11/21/97
FOXHALL SQUARE
WASHINGTON, D.C.
REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the 26th
day of September, 1997, by and between FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 1, a Florida limited partnership, and FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 2, a Florida limited partnership, (such parties are hereinafter
collectively referred to as "Seller"), both having an office at c/o Equity
Office Properties Management Corp., Two North Riverside Plaza, Suite 2200,
Chicago, Illinois 60606, and BERNSTEIN MANAGEMENT CORPORATION, a District of
Columbia corporation ("Purchaser"), having an office 5301 Wisconsin Avenue,
N.W., Suite 600, Washington, D.C. 20015.
RECITALS
A. Seller is the owner of that certain parcel of real estate (the "Real
Property") located in Washington, D.C., commonly known as 3301 New Mexico
Avenue, N.W., which parcel is more particularly described in EXHIBIT A attached
hereto and made a part hereof, and upon which is situated an office building
commonly known as "Foxhall Square".
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the "Property" (as such term is hereinafter defined), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
Subject to and in accordance with the terms and conditions set forth in
this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (i) all of Seller's right, title and
interest in and to the buildings and improvements on the Real Property and any
and all of Seller's rights, easements, licenses and privileges presently thereon
or appertaining thereto; (ii) Seller's right, title and interest in and to all
agreements of lease affecting the Property or any part thereof entered into on
or before August 19, 1997 (individually, a "Lease", and collectively, the
"Leases"), together with any New Leases (hereinafter defined); (iii) the
interest of Seller in all security deposits paid by tenants under the Leases
that are listed on EXHIBIT Q attached hereto and which subject to Section
11(L)(5) are not applied by Seller, in accordance with the terms of the Leases
and/or applicable law, between the date of this Agreement and Closing (the
"Security Deposits"); (iv) all of Seller's right, title and interest in and to
the furniture, furnishings, fixtures, equipment (except any computer equipment),
maintenance vehicles, tools and other tangible personalty located on the
Property and used in connection therewith that are listed on EXHIBIT K attached
hereto (the "Personal Property"); (v) all right, title and interest of Seller
under any and all of the maintenance, service, advertising and other like
contracts and agreements with respect to the ownership and operation of the
Property that are listed on EXHIBIT C attached hereto (the "Service Contracts");
and (vi) if and to the extent transferable, all of Seller's right, title and
interest in and to any existing intangible property pertaining to the Property,
including the name "Foxhall Square", but specifically excluding any intangible
property pertaining in any way to the rights associated with the name "Equity
Office" or the name of any entity containing the words "Equity Office" as a part
thereof; all to the extent applicable to the period from and after the "Closing"
(as such term is hereinafter defined); (items (i) through (vi) above, together
with the Real Property, are collectively referred to in this Agreement as the
"Property"). All of the foregoing expressly excludes: (A) all property owned by
tenants or other users or occupants of the Property except to the extent that
any Security Deposits are deemed to be "owned" by a tenant under applicable law;
and (B) all rights with respect to any refund of taxes attributable to the
Property with respect to any period prior to the "Closing" (as hereinafter
defined).
2. PURCHASE PRICE
The purchase price to be paid by Purchaser to Seller for the Property
is Seventeen Million One Hundred Twenty-Five Thousand and No/100 Dollars
($17,125,000.00) (the "Purchase Price"). The Purchase Price shall be paid as
follows:
A. Earnest Money.
(i) Prior to the date of this Agreement, Purchaser and
Seller entered into that certain letter of intent (the
"Letter of Intent") dated and accepted by Purchaser and
Seller on August 19, 1997. Purchaser, pursuant to the Letter
of Intent, has deposited with Settlementcorp, located at
5301 Wisconsin Avenue, N.W., Suite 710, Washington D.C.
("Escrowee"), initial earnest money (together with any
interest accrued thereon, the "Initial Earnest Money") in
the sum of Two Hundred Fifty Thousand Dollars ($250,000),
Fifty Thousand Dollars ($50,000) of which sum, together with
any interest accrued thereon through the date of this
Agreement, is hereinafter referred to as the "Property
Market Removal Fee" and shall be deemed to have been
conclusively earned by Seller upon the date of this
Agreement as reasonable compensation for Seller's agreement
to enter into this Agreement with Purchaser and for Seller
granting Purchaser its permission to inspect the Property
prior to the date of this Agreement in order for Purchaser
to determine the suitability of the Property for its
purposes as more specifically provided in the Letter of
Intent and Section 8(A) below. Concurrently with the
execution of this Agreement by Purchaser and Seller,
Purchaser shall deposit additional earnest money (the
"Additional Earnest Money") in the sum of Seven Hundred
Fifty Thousand Dollars ($750,000) with the Escrowee (the
Initial Earnest Money (less the Property Market Removal Fee)
and the Additional Earnest Money, together with any interest
accrued thereon, are collectively referred to herein as the
"Earnest Money"), and Purchaser, Seller and Escrowee shall
execute a joint order escrow agreement (the "Joint Order
Escrow Agreement") in the form of EXHIBIT D attached hereto.
The Earnest Money shall be invested as Seller and Purchaser
so direct pursuant to the terms and provisions of the Joint
Order Escrow Agreement. Any and all interest earned on the
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Earnest Money and the Property Market Removal Fee shall be
reported to Purchaser's federal tax identification number.
(ii) If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Earnest Money shall be
delivered by Escrowee to Seller as part payment of the
Purchase Price. If the transaction fails to close due to a
default on the part of Purchaser, the Earnest Money shall be
delivered by Escrowee to Seller, as liquidated and agreed
upon damages in accordance with Section 7(B) below. If the
transaction fails to close due to a default on the part of
Seller, the Purchaser shall elect or be deemed to have
elected one of the remedies provided for in Section 7(A)
below.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase Price,
minus the Property Market Removal Fee and the sum of the Earnest Money which
Seller receives at Closing from the Escrowee, and plus or minus, as the case may
require, the closing prorations and adjustments to be made pursuant to Section
4(C) below.
3. EVIDENCE OF TITLE
A. Title Commitment.
Seller has heretofore delivered to Purchaser a copy of its prior
title insurance policy issued by Safeco Title Insurance Company of Maryland as
Policy No. OM78700 (the "Prior Title Policy"), and Purchaser shall obtain for
itself (and Purchaser may thereafter deliver a copy of same to Prudential
Insurance Company of America ("Purchaser's Mortgage Lender")) and shall cause to
be delivered to Seller, a current commitment in favor of Purchaser for an ALTA
Owner's Title Insurance Policy and Loan Policy (the "Title Commitment"), in the
amount of the Purchase Price, issued by Commonwealth Land Title Insurance
Company (the "Title Insurer"), together with copies of any underlying title
documents disclosed therein. At Closing, the Title Insurer shall deliver to
Purchaser a title policy or a "marked-up" title commitment, dated effective as
of the Closing Date (hereinafter defined), from the Title Insurer in the amount
of the Purchase Price reflecting the conveyance of the Property to Purchaser,
subject only to those exceptions to title which are more fully described on
attached EXHIBIT B and exceptions to title which become Permitted Exceptions
pursuant to this Section 3 (collectively, the "Permitted Exceptions").
B. Survey.
Seller has heretofore delivered to Purchaser a prior survey of
the Real Property prepared by A. Morton Thomas and Associates, Inc., last
revised on May 30, 1984 (the "Prior Survey"). Purchaser shall obtain for itself
(and Purchaser may thereafter deliver a copy of same to Purchaser's Mortgage
Lender) and shall cause to be delivered to Seller and the Title Insurer, a
current survey of the Real Property (the "Survey").
C. Review of Title Commitment and Survey.
If the Title Commitment or Survey disclose exceptions to title
other than those disclosed by the Prior Title Policy, the Prior Survey and the
Permitted Exceptions which are noted on
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attached EXHIBIT B, then Purchaser shall have until 5:00 p.m. (Chicago, Illinois
time) on the tenth (10th) day after the date of this Agreement within which to
notify Seller of any such exceptions to title to which Purchaser objects. If any
additional exceptions to title arise between the date of the Title Commitment,
the Survey and the Closing, Purchaser shall have five (5) days after its receipt
of notice of same within which to notify Seller of any such exception to title
to which Purchaser objects. Any such exceptions to title not objected to by
Purchaser as aforesaid shall become Permitted Exceptions. If Purchaser objects
to any such exceptions to title, Seller shall have until Closing (but in any
event at least thirty (30) days after it receives notice of Purchaser's
objection(s)) to remove such exceptions to title, which removal may be
accomplished by waiver or endorsement by the Title Insurer. If Seller fails to
remove any such exceptions to title as aforesaid, Purchaser may, as its sole and
exclusive remedy, terminate this Agreement and obtain a return of the Earnest
Money. If Purchaser does not elect to terminate this Agreement, Purchaser shall
consummate the Closing and accept title to the Property subject to all such
exceptions to title (in which event, all such exceptions to title shall be
deemed "Permitted Exceptions"). Notwithstanding anything in this Section 3(C) to
the contrary, Seller shall be obligated, at Closing, to cause the Title Insurer
to remove (by waiver or endorsement) any "Unpermitted Exceptions" (as
hereinafter defined) that are not set forth on EXHIBIT B attached hereto. For
purposes of this Agreement, the term "Unpermitted Exceptions" shall be defined
to mean (i) mortgages and deeds of trust granted by Seller, and (ii) mechanic's
liens with respect to work contracted for by Seller or its authorized agents,
provided that Seller has received written notice of such mechanic's lien prior
to Closing and the cost to remove such mechanic's liens as aforesaid does not
exceed Ten Thousand Dollars ($10,000) in the aggregate.
4. CLOSING
A. Closing Date. The "Closing" of the transaction contemplated by
this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property, and the satisfaction of all other terms and conditions of
this Agreement) shall occur on November 10, 1997, at the office of the Escrowee,
or by telecopy and/or overnight courier, or at such other time and place as
Seller and Purchaser shall agree in writing. The "Closing Date" shall be the
date of Closing. If the date for Closing above provided for falls on a
Saturday, Sunday or legal holiday, then the Closing Date shall be the next
business day.
B. Closing Documents.
(i) Seller. At Closing, Seller shall deliver to Purchaser
the following:
(a) a "special" warranty deed (the "Deed"), subject only to
the Permitted Exceptions and in form reasonably
acceptable to the Title Insurer;
(b) a limited warranty bill of sale (the "Bill of Sale") in
the form attached hereto as EXHIBIT J;
(c) a letter advising tenants under the Leases of the
change in ownership of the Property in the form of
EXHIBIT L attached hereto;
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(d) a letter advising vendors under the Service Contracts
of the change in ownership of the Property in the form
of EXHIBIT M attached hereto;
(e) four (4) counterparts of an assignment and assumption
of the Leases, Security Deposits and Merchant
Association Fees in the form of EXHIBIT E attached
hereto (the "Lease Assignment"), executed by Seller;
(f) four (4) counterparts of an assignment and assumption
of the Service Contracts in the form of EXHIBIT F
attached hereto (the "Service Contract Assignment"),
executed by Seller;
(g) an affidavit stating, under penalty of perjury,
Seller's U.S. taxpayer identification number and that
Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code;
(h) four (4) counterparts of a closing statement (the
"Closing Statement") to be executed by Seller and
Purchaser, containing the "Closing Delinquency
Schedule" (as defined below) and setting forth the
prorations and adjustments to the Purchase Price as
required by Section 4(C) below, executed by Seller;
(i) all executed "Estoppel Certificates" (as hereinafter
defined) received by Seller as of the Closing Date;
(j) [Intentionally deleted]
(k) four (4) counterparts of a letter with respect to
Seller's delivery of information required under 29
C.F.R. (S)1910.1001(j)(2)(ii) and 29 C.F.R.
(S)1926.1101(n)(6) (the "OSHA Letter") in the form of
EXHIBIT O attached hereto, executed by Seller;
(l) an owner's affidavit in favor of the Title Insurer
pertaining to parties in possession of, and potential
mechanic's liens and other encumbrances on, the Real
Property since the last effective date of the Title
Commitment, all in form and substance reasonably
satisfactory to Seller.
(m) a certificate updating and/or confirming the Seller's
representations and warranties contained in Section 10
below (as modified or deemed modified pursuant to
Section 10);
(n) an Underground Storage Tank Real Estate Transfer
Disclosure Form in the form of EXHIBIT U attached
hereto, executed by Seller; and
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(o) such additional documents as may be required by the
Title Insurer to issue its title insurance policy
pursuant to the Title Commitment; provided that, Seller
shall not be obligated to deliver any such documents
which may cause Seller to incur any
additional cost, expense or liability, or which may
adversely affect any of Seller's rights hereunder.
(ii) Purchaser. Purchaser shall deliver or cause to be delivered
to Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) four (4) counterparts of the Lease Assignment, executed
by Purchaser;
(c) four (4) counterparts of the Service Contract
Assignment, executed by Purchaser;
(d) four (4) counterparts of the Closing Statement,
executed by Purchaser;
(e) copies of any executed Estoppel Certificates received
by Purchaser as of the Closing Date , if any;
(f) four (4) counterparts of the OSHA Letter, executed by
Purchaser; and
(g) such additional documents as may be required by the
Title Insurer to issue its title insurance policy
pursuant to the Title Commitment; provided that,
Purchaser shall not be obligated to deliver any such
documents which may cause Purchaser to incur any
additional cost, expense or liability, or which may
adversely affect any of Purchaser's rights hereunder.
