EXHIBIT 10.13 MEMBERSHIP INTEREST SALE AGREEMENT BY AND BETWEEN K(3) SHERWOOD, LLC, AN ARIZONA LIMITED LIABILITY COMPANY, AS SELLER AND COLUMBIA EQUITY LP, A VIRGINIA LIMITED PARTNERSHIP, AS PURCHASER

 

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                                                                   EXHIBIT 10.13

 

                       MEMBERSHIP INTEREST SALE AGREEMENT

 

                                 BY AND BETWEEN

 

                               K(3) SHERWOOD, LLC,

                      AN ARIZONA LIMITED LIABILITY COMPANY,

 

                                    AS SELLER

 

                                       AND

 

                               COLUMBIA EQUITY LP,

                         A VIRGINIA LIMITED PARTNERSHIP,

 

                                  AS PURCHASER

 

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                                TABLE OF CONTENTS

<TABLE>

<S>                                                                                              <C>

ARTICLE I  THE SALE........................................................................       1

 

      1.1   Sale of Membership Interest....................................................       1

      1.2   Purchase Price.................................................................       2

 

ARTICLE II  REPRESENTATIONS AND COVENANTS..................................................       2

 

      2.1   Representations by Purchaser...................................................       2

      2.2   Representations by Seller......................................................       3

      2.3   Covenants of Purchaser.........................................................       4

      2.4   Covenants of Seller............................................................       5

 

ARTICLE III  Conditions Precedent to the Closing...........................................       6

 

      3.1   Conditions to Purchaser's Obligations..........................................       6

      3.2   Conditions to Seller's Obligations.............................................       6

 

ARTICLE IV  Closing and Closing Documents..................................................       7

 

      4.1   Closing........................................................................       7

      4.2   Seller's Deliveries............................................................       7

      4.3   Purchaser's Deliveries.........................................................       8

      4.4   Fees and Expenses; Closing Costs...............................................       8

      4.5   Adjustments....................................................................       8

 

ARTICLE V  Miscellaneous...................................................................       9

 

      5.1   Notices........................................................................       9

      5.2   Entire Agreement; Modifications and Waivers; Cumulative Remedies...............      10

      5.3   Exhibits.......................................................................      11

      5.4   Successors and Assigns.........................................................      11

      5.5   Article Headings...............................................................      11

      5.6   Governing Law..................................................................      11

      5.7   Counterparts...................................................................      11

      5.8   Survival.......................................................................      11

      5.9   Severability...................................................................      11

      5.10  Attorneys' Fees................................................................      12

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EXHIBITS

 

      A     Assignment and Assumption Agreement

 

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                       MEMBERSHIP INTEREST SALE AGREEMENT

 

      THIS MEMBERSHIP INTEREST SALE AGREEMENT (this "Agreement") is made as of

this 31st day of January, 2004 by and between K(3) Sherwood, LLC, an Arizona

limited liability company ("Seller"); and Columbia Equity, LP, a Virginia

limited partnership ("Purchaser").

 

                                    RECITALS

 

      A. Holualoa/Carr Capital Sherwood, LLC, a Virginia limited liability

company (the "LLC") is the owner of certain land located at 9990 Lee Highway,

Fairfax, Virginia (the "Land") and the office building and related improvements

located thereon (the "Improvements"), which Land and Improvements (collectively,

the "Property") are more commonly known as the Sherwood office building.

 

      B. Seller is the record and beneficial owner of ninety-five percent (95%)

("Seller's Share") of the membership interests in the LLC (the "Membership

Interest"). Seller desires to sell the Membership Interest to Purchaser, on the

terms and conditions hereinafter set forth.

 

      C. Purchaser desires to purchase the Membership Interest from Seller, on

the terms and conditions hereinafter set forth.

