AGREEMENT OF SALE AND PURCHASE ASP WASHINGTON, L.L.C.,

Exhibit 10.1

 

AGREEMENT OF SALE AND PURCHASE

between

 

ASP WASHINGTON, L.L.C.,

a Delaware limited liability company,

 

and

 

ASP WASHINGTON DEVELOPMENT, L.L.C.,

a Delaware limited liability company,

 

collectively,

“Seller”

 

and

COHEN COMPANIES, LLC

 

a Maryland limited liability company

“Buyer”

 

with Escrow Instructions for

New Enterprise Title Group, Inc.

Table of Contents

 

 

(i)

 

 

(ii)

AGREEMENT OF SALE AND PURCHASE

 

THIS AGREEMENT OF SALE AND PURCHASE (this “Agreement”), dated as of May         , 2001, is between ASP WASHINGTON DEVELOPMENT, L.L.C., a Delaware limited liability company (“Development”), and ASP WASHINGTON, L.L.C., a Delaware limited liability company (“Washington;” Development and Washington are sometimes hereinafter referred to collectively as “Seller”), and THE COHEN COMPANIES, LLC, a Maryland limited liability company or its permitted assigns (“Buyer”)

 

ARTICLE 1 - CERTAIN DEFINITIONS

 

Section 1.1 Definitions. The parties hereby agree that the following terms shall have the meanings hereinafter set forth, such definitions to be applicable equally to the singular and plural forms, and to the masculine and feminine forms, of such terms:

 

1.1.1 “Additional Deposit” shall have the meaning ascribed in Section 2.3.

 

1.1.2 “Affiliate” shall mean with respect to Seller, any person or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with Seller, or with respect to Buyer, any entity established for estate planning purposes that is directly, or indirectly through one or more intermediaries, controlled by Ronald Cohen. For the purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have the meanings correlative to the foregoing.

 

1.1.3 “Assignment and Assumption of Contracts” shall have the meaning ascribed in Section 9.34.

 

1.1.4 “Assignment and Assumption of Leases” shall have the meaning ascribed in Section 9.3.3.

 

1.1.5 “Bill of Sale’ shall have the meaning ascribed in Section 9.3.2.

 

1.1.6 “Broker” shall mean Trammell Crow Company.

 

1.1.7 “Broker’s Commission” shall have the meaning ascribed in Section 9.6.

 

1.1.8 “Closing” shall have the meaning ascribed in Section 9.2.

 

1.1.9 “Closing Date” shall mean the date set forth in Section 9.2.

 

1.1.10 “Closing Statement” shall have the meaning ascribed in Section 9.5.1(a).

 

1.1.11 “Code” shall have the meaning ascribed in Section 5.4.

 

1.1.12 “Commissions” shall mean all commissions, referral fees, payments and obligations of Seller or the Property Manager to make payments to leasing agents, leasing brokers or other parties with respect to the leasing of all or any of the Property, whether such agreements are contained in a Lease or in any separate Commission Agreement.

1.1.13 “Commission Agreements” shall mean all written agreements and documents entered into by Seller or the Property Manager to pay Commissions that are not contained in a Lease, together with all amendments thereto or modifications thereof.

 

1.1.14 “Contracts” shall mean the service contracts and other contracts described in Exhibit C and all other service contracts entered into by Seller after the Effective Date with respect to the Property in accordance with Section 8.4.

 

1.1.15 “Deed” shall have the meaning ascribed in Section 9.3.1.

 

1.1.16 “Deposit” shall have the meaning ascribed in Section 2.3.

 

1.1.17 “Development Land” shall mean those certain parcels of land in Washington Business Park, Lanham, Maryland, consisting of approximately seventy-nine (79) acres, and all appurtenances thereto, as more particularly described on Exhibit A-2, including Development’s right, title and interest, if any, in and to all rights-of-way, open or proposed streets (public or private), alleys, easements, strips or gores of land adjacent thereto.

 

1.1.18 “Disclosure Items” shall have the meaning ascribed in Section 6.1.

 

1.1.19 “Due Diligence” shall have the meaning ascribed in Section 3.1.

