described on Exhibit A
which is attached hereto and made a part hereof.
“Personal Property” means all
tangible personal property owned by Seller and associated with the
ownership, operation and maintenance of the Real Property and which
is situated on the Real Property, including, without limitation,
all fixtures, machinery, and equipment, and the personal property described on
Exhibit
B attached hereto.
“Real Property” means the Land and
the Improvements.
Transfer of Personal Property:
For
value received, Seller sells, assigns and delivers all of
Seller’s right, title and interest in and to the Personal
Property to Purchaser.
Seller
has not made and does not make any express or implied warranty or
representation of any kind whatsoever with respect to the Personal
Property, including, but not limited to: title; merchantability of
the Personal Property or its fitness for any particular purpose;
the design or condition of the Personal Property; the quality or
capacity of the Personal Property; workmanship or compliance of the
Personal Property with the requirements of any law, rule,
specification or contract pertaining thereto; patent infringement
or latent defects. Purchaser accepts the Personal Property on an
“AS IS, WHERE IS” basis, and “WITH ALL
FAULTS.”
IN
WITNESS WHEREOF, Seller has caused this instrument to be executed
and delivered as of the _____ day of ____________,
20__.
USAA
REAL ESTATE COMPANY,
a
Delaware corporation
By:
________________________
Name:
______________________
Title:
_______________________
{00869287.1} EXHIBIT
9.2.2
PURCHASE AND SALE
AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT 9.2.3
ASSIGNMENT AND ASSUMPTION OF LEASES
For
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, USAA REAL ESTATE COMPANY, a Delaware
corporation (the “Assignor”),
hereby assigns and delegates to ______________, a
________________________ (the “Assignee”),
and Assignee hereby assumes and accepts the assignment and
delegation of all of Assignor's right, title and interest in and to
any obligations under the leases (the “Leases”) and
the security deposits held by Assignor relating to the property
known as GSA-Social Security-Norfolk and more particularly
described on Exhibit A
attached hereto. The Leases and security deposits are listed on
Exhibit
B attached hereto.
[Indemnity and Hold
Harmless provisions to be included]
If any
litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment and Assumption of
Leases or concerning the meaning or interpretation of any provision
contained herein, the losing party shall pay the prevailing party's
costs and expenses of such litigation, including, without
limitation, reasonable attorneys' fees.
This
Assignment and Assumption of Leases may be executed and delivered
in any number of counterparts, each of which so executed and
delivered shall be deemed to be an original and all of which shall
constitute one and the same instrument.
IN
WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Leases effective as of the _____ day
of ________________, [Closing Year].
ASSIGNOR:
USAA REAL ESTATE
COMPANY,
a
Delaware corporation
By:
___________________________
Name:
_________________________
Title:
__________________________
ASSIGNEE:
______________________________
______________________________
By:
___________________________
Name:
_________________________
Title:
__________________________
{00869287.1} EXHIBIT 9.2.3
PURCHASE
AND SALE AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT 9.2.4
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
In
consideration of One Dollar and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, USAA REAL ESTATE COMPANY, a Delaware corporation (the
“Assignor”),
hereby assigns and delegates to __________________, a
____________________ (the “Assignee”),
with an office and place of business at _______________________,
and Assignee hereby assumes and accepts the assignment and
delegation of all of Assignor's right, title and interest in and to
the contracts described on Exhibit A
attached hereto relating to certain real property known as
GSA-Social Security-Norfolk and located at 0000 Xxxx Xxxxxxx Xxxxx,
Xxxxxxx, [Property County] County, Virginia.
If any
litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment and Assumption of
Contracts or concerning the meaning or interpretation of any
provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such litigation,
including, without limitation, reasonable attorneys'
fees.
This
Assignment and Assumption of Contracts may be executed and
delivered in any number of counterparts, each of which so executed
and delivered shall be deemed to be an original and all of which
shall constitute one and the same instrument.
IN
WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Contracts effective as of the _____
day of _____________, [Closing Year].
