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<PAGE>
EXHIBIT 10.20
MEMBERSHIP INTEREST SALE AGREEMENT
BY AND BETWEEN
HOLUALOA K(3) FAIR OAKS, 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..............................................................................................
2
1.1 Sale of Membership
Interest..................................................................
2
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.......................................................................
5
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.....................................................................................
10
5.4 Successors and
Assigns.......................................................................
10
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..............................................................................
11
</TABLE>
EXHIBITS
A Assignment and Assumption Agreement
<PAGE>
MEMBERSHIP INTEREST SALE AGREEMENT
THIS MEMBERSHIP INTEREST SALE AGREEMENT (this "Agreement") is
made as of
this 31st day of January, 2005 by and between Holualoa K(3) Fair
Oaks, LLC, an
Arizona limited liability company ("Seller"); and Columbia
Equity, LP, a
Virginia limited partnership ("Purchaser").
RECITALS
A. Fair Oaks Corporate Center, LLC, a Virginia limited liability
company
(the "LLC") is the owner of certain land located in Fairfax
County, 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 Fair Oaks Corporate Center.
B. Carr Capital FOCC Investors, LLC, a Virginia limited
liability company
(the "Liquidating LLC") is the record and beneficial owner of
One Hundred and
00/100 percent (100.00%) of the membership interests in the
LLC.
C. Seller is the record and beneficial owner of Thirty-Five and
53/100
percent (35.53%) of the membership interests in the Liquidating
LLC.
D. The members of the Liquidating LLC, Clark/Carr Investments
LLC, a
Maryland limited liability company ("Clark") and Carr Capital
Real Estate
Investments, LLC, a Virginia limited liability company, ("Carr")
and Seller
(collectively, the "Liquidating LLC Members") intend to
liquidate the
Liquidating LLC, and each of the Liquidating LLC Members shall
be admitted as
members of the LLC, with Seller receiving a Thirty-Five and
53/100 percent
(35.53%) ("Seller's Share") membership interest in the LLC (the
"Membership
Interest") Clark receiving a Thirty-Five and 53/100 percent
(35.53%) membership
interest in the LLC and Carr receiving a Twenty-Eight and 94/100
percent
(28.94%) interest in the LLC, (the "Liquidation Transaction").
Seller desires to
sell the Membership Interest to Purchaser, on the terms and
conditions
hereinafter set forth.
E. Purchaser desires to purchase the Membership Interest from
Seller, on
the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants
herein
contained, the parties hereto agree as follows:
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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, 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 an amount providing the Seller with a twenty percent
(20%) IRR (as
defined in the Liquidating LLC's operating agreement (the
"Liquidating LLC
Operating Agreement")), based on a minimum of a six month
investment holding
period for Seller's Capital Contribution (as defined in the
Liquidating LLC
Operating Agreement) (that is, based on initial Capital
Contribution of
$1,105,000, assuming no distributions by the Company, the
minimum Purchase Price
would equal $1,220,207).
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
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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.
(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
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<PAGE>
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.
(c) Litigation. There is no action, suit, claim, or
proceeding
pending or threatened against or affecting Seller, its
membership interest in
the Liquidating LLC 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 to its membership
interest
in the Liquidating LLC on the date hereof and will have good
title to the
Membership Intere
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