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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 Liquidating LLC