 

1.1.20 “Due Diligence Items” shall have the meaning ascribed in Section 3.2.

 

1.1.21 “Due Diligence Period” shall mean the time period provided for in Section 3.1 of this Agreement.

 

1.1.22 “Effective Date” shall mean the date this Agreement shall have been fully executed and delivered by all parties hereto.

 

1.1.23 “Environmental Laws” means all federal, state and local environmental laws, rules, statutes, directives, binding written interpretations, binding written policies, ordinances and regulations issued by any Governmental Entity and in effect as of the date of this Agreement with respect to or which otherwise pertain to or affect the Real Property or the Improvements, or any portion thereof, the use, ownership, occupancy or operation of the Real Property or the Improvements, or any portion thereof, or any owner of the Real Property, and as same have been amended, modified or supplemented from time to time prior to the date of this Agreement, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Hazardous Substances Transportation Act (49 U.S.C. § 1802 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Water Pollution Control Act (3.3 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq. ), the Radon and Indoor Air Quality Research Act (42 U.S.C. § 7401 note,

 

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et seq.), the Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.), comparable state and local laws, and any and all rules and regulations which have become effective prior to the date of this Agreement under any and all of tine aforementioned laws.

 

1.1.24 “Escrow Agent” shall mean New Enterprise Title Group, Inc. or in the event of an occurrence as described in Section 4.2, First American Title Insurance Company.

 

1.1.25 “Estoppel Period” shall have the meaning ascribed in Section 3.7(a).

 

1.1.26 “Excluded Property Records” shall have the meaning ascribed in Section 3.2.

 

1.1.27 “Fixtures” shall mean the fixtures which are located at and affixed to any of the Improvements as of the Closing Date, but specifically excluding any trade fixtures of the Tenants under the Leases.

 

1.1.28 “Governmental Entity” means the various governmental and quasi- governmental bodies or agencies having jurisdiction over Seller, the Real Property or any portion thereof.

 

1.1.29 “Hazardous Materials” means any pollutants, contaminants, hazardous or toxic substances, materials or wastes (including petroleum, petroleum by-products, radon, asbestos and asbestos containing materials, polychlorinated biphenyls (“PCBs”), PCB-containing equipment, radioactive elements, infectious agents, and urea formaldehyde), as such terms are used in any Environmental Laws (excluding solvents, cleaning fluids and other lawful substances used in the ordinary operation and maintenance of the Real Property, to the extent in closed containers).

 

1.1.30 “Improvements” shall mean the buildings, improvements, and structures located on the Washington Land, including, but not limited to, two (2) office buildings and seven (7) flex buildings.

 

1.1.31 “Independent Consideration” shall have the meaning ascribed in Section 2.4.

 

1.1.32 “Initial Deposit” shall have the meaning ascribed in Section 2.3.

 

1.1.33 “Leases” shall mean all unexpired leases, subleases, occupancy agreements, and any other agreements, including all modifications or amendments thereto, for the use, possession, or occupancy of any portion of the Real Property as of the Closing Date, including any tenant guaranties delivered in connection with any of the foregoing.

 

1.1.34 “Leasing Parameters” shall have the meaning ascribed in Section 8.1.2.

 

1.1.35 “Licensee Parties” shall mean those authorized agents, contractors, consultants and representatives of Buyer who shall inspect, investigate, test or evaluate the Property on behalf of Buyer in accordance with this Agreement.

 

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1.1.36 “Licenses and Permits” shall mean, collectively, to the extent assignable, all licenses, permits, approvals, certificates of occupancy, dedications, subdivision maps and entitlements now or hereafter issued, approved or granted by any Governmental Entity in connection with the Real Property, together with all renewals and modifications thereof.

 

1.1.37 “Liens” shall have the meaning ascribed in Section 4.2.

 

1.1.38 “New Leases” or “New Lease” shall mean, collectively, or singularly, any Lease for space at the Property entered into between the Effective Date and the Closing Date.

 

1.1.39 “Operating Expenses” shall have the meaning ascribed in Section 9.5.1(c).

