UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 6, 2006
ONE LIBERTY PROPERTIES, INC.
(Exact name of Registrant as specified in charter)
Maryland 001-09279 13-3147497
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(State or other (Commission file No.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
-- Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
-- Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
-- Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
-- Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
On November 6, 2006, OLP Baltimore LLC, a wholly-owned subsidiary of the
registrant ("Buyer"), entered into a Purchase and Sale Agreement with FR Hollins
Ferry, LLC ("Seller"), pursuant to which the Seller agreed to sell, and the
Buyer agreed to purchase, an industrial building situated on approximately 28
acres in Baltimore, Maryland consisting of approximately 367,000 square foot
grade level space for a purchase price of $32.2 million.
Consummation of the transaction is conditioned upon satisfaction of specific
terms and conditions and delivery of specific documents, including without
limitation, a current tenant estoppel certificate. Buyer has been afforded a due
diligence period, pursuant to which Buyer may, in its sole discretion, terminate
the Purchase and Sale Agreement prior to the expiration of the due diligence
period.
The property is leased on a net basis pursuant to a lease dated June 29, 2006 to
Ferguson Enterprises, Inc. The lease expires on March 31, 2022 and provides the
tenant with four five-year renewal options thereafter. From closing through no
later than March 31, 2007, the lease provides for an improvement period pursuant
to which the base rent of $195,076.88 per month is reduced. During the
improvement period, Seller will provide a reserve payable to Buyer, which
reserve shall equal the difference between the base rent and the tenant's
reduced rent thereby insuring that Buyer receives an amount equal to the base
rent during the improvement period. The lease provides the tenant with an option
to make a payment of up to $500,000 to the landlord to reduce the base rent
under the lease pursuant to a formula which could result in a rent reduction of
up to $42,000 per annum. This option must be exercised by the tenant by April 1,
2007.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired. Not applicable.
(b) Pro Forma Financial Information. Not applicable.
(c) Shell Company Transactions. Not applicable.
(d) Exhibits.
10.1 Purchase and Sale Agreement, dated as of November 6, 2006,
between FR Hollins Ferry, LLC and OLP Baltimore LLC.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ONE LIBERTY PROPERTIES, INC.
Date: November 8, 2006 By: /s/ Simeon Brinberg
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Simeon Brinberg
Senior Vice President
Exhibit 10.1
PURCHASE AND SALE AGREEMENT
In this Purchase and Sale Agreement (as amended from time to time, this
"Agreement") the following terms shall have the following meanings:
Date: November 6 2006
Seller: FR HOLLINS FERRY, LLC
c/o SunTrust Equity Funding, LLC
303 Peachtree Street, 24th Floor
MC 3951
Atlanta, Georgia 30308
Telephone: (404) 458-4650
Facsimile: (404) 230-1344
E-mail: paul.severn@suntrust.com
Buyer: OLP Baltimore LLC, a Maryland limited
liability company
c/oONE LIBERTY PROPERTIES, INC.
Sixty Cutter Mill Road, Suite 303
Great Neck, New York 11201
Telephone: (516) 466-3100
Facsimile: (516) 773-2770
Lender: CWCAPITAL LLC
Premises: The land located in Baltimore County,
Maryland, further described in Exhibit
"A" attached hereto, together with the
improvements thereon, all fixtures,
equipment and personal property owned
by Seller and located thereon, and the
rights and easements appurtenant
thereto, if any, otherwise owned by
Seller.
Lease: The Lease Agreement between Seller
and Ferguson Enterprises, Inc., a
Virginia corporation ("Tenant"),
dated as of June 29, 2006, pursuant to
which Seller has leased the Premises
to Tenant. The Lease and the related
documents set forth in Exhibit "B" are
collectively referred to herein as
the "Lease Documents".
Purchase Price: $32,200,000.00.
Deposit: $500,000.00, which is to be delivered
to the Escrow Agent within one (1)
Business Day of the exchange of an
original fully executed copy of this
Agreement by Buyer and Seller. If any
portion of the Deposit is not delivered
on the applicable date set forth in the
previous sentence, this Agreement shall
be void and of no further force or
effect.
Escrow Agent: Kim Price
Senior Coordinator
LandAmerica Commercial Services
600 East Main Street, Suite 1400
Richmond, Virginia 23219
Telephone: (804) 343-4015
Facsimile: (804) 788-7062
E-mail: kimprice@landam.com
Wiring Instructions: See Exhibit C
Exhibits Attached: A. Legal Description of Premises
B. List of Lease Documents
C. Wiring Instructions
D. List of Environmental Reports
E. List of Title Documentation
F. Form of Funding and Escrow
Agreement
G. Form of Tenant Estoppel
Certificate
H. Form of Assignment and
Assumption of Lease
I. Loan Terms
J. Escrow Agreement
K List of title exceptions
For good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, Seller agrees to sell, assign, transfer and convey the
Premises to Buyer, and Buyer agrees to acquire the Premises from Seller, on the
terms and conditions set forth herein. The terms and conditions under which the
Premises shall be conveyed are as follows:
1. Closing. The date (the "Closing Date") for the performance of this
Agreement (the "Closing") shall be November 30, 2006, or such earlier
date as mutually agreed upon by Buyer and Seller. The Closing shall be
accomplished by mail and wire transfer and shall consummate at the
offices of Escrow Agent in Baltimore, Maryland on the Closing Date,
unless otherwise agreed upon in writing by Buyer and Seller.
2. Transfer of Premises. At the Closing, Seller shall assign, transfer and
convey the Premises to Buyer, subject to the Lease, by execution and
delivery of a special warranty deed in the form reasonably acceptable
to LandAmerica Title Insurance Company, Seller and Buyer containing the
statutory covenants provided under the Maryland Code for limited
warranty deeds and containing a covenant of further assurance. The
Buyer shall provide to Seller at Closing a written agreement that the
warranty of title contained in the deed is subject to the matters set
forth on Exhibit K hereto.