C. Closing Prorations and Adjustments.
(i) The following items are to be prorated or adjusted (as
appropriate) as of the Closing Date, it being understood
that for purposes of prorations and adjustments, Purchaser
shall be deemed the owner of the Property on the Closing
Date and Seller shall be deemed the owner of the Property on
the day prior to the Closing Date:
(a) real estate and personal property taxes and assessments
(initially on the basis of the most recent
ascertainable tax bill if the current bill or evidence
sufficient to calculate the amount of the taxes for the
period through Closing is not then available);
(b) the "minimum" or "base" rent payable by tenants under
the Leases ("Base Rent"); provided, however, that rent
and all other
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sums which are due and payable to Seller by any tenant
but uncollected as of the Closing shall not be
adjusted, but Purchaser shall cause the rent and other
sums for the period prior to Closing to be remitted to
Seller if, as and when collected, but only after such
rents are first applied towards any unpaid rents first
becoming due and payable subsequent to the Closing
Date. At Closing, Seller shall deliver to Purchaser a
schedule (the "Closing Delinquency Schedule") of all
such past due but uncollected rent and other sums owed
by tenants (the "Past Due Rents"). Purchaser shall
include the amount of the Past Due Rents in the first
bills thereafter submitted to the tenants in question
after the Closing and shall promptly provide Seller
with copies of such bills upon issuance, and shall
continue to do so for six (6) months thereafter.
Purchaser shall promptly remit to Seller any such Past
Due Rents paid by tenants set forth on the Closing
Delinquency Schedule, but only if (i) a deficiency in
the then current rent is not thereby created, and (ii)
such Past Due Rents are first applied to any delinquent
rents first becoming due and payable subsequent to the
Closing Date. To the extent not set forth on the
Closing Delinquency Schedule, "Operating Expense
Reimbursements" (as hereinafter defined) shall be
prorated in accordance with Section 4(C)(ii) below.
Overage rent, percentage rent and reimbursement of real
estate taxes payable, common area maintenance, utility
charges, water and sewer charges, insurance and all
other charges to or contributions by tenants under the
Leases other than Base Rent (such costs and expenses
being collectively referred to herein as the "Operating
Expenses", and the amounts reimbursable by tenants
under the Leases with respect to such Operating
Expenses being referred to herein as the "Operating
Expense Reimbursements") shall be prorated as follows:
the amount of any Base Rents and Operating Expense
Reimbursements to be paid by any tenant shall be paid
in accordance with such tenant's Lease as now existing
(Purchaser hereby covenanting and agreeing not to
modify the Leases after Closing to change the date
and/or method for payment of such amounts with respect
to the period prior to Closing until after the
occurrence of the reprorations described in Section
4(C)(iii) below) and Purchaser shall, after Closing,
promptly pay to Seller a prorata portion of such
Operating Expense Reimbursement, based upon
apportionment being made as of the Closing Date,
promptly after the date when such Operating Expense
Reimbursement is received from the tenant;
(c) with respect to tenant improvement costs and/or
allowances or leasing commissions relating to (1) "New
Leases" (as hereinafter defined) executed after August
19, 1997 and prior to the date of this Agreement, and
(2) "New Leases" executed during the period from and
after the date of this Agreement
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through the Closing Date with the consent of Purchaser
granted (or deemed to be granted) in accordance with
Section 11(L) below, Seller and Purchaser agree that
such costs, allowances and commissions shall be (y)
paid by Purchaser with respect to New Leases executed
prior to the date of this Agreement, or (z) prorated
over the initial term of any New Lease entered into
after the date of this Agreement with the consent of
Purchaser granted (or deemed to be granted) in
accordance with Section 11(L) below, with Seller being
responsible for a portion of such costs, allowances and
commissions based on the ratio of Base Rent payments
received by Seller through the Closing Date to the
total Base Rent payable over the initial term of the
particular New Lease and, in the event that Seller has
paid such costs, allowances and/or commissions prior to
Closing, Purchaser shall reimburse Seller at Closing
for the amount of any such costs, allowances and/or
commissions paid by Seller, based on the above-
described allocation or proration;
(d) the amount of the Security Deposits held by Seller as
of the Closing Date, with Purchaser receiving a credit
at Closing against the Purchase Price in the amount of
the Security Deposits held by Seller as of the Closing
Date;
(e) water, sewer, electric, telephone and all other utility
and fuel charges, fees and use charges, fuel on hand
(at cost plus sales tax), and any deposits with utility
companies (to the extent possible, utility prorations
will be handled by meter readings on the Closing Date);
(f) amounts due and prepayments under the Service
Contracts;
(g) assignable license and permit fees;
(h) the amount of any merchant association fees held by
Seller pursuant to any Lease or New Lease as of the
Closing Date (the "Merchant Association Fees"), if any,
with Purchaser receiving a credit at Closing against
the Purchase Price in the amount of the Merchant
Association Fees held by Seller as of the Closing Date,
if any; and
(i) other similar items of income and expenses of
operation.
(ii) Notwithstanding any other provision of this Section 4(C) but
subject to Section 4(C)(iii) below, Seller shall in all
events be entitled to retain Operating Expense
Reimbursements paid by tenants for real estate taxes and
assessments, common area maintenance expenses, utility
charges, water and sewer charges, insurance and all other
costs and expenses charged to tenants under the Leases as of
the Closing.
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(iii) As soon as practical after Closing, but in no event later
than June 30, 1998, Seller and Purchaser shall, with respect
to any such amounts prorated or adjusted at Closing pursuant
to Section 4(C)(i) above based on estimates or formulae, as
applicable, jointly determine and reapportion such amounts
in accordance with Section 4(C)(i) above upon
determination of the actual costs or expenses with respect
thereto. In the event that the amount credited to Purchaser
by Seller at Closing exceeds the amount of the credit that
Purchaser should have received had such actual amounts been
available at Closing, Purchaser shall promptly remit such
excess amount to Seller. In the event that the amount of
Operating Expense Reimbursements retained by Seller at
Closing is less than the amount of Operating Expense
Reimbursements to which Seller is entitled after calculation
of actual Operating Expenses under this Section 4(C),
Purchaser shall (x) to the extent such amounts have already
been collected by Purchaser from the tenants, promptly remit
such amounts to Seller, and (y) to the extent such amounts
have not yet been collected from tenants, Purchaser and
Seller shall (a) jointly and promptly bill the tenants for
such amounts (such bills shall provide that each party's
proportionate share thereof be remitted directly to such
party, and shall otherwise be in a form reasonably
satisfactory to Seller and Purchaser), and (b) diligently
pursue collection thereof. In the event any such
proportionate amount is delivered to either Seller or
Purchaser contrary to the directions contained in any such
bill, then the party receiving such amount shall promptly
deliver such sum to the other party. In the event that:
(1) the amount credited to Seller by Purchaser at Closing
exceeds the amount of the credit that Seller should have
received at Closing had such actual amounts been available
at Closing; and/or (2) the amount of the Operating Expense
Reimbursements with respect to such amounts retained by
Seller at Closing exceed the amount of the Operating Expense
Reimbursements that Seller should have retained at Closing
had such actual amounts been available at Closing and a
portion of such excess amounts are refundable to tenants
under any of the Leases, Seller shall, remit such excess
amounts to Purchaser; provided that, to the extent any such
Operating Expense Reimbursement excess amounts are otherwise
payable to tenants owing Past Due Rents, Seller may offset
the amounts due to such tenants against the Past Due Rents
owing to Seller from such tenants and remit any remaining
amounts to Purchaser and Purchaser shall be thereafter
obligated to promptly remit such remaining amounts to the
particular tenants in question (and Purchaser shall
indemnify, defend and hold Seller, its beneficiaries, their
partners, and their respective directors, officers,
employees and agents, and each of them, harmless from and
against any losses, claims, damages and liabilities
(including, without limitation, reasonable attorneys' fees
and expenses incurred in connection therewith) arising out
of or resulting from Purchaser's failure to remit such
amounts to the tenants in accordance with this Section
4(C)(iii)).
(iv) If Seller has not received all Past Due Rents or other
amounts owed to it by tenants within sixty (60) days after
the Closing Date, Seller at its sole
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cost and expense, shall be entitled at any time within the
twelve (12) month period after such sixty (60) day period
(with respect to Past Due Rents) or within the twelve (12)
month period after such other amounts are due (with respect
to amounts other than Past Due Rents), to commence such
actions or proceedings not affecting possession or enforcing
landlord's liens or resulting in termination of the Lease in
question as Seller shall desire to collect any such Past Due
Rents or other amounts, and Purchaser shall cooperate with
Seller in any such action.
(v) For purposes of this Section 4(C), the amount of any expense
credited by one party to the other shall be deemed an
expense paid by that party. The terms and provisions of
this Section 4(C) shall survive Closing and the delivery of
the Deed.
(vi) Seller shall give Purchaser a credit at Closing in the
amount of One Hundred Sixty-Seven Thousand Eight Hundred
Twenty-Six Dollars ($167,826) for the work allowance
provided for in Section VIII.B. (captioned "Substitution
Space Allowance") of that certain First Amendment dated
February 2, 1997 ("First Amendment"), by and among Robert M.
Adrian, M.D., F.A.C.P., an individual, and Craig R.
Dufresne, M.D., P.C., jointly and severally, as tenants, and
Equity Office Holdings, L.L.C., as agent for Seller. At
Closing Purchaser shall assume the obligations of Seller
under that certain contract dated September 12, 1997, by and
between Equity Office Properties Management Corp., as agent
for the Seller, and The Warren Young Group Inc. (the "Warren
Contract"), for the tenant improvement work to be completed
in accordance with the First Amendment, and indemnify and
hold Seller harmless from and against any claims, losses,
liabilities, costs and expenses (including reasonable
attorneys' fees) arising out of or in connection with the
Warren Contract.
(viii) Purchaser acknowledges that prior to the date of this
Agreement, Seller has contracted for the installation of one
(1) above-ground storage tank on the Real Property pursuant
to that certain agreement dated June 2, 1997, with AEG
Underground Storage Tank Division. In the event the work
contemplated by such agreement shall be completed prior to
Closing, then Seller shall remain responsible for the
payments thereunder. Seller agrees to use its good faith
effort to cause such work to be completed prior to Closing.
In the event such work has not been completed prior to
Closing, then Seller shall give Purchaser a credit at
Closing in the amount of the remaining payments to be made
thereunder and Purchaser shall assume all of Seller's
obligations thereunder and indemnify and hold Seller
harmless from and against any claims, losses, liabilities,
costs and expenses (including reasonable attorneys' fees)
arising out of or in connection with such agreement and/or
obligations.
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D. Transaction Costs.
Whether or not the closing occurs: (A) Seller shall be
responsible for and pay (i) one-half (1/2) of the District of Columbia Real
Property Transfer Tax and one-half (1/2) of the District of Columbia Deed
Recordation Tax (collectively, the "Transfer Taxes") owed in connection with the
Deed (and Seller and Purchaser shall timely execute and deliver such forms and
returns as are necessary in connection therewith), (ii) all recording charges
for recording any releases or reconveyances of Seller's existing mortgage
financing, if any, and (iii) the fees and costs of its attorneys and advisors;
and (B) Purchaser shall be responsible for and pay (i) one-half of the Transfer
Taxes, (ii) the premium for the owner's title insurance policy to be issued to
Purchaser at Closing (including any and all endorsements), (iii) the Title
Insurer's standard escrow fees, if any, (iv) all recording charges other than
charges for recording any releases or reconveyances of Seller's existing
mortgage financing, if any, (v) the cost of the Survey, and (vi) the fees and
costs of its attorneys and advisors.
E. Possession.
Upon Closing, Seller shall deliver to Purchaser possession of the
Property, subject only to the Permitted Exceptions.
5. CASUALTY LOSS AND CONDEMNATION
If, prior to Closing, the Property or any part thereof shall be taken
or condemned, or destroyed or damaged by fire or other casualty, Seller shall
promptly so notify Purchaser. In such event, provided that either: (i) the
reasonable cost to restore the Property due to such damage or destruction is
greater than Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00) (a
"Material Casualty"), or (ii) any material portion of the building located on
the Property is taken or condemned, (a "Material Condemnation"), then Purchaser
shall have the option to terminate this Agreement by delivery of its written
termination notice to Seller within fifteen (15) days after Seller's delivery to
Purchaser of its notice of a Material Condemnation or the occurrence of a
Material Casualty. If (a) the aforementioned casualty is not a Material
Casualty, (b) the aforementioned taking or condemnation is not a Material
Condemnation, or (c) Purchaser does not elect to terminate this Agreement
pursuant to the provisions of the preceding sentence (time being of the essence
with respect to any such election), then Seller and Purchaser shall consummate
the transaction contemplated by this Agreement without abatement of the Purchase
Price and Purchaser shall be entitled to approve the terms of any insurance
settlement, such approval not to be unreasonably withheld or delayed, and to
receive at Closing the taking, condemnation or insurance proceeds (or an
assignment of the right to such proceeds) (less any amounts applied against
costs incurred or income lost (solely to the extent Seller has rent loss
insurance proceeds available with respect to such lost income) by Seller as a
result of such occurrence) plus a credit against the Purchase Price in the
amount of any deductible payable by Seller, and Seller shall, at Closing,
execute and deliver to Purchaser all customary proofs of loss, assignments of
claims and other similar items. If Purchaser elects to terminate this Agreement
pursuant to the provisions of this Section 5 and Purchaser is not in default
under this Agreement, the Earnest Money shall be returned to Purchaser by the
Escrowee, in which event this Agreement shall, without further action of the
parties, become null and void and neither party shall have any further rights or
obligations under this Agreement; provided, however, that the foregoing shall
not limit Seller's recourse against Purchaser under Sections 6 and 11(G) below
and under the "Confidentiality Agreement" (as hereinafter defined).