 

      D. Immediately prior to such purchase and sale of the Membership Interest,

Carr Capital REI Sherwood, LLC, a Virginia limited liability company, shall

liquidate and each of its members, Hampton Sherwood, LLC, an Arizona limited

liability company ("Hampton"), Clinton D. Fisch and Tracey E. Fisch, as

tenants-by-the-entirety (collectively, "Fisch"), Gregory Murdock, an individual

("Murdock") and Carr Capital Real Estate Investments, LLC, a Virginia limited

liability company, ("Carr" and together with Hampton, Fisch and Murdock, the

"Liquidating LLC Members") shall be admitted as members of the LLC, with Hampton

receiving a Three and 23/100 percent (3.23%) membership interest in the LLC,

Fisch receiving a 48/100 percent (.48%) membership interest in the LLC, Murdock

receiving a 81/100 percent (.81%) membership interest in the LLC and Carr

receiving a 48/100 percent (.48%) membership interest in the LLC (the

"Liquidation Transaction").

 

                                    AGREEMENT

 

      NOW, THEREFORE, for and in consideration of the mutual covenants herein

contained, the parties hereto agree as follows:

 

                                   ARTICLE I

                                    THE SALE

 

      1.1 Sale of Membership Interest. Seller agrees to sell, transfer, assign

and convey the Membership Interest to Purchaser, and Purchaser agrees to

purchase and accept transfer of the Membership Interest pursuant to the terms

and conditions set forth in this Agreement. The Membership Interest shall be

transferred to Purchaser free and clear of all liens, encumbrances,

 

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security interests, prior assignments or conveyances, conditions, restrictions,

voting agreements, claims, and any other matters affecting title thereto (other

than the LLC's operating agreement (the "LLC Operating Agreement")).

 

      1.2 Purchase Price. The purchase price (the "Purchase Price") for which

Seller agrees to sell and assign the Membership Interest to Purchaser, and which

Purchaser agrees to pay to Seller, subject to the terms of this Agreement, shall

be equal to the amount of Net Cash Flow (as such term is defined in the LLC

Operating Agreement) that Seller would be entitled to receive pursuant to

Section 3.1 of the LLC Operating Agreement upon a hypothetical sale of the

Property for a sale price of Fourteen Million Six Hundred Thousand Dollars

($14,600,000) less the principal of and accrued interest on the mortgage loan

secured by the Property (the "Mortgage Loan").

 

                                   ARTICLE II

                          REPRESENTATIONS AND COVENANTS

 

      2.1 Representations by Purchaser. Purchaser hereby represents and warrants

to Seller that the following statements are true, correct, and complete in every

material respect as of the date of this Agreement and will be true, correct, and

complete as of the Closing Date:

 

            (a) Organization and Power. Purchaser is duly organized and validly

existing as a limited partnership under the laws of the Commonwealth of

Virginia, and has full right, power, and authority to enter into this Agreement

and to perform all of its obligations under this Agreement; and, the execution

and delivery of this Agreement and the performance by Purchaser of its

obligations under this Agreement have been duly authorized by all requisite

action of Purchaser and require no further action or approval of Purchaser's

partners or of any other individuals or entities in order to constitute this

Agreement as a binding and enforceable obligation of Purchaser.

 

            (b) Noncontravention. Neither the entry into nor the performance of,

or compliance with, this Agreement by Purchaser has resulted, or will result, in

any violation of, or default under, or result in the acceleration of, any

obligation under the partnership agreement of Purchaser, or any mortgage,

indenture, lien agreement, note, contract, permit, judgment, decree, order,

restrictive covenant, statute, rule, or regulation applicable to Purchaser.

 

            (c) Litigation. There is no action, suit, or proceeding, pending or

known to be threatened, against or affecting Purchaser in any court or before

any arbitrator or before any federal, state, municipal, or other governmental

department, commission, board, bureau, agency or instrumentality which (i) in

any manner raises any question affecting the validity or enforceability of this

Agreement, (ii) would reasonably be expected to materially and adversely affect

the business, financial position, or results of operations of Purchaser, (iii)

would reasonably be expected to materially and adversely affect the ability of

Purchaser to perform its obligations hereunder, or under any document to be

delivered pursuant hereto.

 

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            (d) Consents. Each consent, approval, authorization, order, license,

certificate, permit, registration, designation, or filing by or with any

governmental agency or body necessary for the execution, delivery, and

performance of this Agreement or the transactions contemplated hereby by

Purchaser has been obtained.