3. Conditions Precedent to Closing. (a) Buyer's obligation to acquire
the Premises is conditioned on all of the following, any or all of
which may be expressly waived by Buyer, in writing, at its sole
option, and which are for the sole benefit of Buyer: (i) the status
of title to the Premises has not changed from that set forth in the
Title Documentation, (ii) all representations and warranties made
by Seller in this Agreement shall be true and correct in all material
respects on and as of the Closing Date, as if made on and as of such
date, except to the extent that they expressly relate to an earlier
date, (iii) Seller shall have delivered all of the documents and
other items required pursuant to Section 4(a) and shall have
performed all other covenants, undertakings and obligations to be
performed by Seller at or prior to the Closing, (iv) Tenant shall,
prior to the Closing Date, remain in occupancy of the Premises and
open for business with rent under the Lease paid through the then-
current date, (v) there shall have been no material adverse change in
the condition of the Premises or the financial condition of Tenant
between the dated hereof and the Closing Date, (vi) the status of
the environmental condition of the Premises has not changed from that
set forth in the Environmental Reports, (vii) to the extent real
estate taxes and any other governmental or quasi-governmental services,
such as water or waste water, must be paid in full (whether then due
or not) in order to record the Deed among the Land Records, such
sums shall then be paid, so that the Deed may be recorded among the
Land Records without delay attributable to non-payment, and
(viii) the Loan is made in a manner consistent with this Agreement
and funded by the Lender at the Closing.
(b) Seller's obligation to assign, transfer and convey the Premises is
conditioned on all of the following, any or all of which may be
expressly waived by Seller, in writing, at its sole option: (i) all
representations and warranties made by Buyer in this Agreement shall be
true and correct in all material respects on and as of the Closing
Date, as if made on and as of such date, except to the extent that they
expressly relate to an earlier date, and (ii) Buyer shall have
delivered all of the documents and other items required pursuant to
Section 4(b) and shall have performed all other covenants, undertakings
and obligations to be performed by Buyer at or prior to the Closing.
4. Closing Deliveries. (a) At the Closing, Seller shall deliver to Buyer
the following (collectively, the "Seller Closing Documents"):
(i) An original executed special warranty deed in the form required
hereunder;
(ii) An original executed assignment and assumption of lease (the
"Assignment") substantially in the form attached hereto as Exhibit "H";
(iii) Original counterparts or, if original counterparts are unavailable,
copies (certified by Seller to be true and correct copies of the
originals thereof) of any Due Diligence Documents (defined below) which
are in Seller's possession or control that have not theretofore been
delivered to Buyer or Buyer's agents;
(iv) Certification that Seller's representations and warranties pursuant to
Section 12 hereof remain true and correct and are reaffirmed as of the
Closing Date;
(v) An original executed Amendment (see Section 20 thereof) to that certain
Escrow Account Agreement dated June 29, 2006, by and among FR Hollins
Ferry, LLC, as Landlord, Ferguson Enterprises, Inc., as Ferguson, and
SunTrust Bank, as Bank acting as escrow agent, into which the sum of up
to $8,500,000 is to be deposited as of October 31, 2006, to be executed
by the foregoing and Buyer, and in a form reasonably acceptable to the
foregoing and Buyer;
(vi) Such other affidavits, documents and certificates as may be customarily
and reasonably required by Buyer's counsel in order to effectuate the
transaction contemplated hereby, including, but not limited to,
appropriate evidence of the authority of Seller to execute and deliver
this Agreement and all documents required hereunder to consummate the
transaction contemplated by this Agreement and said documents,
affidavits and certificates including, if necessary, an indemnification
of Buyer's title insurer to cause the title insurer to insure Buyer
during the "gap" (term of art used by real estate lawyers and title
insurance companies associated with real estate closings) period prior
to the Deed recordation among the Land Records, and
(vii) An original executed Tenant Estoppel Certificate in the form attached
as Exhibit G to this Agreement, which is in a form required under the
Lease.
(b) At the Closing, Buyer shall deliver to Seller the following
(collectively, the "Buyer Closing Documents"):
(i) An original executed counterpart of the Assignment, executed by Buyer;
(ii) Certification that Buyer's representations and warranties pursuant to
Section 13 hereof remain true and correct and are reaffirmed as of the
Closing Date;
(iii) Appropriate evidence of the authority of Buyer to execute and deliver
this Agreement and all documents required hereunder and to consummate
the transactions contemplated by this Agreement and said documents; and
(iv) Such other affidavits, documents and certificates as may be customarily
and reasonably required by Seller's counsel in order to effectuate the
transaction contemplated hereby.
5. Payment of Purchase Price. At the Closing, Buyer shall pay, or cause to
be paid, the Purchase Price as follows:
a. The Deposit shall be credited against the Purchase Price; and
b. The cash balance of the Purchase Price shall be paid at the Closing by
federal wire transfer of immediately available funds pursuant to a
Funding and Escrow Agreement, in the form substantially as set forth on
Exhibit "F", or such other form required by the Escrow Agent that is
substantially similar to such form.
c. Buyer hereby approves the loan from the Lender (the "Loan") on the
business terms set forth on Exhibit "I". Buyer agrees to close the
Loan simultaneously with the closing of the purchase and sale
contemplated hereby subject to the all other provisions of the loan
documents being acceptable to Buyer. Buyer shall send to Seller
copies of all items sent or delivered to the Lender. Buyer agrees to
take all actions necessary to close the Loan simultaneously with the
purchase and sale contemplated hereby. Buyer acknowledges that
the Seller made a rate lock deposit with the Lender. At Closing,
the Seller shall receive a credit for the amount of the rate lock
deposit paid to the Lender and the Buyer shall likewise receive a
credit to the Loan for such amount upon the closing of the Loan.
Buyer acknowledges that if the Buyer does not close the transaction
contemplated hereby on or before November 30, 2006, then the Seller
will close the Loan in the name of the Seller on or before December
14, 2006. Nothing in this Section 5 (c ) is intended or to be
construed as limiting any rights or remedies of Buyer set forth in this
Agreement.