11
6. BROKERAGE
Seller, pursuant to a separate written agreement (the "C&P
Agreement"), is obligated to pay upon Closing (but not otherwise) a brokerage
commission to Cassidy & Pinkard, Inc. ("C&P") for services rendered in
connection with the sale and purchase of the Property. Seller shall indemnify
and hold Purchaser harmless from and against any and all claims of C&P related
to Seller's agreement under the C&P Agreement to pay C&P a commission in
connection with the purchase and sale of the Property, including, without
limitation, reasonable attorneys' fees and expenses incurred by Purchaser in
connection with such claim. Purchaser represents and warrants to Seller that
Purchaser does not have any agreement with any broker or finder in connection
with the Property. Seller and Purchaser shall each indemnify and hold the other
harmless from and against any and all claims of all brokers and finders (other
than a claim by C&P against Seller of the type described in the preceding
sentence, which claim Seller shall be obligated to indemnify Purchaser against
in accordance with the preceding sentence) claiming by, through or under the
indemnifying party and in any way related to the sale and purchase of the
Property, this Agreement or otherwise, including, without limitation, reasonable
attorneys' fees and expenses incurred by the indemnified party in connection
with such claim.
7. DEFAULT AND REMEDIES
A. Notwithstanding anything to the contrary contained in this
Agreement, if (i) Seller fails to perform in accordance with the terms of this
Agreement, (ii) Purchaser is not otherwise in default hereunder, and (iii) the
Closing does not occur, then, as Purchaser's sole and exclusive remedy hereunder
and at Purchaser's option, either (x) the Earnest Money, or in the event of a
willful default by Seller, the Earnest Money and the Property Market Removal
Fee, shall be returned to Purchaser, in which event this Agreement shall be null
and void, and neither party shall have any rights or obligations under this
Agreement, or (y) upon notice to Seller not less than ten (10) days after
Purchaser becomes aware of such failure, and provided an action is filed within
thirty (30) days thereafter, Purchaser may seek specific performance of this
Agreement, but not damages. Purchaser's failure to seek specific performance as
aforesaid shall constitute its election to proceed under clause (x) above.
B. If Purchaser fails to perform in accordance with the terms of this
Agreement and Seller is not in default hereunder, the Earnest Money may be
retained by Seller as liquidated and agreed upon damages and as Seller's sole
and exclusive remedy with respect thereto (in addition to the Property Market
Removal Fee deemed conclusively earned upon the date of this Agreement as
provided in Section 2(A) above); provided, however, that the foregoing shall not
limit Seller's recourse against Purchaser under Section 6 above, Section 11(G)
below and under the Confidentiality Agreement. PURCHASER AND SELLER ACKNOWLEDGE
AND AGREE THAT (1) THE EARNEST MONEY IS A REASONABLE ESTIMATE OF AND BEARS A
REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED
BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE
OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE
ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH
WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS
AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3)
PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE
EARNEST MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF
12
PURCHASER UNDER THIS AGREEMENT; AND (4) THE EARNEST MONEY SHALL BE AND
CONSTITUTE VALID LIQUIDATED DAMAGES.
PURCHASER INITIALS: SELLER INITIALS:
C. After Closing, Seller and Purchaser shall, subject to the terms
and conditions of this Agreement, have such rights and remedies as are available
at law or in equity, except that neither Seller nor Purchaser shall be entitled
to recover from the other consequential or special damages.
8. CONDITIONS PRECEDENT
A. Subject to Section 11(G) below and the provisions of that certain
confidentiality letter agreement dated May 29, 1997 by and between C&P, on
behalf of Seller, and Purchaser, as amended by that certain modification letter
agreement dated August 19, 1997 by and between Equity Office Properties
Management Corp., a Delaware corporation, on behalf of Seller, and Purchaser
(collectively the "Confidentiality Agreement"), Purchaser acknowledges that,
prior to the date hereof, it has had an opportunity to inspect the Property,
review the Leases, the Service Contracts, all "Disclosures" (as hereinafter
defined) provided by Seller and make such other inquiries and investigations and
obtain such reports and analyses it deemed adequate in connection with its
decision to purchase the Property, and, as a result thereof, Purchaser agrees
that, except as specifically set forth in this Agreement, it shall purchase the
Property in its "AS IS, WHERE IS" condition, subject to ordinary wear and tear
and as more particularly provided in Sections 8(B)(i), 11(H) and 11(L)(4) below.
B. The obligation of Purchaser to consummate the transaction
hereunder shall be subject to the fulfillment on or before the Closing Date of
all of the following conditions any or all of which may be waived by Purchaser
in its sole discretion:
(i) The Property shall be in substantially the same condition as it
was as of the date of this Agreement, subject to ordinary wear and tear and
the acts (both prior and subsequent to the date of this Agreement) of
Purchaser, or any of its agents, representatives, employees or contractors.
For purposes of this Section 8(B)(i), an item or items shall be deemed
"ordinary wear and tear" if the cost to replace or repair such items so
they are in substantially the same condition as of the date of this
Agreement is less than (i) Ten Thousand Dollars ($10,000) per item, and
(ii) Fifty Thousand Dollars ($50,000) for all items. In the event such
items are not of an "ordinary wear and tear" nature (that is to say, such
items exceed the cost of the threshold dollar amounts above), then Seller
is under no obligation to repair such items or to give Purchaser any credit
for such items at Closing. In the event such items are of an "ordinary wear
and tear" nature, then Seller, at Seller's sole and absolute discretion,
shall either (1) replace or repair such items so they are in substantially
the same condition as of the date of this Agreement, or (2) give Purchaser
a credit at Closing in an amount sufficient to replace or repair such items
to such a condition.
(ii) All of the representations and warranties of Seller contained in
Section 10(A) of this Agreement shall be true and correct in all material
respects as of the Closing Date (with
13
appropriate modifications permitted or deemed made under Section 10 of this
Agreement or not adverse to Purchaser).
(iii) Seller shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Seller as of the Closing Date.
C. The obligation of Seller to consummate the transaction hereunder
shall be subject to the fulfillment on or before the Closing Date of all of the
following conditions, any or all of which may be waived by Seller in its sole
discretion:
(i) Escrowee shall have received the Purchase Price as adjusted
pursuant to and payable in the manner provided for in this Agreement.
(ii) All of the representations and warranties of Purchaser
contained in Section 11(T) of this Agreement shall be true and correct in
all material respects as of the Closing Date.
(iii) Purchaser shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Purchaser as of the Closing Date.
9. ESTOPPEL CERTIFICATES
A. Seller shall, within five (5) business days of the date of this
Agreement, send estoppel certificates (individually, an "Estoppel Certificate"
and collectively, the "Estoppel Certificates") to each tenant occupying space at
the Property as of the date of this Agreement. The Estoppel Certificates shall
be in the form of EXHIBIT G attached hereto (the "Form Tenant Estoppel
Certificate").
B. It shall be a condition precedent to Purchaser's obligation to
purchase the Property pursuant to this Agreement that Seller provide to
Purchaser, at Closing, Estoppel Certificates executed by tenants occupying not
less than seventy percent (70%) of the net rentable square footage of space at
the Property as of the date of this Agreement. The Estoppel Certificates
executed by tenants shall be in substantially the form of the Form Tenant
Estoppel Certificate, except that an Estoppel Certificate shall be deemed an
acceptable Estoppel Certificate for purposes of this Section 9 if it contains
the information set forth on EXHIBIT G, and/or the qualification by the tenant
of any statement as being to the best of its knowledge or as being subject to
any similar qualification, and/or any tenant failure to address or certify the
Estoppel Certificate to Purchaser's Mortgage Lender (the aforesaid acceptable
forms of Estoppel Certificates to be delivered are collectively referred to as
the "Required Estoppel Certificates"). During the period prior to Closing,
Seller agrees to use its good faith efforts to obtain the Required Estoppel
Certificates, and, once the Required Estoppel Certificates are obtained, to
continue to use its good faith efforts to obtain Estoppel Certificates from the
remaining tenants.
C. [Intentionally deleted]
D. In the event that Seller is unable to provide to Purchaser the Required
Estoppel Certificates at Closing, Purchaser may either: (x) elect not to
purchase the Property, in which event this Agreement shall be null and void, the
Escrowee shall promptly return the Earnest Money to Purchaser and thereafter
neither Seller nor Purchaser shall have any further rights or obligations under
this Agreement, provided, however, that the foregoing shall not limit Seller's
recourse against Purchaser
14
under Section 6 above and Section 11(G) below and under the Confidentiality
Agreement; or (y) elect to purchase the Property notwithstanding Seller's
inability to provide the Required Estoppel Certificates, in which event Seller
shall not be obligated to provide any additional Estoppel Certificates to
Purchaser after Closing.
E. If any Estoppel Certificates contain statements or allegations
that a default or potential default exists on the part of Seller under the Lease
in question and (i) the existence or the substance of such allegations or
statements were contained in any "Disclosures" (as defined in Section 11(H)
below) prior to the date of this Agreement, or (ii) prior to the date of this
Agreement Purchaser otherwise obtained actual knowledge of facts revealing the
substance of such statements or allegations, (iii) Seller otherwise disclosed in
writing the existence or the substance of such allegations or statements prior
to the date of this Agreement, or (iv) Purchaser elects that Closing occur
notwithstanding the existence of such default or potential default, then such
Estoppel Certificates shall be deemed acceptable for purposes of this Section 9,
notwithstanding the existence of such allegations or statements and Seller shall
have no liability to Purchaser hereunder with respect to the existence of such
allegations, statements or information.
10. SELLER'S REPRESENTATIONS AND WARRANTIES
A. Seller represents and warrants to Purchaser the following:
(i) As of the date of this Agreement, to the "Actual Knowledge
of Seller" (as hereinafter defined), except as set forth
on EXHIBIT H attached hereto, Seller has received no
written notice from any governmental authority of any
material violation of any, state or federal law, rule or
regulation concerning the Property or any part thereof
which has not been cured prior to the date of this
Agreement; provided, however, that Seller makes no
representation or warranty with respect to (A) the
information or matters disclosed in the items set forth in
EXHIBIT P attached hereto, and (B) the Property's
compliance with the American with Disabilities Act.
(ii) The list attached hereto as EXHIBIT C lists all of the
Service Contracts, the service provided thereunder, the
vendor under each Service Contract and, if such Service
Contract is written, the date of such Service Contract.
(iii) Except as set forth on EXHIBIT I attached hereto, as of
the date of this Agreement, Seller has received no written
notice of (a) any pending litigation with respect to the
Property which would affect the Property after Closing, or
(b) any proposed modification from a governmental body
authorized to change the Property's existing zoning to a
classification that would not permit the present use of
the Property after Closing.
(iv) Seller has been duly organized and is validly existing
under the laws of Florida and is in good standing in the
District of Columbia. Seller has the full right and
authority to enter into this Agreement and to consummate
or cause to be consummated the transactions contemplated
herein to be made
15
by Seller. The person signing this Agreement on behalf of
Seller is authorized to do so.
(v) Attached hereto as EXHIBIT T is a list (the "Rent Roll")
setting forth, to the Actual Knowledge of Seller, the
following information as of the date of this Agreement
(or, such other date as may be noted below): (1) the name
of each tenant under each of the Leases as of the date of
this Agreement, (2) a description of the space occupied by
each tenant, (3) the monthly Base Rent and Operating
Expense Reimbursements billed to each tenant with respect
to the month of August, 1997, (4) the approximate square
footage demised under the particular tenant's Lease, (5)
the "base year" for payment of real estate tax pass-
throughs, (6) the "base year" for payment of all other
Operating Expense Reimbursements other than real estate
taxes, and (7) the amount of all unapplied Security
Deposits held by Seller with respect to the Leases.
(vi) To the Actual Knowledge of Seller, prior to the date of
this Agreement, Seller has delivered to Purchaser true and
correct copies of the Leases.
B. When used in this Agreement, the term "Actual Knowledge of Seller"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current knowledge of Alissa Schneider, Director - Dispositions of
Equity Office Properties Management Corp., a Delaware corporation ("EOPMC"), and
Christopher P. Mundy, Vice President of EOPMC. Notwithstanding anything herein
to the contrary, neither Alissa Schneider nor Christopher P. Mundy shall have
any personal liability or liability whatsoever with respect to any matters set
forth in this Agreement or any of Seller's representations and/or warranties
herein being or becoming untrue, inaccurate or incomplete in any respect.