ASSIGNOR:
USAA REAL ESTATE
COMPANY,
a
Delaware corporation
By:
___________________________
Name:
_________________________
Title:
__________________________
ASSIGNEE:
______________________________
______________________________
By:
___________________________
Name:
_________________________
Title:
__________________________
{00869287.1} EXHIBIT 9.2.4
PURCHASE
AND SALE AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT 9.2.5
ASSIGNMENT OF WARRANTIES AND GUARANTEES
THIS
ASSIGNMENT OF WARRANTIES AND GUARANTEES is made as of the ______
day of ______________, [Closing Year], between USAA REAL ESTATE
COMPANY, a Delaware corporation (the “Assignor”),
and _______________, a ____________________ (the
“Assignee”).
R E C I
T A L S:
Assignee has this
day acquired from Assignor certain interests in land, buildings and
improvements more particularly described on Exhibit A
attached hereto and made a part hereof (the “Property”).
In
consideration of the acquisition of the Property by Assignee and
other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Assignor hereby
assigns, transfers and sets over unto Assignee, and Assignee hereby
accepts from Assignor, all Assignor's right, title and interest in
and to all transferable warranties and guarantees, if any, with
respect to the improvements located on the Property or any repairs
or renovations to such improvements and any personal property
conveyed to Assignee by Assignor in connection with the
Property.
IN
WITNESS WHEREOF, Assignor has caused this instrument to be executed
as of the date above written.
ASSIGNOR:
USAA REAL ESTATE
COMPANY,
a Delaware corporation
a Delaware corporation
By:
___________________________
Name:
_________________________
Title:
__________________________
ASSIGNEE:
By:
___________________________
Name:
_________________________
Title:
__________________________
{00869287.1} EXHIBIT 9.2.5
PURCHASE
AND SALE AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT 9.2.6
AFFIDAVIT PURSUANT TO FOREIGN INVESTMENT
AND REAL PROPERTY TAX ACT
The
undersigned hereby declares that the name, address and United
States taxpayer identification number of the owner of the real
property described in Exhibit A
attached hereto and incorporated herein by reference is as
follows:
Name and
Address
I.D. Number
USAA Real Estate
Company
_________________
_________________
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxx
000
Xxx
Xxxxxxx, Xxxxx 00000-0000
There
is no other person or entity who has an ownership interest in the
property. The owner is a Delaware corporation organized and
existing under the laws of the State of ______________ and, as
such, is not a foreign citizen or entity.
The
undersigned understands that the purchaser of the property intends
to rely on the foregoing representations in connection with the
United States Foreign Investment and Real Property
Act.
USAA
REAL ESTATE COMPANY,
a
Delaware corporation
By:
_____________________
Name:
___________________
Title:
____________________
{00869287.1} EXHIBIT 9.2.6
PURCHASE
AND SALE AGREEMENT
GSA-Social
Security-Norfolk
EXHIBIT
9.6
NOTICE TO UTILITY COMPANY
______________________,
[Closing Year]
_____________________________
_____________________________
_____________________________
RE:
GSA-Social Security-Norfolk
0000 Xxxx Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx
You are hereby
notified and advised that _______________ (“Purchaser”)
purchased and acquired from USAA Real Estate Company all right,
title and interest in and to “GSA-Social
Security-Norfolk” and located at 0000 Xxxx Xxxxxxx Xxxxx,
Xxxxxxx, [Property County] County, Virginia (“Property”).
In accordance with
the foregoing, you are hereby notified that all future payments of
invoices, bills, correspondence, and notices relating to the
Property, should be delivered to Purchaser at the following
address:
_______________________________
________________________________
________________________________
Very truly
yours,
USAA REAL ESTATE
COMPANY,
a Delaware
corporation
By:
________________________________
Name:______________________________
Title:_______________________________
{00869287.1} EXHIBIT 9.6
PURCHASE
AND SALE AGREEMENT
GSA-Social
Security-Norfolk