6. Duties of Escrow Agent. The Deposit shall be held by Escrow Agent, and
shall be duly accounted for at the Closing. Escrow Agent shall place
the Deposit in an interest-bearing escrow account at a commercial bank
selected by Escrow Agent whose deposits are insured by the Federal
Deposit Insurance Corporation. All interest earned on the Deposit shall
be deemed to be part of the Deposit and shall accrue to the benefit of
Buyer except to the extent the Deposit becomes payable to Seller
hereunder upon Buyer's default. In such event the interest earned on
the Deposit shall accrue to the benefit of Seller. The Deposit shall be
held pursuant to the agreement among Escrow Agent, Buyer and Seller
referred to in the definition of Deposit set forth above and in the
form of Exhibit "J".
7. Remedies for Seller's Breach. If for any reason Seller shall be unabl
to assign, transfer and convey the Premises to Buyer as herein
stipulated on the Closing Date, or to deliver the other Seller Closing
Documents to Buyer on the Closing Date, or to perform other obligation
of Seller hereunder, Seller shall give written notice thereof to Buyer
at or before the Closing Date, and Buyer may, at Buyer's sole option,
either (a) terminate Buyer's obligations hereunder to purchase the
Premises, and the Escrow Agent shall promptly refund the Deposit
to Buyer, or (b) accept such title as Seller can deliver to the
Premises or such other performance as Seller can deliver pursuant
hereto and to pay therefor the Purchase Price without deduction or
credit, in which case Seller shall assign, transfer and convey the
Premises to Buyer and perform all other obligations of Seller hereunder
to the fullest extent Seller is able. Buyer acknowledges that, in
the event of Seller's inability to perform for any reason, Seller shall
have no liability to Buyer therefor and Buyer's sole remedy shall
be to obtain the refund of the Deposit as aforesaid.
8. Condition of Premises, Casualty, and Condemnation. Buyer acknowledges
that the acquisition of the Premises by Buyer is on a strictly "as is"
basis, without representation, warranty or covenant, express or
implied, of any kind whatsoever, and without recourse to Seller.
Buyer acknowledges that the Premises is the subject of the Lease
and that the terms of the Lease govern casualty and condemnation.
Further, all insurance proceeds with respect to casualties are
governed by the terms of the Lease. Accordingly, upon the occurrence
of a casualty involving more than $500,000 of value or a casualty that
cannot be restored within sixty days of the occurrence, or upon the
occurrence of a condemnation that affects any of the parking lots,
means of ingress and egress, or any improvements located on the
Premises, then the Buyer shall have the right to terminate this
Agreement and receive a refund of the Deposit. The Buyer shall have
the right to exercise this right within the sooner to occur of: (i)
five Business Days from the notice to the Buyer of such occurrence, or
(ii) November 30, 2006 whichever first occurs.
9. Liquidated Damages. If Buyer fails to fulfill Buyer's obligation
to acquire the Premises, to deliver the Buyer Closing Documents
at the time of the Closing and to pay the Purchase Price at the
Closing, Escrow Agent shall pay the Deposit to Seller, and the Deposit
shall be retained by Seller as full liquidated damages, and as full
compensation for its injuries and not as a penalty, and that shall be
Seller's sole and exclusive remedy at law or equity. In no event
shall Seller be entitled to specific performance of this Agreement.
The parties acknowledge that, if Buyer fails to fulfill Buyer's
agreements hereunder, it would be impossible to compute exactly
Seller's damages. Buyer and Seller have taken these facts into account
in setting the amount of the Deposit and agree that the Deposit is
the best estimate of such damages and such sum represents damages
and not any penalty against Buyer. Seller hereby waives any
entitlement which Seller may have, at law or equity or hereunder, for
any failure of Buyer to perform its obligations hereunder which
results in a termination of this Agreement, other than the payment to
Seller of the Deposit by the Escrow Agent as liquidated damages.
Buyer's Initials: _____
Seller's Initials: _____
10. Brokerage. Seller and Buyer each represent that they have dealt with no
broker or any other person or entity that may be due a fee or
commission in connection with this Agreement (the "Broker"). Seller and
Buyer each agree to indemnify and hold the other person harmless from
and against any liability, loss, cost, damage or expense, including
court costs and attorneys' fees, resulting from a breach of the above
representations. The provisions of this Section shall survive the
Closing.
11. Representations and Warranties of Seller. Subject to all matters
disclosed in any written document delivered to Buyer by Seller or
Seller's counsel on or prior to the Due Diligence Date, or any written
reports or studies prepared at the request of Buyer or referenced on an
exhibit hereto, if such item is delivered to Buyer on or prior to the
Due Diligence Date (all such matters being referred to herein as
"Exception Matters"), Seller represents and warrants to Buyer as of the
date hereof and as of the Closing Date as follows:
a. Seller has provided to Buyer complete true and accurate copies of all
of (i) the Lease Documents, (ii) the Environmental Reports (defined in
Section 14 below) and (iii) the Title Documentation (defined in Section
14 below) (collectively, the "Due Diligence Documents"). The Lease
Documents constitute all of the material contracts relating to the
Lease.
b. Seller is a limited liability company duly organized and validly
existing and in good standing under the laws of the State of Delaware
and, to the extent required to conduct business in the State of
Maryland, registered with the Maryland State Department of Assessments
and Taxation and has all requisite power and authority to enter into,
and perform its obligations under, this Agreement and any other
documents contemplated by this Agreement, including, without
limitation, conveying the Premises. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
(i) have been or, prior to the Due Diligence Date, will be duly
authorized by all necessary limited liability company action on the
part of Seller, (ii) do not require any governmental or other consent,
and (iii) will not result in the breach of any material agreement,
indenture or other instrument to which Seller is a party or is
otherwise bound. This Agreement constitutes the legal, valid and
binding obligation of Seller, enforceable against it in accordance with
its terms.
c. Except as set forth in the Lease, Seller has not assigned, pledged or
transferred the Premises, has no obligation to do so, and no other
person or other entity has any right or option to acquire the Premises.