C. The representations and warranties set forth in this Section 10
shall, subject to Section 10(F), be deemed to be remade as of Closing and shall
survive the Closing and the delivery of the Deed for a period of one hundred
eighty (180) days from the Closing Date. Notice of any claim as to a breach of
any such representations or warranties must be made to Seller prior to the
expiration of such one hundred eighty (180) day period or it shall be deemed a
waiver of the right to assert such claim.
D. Seller does not represent and warrant that any particular Service
Contract will be in force or effect as of the Closing or that tenants under
Leases or the parties to the Service Contracts will not be in default under
their respective Leases or Service Contracts, and neither the existence of any
default by any tenant under its Lease nor the default of any party under any
Service Contract shall affect the obligations of Purchaser hereunder; provided,
however, the foregoing shall not affect the conditions contained in Sections 8
and 9 above.
E. As and to the extent that Seller and Purchaser or its
representatives have reviewed any Disclosures prior to the date of this
Agreement and such documents or materials contain information inconsistent with
or different from the representations and warranties set forth in Section 10(A)
above, or prior to the date of this Agreement Purchaser otherwise obtained
actual knowledge of facts or Seller otherwise disclosed in writing to Purchaser
facts that are inconsistent with or different from the representations and
warranties made in Section 10(A), then such representations and warranties are
hereby deemed modified to conform them to the information set forth in such
documents and materials or to such other facts.
16
F. As and to the extent that (i) Purchaser obtains actual knowledge
of facts, or (ii) any Estoppel Certificates or other documents with respect to
Leases and/or matters addressed by Section 10(A) contain information or facts
that are inconsistent with or different from the representations and warranties
made in Section 10(A), are received by Purchaser or received by Seller and
delivered to Purchaser prior to the Closing, and the Closing occurs, then the
representations and warranties in Section 10(A) shall be deemed to be modified
and/or superseded by such certificates or other documents (and, in such event,
Seller shall no longer have any liability hereunder with respect to the portion
of the representation or warranty superseded herein, as applicable); provided,
however, the foregoing shall not affect the conditions contained in Section 9
above. In addition, in the event that an Estoppel Certificate is received from a
tenant (before or after Closing) which confirms the accuracy of the
representations and warranties made in Section 10(A), then the representations
and warranties in Section 10(A) shall be deemed to be superseded by such
Estoppel Certificate (and, in such event, Seller shall no longer have any
liability hereunder with respect to the portion of the representation or
warranty superseded).
11. MISCELLANEOUS
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties. Purchaser
further acknowledges that, except as expressly provided in this Agreement,
neither Seller nor any agent or representative of Seller has made, and Seller is
not liable for or bound in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations or information
pertaining to the Property.
B. Except for an assignment to the "Permitted Assignee" (as
hereinafter defined), neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser without the written consent of Seller,
which consent may be withheld in the sole and absolute discretion of Seller. For
purposes of this Agreement, the term "Permitted Assignee" shall be defined to
mean Columbia Realty Venture, a District of Columbia limited partnership, a
general partner of which is Joshua B. Bernstein. Upon an assignment to the
Permitted Assignee, the Permitted Assignee shall execute and deliver an
agreement to Seller in which the Permitted Assignee assumes all of the
obligations of Purchaser under this Agreement. Upon an assignment of this
Agreement to the Permitted Assignee: (1) Purchaser shall not be relieved of any
subsequently accruing liability under this Agreement, and (2) as used in this
Agreement, the "Purchaser" shall be deemed to include the Permitted Assignee.
Seller may assign or otherwise transfer its interest under this Agreement. As
used in this Agreement, the term "Seller" shall be deemed to include any
assignee or other transferee of any Seller. Upon any such transfer by a Seller,
such Seller shall be relieved of any subsequently accruing liability under this
Agreement. Subject to the foregoing, this Agreement shall inure to the benefit
of and shall be binding upon Seller and Purchaser and their respective
successors and assigns.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the District of Columbia.
17
F. All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and delivered (i) personally,
(ii) by certified mail, return receipt requested, postage prepaid, (iii) by
overnight courier (such as Federal Express), or (iv) by facsimile transmission
(with a copy sent via (i), (ii) or (iii)), addressed as follows:
1. If to Seller:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Telephone: (312) 466-3595
Facsimile: (312) 559-5051
Attention: Alissa Schneider
With a copy to:
Rosenberg & Liebentritt, P.C.
Suite 1600
Two North Riverside Plaza
Chicago, Illinois 60606
Telephone: (312) 466-3950
Facsimile: (312) 454-0335
Attention: Mark A. Trager
2. If to Purchaser:
Bernstein Management Corporation
5301 Wisconsin Avenue, N.W.
Suite 600
Washington, D.C. 20015
Telephone: (202) 363-6301
Facsimile: (202) 363-6341
Attention: Joshua B. Bernstein
18
With a copy to:
Swidler & Berlin, Chartered
3000 K Street, N.W.
Suite 300
Washington, D.C. 20007
Telephone: (202) 424-7598
Facsimile: (202) 424-7645
Attention: David M. Martin
All notices given in accordance with the terms hereof shall be deemed received
(1) when delivered, if personally delivered, (2) forty-eight (48) hours after
posting, if sent by certified mail, return receipt requested, postage prepaid,
(3) the next business day after deposit with the courier company, if sent by
overnight courier, and (4) on the day sent, if sent by facsimile transmission
prior to the close of the recipient's business day. Either party hereto may
change the address for receiving notices, requests, demands or other
communication by notice sent in accordance with the terms of this Section 11(F).
G. Notwithstanding anything to the contrary contained in this
Agreement, Purchaser shall indemnify and hold Seller and its employees and
agents, and each of them, harmless from and against any and all losses, claims,
damages and liabilities (including, without limitation, reasonable attorneys'
fees incurred in connection therewith) arising out of or resulting from
Purchaser's inspection of the Property prior to the date of this Agreement
(including, without limitation, any entry upon or inspection of the Property
made by Purchaser in violation of the terms, conditions and provisions of the
Letter of Intent and Confidentiality Agreement pertaining thereto); provided
that, Purchaser shall not be liable for matters discovered as a result of such
studies. Except upon the written request of Seller pursuant to Section 11(K)
below, Purchaser shall not advise Seller of the results, or deliver to Seller
copies, of any of the studies, reports, surveys or other information, data
and/or documents relating to the Property or any part thereof prepared by or at
the request of Purchaser, its employees, agents, representatives or contractors.
The provisions of this Section 11(G) shall survive the Closing or other
termination of this Agreement.
H. Acknowledging the prior use of the Property and Purchaser's
opportunity to inspect the Property and except as specifically provided in this
Agreement, Purchaser agrees to take the Property "as is" with all faults and
conditions thereon. Any information, reports, statements, documents or records,
including, without limitation, the items set forth in EXHIBIT P (collectively,
the "Disclosures") provided or made to Purchaser or its constituents by Seller,
its agents, employees, contractors or representatives, concerning the Property
shall not be representations or warranties. Purchaser shall not rely on such
Disclosures, except as set forth herein, but rather, Purchaser shall rely only
on its own inspection of the Property. PURCHASER ACKNOWLEDGES AND AGREES THAT,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER SELLER NOR ITS AGENTS,
EMPLOYEES, CONTRACTORS OR REPRESENTATIVE HAS MADE, AND NONE OF THEM MAKES AND
EACH SPECIFICALLY DISCLAIMS ANY STATEMENTS, REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
19
LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO
BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE
OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY
DISCLAIM ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE
U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED
THEREUNDER.
Purchaser, its successors and assigns, hereby waive, release and
agree not to make any claim or bring any cost recovery action or claim for
contribution, indemnity or other action or claim against Seller or its
affiliates, directors, officers, employees, agents, attorneys, or assigns
(collectively, "Seller and its Affiliates") (a) under any federal, state, or
local environmental or health and safety law or regulation, including CERCLA or
any state equivalent, or any similar law now existing or hereafter enacted, (b)
with respect to, in connection with or resulting from any discharge, disposal,
release, or escape of any chemical, or any hazardous or toxic material
whatsoever, on, at, to, or from the Property; or (c) any environmental
conditions whatsoever on, under, or in the vicinity of the Property.
I. In any lawsuit or other proceeding under or with respect to this
Agreement, Purchaser and Seller waive any rights they may have to trial by jury.
J. Purchaser acknowledges that all information with respect to the
Property furnished or to be furnished to Purchaser is, has been and will be so
furnished on the condition that Purchaser maintain the confidentiality thereof.
Accordingly, Purchaser shall, and shall cause its directors, officers and other
personnel and representatives to, hold in strict confidence, and not disclose to
any other party without the prior written consent of Seller: (i) any of the
information with respect to the Property delivered to Purchaser by Seller or any
of its agents, representatives or employees, or (ii) the existence of this
Agreement or any term or condition thereof, or (iii) the results of any
inspections or studies undertaken in connection herewith. In addition, neither
Purchaser nor Purchaser's directors, officers and other personnel and
representatives shall solicit offers to purchase the Property to any other party
without the prior written consent of Seller. Notwithstanding the above,
Purchaser may disclose such information to individuals or entities necessary for
Purchaser to consummate the transaction contemplated herein (such as lenders,
engineers, prospective management companies, environmental consultants,
accountants and tax advisors) and as required by law. Purchaser shall, with
respect to any parties to whom the existence of this Agreement or any
information with respect to the Property is disclosed, notify such parties of
the existence of the Confidentiality Agreement and its applicability to any such
information provided to any such parties. In the event the Closing does not
occur and this Agreement is terminated, Purchaser shall, upon written request by
Seller, promptly return to Seller all copies of all such information without
retaining any copy thereof or extract therefrom. Purchaser's obligations under
this Section 11(J) shall expire upon and not survive the Closing.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's written request, assign and transfer to Seller
all of its right, title and interest in and to
20
any and all studies, reports, surveys and other information, data and/or
documents relating to the Property or any part thereof prepared by or at the
request of Purchaser, its employees and agents, other than economic and market
analyses, and shall deliver to Seller copies of all of the foregoing.
L. Seller and Purchaser further agree as follows:
1. From and after August 19, 1997 through the Closing, Seller
has delivered or shall deliver, as applicable, for Purchaser's review
(a "New Lease Notice"), a copy of any proposed new Lease, or any
modification, amendment, restatement or renewal of any existing Lease
(individually, a "New Lease" and collectively, "New Leases") together
with copies of any information submitted by the prospective tenant to
Seller with respect to such New Lease. In addition, Seller shall also
submit to Purchaser for Purchaser's review a summary of any leasing or
brokerage commissions payable in connection with such New Lease and,
if a written agreement exists between Seller and the leasing broker
entitled to be paid a commission in connection with such New Lease and
Seller has a copy of same, a copy of such written agreement. During
the period between the date of this Agreement and Closing, Purchaser
shall have the right to approve or disapprove of any New Lease and any
related costs that would be incurred by the landlord under such New
Lease, such as leasing/brokerage commissions, rent abatements,
construction or buildout costs and construction allowances, by
responding in writing to Seller's New Lease Notice within five (5)
days after Purchaser's receipt of the New Lease Notice. If Purchaser
fails to approve or disapprove of such New Lease within such five (5)
day period, Purchaser shall be deemed to have conclusively approved of
such New Lease and all such related costs. Seller and Purchaser hereby
acknowledge that during the period from and after August 19, 1997
through the date of this Agreement, New Leases have been entered into
with the following tenants: (a) David R. Curfman, (b) RVI, Inc. t/a
Pamela Barkley, and (c) Treetop Toys, Inc.
2. All tenant improvement costs and/or allowances and leasing
commissions relating to (a) New Leases entered into by Seller during
the period between August 19, 1997 and the date of this Agreement, and
(b) New Leases entered into by Seller after the date of this Agreement
which Purchaser approves (or is deemed to approve) in accordance with
Section 11(L)(1) above, shall be allocated or prorated in accordance
with Section 4(C)(i)(c) above. In addition, should the timing and
scope of work to be performed by the lessor under such New Leases
require Seller to enter into contracts with contractors or other
parties prior to Closing in order to comply with the lessor's
obligations under such New Leases, Seller shall submit the proposed
contract with such contractor or other parties to Purchaser for its
approval (not to be unreasonably withheld or delayed). If Purchaser
fails to approve or disapprove of such contract within five (5) days
after its receipt of same, Purchaser shall be deemed to have
conclusively approved of such contract, and shall assume such contract
as of the Closing Date. If such contract results in work for which the
provider or subcontractor thereunder may obtain a lien against the
Property if such work is not paid for, then the "Permitted Exceptions"
shall be deemed to include any potential liens and related notices of
commencement as a result thereof.
3. From and after the date of this Agreement through the
Closing, Seller shall deliver for Purchaser's review (a "New Service
Contract Notice"), a copy of any proposed new Service Contract, or any
modification, amendment, restatement or renewal
21
of any existing Service Contract (individually, a "New Service
Contract" and collectively, "New Service Contracts"). During the
period between the date of this Agreement and Closing, Purchaser shall
have the right to approve or disapprove of any New Service Contract by
responding in writing to Seller's New Service Contract Notice within
five (5) days after Purchaser's receipt of the New Service Contract
Notice; provided that, Purchaser's approval shall not be unreasonably
withheld or delayed. If Purchaser fails to approve or disapprove of
such New Service Contract within such five (5) day period, Purchaser
shall be deemed to have conclusively approved of such New Service
Contract.