 

1.1.40 “Permitted Exceptions” shall mean and include all of the following: (a) applicable zoning and building ordinances and land use regulations; (b) those matters revealed by the Survey (as the same may be updated by Buyer prior to the Closing Date); (c) the lien of taxes and assessments not yet due and payable (it being agreed by Buyer and Seller that if any tax or assessment is levied or assessed with respect to the Property after the date hereof and the owner of the Property has the election to pay such tax or assessment either immediately or under a payment plan with interest, Seller may elect to pay under a payment plan, which election shall be binding on Buyer); (d) any exclusions from coverage set forth in the jacket of any Owner’s Policy of Title Insurance or any standard printed exceptions; (e) any exceptions caused by Buyer, its agents, representatives or employees; (f) such other exceptions as the Title Company shall commit to insure over, without any additional cost to Buyer, whether such insurance is made available in consideration of payment, bonding, indemnity by Seller or otherwise; (g) the rights of the Tenants under the Leases; and (h) any matters deemed to constitute Permitted Exceptions under Section 4 2 hereof.

 

1.1.41 “Permitted Outside Parties” shall have the meaning ascribed in Section 3.5.

 

1.1.42 “Personal Property” shall mean all of the right, title, and interest of Seller in and to the tangible personal property, which is located at and used in connection with any of the Improvements as of the Closing Date, but specifically excluding (a) any personal property owned, financed or leased by the Tenants under the Leases, (b) any computer software which either is licensed to Seller, or Seller deems proprietary, (c) any tangible personal property used, whether owned or leased, by any affiliated or unaffiliated on-site property manager and (d) any warrants, stock options or other equity securities related to the Property Personal Property shall not include any appraisals, budgets, strategic plans for the Real Property, internal analyses, marketing information, submissions relating to Seller’s obtaining of corporate authorization, attorney and accountant work product, attorney-client privileged documents, or other information in the possession or control of Seller or Seller’s Property Manager which Seller deems proprietary.

 

1.1.43 “Pre-Effective Date Leases” or “Pre-Effective Date Lease” shall mean, collectively, or singularly, any Lease for space at the Property in effect as of the Effective Date.

 

1.1.44 “Property” shall mean the Real Property, the Personal Property, the Leases, the Contracts, and to the extent transferable, all of Seller’s right, title and interest in and

 

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to all tangible and intangible assets of any nature relating to the Property, including without limitation, (a) all warranties upon the Improvements or the Personal Property, (b) rights to any plans, specifications, engineering studies, reports, drawings, and prints relating to the construction, reconstruction, modification, and alteration of Improvements, (c) all works of art, graphic designs, and other intellectual or intangible property owned and used by Seller in connection with the Property, including any trade name associated with the Improvements, (d) all claims and causes of action arising out of or in connection with the Property after the Closing Date, and (e) the Licenses and Permits.

 

1.1.45 “Property Manager” shall mean those individuals or entities which manage the Property.

 

1.1.46 “Proration Items” shall have the meaning ascribed in Section 9.5.1(a).

 

1.1.47 “Proration Time” shall have the meaning ascribed in Section 9.5.1(a).

 

1.1.48 “Purchase Price” shall have the meaning ascribed in Section 2.2.

 

1.1.49 “Real Property” shall mean the Development Land, the Washington Land, the improvements, and the Fixtures.

 

1.1.50 “Reimbursable Capital Expenses” shall mean costs or expenses for any capital expenditures or improvements made by Seller after the Effective Date hereof but before Closing or as otherwise listed on Exhibit 4 hereto.

 