No Person has any right or option to acquire or, subject to Tenant's
rights under the Lease, including but not limited to its rights to
sublease the Premises under the Lease and the existing sublease that
affects the Premises, lease any or all of the Premises or any right of
first refusal with regard to purchase of the Premises.
d. Seller has received no written notice of any suits, actions,
arbitrations, claims or proceedings, at law or in equity, affecting the
Premises; and, to Seller's actual knowledge, no such suits, actions,
arbitrations, claims or proceedings against the Premises are threatened
or contemplated.
e. No attachments, execution proceedings, assignments for the benefit of
creditors, insolvency, bankruptcy, reorganization or other proceedings
are pending or threatened against Seller, nor are any of such
proceedings contemplated by Seller.
f. Seller has received no written notice and has no actual knowledge that
there is any plan, study or effort of any governmental authority that
would materially affect the current use of the Premises, including,
without limitation, any threatened condemnation or taking, or any
intended public improvements that would result in any charge being
levied against, or any lien assessed upon, the Premises, including,
without limitation, any resolution or ordinance intending to condemn
any portion of the Premises.
g. The Lease is in full force and effect, and the Lease has not been
modified, amended or altered in writing or otherwise, and no
concessions, abatements or adjustments have been granted to the Tenant
by Seller except as specified in the Lease, Landlord is not in default
under the Lease and Tenant has not notified Seller that it is in
default under the Lease and to Seller's actual knowledge, there exists
no default under the Lease by Tenant.
h. Seller's interest in the Lease has not been assigned, encumbered or
subjected to any liens, leasehold mortgages or deeds of trust and on
the Closing Date, there will be outstanding no such assignment or
encumbrance of Seller's interest in the Lease.
i. Except as set forth in the Due Diligence Documents, Seller has not
received written notice that, or has actual knowledge that, the present
use and operation of the Premises is, in any material way, in violation
of any applicable law. j. As of the Closing Date, no commissions,
brokerage fees or similar payments with respect to the Lease or this
Agreement shall be due and owing for which Seller is bound and liable
and there are no existing brokerage commission or similar agreements
entered into by Seller to which Seller is bound or liable relating to
the leasing of all or any portion of the Premises.
k. This Agreement is now and at the time of Closing will be (i) duly
authorized, executed and delivered by Seller, and (ii) a legal, valid
and binding obligation of Seller.
l. On the Closing Date, Seller shall be a "United States person" within
the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal
Revenue Code of 1986, as amended.
m. Seller is not a party to any pending action or proceeding by any
federal, state or local governmental authority for the assessment and
collection of any additional tax, and no assessment for collection of
any tax has been received by Seller since June 29, 2006 that has not
been paid or contested and previously disclosed in writing to Buyer.
n. No later than October 31, 2006, Seller and Tenant deposited the sum of
$8,500,000 into, and in a manner consistent with the provisions of,
that certain Escrow Account Agreement, referred to in Section 4(a)(iv)
as one of Seller's Closing Documents.
As used in this Agreement, or in any other agreement, document,
certificate or instrument delivered by Seller to Buyer, the phrase "to the best
of Seller's actual knowledge", "to the best of Seller's knowledge" or any
similar phrase shall mean the actual, not constructive or imputed, knowledge of
the Seller.
Seller shall have no liability whatsoever to Buyer with respect to any
Exception Matters. If Seller obtains any actual knowledge of any matter during
the term of this Agreement that would make any representation or warranty of
Seller untrue or misleading in any material respect, Seller shall notify Buyer
of such matter in writing and Buyer may, at its option, (i) terminate Buyer's
obligation hereunder to purchase the Premises, and the Escrow Agent shall
promptly refund the Deposit to Buyer in accordance with Section 7 of this
Agreement or (ii) accept such matters, in which case such matters shall be
deemed to be Exception Matters, and Seller shall have no liability whatsoever to
Buyer with respect thereto. If Buyer obtains actual knowledge of any matters
after the date of this Agreement and prior to the Closing Date, which would make
any representation and warranty of Seller untrue or misleading in any material
respect, Buyer shall promptly notify Seller thereof in writing and if Seller has
not cured such circumstance on or before the Closing Date in a manner reasonably
acceptable to Buyer, Buyer may as its exclusive remedy terminate this Agreement
and receive a refund of the Deposit in accordance with the provisions of Section
7 of this Agreement. Upon any such termination of this Agreement, neither party
shall have any further rights or obligations hereunder except as expressly
provided for herein.
The representations and warranties of Seller and Buyer set forth in
this Agreement shall survive the Closing for a period of one (1) year (the
"Survival Period"). No claim for a breach of any representation or warranty of
Seller or Buyer shall be actionable or payable if the breach in question results
from or is based on a condition, fact or other matter which was actually known
to Buyer or Seller prior to Closing. Neither Seller nor Buyer shall have
liability to the other, respectively, for a breach of any representation or
warranty unless: (i) written notice containing a description of the specific
nature of such breach shall have been delivered to Seller by Buyer or, if
applicable, Seller to Buyer, and an action commenced with respect thereto sixty
days after the expiration of the Survival Period, and (ii) the valid claims for
all such breaches collectively aggregate more than Fifty Thousand Dollars
($50,000.00), in which event the full amount of such claims shall be actionable.
Notwithstanding anything to the contrary contained herein, the liability of
Seller for a breach of representations and warranties shall not exceed Two
Hundred Thousand Dollars ($200,000.00) in the aggregate. Notwithstanding
anything to the contrary contained herein, the liability of Buyer for a breach
of representations and warranties shall not exceed Two Hundred Thousand Dollars
($200,000) in the aggregate. The provisions of this Section 12 shall survive
Closing up to sixty days (for legal action) after the Survival Period.