4. Seller shall maintain its current insurance policies
covering the Property at the same levels from and after the date of
this Agreement until the Closing, and shall operate and maintain the
Property in a manner consistent with the manner in which Seller has
operated and maintained the Property prior to the date of this
Agreement; provided that, nothing in this Agreement shall require
Seller to (y) repair or replace any items with respect to the Property
which are deemed not to be "ordinary wear and tear" pursuant to
Section 8(B)(i) above, or (z) commence any lease negotiations with
tenants, prospective or otherwise, unless in connection with extending
the term of a Lease which will expire prior to Closing.
5. Seller shall not apply any Security Deposits without first
obtaining the Purchaser's prior written consent.
M. Seller and Purchaser hereby designate Escrowee to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
N. This Agreement may be executed in any number of identical
counterparts, any or all of which may contain signatures of fewer than all of
the parties but all of which taken together shall constitute a single
instrument.
O. Seller and Purchaser acknowledge and agree that neither this
Agreement nor a memorandum thereof shall be recorded against the Property.
P. Purchaser acknowledges and agrees that any recovery against Seller
that Purchaser may be entitled to as a result of any claim, demand or cause of
action that Purchaser may have against Seller with respect to this Agreement and
the transactions contemplated herein shall only be recoverable against Seller in
an amount not in excess of One Million Dollars ($1,000,000.00).
Q. In the event of a conflict between the terms and provisions of the
Confidentiality Agreement and this Agreement, the terms and provisions of this
Agreement shall control.
R. Except as specifically provided for herein, the representations,
warranties, covenants and agreements of Seller set forth in this Agreement
shall not survive the Closing or sooner termination of this Agreement.
22
S. Except as specifically provided herein, no third parties shall
have the benefit of any of the provisions of this Agreement, nor is this
Agreement made with the intent that any person or entity other than Seller and
Purchaser shall rely hereon.
T. Purchaser represents and warrants to Seller the following:
(i) Purchaser has the full right, power and authority to
purchase the Property as provided in this Agreement and to
carry out Purchaser's obligations hereunder, and all
requisite action necessary to authorize Purchaser to enter
into this Agreement and to carry out its obligations
hereunder have been, or by the Closing will have been,
taken. The person signing this Agreement on behalf of
Purchaser is authorized to do so.
(ii) There is no action, suit, arbitration, unsatisfied order or
judgment, government investigation or proceeding pending
against Purchaser which, if adversely determined, could
individually or in the aggregate materially interfere with
the consummation of the transaction contemplated by this
Agreement.
U. Under that certain office leasing agreement (the "Office Leasing
Agreement") dated as of July 26, 1997, originally by and between Equity Office
Properties, L.L.C., for itself and as agent for Seller, and C&P (which Office
Leasing Agreement is one of the Service Contracts set forth on EXHIBIT C
attached hereto), the owner of the Property is obligated to pay a commission to
C&P with respect to any "New Lease" (for the purposes of this Section 11(U)
only, such term shall have the same meaning ascribed thereto in the Office
Leasing Agreement) for office space entered into within ninety (90) days after
sale of the Property. Set forth on EXHIBIT R attached hereto is a list of
prospective tenants provided to Seller by C&P under Section 3.7 of the Office
Leasing Agreement in anticipation of the Closing. Purchaser agrees to pay C&P a
commission in accordance with the Office Leasing Agreement in the event that the
Closing occurs and, subsequent to Closing, Purchaser enters into such a "New
Lease" for office space within ninety (90) days of Closing with any party set
forth on EXHIBIT R attached hereto, as such EXHIBIT R is revised at or prior to
Closing.
V. Under that certain undated retail leasing agreement (the "Retail
Leasing Agreement") originally by and between Equity Office Properties, L.L.C.,
for itself and as agent for Seller, and Williams Property Venture d/b/a Smithy
Braedon ("Smithy Braedon") (which Retail Leasing Agreement is one of the Service
Contracts set forth on EXHIBIT C attached hereto), the owner of the Property is
obligated to pay a commission to Smithy Braedon with respect to any "New Lease"
(for the purposes of this Section 11(V) only, such term shall have the same
meaning ascribed thereto in the Retail Leasing Agreement) for retail space
entered into within ninety (90) days after sale of the Property. Set forth on
EXHIBIT S attached hereto is a list of prospective tenants provided to Seller by
Smithy Braedon under Section 3.7 of the Retail Leasing Agreement in anticipation
of the Closing. Purchaser agrees to pay Smithy Braedon a commission in
accordance with the Retail Leasing Agreement in the event that the Closing
occurs and, subsequent to Closing, Purchaser enters into such a "New Lease" for
retail space within ninety (90) days of Closing with any party set forth on
EXHIBIT S attached hereto, as such EXHIBIT S is revised at or prior to Closing.
W. Under those certain additional leasing agreements identified
"Other Leasing Agreements" on EXHIBIT C (collectively hereinafter referred to as
the "Other Leasing Agreements"),
23
the owner of the Property is obligated to pay a commission to the brokers
identified in each of the Other Leasing Agreements in accordance with the terms
thereof. Any commissions becoming due and payable under the Other Leasing
Agreements subsequent to the date of the Letter of Intent and prior to the
Closing Date shall be prorated in accordance with Section 4(C)(i)(c) above.
Purchaser shall assume the obligations of the owner of the Property under the
Other Leasing Agreements pursuant to the form of Assignment and Assumption of
Service Contracts attached hereto as EXHIBIT F from and after the Closing Date.
X. The characteristics of soil on the Real Property as described by
the Soil Conservation Service of the United States Department of Agriculture in
the Soil Survey of the District of Columbia and as shown on the Soil Maps of the
District of Columbia is Urban Land. For further information, Purchaser may
contact a soil testing laboratory, the District of Columbia Department of
Environmental Services or the Soil Conservation Service of the Department of
Agriculture.
Y. Concurrently with its execution of this Agreement, Seller has
executed and delivered to Purchaser, pursuant to the Underground Storage Tank
Management Act of 1990, an Underground Storage Tank Real Estate Transfer
Disclosure Form in the form attached to this Agreement as EXHIBIT U.
[The remainder of this page is intentionally blank]
24
[signature page to Real Estate Sale Agreement]
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 1,
a Florida limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:
Name:
Its:
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 2,
a Florida limited partnership
By: First Capital Financial Corporation, a Florida
corporation, its general partner
By:
Name:
Its:
PURCHASER:
BERNSTEIN MANAGEMENT CORPORATION, a District of
Columbia corporation
By:
Name:
Its:
25
LIST OF EXHIBITS
A - Legal Description
B - Permitted Exceptions
C - Service Contracts
D - Joint Order Escrow Agreement
E - Assignment and Assumption of Leases, Security
Deposits and Merchant Association Fees
F - Assignment and Assumption of Service Contracts
G - Form Tenant Estoppel Certificate
H - Notices of Violations of Laws
I - List of Litigation
J - Bill of Sale
K - Personal Property
L - Notice Letter to Tenants
M - Notice Letter to Vendors
N - [Intentionally deleted]
O - OSHA Letter
P - Environmental Reports
Q - Security Deposits
R - Prospective Tenants - C&P
S - Prospective Tenants - Smithy Braedon
T - Rent Roll
U - UST Real Estate Transfer Disclosure Form
26
EXHIBIT A
LEGAL DESCRIPTION
LOT NUMBERED ONE (1) IN SQUARE NUMBERED SIXTEEN HUNDRED AND ONE (1601) IN THE
SUBDIVISION MADE BY FOXHALL LIMITED PARTNERSHIP AND ESCOPART LIMITED
PARTNERSHIP, AS PER PLAT RECORDED IN THE OFFICE OF THE SURVEYOR FOR THE DISTRICT
OF COLUMBIA IN LIBER 157, FOLIO 80.
EXHIBIT B
PERMITTED EXCEPTIONS
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments not yet delinquent.
3. Rights of tenants under the Leases.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Exceptions disclosed by the Prior Title Policy and the Prior Survey.
EXHIBIT C
SERVICE CONTRACTS
--------------------------------------------------------------------------------
TYPE OF
VENDOR NAME SERVICE
--------------------------------------------------------------------------------
Browning-Ferris Inc. (BFI) Rubbish Removal
--------------------------------------------------------------------------------
Calvert-Jones Co. Inc. HVAC/Water Treatment
--------------------------------------------------------------------------------
Cassidy & Pinkard Office Leasing
--------------------------------------------------------------------------------
Central Parking Corporation Parking Management
--------------------------------------------------------------------------------
Creative Plantings, Inc. (Rentokil) Interior & Exterior
Plant Maintenance
--------------------------------------------------------------------------------
Honeywell Building Security
Management
--------------------------------------------------------------------------------
Enterprise Answering Service Answering Service
--------------------------------------------------------------------------------
Music Incorporated (Muzak) (Musicast) Music System for Mall
--------------------------------------------------------------------------------
Nixon Uniform Cleaning
Service
--------------------------------------------------------------------------------
Pagenet Pager Service
--------------------------------------------------------------------------------
Potomac Bldg. Maintenance (PBM) Building Maintenance
--------------------------------------------------------------------------------
Security Assurance Mgmt. Security Service
--------------------------------------------------------------------------------
Stratos Elevator, Inc. Elevator Maintenance
--------------------------------------------------------------------------------
Western Termite Extermination
--------------------------------------------------------------------------------
Williams Property Venture d/b/a Smithy Braedon Retail Leasing
--------------------------------------------------------------------------------
|
-----------------------------------------------------------------------------------------
Other Leasing Agreements Tenant Represented Date of Agreement
-----------------------------------------------------------------------------------------
Gittleson & Assoc. Dr. R. Adrian & C. Dufresne 12/17/96
-----------------------------------------------------------------------------------------
Gittleson & Assoc. Walter M. O'Brien, MD & Assoc. 11/14/91
-----------------------------------------------------------------------------------------
Gittleson & Assoc. Jane Blackman, MD 3/19/92
-----------------------------------------------------------------------------------------
Spectrum Howard Boltansky, MD, PC 4/24/97
-----------------------------------------------------------------------------------------
Carey Winston Co. Drs. Christopher & Harrington 7/22/96
-----------------------------------------------------------------------------------------
Gittleson & Assoc. Drs. Collins, Gordon, Johnson, & 2/10/93
Tozzi, PC
-----------------------------------------------------------------------------------------
Baruetta & Assoc. Foxhall Internists 5/22/95
-----------------------------------------------------------------------------------------
Gittleson & Assoc. Foxhall Surgical Assoc., PC 11/14/91
-----------------------------------------------------------------------------------------
Julien Studley, Inc. Pres. and Directors of 6/17/96
Geoergetown College
-----------------------------------------------------------------------------------------
Smithy Braedon/ONCOR Drs. Pascualvaca & Dauphinais 1/21/97
-----------------------------------------------------------------------------------------
Fred Ezra Co. Retina Consultants 10/9/96 (unexecuted)
-----------------------------------------------------------------------------------------
|
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
FOXHALL SQUARE
WASHINGTON, D.C.
Date: ____________, 1997
TO: Settlementcorp
Chevy Chase Plaza
5301 Wisconsin Avenue, N.W.
Suite 710
Washington, D.C. 20015
Attention: Todd S. Deckelbaum
The sum of Two Hundred Fifty Thousand Dollars ($250,000) (together with any
interest accrued thereon, the "Initial Deposit") was deposited with you in
escrow on August 19, 1997 on behalf of Bernstein Management Corporation, a
District of Columbia corporation ("BMC"), and Equity Office Properties
Management Corp., a Delaware corporation ("EOPMC"), on behalf of the "Seller"
(defined below), who is the owner of the property commonly known as Foxhall
Square, 3301 New Mexico Avenue, N.W., Washington, D.C. (the "Property"), to be
held in accordance with the terms of that certain letter of intent dated August
19, 1997 between BMC and EOPMC, on behalf of the owner as aforesaid. A portion
of the Initial Deposit in the amount of Fifty Thousand Dollars ($50,000) plus
any accrued interest thereon is hereinafter referred to as the "Property Market
Removal Fee".
The additional sum of Seven Hundred Fifty Thousand Dollars ($750,000.00) (the
"Additional Deposit") is now deposited with you in escrow on behalf of BMC as
the "Purchaser" under that certain Real Estate Sale Agreement (the "Contract"),
dated ____________, 1997 with First Capital Institutional Real Estate, Ltd. - 1,
a Florida limited partnership, and First Capital Institutional Real Estate,
Ltd. - 2, a Florida limited partnership, collectively, the "Seller", with
respect to the purchase and sale of the Property. The Initial Deposit (less the
Property Market Removal Fee) and the Additional Deposit, together with any
accrued interest thereon, is hereinafter referred to as the "Escrow Deposit".
