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EXHIBIT 10.22
MEMBERSHIP INTEREST SALE AGREEMENT
BY AND BETWEEN
CLARK/CARR INVESTMENTS, LLC,
A MARYLAND 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........................................................
10
5.6 Governing
Law...........................................................
10
5.7
Counterparts............................................................
10
5.8
Survival................................................................
10
5.9
Severability............................................................
10
5.10 Attorneys'
Fees.........................................................
11
5.11 Section 8.04
Rights..................................................... 11
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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, 2005 by and between Clark/Carr
Investments, LLC, a
Maryland 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, Holualoa K(3) Fair Oaks,
LLC, an
Arizona limited liability company ("Holualoa") 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") Holualoa 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 actual 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 Maryland. 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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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. To Seller's actual knowledge, neither
the
entry into nor the performance of, or compliance with, this
Agreement by Seller
has resulted, or will result, in any material violation of, or
material default
under, or result in the acceleration of, any material obligation
under any
material 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 actual knowledge of Seller, to the Membership
Interest.
(c) Litigation. There is no action, suit, claim, or
proceeding
pending or, to the actual knowledge of Seller, threatened
against Seller, or, to
the actual knowledge of 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) 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, (B) would
reasonably be expected to create a lien on the Membership
Interest, any part
thereof, or any interest therein, or (C) would reasonably be
expected to
materially and 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 Interest on the Closing Date (other than the LLC
Operating
Agreement), (B) its membership interest in the L
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