12. Representations and Warranties of Buyer. Buyer represents and warrants to
Seller as follows:
Buyer is limited liability company organized under the laws of the State of
Maryland and has the legal capacity to enter into, and perform its obligations
under, this Agreement and any other documents contemplated by this Agreement,
including, without limitation, acquiring the Premises. The execution and
delivery of this Agreement by Buyer and the consummation of the transactions
contemplated hereby by it (i) have been or, prior to the Due Diligence Date,
will be duly authorized by all necessary action on the part of Buyer, (ii) do
not require any governmental or other consent and (iii) will not result in the
breach of any agreement, indenture or other instrument to which Buyer is a party
or is otherwise bound. This Agreement constitutes the legal, valid and binding
obligation of Buyer, enforceable against it in accordance with its terms. In the
event Buyer has elected to exercise its right to assign this Agreement pursuant
to Section 25, Buyer represents and warrants that such entity will be at the
time of such assignment duly organized, validly existing and in good standing
under the laws of the state of its formation and will have at the time of such
assignment all requisite power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution and delivery of this Agreement
by any assignee will be duly authorized by the assignee and assignor. The
provisions of this Section 12 shall survive Closing up to sixty days (for legal
action) after the Survival Period.
13. Buyer's Due Diligence. Buyer's obligations hereunder including its
obligation to acquire the Premises are contingent upon the following
conditions having been satisfied, or waived by Buyer, on or before
November 24, 2006 (the "Due Diligence Date"). If Buyer notifies
Seller on or before the Due Diligence Date that any one or more of the
following conditions has not been satisfied or it desires to terminate
this Agreement in its sole discretion for any reason or for no reason,
the Deposit shall be immediately refunded to Buyer, and this Agreement
shall terminate without recourse to, or any further obligation of,
the parties hereto. If Buyer fails to so notify Seller on or before
such date, the conditions and Buyer's right to terminate this
Agreement in its sole discretion pursuant to the above shall be deemed
waived. The parties agree that no notice, or failure to notify, by
Buyer under this Section shall operate as a waiver by Buyer of any
claims arising from a breach by Seller hereunder. In consideration
of such condition, Buyer acknowledges and agrees that it has been
afforded an adequate opportunity to make its own investigation of
the condition of the Premises and any such matters as it deems relevant
with respect to the Premises, Seller, the Lease, the Due Diligence
Documents and any other matter relating to the transaction contemplated
hereby. The conditions to be satisfied or waived by Buyer as aforesaid
are as follows:
a. Buyer's review and approval, in Buyer's sole judgment, of all
of the Lease Documents.
b. Buyer's review and approval, in Buyer's sole judgment, of all
existing environmental site investigation, assessment or
remediation reports in Seller's possession and control in
respect of the Premises (the "Environmental Reports"), as
listed on Exhibit "D" attached hereto, and the valid,
enforceable assignment thereof to Buyer.
c. Buyer's review and approval, in Buyer's sole judgment, of the
state of title to the Premises and the existing title
insurance policies covering the Premises and of all related
title and survey documentation in Seller's possession and
control (the "Title Documentation"), as listed on Exhibit "E"
attached hereto.
d. Buyer's review and approval, in Buyer's sole judgment, of such
other due diligence as Buyer elects to perform.
For the period beginning on the date hereof and at all times during the
term of this Agreement, Buyer shall have the right to enter upon the
Premises, at reasonable times and with reasonable notice (which shall
not be less than two (2) Business Days' prior notice) to Seller and
subject to the rights of Tenant, to investigate the Premises; provided,
however, neither Buyer nor its agents shall undertake any invasive
testing of the Premises without the prior written consent of Seller.
14A. Form of Tenant Estoppel Certificate. Each of the parties agrees to the
form of the Tenant Estoppel Certificate to be used for this transaction
attached to this Agreement as Exhibit "G", which is the form required
under Tenant's Lease.
14. No Survival. The delivery by Seller and the acceptance by Buyer of
Seller's Closing Documents shall be deemed to be a full performance and
discharge of every agreement and obligation of Seller and Buyer herein
contained or expressed, except such as are, by the express terms
hereof, to be performed after the delivery of the Seller's Closing
Documents or are stated herein to survive the Closing.
15. Time of Essence. Time is of the essence of this Agreement.
16. Limitation on Liability. Buyer agrees that Buyer's recourse
against Seller under this Agreement or under any other agreement,
document, certificate or instrument delivered by Seller to Buyer
(including, without limitation, any agreement, document, certificate
or instrument delivered by Seller to Buyer on the Closing Date), or
under any law applicable to the Premises or this transaction, shall
be strictly limited to Seller's interest in the Premises (or upon
consummation of the transaction contemplated hereunder, an amount
equal to the Purchase Price), and that in no event shall Buyer seek or
obtain any recovery or judgment against any of Seller's other
assets (if any) or against any of Seller's members (or its
constituent members, shareholders, managers or partners) or against
any entity affiliated with or controlled by, controlling or under
common control with Seller or its assets or any director, officer,
employee, or shareholder of any of the foregoing.
17. Notices. All notices required or permitted hereunder shall be in
writing and shall be given (a) by registered or certified mail, postage
prepaid, (b) by a nationally recognized overnight delivery service
which provides receipted delivery, or (c) by facsimile transmission
with confirmation of receipt, addressed, (i) if to Seller, to Paul
Severn, at Seller's address stated on the first page hereof or such
other address as Seller shall have last designated by written notice
given as aforesaid to Buyer, with a copy to Charlie Sharbaugh, Paul,
Hastings, Janofsky & Walker LLP, 600 Peachtree Street, NE, Suite
2400, Atlanta, Georgia 30308 (fax: 404-815-2424), (ii) if to Buyer
to Buyer's address stated on the first page hereof or such other
address as Buyer shall have last designated by written notice given
as aforesaid to Seller, with a copy to Jane E. Sheehan, Ballard Spahr
Andrews & Ingersoll, LLP18th Floor, 300 East Lombard Street,
Baltimore, MD 21202-3268 (fax: 410-361-8945). Notices shall be deemed
given on the date when deposited in the United States mail or with
such overnight delivery service or when sent by facsimile transmission
upon receipt of confirmation, as aforesaid.