 

            (e) Bankruptcy with respect to Purchaser. No Act of Bankruptcy has

occurred with respect to Purchaser. As used herein, "Act of Bankruptcy" shall

mean if a party hereto shall (A) apply for or consent to the appointment of, or

the taking of possession by, a receiver, custodian, trustee or liquidator of

itself or of all or a substantial part of its property, (B) admit in writing its

inability to pay its debts as they become due, (C) make a general assignment for

the benefit of its creditors, (D) file a voluntary petition or commence a

voluntary case or proceeding under the Federal Bankruptcy Code (as now or

hereafter in effect), (E) be adjudicated bankrupt or insolvent, (F) file a

petition seeking to take advantage of any other law relating to bankruptcy,

insolvency, reorganization, winding-up or composition or adjustment of debts,

(G) fail to controvert in a timely and appropriate manner, or acquiesce in

writing to, any petition filed against it in an involuntary case or proceeding

under the Federal Bankruptcy Code (as now or hereafter in effect), or (H) take

any action for the purpose of effecting any of the foregoing.

 

            (f) Brokerage Commission. Purchaser has not engaged the services of,

nor has it or will it or Seller become liable to, any real estate agent, broker,

finder or any other person or entity for any brokerage or finder's fee,

commission or other amount with respect to the transactions described herein on

account of any action by Purchaser. Purchaser hereby agrees to indemnify and

hold Seller and its employees, directors, members, partners, affiliates and

agents harmless against any claims, liabilities, damages or expenses arising out

of a breach of the foregoing. This indemnification shall survive Closing or any

termination of this Agreement.

 

      2.2 Representations by Seller. Seller hereby represents and warrants unto

Purchaser that each and every one of the following statements is true, correct,

and complete in every material respect as of the date of this Agreement and will

be true, correct, and complete as of the Closing Date:

 

            (a) Organization and Power. Seller is duly organized, validly

existing, and in good standing as a limited liability company under the laws of

the State of Arizona. Seller has full right, power, and authority to enter into

this Agreement and to perform all of its obligations under this Agreement; and

the execution and delivery of this Agreement and the performance by Seller of

its obligations hereunder have been duly authorized by all requisite action of

Seller and require no further action or approval of Seller's members or managers

or of any other individuals or entities in order to constitute this Agreement as

a binding and enforceable obligation of Seller.

 

            (b) Noncontravention. Neither the entry into nor the performance of,

or compliance with, this Agreement by Seller has resulted, or will result, in

any violation of, or default under, or result in the acceleration of, any

obligation under any limited liability company agreement, operating agreement,

regulation, mortgage, indenture, lien agreement, note, contract, permit,

judgment, decree, order, restrictive covenant, statute, rule, or regulation

applicable to Seller or to the Membership Interest.

 

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            (c) Litigation. There is no action, suit, claim, or proceeding

pending or threatened against or affecting Seller or the Membership Interest in

any court, or before any arbitrator, or before any federal, state, municipal or

other governmental department, commission, board, bureau, agency or

instrumentality which (A) in any manner raises any question affecting the

validity or enforceability of this Agreement, (B) would reasonably be expected

to materially and adversely affect the business, financial position or results

of operations of Seller, (C) would reasonably be expected to materially and

adversely affect the ability of Seller to perform its obligations hereunder, or

under any document to be delivered pursuant hereto, (D) would reasonably be

expected to create a lien on the Membership Interest, any part thereof, or any

interest therein, or (E) would reasonably be expected to adversely affect the

Membership Interest, any part thereof, or any interest therein.

 

            (d) Good Title. (A) Seller has good title on the date hereof and

will have good title on the Closing Date to the Membership Interest (other than

the LLC Operating Agreement), (B) the Membership Interest on the date hereof is

and on the Closing Date will be free and clear of all liens, encumbrances,

pledges, voting agreements and security interests whatsoever (other than the LLC

Operating Agreement), and (C) Seller has not granted any other person or entity

an option to purchase or a right of first refusal upon the Membership Interest

nor are there any agreements or understandings between Seller and any other

person or entity with respect to the disposition of the Membership Interest

(other than the LLC Operating Agreement).

 

            (e) No Consents. Each consent, approval, authorization, order,

license, certificate, permit, registration, designation, or filing by or with,

any governmental agency