As escrowee, you are hereby directed to hold, deal with and dispose of the
Property Market Removal Fee and the Escrow Deposit in accordance with the
following terms and conditions:
1. Upon the execution of this Joint Order Escrow Agreement, you are to
promptly wire transfer, in current federal funds, the Property Market
Removal Fee to Seller pursuant to the following wiring instructions:
__________________________________________.
2. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by the undersigned Seller and Purchaser as to the disposition of the
Escrow Deposit; or (b) you are in receipt of a written demand (the
"Demand") from either Seller or Purchaser for the payment of the Escrow
Deposit or any portion thereof. Upon receipt of any Demand, you are
directed to so notify the non-demanding party, enclosing a copy of the
Demand. If within five (5) business days after the non-demanding party has
received or is deemed to have received your notice of your receipt of the
Demand, you have not received from the non-demanding party its notice of
objection to the Demand, then you are to disburse the Escrow Deposit as
requested by the Demand. If within said five business-day period you
receive from the non-demanding party its notice of objection to the Demand,
then you are to continue to hold the Escrow Deposit until you are in
receipt of a joint order as aforesaid, but after sixty (60) days you may
deposit the Escrow Deposit with a Court of competent jurisdiction.
3. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to comply with and obey any and all orders, judgments or decrees
entered or issued by any Court, and in case you obey or comply with any
such order, judgment or decree of any Court, you shall not be liable to
either of the parties hereto or any other person or entity by reason of
such compliance, notwithstanding any such order, judgment or decree be
entered without jurisdiction or be subsequently reversed, modified,
annulled, set aside or vacated. In case of any suit or proceeding regarding
these Escrow Instructions, to which you are or may at any time be a party,
the undersigned Seller and Purchaser agree that the non-prevailing party
shall pay to you upon demand all reasonable costs and expenses incurred by
you in connection herewith but solely for costs incurred in your role as
Escrowee.
4. You shall not charge an escrow fee in connection with your role as Escrowee
hereunder.
5. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
account with a federally-insured bank or savings and loan as association or
as otherwise directed by both Purchaser and Seller in writing. Any interest
earned on the Escrow Deposit, after you deduct your customary investment
charges, if any, shall become and be deemed to be a part of the Escrow
Deposit. The FEIN of Purchaser is ____________________.
6. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided, together with copies to the attorneys for Seller and Purchaser at
the addresses for such attorneys set forth in Paragraph 7 below. A notice
is given on the date it is personally delivered, sent by overnight courier
or facsimile transmission, or deposited with the United States Mail for
delivery as aforesaid. A notice is received on the date it is personally
delivered, the day after sent if sent by overnight courier or facsimile
transmission or, if sent by mail as aforesaid, on the date noted on the
return receipt.
7. Either Purchaser or Seller may act hereunder either directly or through its
attorney. The attorney for the Purchaser is:
Swidler & Berlin, Chartered
Suite 300
3000 K Street, N.W.
Washington, D.C. 20007-5116
Telephone: (202) 424-7598
Facsimile: (202) 424-7645
Attention: David Martin
2
The attorney for the Seller is:
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
Facsimile: (312) 454-0335
Telephone: (312) 466-3950
Attention: Mark A. Trager
8. This Escrow Agreement is being entered into to implement the Contract and
shall not (nor be deemed to) amend, modify or supersede the Contract or act
as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon these Escrow Instructions.
9. This Escrow Agreement may be executed in any number of identical
counterparts, any or all of which may contain the signatures of fewer than
all of the parties but all of which shall be taken together as a single
instrument.
SELLER:
FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 1, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By: _______________________________________
Name: _____________________________________
Its: ______________________________________
FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 2, a Florida limited partnership
By: First Capital Financial Corporation, a
Florida corporation, its general partner
By: _______________________________________
Name: _____________________________________
Its: ______________________________________
3
PURCHASER:
BERNSTEIN MANAGEMENT CORPORATION, a District of
Columbia corporation
By: __________________________________________
Name: ________________________________________
Its: _________________________________________
ADDRESS OF PURCHASER:
Bernstein Management Corporation
5301 Wisconsin Avenue, N.W.
Suite 600
Washington, D.C. 20015
Telephone: (202) 363-6301
Facsimile: (202) 363-6341
Attention: Joshua B. Bernstein
With a copy to:
Swidler & Berlin, Chartered
Suite 300
3000 K Street, N.W.
Washington, D.C. 20007-5116
Telephone: (202) 424-7598
Facsimile: (202) 424-7645
Attention: David Martin
ADDRESS OF SELLER:
c/o Equity Office Properties Management Corp.
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Facsimile: (312) 559-5051
Telephone: (312) 466-3595
Attention: Alissa Schneider
4
With a copy to:
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza
Suite 1600
Chicago, Illinois 60606
Facsimile: (312) 454-0335
Telephone: (312) 466-3950
Attention: Mark A. Trager
ACCEPTED THIS ____ DAY OF _____________, 1997
__________________ TITLE INSURANCE COMPANY, as Escrowee
By: _____________________________
Title: _____________________
ADDRESS OF ESCROWEE:
Settlementcorp
Chevy Chase Plaza
5301 Wisconsin Avenue, N.W.
Suite 710
Washington, D.C. 20015
Facsimile: (202) 537-1899
Telephone: (202) 537-0005
Attention: Todd S. Deckelbaum
5
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
OF LEASES, SECURITY DEPOSITS AND MERCHANT ASSOCIATION FEES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES, SECURITY DEPOSITS AND MERCHANT
ASSOCIATION FEES (this "Assignment") is entered into as of the ______________
day of __________, 1997, by and between FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 1, a Florida limited partnership, and FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 2, a Florida limited partnership, (such parties are hereinafter
collectively referred to as "Assignor"), having offices at Two North Riverside
Plaza, Chicago, Illinois 60606, and COLUMBIA REALTY VENTURE, a District of
Columbia limited partnership ("Assignee"), with an office at 5301 Wisconsin
Avenue, N.W., Suite 600, Washington, D.C. 20015.
1. Property. The "Property" shall mean the real property located in the
District of Columbia, legally described in EXHIBIT A attached to this
Assignment, together with all of Assignor's right, title and interest in and to
the building, structures and other improvements located thereon, and commonly
known as "Foxhall Square".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
any part thereof, which leases are listed on EXHIBIT B attached hereto. "Lease"
shall mean any one of the Leases.
3. Security Deposits. "Security Deposits" shall mean all unapplied
security deposits: (i) held by Assignor under the Leases in the form of a letter
of credit and/or in a segregated bank account, and (ii) held by Assignor under
the Leases for which Assignee has received a credit on the closing statement
executed at the closing of the transaction in connection with which this
Assignment has been executed and delivered. The Security Deposits are set forth
on EXHIBIT C attached hereto.
4. Merchant Association Fees. "Merchant Association Fees" shall mean all
merchant association held by Assignor under the Leases for which Assignee has
received a credit on the closing statement executed at the closing of the
transaction in connection with which this Assignment has been executed and
delivered. The Merchant Association Fees are set forth on EXHIBIT D attached
hereto.
5. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______________, 1997 by and between Assignor, as Seller, and
Bernstein Management Corporation ("BMC"), as Purchaser, for the purchase and
sale of the Property (which Contract has been assigned by BMC to Assignee).
6. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases, the Security Deposits and the interest accrued or hereafter earned
on the Security Deposits and the Merchant Association Fees and any interest
accrued or hereafter earned on the Merchant Association Fees as applicable to
the period from and after the date hereof.
7. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leases and the
Merchant Association Fees as applicable to the period from and after the date
hereof, and Assignee further assumes all liability of Assignor for the proper
refund or return of the Security Deposits and the interest on the Security
Deposits if, when and as
required by the Leases or otherwise by law. In addition, Assignee agrees to pay
(i) in accordance with Section 4(C)(i)(c) of the Contract, all brokerage fees,
brokerage or leasing commissions and tenant improvements costs and/or allowances
payable in connection with "New Leases" (as defined in the Contract) executed
between August 19, 1997 and the date of the Contract; (ii) in accordance with
Section 4(C)(i)(c) of the Contract, all brokerage fees, leasing commissions and
tenant improvement costs and/or allowances payable in connection with "New
Leases" (as defined in the Contract) executed after the date of the Contract
approved (or deemed to be approved) by Assignee under Section 11(L) of the
Contract, to the extent that such fees, commissions, costs and allowances were
not required to be paid by Assignor prior to the date hereof; (iii) to the
extent not included in (i) or (ii) above, all brokerage fees and leasing
commissions payable in connection with the renewal or extension of any of the
Leases occurring from and after the date hereof if such brokerage fees or
leasing commissions are disclosed in the Leases; and (iv) to the extent not
included in (i) or (ii) above, all tenant improvement costs and/or allowances
payable in connection with Leases during the period from and after the date
hereof.
8. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
9. Third Parties. Except as set forth in Section 11 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
10. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11(P) of the Contract.
11. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
12. Counterparts. This Assignment may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
[signature page attached to Assignment and Assumption of Leases and Security
Deposits]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
ASSIGNEE:
EXHIBITS
A - Legal Description of the Property
B - List of Leases
C - Security Deposits
D - Merchant Association Fees
3
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment") is
entered into as of the ____ day of __________, 1997 by and between FIRST CAPITAL
INSTITUTIONAL REAL ESTATE, LTD. - 1, a Florida limited partnership, and FIRST
CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 2, a Florida limited partnership,
(such parties are hereinafter collectively referred to as "Assignor"), having
offices at Two North Riverside Plaza, Chicago, Illinois 60606, and COLUMBIA
REALTY VENTURE, a District of Columbia limited partnership ("Assignee"), with an
office at 5301 Wisconsin Avenue, N.W., Suite 600, Washington, D.C. 20015.
1. Property. The "Property" shall mean the real property located in the
District of Columbia, legally described in EXHIBIT A attached to this
Assignment, together with all of Assignor's right, title and interest in and to
the building, structures and other improvements located thereon, and commonly
known as "Foxhall Square".
2. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______________, 1997 by and between Assignor, as Seller, and
Bernstein Management Corporation ("BMC"), as Purchaser, for the purchase and
sale of the Property (which Contract has been assigned by BMC to Assignee).
3. Service Contracts. "Service Contracts" shall mean the service
contracts entered into with respect to the ownership and operation of the
Property that Assignee has assumed hereunder. The Service Contracts are listed
on EXHIBIT B attached to this Assignment.
4. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts as applicable to the period from and after the date
hereof.
5. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Service Contracts as
applicable to the period from and after the date hereof.
6. Enforcement. If Assignor or Assignee must resort to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
7. Third Parties. Except as set forth in Section 10 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
8. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
9. Limited Liability. By accepting this Assignment, Assignee expressly
understands and agrees that any recovery against Assignor that Assignee may be
entitled to as a result of any claim, demand or cause of action that Assignee
may have against Assignor with respect to this Assignment shall only be
recoverable against Assignor as provided in Section 11(P) of the Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. Counterparts. This Assignment may be executed in any number of
identical counterparts, any or all of which may contain signatures of fewer than
all of the parties but all of which taken together shall constitute a single
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
2
[signature page attached to Assignment and Assumption of Service Contracts]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
ASSIGNEE:
EXHIBITS
A - Legal Description of Property
B - Service Contracts
3
EXHIBIT G
FORM TENANT ESTOPPEL CERTIFICATE
Columbia Realty Venture
5301 Wisconsin Avenue, N.W.
Suite 600
Washington, D.C. 20015
Prudential Insurance Company of America
c/o Prudential Capital Group
One Ravinia Drive
Suite 1400
Atlanta, GA 30346
Attn: Regional Counsel
Ladies and Gentlemen:
At the request of __________________________________, ("Landlord"), made in
connection with the proposed sale of Foxhall Square, 3301 New Mexico Avenue,
N.W., Washington, D.C., (the "Property") and Landlord's interest in the "Lease"
(as hereinafter defined) to Columbia Realty Venture, a District of Columbia
limited partnership ("Purchaser"), the undersigned hereby certifies to Landlord
and Purchaser as follows:
1. The undersigned is the tenant under a lease with Landlord, dated
____________, 19___, [as amended by __________________, dated ___________, 19___
(collectively, the "Lease")][(the "Lease")] for suite(s) _______ on the ________
floor(s) at the Property (the "Premises"), a true and correct copy of such lease
and all amendments thereto is attached hereto as EXHIBIT A.
2. The Lease sets forth the entire agreement between Landlord and the
undersigned with respect to the Premises, is in full force and effect and has
not been amended, modified or extended.
3. The monthly [base][minimum] rent of $_________ due under the Lease has
been paid through _________________, 1997 and all additional rent (consisting of
$__________ per month for estimated operating expenses and estimated real estate
taxes) due under the Lease has been paid through ________________________, 1997.
4. The Landlord is not in default under the Lease.
5. To the undersigned's knowledge, the undersigned is not in default
under the Lease [except as follows].
6. The expiration date of the Lease is ____________________, 19___.
7. The amount of the security deposit currently held by Landlord under
the Lease is $__________________.
8. There is no prepaid rent, except $_______________.
9. The undersigned has not assigned any of its interest in the Lease or
subleased all or any portion of the Premises or encumbered or otherwise
transferred its interest in the Lease, except as follows: _____________________.
10. The undersigned has no defenses, counterclaims, set-offs or
concessions against rent or charges due or to become due under the Lease.
11. The undersigned has unconditionally accepted the Premises and [has
commenced payment of full rent] [or] [is entitled to ______ month's abatement of
base rent, as of the date hereof] under the Lease and is the owner and holder of
the entire tenant's interest in the Lease.
12. [All work required to be performed by Landlord with respect to the
Lease and in connection with the Premises has been completed by Landlord to the
satisfaction of Tenant except for ___________________.] [All amounts to be paid
by Landlord under the Lease with respect to work in the Premises have been paid
by Landlord except for ________________.]