18. Exhibits. The Exhibits attached to or referred to herein are
incorporated by reference as if set forth in full herein.
19. Payment of Fees, Costs and Expenses. Buyer and Seller shall each pay
the fees of its counsel retained in connection with this Agreement
and the purchase and sale of the Premises. Buyer and Seller shall
each pay fifty percent (50%) of all state or county recordation tax,
documentary stamp tax or other transfer tax incurred in recording the
deed in the Land Records of Baltimore County, Maryland. Subject to
Section 8 and the next two sentences, if Closing occurs, Buyer
shall be solely responsible for payment of all other costs and expenses
related to the transactions contemplated hereby, including, without
limitation, all costs related to its due diligence, Lender fees
and all fees of the Escrow Agent. If the transaction contemplated
hereby does not close for reasons other than the Buyer's default
(i.e., Buyer has forfeited the Deposit to Seller as liquidated
damages), the Seller shall be responsible for the Escrow Agent's fees.
If the transaction contemplated hereby does not close for any reason
other than the default of the Buyer (i.e., Buyer has forfeited the
Deposit to Seller as liquidated damages), Seller shall pay the
Lender's fees. If the transaction doesn't close because Buyer
defaults and forfeits its Deposit to Seller as liquidated damages,
Buyer shall only be liable for Lender's actual out-of-pocket costs and
expenses; provided Seller does not close the loan with Lender itself.
Without limiting the foregoing, Buyer hereby acknowledges the
following, as between Buyer and Seller, there shall be no adjustments at the
Closing with respect to Premises operating, maintenance, real property taxes or
other expenses related to the Premises since such expenses are the
responsibility of the Tenant under the Lease.
20. No Offer. The submission of a draft of this Agreement or a summary of
some or all of its provisions does not constitute an offer to buy or to
sell the Premises, it being understood and agreed that neither Buyer
nor Seller shall be legally obligated with respect to the obligations
hereunder unless and until this Agreement has been executed by both
Buyer and Seller.
21. Applicable Law; Modifications; Joint and Several Liability. This
Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Maryland. This Agreement is not subject
to any oral understandings, or written understandings not set forth
herein, is binding upon and inures to the benefit of Seller and Buyer
and their respective personal representatives, successors and permitted
assigns, and may be amended only by a written instrument executed by
both Seller and Buyer. If two or more persons are named herein as
Seller or Buyer, their obligations hereunder shall be joint and
several.
22. Counterparts. This Agreement may be executed in multiple counterparts
or with multiple signature pages which, when assembled as a single
document or, if not so assembled, when taken together shall be deemed
to be fully effective and operative as an original document.
23. Assignment. Seller shall not assign this Agreement. Except as set forth
in this Section, Buyer may not assign this Agreement without Seller's
prior written consent; provided, however, that Buyer may, without
Seller's prior approval: (a) assign this Agreement to a limited
liability company or limited partnership or other single purpose entity
to be hereinafter formed by Buyer, and (b) assign its rights, but not
obligations, in this Agreement to a qualified intermediary, in order
that the transaction contemplated by this Agreement be part of a like
kind exchange under Section 1031 of the Internal Revenue Code of 1986,
as amended.
24. Confidential Information. Buyer and Seller agree to treat as
confidential the existence of a possible transaction with each
other Seller and all material information, whether written or oral,
that has been, is, or may be furnished in connection with the
transaction (the "Confidential Information"), since any unauthorized
disclosure of Confidential Information could have a material adverse
impact on such party's business. Notwithstanding the foregoing,
such parties may disclose such Confidential Information to its legal,
tax, and accounting firms and such other representatives who need
to know such information for the purpose of evaluating the purchase of
the Premises by Buyer (collectively, the "Permitted Parties"). The
provisions of this Section 24 shall not, however, limit the Buyer
from filing its "8-K" or other required filings with the federal,
state, or local government or any agency thereof. If, for any reason,
the transaction is not consummated, Buyer and Seller respectively
agree to destroy or return all Confidential Information furnished
to it by the other party, its agents, employees and/or representatives
and any copies thereof, including those provided to the Permitted
Parties. The parties agree to use the Confidential Information
solely for purposes of evaluating and consummating the transaction
contemplated by this Agreement, and to the extent necessary to
enforce its rights and remedies hereunder and for no other purpose
whatsoever.
Subject to the foregoing, but notwithstanding anything else herein to
the contrary, each party to the transaction contemplated hereby (and
each affiliate and person acting on behalf of any such party) agree
that each party (and each employee, representative and other agent of
such party) may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transaction and
all materials of any kind (including opinions or other tax analyses)
that are provided to such party or such person relating to such tax
treatment and tax structure, except to the extent that such disclosure
would violate any applicable federal or state securities laws. This
authorization is not intended to permit disclosure of any other
information including (without limitation) (i) any portion of any
materials to the extent not related to the tax treatment or tax
structure of the transaction, (ii) the identities of participants or
potential participants in the transaction, (iii) the existence or
status of any negotiations, (iv) any pricing or financial information
(except to the extent such pricing or financial information is related
to the tax treatment or tax structure of the transaction) or (v) any
other term or detail not relevant to the tax treatment or the tax
structure of the transaction.
25. Captions. The section headings appearing in this Agreement are for
convenience and reference only and are not intended, to any extent and
for any purpose, to limit or define the text of any section or any
subsection hereof.
26. Legal, Accounting and Tax Advice. Without limiting the effect of the
representations and warranties of either party, each party to this
Agreement has obtained its own legal, accounting and tax advice, and
has not relied upon the other party or other party's advisors with
respect to legal, accounting and/or tax matters related to the
transaction evidenced by this Agreement.