1.1.51 “Reimbursable Lease Expenses” shall mean, collectively, any and all fees paid by Seller prior to Closing or costs and expenses paid or incurred by Seller prior to Closing arising out of or in connection with any extensions, renewals or expansions under any Lease for space at the Property exercised or granted between the Effective Date and the Closing Date, and any New Lease. Reimbursable Lease Expenses shall include, without limitation, (a) brokerage commissions and fees payable pursuant to a Commission Agreement or a Lease or New Lease to effect any such leasing transaction (including, without limitation, any fees owed to the Property Manager), (b) expenses incurred for repairs, improvements, equipment, painting, decorating, partitioning and other items to satisfy the tenant’s requirements with regard to such leasing transaction, (c) legal fees for services in connection with the preparation of documents and other services rendered in connection with the effectuation of the leasing transaction, (d) if there are any rent concessions covering any period that the tenant has the right to be in possession of the demised space, the rents that would have accrued during the period of such concession prior to the Closing Date as if such concession were amortized over (i) with respect to any extension or renewal, the term of such extension or renewal, (ii) with respect to any expansion, that portion of the term remaining under the subject Lease after the date of any expansion, or (iii) with respect to any New Lease. the entire initial term of any such New Lease, and (e) expenses incurred for the purpose of satisfying or terminating the obligations of a tenant under a New Lease to the landlord under another lease (whether or not such other lease covers space in the Property).

 

1.1.52 “Rent Roll” shall have the meaning ascribed in Section 3.2(a).

 

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1.1.53 “Rent” or “Rents” shall mean and include fixed monthly rentals, additional rentals, percentage rentals, escalation rentals (which include each Tenant’s proration share of building operation and maintenance costs and expenses as provided for under the applicable Lease, to the extent the same exceeds any expense stop specified in such Lease), retroactive rentals, all administrative charges, utility charges, tenant or real property association dues, storage rentals, special event proceeds, temporary rents, telephone receipts, locker rentals, vending machine receipts and other sums and charges payable by tenants under the Leases or from other occupants or users of the Property, but excluding amounts received for Operating Expenses.

 

1.1.54 “Reporting Person” shall have the meaning ascribed in Section 5.4(a).

 

1.1.55 “SNDA’s” shall have the meaning ascribed in Section 3.8.

 

1.1.56 “Survey” shall mean, collectively, those certain existing ALTA surveys of the Development Land and the Washington Land and the Improvements more particularly described on Exhibit I attached hereto.

 

1.1.57 “Tenant Deposit” means all advance rents and security deposits (whether cash or noncash) paid or deposited by a Tenant to Seller, as landlord, or any other person on Seller’s behalf pursuant to a Lease (together with any interest which has accrued thereon as required by the terms of such Lease, but only to the extent such interest has accrued for the account of the respective Tenant or as required by law).

 

1.1.58 “Tenant” or “Tenants” shall mean all persons or entities occupying or entitled to possession of any portion of the Real Property pursuant to the Leases, including tenants, subtenants, and licensees.

 

1.1.59 “Title Commitment” shall have the meaning ascribed in Section 4.1.

 

1.1.60 “Title Company” shall mean Stewart Title Guaranty Company, or in the event of an occurrence as described in Section 4.2, First American Title Insurance Company.

 

1.1.61 “Title Documents” shall have the meaning ascribed in Section 4.1.

 

1.1.62 “Title Objections” shall have the meaning ascribed in Section 4.2.

 

1.1.63 “Title Policy” shall have the meaning ascribed in Section 4.3.

 

1.1.64 “Washington Land” shall mean those certain parcels of land in Washington Business Park, Lanham, Maryland, commonly known as (i) 4640 Forbes Boulevard, (ii) 4601 Forbes Boulevard, (iii) 5001 Forbes Boulevard, (iv) 5200 Philadelphia Way, (v) 5000 Philadelphia Way, (vi) 9201 Philadelphia Court (vii) 9901 Business Parkway, (viii) 4819-4881 Walden Lane, and (ix) 4850 Forbes Boulevard, and all appurtenances thereto, as more particularly described on Exhibit A-2, including Development’s right, title and interest, if any, in and to all rights-of-way, open or proposed streets (public or private), alleys, easements, strips or gores of land adjacent thereto.

 

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Section 1.2 Rules of Construction. Article and Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement. All references to “Article” or “Sections” without reference to a document other than this Agreement, are intended to designate articles and sections of this Agreement, and the words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Agreement as a whole and not to any particular Article or Section, unless specifically designated otherwise. The use of the term “including” shall mean in all cases “including but not limited to,” unless specifically designated otherwise. No rules of construction against the drafter of this Agreement shall apply in any interpretation or enforcement of this Agreement, any documents or certificates executed pursuant hereto, or any provisions of any of the foregoing.