13. The "base year" for operating expense reimbursements and real estate
taxes under the Lease is 19___.
14. The undersigned has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Premises or the Property.
15. This Tenant Estoppel Certificate (this "Certificate") shall inure to
the benefit of, and may be relied upon by, Landlord, Purchaser and Purchaser's
mortgage lender, __________________________ ("Lender") (and/or Lender's trustee)
and their respective successors and assigns.
16. If we are a corporation, the undersigned is a duly appointed officer
of the corporation signing this Certificate and is the incumbent in the office
indicated under this Certificate and is the incumbent in the office indicated
under his or her name. In any event, the undersigned is duly authorized to
execute this Certificate.
Very truly yours,
, Tenant
By:
, Title
Date: , 1997
2
EXHIBIT H
NOTICES OF VIOLATIONS OF LAWS
None.
EXHIBIT I
LIST OF LITIGATION
None.
EXHIBIT J
BILL OF SALE
SPECIAL WARRANTY BILL OF SALE
THIS SPECIAL WARRANTY BILL OF SALE (this "Bill of Sale") is executed as of
the ____ day of _____________, 1997, by FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 1, a Florida limited partnership, and FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 2, a Florida limited partnership, (such parties are hereinafter
collectively referred to as "Seller"), having offices at Two North Riverside
Plaza, Chicago, Illinois 60606, in favor of COLUMBIA REALTY VENTURE, a District
of Columbia limited partnership ("Purchaser"), with an office at 5301 Wisconsin
Avenue, N.W., Suite 600, Washington, D.C. 20015.
1. Real Property. The "Property" shall mean the real property located in
the District of Columbia, legally described in EXHIBIT A attached to this Bill
of Sale, together with all of Seller's right, title and interest in and to the
building, structures and other improvements located thereon, and commonly known
as "Foxhall Square".
2. Personal Property. The "Personal Property" shall mean the "Personal
Property" as defined in that certain Real Estate Sale Agreement dated the ______
day of _______________, 1997 (as amended, the "Contract"), by and between Seller
and Purchaser with respect to the purchase and sale of the Real Property and
other property as described therein, as such Personal Property is more
particularly described on attached EXHIBIT C.
3. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser free of any liens or
encumbrances other than those matters set forth on EXHIBIT B attached hereto
(the "Permitted Exceptions"). Seller covenants and agrees to warrant specially
and forever defend title to the Personal Property unto Purchaser against all and
every person or persons lawfully claiming the whole or any part thereof by,
through or under Seller, and none other, but subject in any event to the
Permitted Exceptions. Except as set forth in the two (2) preceding sentences,
Seller makes no warranties or representations as to the Personal Property. The
Personal Property is transferred "AS IS, WHERE IS" and ALL WARRANTIES OF
QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
4. Limited Liability. By accepting this Bill of Sale, Purchaser expressly
understands and agrees that any recovery against Seller that Purchaser may be
entitled to as a result of any claim, demand or cause of action that Purchaser
may have against Seller with respect to this Bill of Sale shall only be
recoverable against Seller as provided in Section 11(P) of the Contract.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale the day and year
first above written.
SELLER:
EXHIBIT L
NOTICE LETTER TO TENANTS
[Letterhead of Equity Office Properties Management Corp.]
NOTICE TO TENANTS
______________, 1997
Re: Foxhall Square, 3301 New Mexico Avenue, N.W., Washington, D.C. (the
"Property")
Dear Tenant:
This is to notify you that the Property has been sold to _______________,
and that ________________________ has been retained by the new owner as managing
agent of the building.
Any security or other deposits and any prepaid rents under your lease have
been transferred to the new owner.
Effective immediately, all rental payments, notices to the Landlord, and
correspondence pursuant to your lease should be mailed to the following address:
Rents: Notices:
___________________________________ ____________________________________
___________________________________ ____________________________________
___________________________________ ____________________________________
Attention: ________________________
|
Additionally, please have new Certificates of Insurance issued naming
____________________ as an additional insured. Please deliver said Certificate
to new owner at the "Notices" address set forth above.
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent
By: __________________________________________
Name: ________________________________________
Its: _________________________________________
EXHIBIT M
NOTICE LETTER TO VENDORS
[Letterhead of Equity Office Properties Management Corp.]
__________________, 1997
VIA TELECOPY AND
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
[Vendor]
Re: Sale of Foxhall Square
3301 New Mexico Avenue, N.W.
Washington, D.C. (the "Property")
Dear Service Provider:
This is to notify you that the Property has been sold to ________________,
a _________ ("Purchaser"), and that _________________, having an office at
_____________________________, has been retained by the Purchaser of the
Property as managing agent of the building. Purchaser has assumed all of the
obligations of the undersigned under the [license agreements/service contracts]
with respect to the period from and after the date hereof. All notices to
Purchaser should be sent to Purchaser at the office of the building, and should
be sent or delivered to such address in the manner provided in the [license
agreement/service contract].
Very truly yours,
EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a
Delaware corporation, as agent
By: __________________________________________
Name: ________________________________________
Its: _________________________________________
EXHIBIT N
[Intentionally deleted]
EXHIBIT O
OSHA LETTER
_________________, 1997
5301 Wisconsin Avenue, N.W.
Suite 600
Washington, D.C. 20015
Re: Transmittal of Information Regarding Asbestos-Containing
Material and Presumed Asbestos-Containing Material
Ladies and Gentlemen:
As you know, the Occupational Safety and Health Administration ("OSHA") has
enacted regulations (the "OSHA Regulations") which require building owners to
provide information regarding the presence, location and quantity of asbestos
containing material ("ACM") and presumed ACM ("PACM") to various building
occupants, including employers of employees who lease space within the owner's
building. In addition, the OSHA Regulations, specifically 29 C.F.R.
(S)1910.1001(j)(2)(ii) and 29 C.F.R. (S)1926.1101(n)(6), require building owners
to keep records of all information required to be maintained by the OSHA
Regulations and to transmit such records to subsequent owners at or before the
time of closing.
First Capital Institutional Real Estate, Ltd. - 1, a Florida limited
partnership, and First Capital Institutional Real Estate, Ltd. - 2, a Florida
limited partnership (collectively, "Seller"), has, prior to the date of this
letter, provided Columbia Realty Venture, a District of Columbia limited
partnership ("Purchaser") with copies of information required to be maintained
and transmitted as described above regarding ACM and PACM at the property
located at 3301 New Mexico Avenue, N.W., Washington, D.C. and commonly known as
Foxhall Square, including copies of notices to tenants and any related asbestos
sampling results and reports in our possession (such information, notices and
reports being referred to herein collectively as the "Reports"). A list of such
Reports is set forth on SCHEDULE 1 attached hereto.
The undersigned makes no representation, warranty, promises, covenants,
agreements or guarantees of any kind or character whatsoever, express or
implied, oral or written, past, present or future, of, as to, concerning or with
respect to the information and documentation transmitted herewith including
without limitation, the accuracy or completeness of such Reports, the Reports'
compliance with the OSHA Regulations, or Seller's compliance with the OSHA
Regulations.
We request that you acknowledge receipt of this letter and the Reports by
signing below and forwarding an executed copy to Seller.
Sincerely,
FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 1, a Florida limited partnership
By: ______________, a _______________,
its general partner
By:______________________________
Name:____________________________
Its:_____________________________
FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 2, a Florida limited partnership
By: ______________, a _______________,
its general partner
By:______________________________
Name:____________________________
Its:_____________________________
Acknowledged receipt of this letter and the
Reports this _____ day of _______________, 1997.
COLUMBIA REALTY VENTURE, a District of Columbia limited partnership
By:___________________________________
Name: Joshua B. Bernstein
Its: General Partner
SCHEDULE 1
TO
OSHA LETTER
LIST OF REPORTS
1. Report of Cost Estimate for Removal of ACM dated 4/27/92 prepared by LAW
Engineering & Environmental Services, Inc. ("LAW"); and
2. Report of Facilities Survey to Identify ACM within Foxhall Square dated
4/27/92 prepared by LAW.
EXHIBIT P
ENVIRONMENTAL REPORTS
1. (a) UST Closure Report dated 8/15/96; and (b) two letters dated
5/29/96 from Dr. V. Sreenivas, District of Columbia, Department of
Consumer and Regulatory Affairs ("DCRA");
2. Report of Interior Inspection and Pre-Closure Environmental Assessment
of UST at Foxhall Square dated 5/28/96 and prepared by LAW Engineering
& Environmental Services, Inc. ("LAW");
3. Letter of Transmittal dated 5/20/96 from LAW;
4. Letter dated 3/22/96 from LAW (re: Change Order No. 1);
5. Directive Letter dated 2/9/96 from Gregory Hope (DCRA);
6. Letter dated 9/15/95 from LAW (re: Proposal for UST Closure);
7. Letter dated 6/27/95 from LAW (re: Proposal for UST Assessment);
8. Report of Cost Estimate for Removal of ACM dated 4/27/92 prepared by
LAW; and
9. Report of Facilities Survey to Identify ACM within Foxhall Square
dated 4/27/92 prepared by LAW.
EXHIBIT Q
FOXHALL SQUARE
SECURITY DEPOSITS
-----------------------------------------------------------------
Suite # Tenant Name Security
Deposit
-----------------------------------------------------------------
118 Abrielle, Inc. $4,740.00
-----------------------------------------------------------------
101 Ace Beverage of Washington $8,302.08
-----------------------------------------------------------------
230 Dr. R. Adrian & Dufrensne $2,408.00
-----------------------------------------------------------------
336 Alagia, Damian III MD PC $2,918.67
-----------------------------------------------------------------
250 Banfield Archer Obrien
-----------------------------------------------------------------
326 Blackman, Jane H. MD $2,278.34
-----------------------------------------------------------------
223 Boltansky, Howard MD $5,221.67
-----------------------------------------------------------------
351 Broring Charles L. $1,060.00
-----------------------------------------------------------------
316 Capitol Rehab Physical Therapy
-----------------------------------------------------------------
110 Cathedral Galleries $1,108.00
-----------------------------------------------------------------
334 Choyke, Lynda Dr.
-----------------------------------------------------------------
232 Christopher, Harrington Dr. $ 999.17
-----------------------------------------------------------------
318 Collins, Gordan Johnson Dr.
-----------------------------------------------------------------
307 Collins, Gordon, Johnson
-----------------------------------------------------------------
124 Crestar Bank N A
-----------------------------------------------------------------
210 Curfman, David R.
-----------------------------------------------------------------
202 Davenport, Nancy $3,362.33
-----------------------------------------------------------------
218 Fermaglich, Joseph L. MD $ 460.03
-----------------------------------------------------------------
125 Flower Designer, Bentley Inc. of Virg. $2,515.33
-----------------------------------------------------------------
314 Footer, Robert D. MD
-----------------------------------------------------------------
252 Forensic Sciences Med Group $2,351.96
-----------------------------------------------------------------
121 Foxhall Cafeteria, Zion Enterprises, Inc. $3,333.33
-----------------------------------------------------------------
310 Foxhall Podiatry Associates PC
-----------------------------------------------------------------
348 Foxhall Sq. Internists PC
-----------------------------------------------------------------
340 Foxhall Sq. Ob Gyn
-----------------------------------------------------------------
114 Foxhall Square Cleaners $ 500.00
-----------------------------------------------------------------
206 Foxhall Surgical Associates
-----------------------------------------------------------------
205 Georgetown College Ste
-----------------------------------------------------------------
324 Georgetown College Ste $1,866.00
-----------------------------------------------------------------
216 Giere, Joseph W. MD
-----------------------------------------------------------------
212 Gray, Ludewig, Drs.
-----------------------------------------------------------------
214 Greer, Douglas Dr.
-----------------------------------------------------------------
346 Harris, Denis R. MD
-----------------------------------------------------------------
222 Hughes, William S. MD $1,166.67
-----------------------------------------------------------------
107 Jackie Chalkley, Inc.
-----------------------------------------------------------------
109 Jean Paul Mardoian Hair
-----------------------------------------------------------------
238 Leyva Balfour, Drs. $3,085.00
-----------------------------------------------------------------
344 Lorenz, Patrick C. MD
-----------------------------------------------------------------
208 Marshall, Joseph MD
-----------------------------------------------------------------
228 Merida, Mahat Drs.
-----------------------------------------------------------------
332 Meyer, Donald Dr.
-----------------------------------------------------------------
105 MGMB, Inc. $1,239.33
-----------------------------------------------------------------
106 MGMB, Inc.
-----------------------------------------------------------------
104 MGMB, Inc.
-----------------------------------------------------------------
323 Moini, M. Reza $2,440.00
-----------------------------------------------------------------
220 Mopsik, Edward P.
-----------------------------------------------------------------
209 National Health Lab $1,733.67
-----------------------------------------------------------------
305 Novello, Joseph R. $1,900.17
-----------------------------------------------------------------
345 Pascualvaca, Dauphinais Dr. $1,488.67
-----------------------------------------------------------------
|
-----------------------------------------------------------------
116 Point of it All $ 384.80
-----------------------------------------------------------------
200 Retina Consultants, PC $2,522.67
-----------------------------------------------------------------
127 Rite Aid of Washington
-----------------------------------------------------------------
248 Rothschild, Stanley R.
-----------------------------------------------------------------
133 RVI Inc. T/A Pamela Barkle $1,793.50
-----------------------------------------------------------------
342 Security Assurance Mgmt.
-----------------------------------------------------------------
123 Skynear & Company
-----------------------------------------------------------------
311 Spence Constantinople Drs. $1,824.00
-----------------------------------------------------------------
108 Tanya Bio Aesthetics $2,432.50
-----------------------------------------------------------------
322 Teter Lenore, MD $1,592.50
-----------------------------------------------------------------
132 Tree Top Toys, Inc. $1,050.00
-----------------------------------------------------------------
117 US Travel Systems, Inc. $ 600.83
-----------------------------------------------------------------
130 Voorthuis Opticians, Inc.
-----------------------------------------------------------------
119 Voorthuis Opticians, Inc.
-----------------------------------------------------------------
236 Walker Rondi Kathleen $5,572.00
-----------------------------------------------------------------
111 Washington Framing Art $2,698.33
-----------------------------------------------------------------
352 Washington Neurosurgical
-----------------------------------------------------------------
302 Weinstein, Allan M. Dr. $6,692.50
-----------------------------------------------------------------
|
2
EXHIBIT R
PROSPECTIVE TENANTS - C & P
National Healthlab
Dr. Fermaglich
Drs. Merida and Mahat
Dr. Banfield
Dr. Weinstein
Dr. Weber (Foxhall Podiatry)
Dr. Teter
American University
Dr. West
American Medical Labs
EXHIBIT S
PROSPECTIVE TENANTS - SMITHY BRAEDON
Pamela Barkely
US Travel
Treetop Toys, Inc.