27. Completion of Forms. Whenever in this Agreement a document to be
delivered at the Closing is described by reference to a form attached
as an exhibit hereto, such documents shall be completed substantially
in conformance with the referenced form attached as the Exhibit and
completed in accordance with the terms of this Agreement.
28. Covenants of Seller. From the date hereof up to and including the
Closing Date, Seller covenants (i) to maintain the existence,
qualification and good standing of Seller, (ii) not to (and not to
cause or permit its affiliates to) encumber title to the Premises,
except with the prior written consent of Buyer or as otherwise required
under the Lease, (iii) not to (and not to cause or permit its
affiliates to) modify, amend or alter, in writing or otherwise, any of
the Lease Documents, except with the prior written consent of Buyer,
and (iv) not to (and not to cause or permit any of its affiliates)
offer for sale or solicit offers to purchase the Premises. Seller shall
also deliver a "gap indemnity" to the Escrow Agent in order to permit
it to provide insurance to the Buyer over any gap period in the
applicable records.
29. Indemnification by Seller. From and after Closing, Seller shall
indemnify, defend and hold harmless Buyer from and against any and all
claims, expenses, costs, damages, losses and liabilities (including
reasonable attorneys' fees) which may at any time be asserted against
or suffered by Buyer as a result of, subject to the limitations set
forth in Section 11 or arising out of the breach or inaccuracy of
Seller's representations and warranties set forth in this Agreement, in
each case, arising prior to the time at which the transactions
contemplated hereby are consummated, regardless of when asserted.
30. Business Day. The term "Business Day" shall mean any day other than a
Saturday, a Sunday or a day on which commercial banking institutions in
the State of Maryland are authorized or required by law to be closed.
31. Non-Business Days. If the Closing Date or the date for delivery of a
notice or performance of some other obligation of a party falls on a
Saturday, Sunday or legal holiday in; the State of Maryland, then the
Closing Date or such notice or performance shall be postponed until the
next Business Day.
32. Waiver of July Trial. The parties hereto agree to waive trial by jury.
33. Escrow During Tenant Allowance Period. At Closing, Seller shall fund
a rent reserve account in the amount of $238,000 for the benefit of
Buyer and Lender to assure Buyer and Lender that an amount equal to
the Tenant's monthly rent (i.e., $195,077 per month) will be received
by Buyer and Lender to cover the monthly rent which would have
accrued during the Tenant Allowance Period under the Lease. Buyer
or Lender will draw down funds from the rent reserve account for
the foregoing purpose. Any balance of funds remaining in the rent
reserve account upon the expiration of the Tenant Allowance Period,
after Buyer and Lender receive all funds due them therefrom, shall be
refunded to Seller. The rent reserve account shall be pursuant to
document(s) reasonably satisfactory to Buyer, Lender and the Escrow
Agent. The rent reserve account shall be maintained at a financial
institution and arranged in the manner reasonably acceptable to the
Seller, Buyer and Lender.
34. Compliance with Section 1445 of the Internal Revenue Code. All
instruments necessary to effectuate compliance with Section 1445 of the
Internal Revenue Code and a Closing Statement shall be executed by
Seller and, if appropriate, any other party associated with the
transactions contemplated by this Agreement.
35. Proration of Rent. All rentals generated by the Premises shall be
prorated between Seller and Buyer as of the Closing Date. For purposes
of the prorations and adjustments, Buyer shall be entitled to any
revenues for the entire day upon which the Closing occurs.
36. Risk of Loss. Seller assumes the risk of loss or damage to the Premises
by fire or other casualty until the Assignment is delivered to Buyer.
Executed as an instrument under seal as of the date first set forth
above.
SELLER: FR HOLLINS FERRY, LLC, a Delaware limited
liability company
By: MRLL, LLC, a Delaware limited
liability company, its Sole Member
By: SunTrust Equity Funding, LLC, a Delaware
limited liability company, its Sole Member
By:
----------------------------
Name: Paul Severn
Title: Manager
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
BUYER OLP BALTIMORE LLC, a Maryland limited liability company
By:
-------------------------------, Manager
IN CONSIDERATION OF TEN AND NO/100 ($10.00) DOLLARS, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned SUNTRUST EQUITY FUNDING, LLC., a Delaware limited
liability company ("STEF") hereby reaffirms the representations and warranties
of the Seller set forth in Section 11 hereof and agrees to be responsible for
any damages permitted against the Seller in favor of the Buyer under the
indemnity contained in Section 29 hereof. The provisions of this agreement by
STEF shall be personal to the Buyer and shall not extend to any third party
whatsoever and is not assignable. The provisions hereof are subject to the
limitations contained in the Agreement including those governing the liabilities
of the Seller to the Buyer. Furthermore, as to the representations and
warranties set forth at Section 8 (b), (d) and (f) ("Restricted Subsections")
for matters arising on or prior to June 29, 2006, ("Restricted Period") the
survival period for these matters and the obligations of STEF with respect
thereto shall be limited to the date of Closing to June 29, 2007. Accordingly,
the Buyer shall not be permitted to make any claims with respect to matters
arising under the Restricted Sections during the Restricted Period unless it
notifies STEF and the Buyer and makes a claim with respect thereto prior to June
25, 2007. Furthermore, in order to pursue such claim, the Buyer shall file an
action with respect thereto on or before December 10, 2007. The provisions of
this paragraph shall survive Closing and are part of this Agreement.
IN WITNESS WHEREOF, the undersigned STEF has hereunto caused this
instrument to be executed and sealed by its Manager as of the day and year first
above written.