EXHIBIT T
RENT ROLL
---------
------------------------------------------------------------------------------------------------------------------------------------
Suite # Tenant Name Security Sq. Exp. Date Monthly Base Rent as of Monthly Oper. Base Year or
Deposit Ft. 8/1/97 Oper. Exp. Stop
as of 8/1/97
------------------------------------------------------------------------------------------------------------------------------------
118 Abrielle, Inc. $4,740.00 2,370 02/28/03 $ 4,858.50 $ 60.00 1996
------------------------------------------------------------------------------------------------------------------------------------
101 Ace Beverage of Washington $8,302.08 3,985 12/31/99 $ 9,655.67 $200.00 1990
------------------------------------------------------------------------------------------------------------------------------------
230 Dr. R. Adrian & Dufrensne $2,408.00 2,100 04/30/05 $ 4,091.50 1995
------------------------------------------------------------------------------------------------------------------------------------
336 Alagia, Damian III MD PC $2,918.67 1,592 07/31/98 $ 3,345.85 1997
------------------------------------------------------------------------------------------------------------------------------------
250 Banfield Archer Obrien 1,492 04/30/98 $ 3,376.14 $250.00 1992
------------------------------------------------------------------------------------------------------------------------------------
326 Blackman, Jane H. MD $2,278.34 2,302 12/31/99 $ 5,559.68 $327.36 1992
------------------------------------------------------------------------------------------------------------------------------------
223 Boltansky, Howard MD $5,221.67 3,133 08/31/03 $ 0.00 1997
------------------------------------------------------------------------------------------------------------------------------------
351 Broring Charles L. $1,060.00 636 12/31/03 $ 1,255.66 $100.00 1994
------------------------------------------------------------------------------------------------------------------------------------
316 Capitol Rehab Physical Therapy 1,634 06/30/03 $ 3,366.78 $100.00 1993
------------------------------------------------------------------------------------------------------------------------------------
110 Cathedral Galleries $1,108.00 950 06/30/98 $ 2,099.50 $ 50.00 1995
------------------------------------------------------------------------------------------------------------------------------------
334 Choyke, Lynda Dr. 808 12/31/01 $ 1,481.33 1997
------------------------------------------------------------------------------------------------------------------------------------
232 Christopher, Harrington Dr. $ 999.17 1,883 07/31/02 $ 0.00 1997
------------------------------------------------------------------------------------------------------------------------------------
318 Collins, Gordan Johnson Dr. 3,113 06/30/03 $ 6,414.18 $200.00 1993
------------------------------------------------------------------------------------------------------------------------------------
307 Collins, Gordon, Johnson 310 06/30/03 $ 134.39
------------------------------------------------------------------------------------------------------------------------------------
124 Crestar Bank N A 3,280 12/31/98 $11,323.29 1994
------------------------------------------------------------------------------------------------------------------------------------
210 Curfman, David R. 743 10/31/02 $ 1,643.68 $120.00 1992
------------------------------------------------------------------------------------------------------------------------------------
202 Davenport, Nancy $3,362.33 1,834 03/31/05 $ 3,498.17 $160.00 1995
------------------------------------------------------------------------------------------------------------------------------------
218 Fermaglich, Joseph L. MD $ 460.03 635 02/28/98 $ 1,387.24 $ 50.00 1993
------------------------------------------------------------------------------------------------------------------------------------
125 Flower Designer, Bentley Inc. $2,515.33 1,372 02/28/02 $ 2,629.67 1997
of Virg.
------------------------------------------------------------------------------------------------------------------------------------
314 Footer, Robert D. MD 1,116 04/30/99 $ 2,203.32 $185.00 1994
------------------------------------------------------------------------------------------------------------------------------------
252 Forensic Sciences Med Group $2,351.96 1,201 10/31/01 $ 2,351.96 1997
------------------------------------------------------------------------------------------------------------------------------------
121 Foxhall Cafeteria, Zion $3,333.33 1,447 03/31/01 $ 3,089.94 $ 75.00 1996
Enterprises, Inc.
------------------------------------------------------------------------------------------------------------------------------------
310 Foxhall Podiatry Associates PC 1,725 05/31/98 $ 3,438.50 $ 40.00 1996
------------------------------------------------------------------------------------------------------------------------------------
348 Foxhall Sq. Internists PC 8,720 11/30/05 $15,623.33 $200.00 1996
------------------------------------------------------------------------------------------------------------------------------------
340 Foxhall Sq. Ob Gyn 2,893 12/31/98 $ 5,795.65 $396.82 1994
------------------------------------------------------------------------------------------------------------------------------------
114 Foxhall Square Cleaners $ 500.00 500 10/31/06 $ 958.33 $ 50.00 1996
------------------------------------------------------------------------------------------------------------------------------------
206 Foxhall Surgical Associates 3,587 05/31/02 $ 8,187.33 $510.10 1992
------------------------------------------------------------------------------------------------------------------------------------
205 Georgetown College Ste 2,944 09/07/02 $ 5,642.67 $ 50.00 1996
------------------------------------------------------------------------------------------------------------------------------------
324 Georgetown College Ste $1,866.00 4,677 12/31/01 $ 7,405.25 1997
------------------------------------------------------------------------------------------------------------------------------------
216 Giere, Joseph W. MD 1,777 08/31/02 $ 3,745.11 $231.04 1992
------------------------------------------------------------------------------------------------------------------------------------
212 Gray, Ludewig, Drs. 1,577 10/31/99 $ 2,899.46 $106.92 1995
------------------------------------------------------------------------------------------------------------------------------------
|
-----------------------------------------------------------------------------------------------------------------------------------
Suite # Tenant Name Security Sq. Exp. Date Monthly Base Rent as of Monthly Oper. Base Year or
Deposit Ft. 8/1/97 Exp. as of Stop
8/1/97
-----------------------------------------------------------------------------------------------------------------------------------
214 Greer, Douglas Dr. 1,612 08/31/03 $ 2,955.33 $ 41.15 1996
-----------------------------------------------------------------------------------------------------------------------------------
346 Harris, Denis R. MD 1,011 09/30/99 $ 2,655.07 $175.00 1993
-----------------------------------------------------------------------------------------------------------------------------------
222 Hughes, William S. MD $1,166.67 700 08/31/98 $ 1,382.01 $ 34.22 1993
-----------------------------------------------------------------------------------------------------------------------------------
107 Jackie Chalkley, Inc. 1,766 12/31/03 $ 3,434.87 $150.00 1994
-----------------------------------------------------------------------------------------------------------------------------------
109 Jean Paul Mardoian Hair 1,394 01/31/01 $ 2,653.48 $ 50.00 1996
-----------------------------------------------------------------------------------------------------------------------------------
238 Leyva Balfour, Drs. $3,085.00 2,650 06/30/99 $ 5,794.30 $316.70 1992
-----------------------------------------------------------------------------------------------------------------------------------
344 Lorenz, Patrick C. MD 564 06/30/04 $ 1,128.00 1997
-----------------------------------------------------------------------------------------------------------------------------------
208 Marshall, Joseph MD 832 08/31/00 $ 1,685.07 $118.32 1992
-----------------------------------------------------------------------------------------------------------------------------------
228 Merida, Mahat Drs. 2,985 03/31/98 $ 5,636.68 $ 75.00 1996
-----------------------------------------------------------------------------------------------------------------------------------
332 Meyer, Donald Dr. 1,071 02/28/03 $ 2,548.41 $125.91 1993
-----------------------------------------------------------------------------------------------------------------------------------
105 MGMB, Inc. $1,239.33 1,144 08/31/98 $ 1,643.52 1995
-----------------------------------------------------------------------------------------------------------------------------------
106 MGMB, Inc. 242 08/31/98 $ 347.67 $ 18.00 1995
-----------------------------------------------------------------------------------------------------------------------------------
104 MGMB, Inc. 856 08/31/98 $ 1,229.77 1995
-----------------------------------------------------------------------------------------------------------------------------------
323 Moini, M. Reza $2,440.00 1,220 12/31/00 $ 2,259.08 $160.00 1994
-----------------------------------------------------------------------------------------------------------------------------------
220 Mopsik, Edward P. 970 08/31/97 $ 2,012.42 $137.94 1997
-----------------------------------------------------------------------------------------------------------------------------------
209 National Health Lab $1,733.67 743 05/31/98 $ 1,511.25 1994
-----------------------------------------------------------------------------------------------------------------------------------
305 Novello, Joseph R. $1,900.17 500 02/28/99 $ 1,083.33 1997
----------------------------------------------------------------------------------------------------------------------------------
345 Pascualvaca, Dauphinais Dr. $1,488.67 812 01/31/02 $ 1,488.67 1997
----------------------------------------------------------------------------------------------------------------------------------
116 Point of it All $ 384.80 1,183 11/30/03 $ 1,971.67 $ 50.00 1996
----------------------------------------------------------------------------------------------------------------------------------
200 Retina Consultants, PC $2,522.67 1,376 10/14/01 $ 2,522.67 1997
----------------------------------------------------------------------------------------------------------------------------------
127 Rite Aid of Washington 5,692 10/31/10 $11,858.33 $510.00 1995
----------------------------------------------------------------------------------------------------------------------------------
248 Rothschild, Stanley R. 2,859 08/31/02 $ 6,189.35 $423.97 1992
----------------------------------------------------------------------------------------------------------------------------------
133 RVI Inc. T/A Pamela Barkle $1,793.50 1,204 03/31/97 $ 2,868.41 -
----------------------------------------------------------------------------------------------------------------------------------
342 Security Assurance Mgmt. 1,507 M-T-M $ 300.00 -
----------------------------------------------------------------------------------------------------------------------------------
123 Skynear & Company 953 08/31/01 $ 1,508.92 $ 50.00 1996
----------------------------------------------------------------------------------------------------------------------------------
311 Spence Constantinople Drs. $1,824.00 2,913 11/30/04 $ 6,438.34 $400.00 1994
----------------------------------------------------------------------------------------------------------------------------------
108 Tanya Bio Aesthetics $2,432.50 1,390 12/31/03 $ 2,826.33 $150.00 -
----------------------------------------------------------------------------------------------------------------------------------
322 Teter Lenore, MD $1,592.50 840 05/14/98 $ 1,827.43 $100.74 1993
----------------------------------------------------------------------------------------------------------------------------------
132 Tree Top Toys, Inc. $1,050.00 3,407 12/31/00 $ 6,955.96 $150.00 1993
----------------------------------------------------------------------------------------------------------------------------------
117 US Travel Systems, Inc. $ 600.83 721 03/31/97 $ 1,562.17 1996
----------------------------------------------------------------------------------------------------------------------------------
130 Voorthuis Opticians, Inc. 2,118 02/28/01 $ 5,894.94 $358.81 -
----------------------------------------------------------------------------------------------------------------------------------
119 Voorthuis Opticians, Inc. 620 02/28/01 $ 1,482.79 $ 95.94 1992
----------------------------------------------------------------------------------------------------------------------------------
236 Walker Rondi Kathleen $5,572.00 2,388 03/31/06 $ 2,786.00 1997
----------------------------------------------------------------------------------------------------------------------------------
111 Washington Framing Art $2,698.33 1,471 12/31/01 $ 2,329.08 1997
----------------------------------------------------------------------------------------------------------------------------------
352 Washington Neurosurgical 1,890 04/30/01 $ 3,381.92 $270.00 1996
----------------------------------------------------------------------------------------------------------------------------------
302 Weinstein, Allan M. Dr. $6,692.50 3,237 04/30/98 $ 6,781.52 $441.00 1994
----------------------------------------------------------------------------------------------------------------------------------
|
2
EXHIBIT U
UNDERGROUND STORAGE TANK REAL ESTATE TRANSFER DISCLOSURE FORM
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