SUNTRUST EQUITY FUNDING, LLC,
a Delaware limited liability company
By:
-----------------------------------
Title: Manager
[END OF SIGNATURES]
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
BEGINNING for the first, at a point at the intersection of the northerly right
of way line of Maryland State Route I-895 or The Harbor Tunnel Thruway, variable
width, and the easterly right of way line of Transway Road, variable width, said
point being opposite base line right of way station 181+53.15, 150.00 feet to
the left of said base line, measured radially as shown on Maryland State Highway
Administration Plat number 13499; thence binding on said right of way line
Transway Road as shown on said Plat and also on Maryland State Highway
Administration Plat number 14571, with meridian reference to the Baltimore
County Grid Meridian
1) North 38 degrees 28 minutes 53 seconds West 150.34 feet; thence
2) South 51 degrees 31 minutes 13 seconds West 20.00 feet; thence
3) North 38 degrees 28 minutes 47 seconds West 227.48 feet; thence
4) By a curve, to the right with a radius of 783.51 feet and an arc
length of 491.66 feet, said curve having a chord bearing North 20 degrees 30
minutes 10 seconds West 483.64 feet; thence
5) North 02 degrees 31 minutes 33 seconds West 336.02 feet to intersect
the southerly right of way line of Hollins Ferry Road, 50 feet wide; thence
binding on said right of way line as shown on Maryland State Highway
Administration Plat number 10723
6) North 68 degrees 51 minutes 11 seconds East 637.38 feet to a pipe
found; thence
7) North 74 degrees 32 minutes 44 seconds East 100.52 feet to a pipe
found; thence
8) ) North 68 degrees 51 minutes 11 seconds East 150.00 feet; thence
leaving said right of way line of Hollins Ferry Road and binding on the westerly
right of way line of Maryland State Route I-695, The Baltimore Beltway, variable
width
9) South 76 degrees 19 minutes 14 seconds East 79.58 feet to a pipe
found, said pipe being opposite base line right of way Ramp "H" Station 4+50.00,
80.00 feet to the right, as measured at right angles; thence
10) South 21 degrees 08 minutes 49 seconds East 112.17 feet to a pipe
found; thence
11) By a curve, to the left with a radius of 279.00 feet and an arc
length of 250.68 feet, said curve having a chord bearing South 46 degrees 53
minutes 12 seconds East 242.33 feet; thence
12) By a cure, to the right with a radius of 425.84 feet and an arc
length of 133.88 feet, said curve having a chord bearing South 63 degrees 37
minutes 12 seconds East 133.33 feet to a point opposite base line right of way
ramp "H" station 9+00, 80.00 feet to the right, as measured at right angles,
thence
13) South 22 degrees 48 minutes 03 seconds East 203.11 feet to a pipe
found opposite base line right of way I-695 station 69+03.37, 200.00 feet to
right, as measured at right angles and shown on State Highway Administration
Plat number 10721; thence
14) South 19 degrees 06 minutes 20 seconds East 18.48 feet to a pipe
found; thence leaving said I-695 right of way line and binding on the division
line between Lots 12 and 13 as shown on a Plat entitled, "Plat of Grosedale" and
recorded among the Plat records of Baltimore County, Maryland in Plat Book WPC 3
at folio 124
15) South 08 degrees 20 minutes 15 seconds East 52.19 feet to the
southwesterly corner of said Lot 13; thence binding on the southerly line of Lot
13
16) North 87 degrees 56 minutes 46 seconds East 8.83 feet to a point
opposite base line right of way I-895 station 192+70.01, 363.47 feet to the
left, as measured radially and shown on Maryland State Highway Administration
Plat number 12767; thence binding on said westerly right of way line of I-695 as
shown on said Plat number 12767 and also Maryland State Highway Administration
Plat number 13497
17) South 17 degrees 20 minutes 39 seconds East 214.52 feet to a
concrete monument found at the intersection point of said right of way line
I-695, The Baltimore Beltway, and aforementioned northerly right of way line of
I-895, The Harbor Tunnel Thruway thence leaving said right of way line of I-695
and binding on said right of way line I-895
18) By a curve, to the left with a radius of 4447.18 feet and an arc
length of 1134.81 feet, said curve having a chord bearing South 59 degrees 32
minutes 21 seconds West 1131.73 feet to the point of beginning.
CONTAINING 27.99 acres of land, more or less.
EXHIBIT "B"
LIST OF LEASE DOCUMENTS
1. Lease Agreement, dated as of June 29, 2006, between FR Hollins Ferry,
LLC, as landlord, and Ferguson Enterprises, Inc., as tenant.
2. Commercial Real Estate Lease, dated as of June 21, 1999, between
Wilkins-Rogers, Incorporated, as landlord, and Computer Distribution
Services, Inc., as tenant.
3. First Amendment to Commercial Real Estate Lease, dated as of June 29,
2006, among FR Hollins Ferry, LLC; Computer Distribution Services, Inc.
and Ferguson Enterprises, Inc.
4. Non-Disturbance and Estoppel Agreement, dated as of June 29, 2006,
between FR Hollins Ferry, LLC and Computer Distribution Services, Inc.
5. Escrow Account Agreement, dated as of June 29, 2006, among FR Hollins
Ferry, LLC, Ferguson Enterprises, Inc., and SunTrust Bank.
EXHIBIT "C"
[GRAPHIC OMITTED][GRAPHIC OMITTED]
EXHIBIT "D"
LIST OF ENVIRONMENTAL REPORTS
1. Report of Phase I Environmental Site Assessment prepared by
Professional Environmental Consulting, Inc. (April 12, 2006).
2. Report of Phase I Environmental Site Assessment prepared by
Professional BB&J, LLC (November 22, 2004).
3. Asbestos Abatement Project, work performed by A&I Inc. (July 15, 2005).
4. Asbestos - Limited Asbestos Site Verification Survey at 4501
Hollins Ferry Road, Baltimore, MD, prepared by ENSR (January
27, 1998).
EXHIBIT "E"
LIST OF TITLE DOCUMENTATION
1. Owner's Policy of Title Insurance, issued by Lawyers Title Insurance
Corporation, File No. 22955-606.
2. ALTA/ACSM Land Title Survey 4501 Hollins Ferry Road, prepared by
KCI Technologies, Inc., dated November 28, 2004, last
revised June 28, 2006.
EXHIBIT "F"
FORM OF FUNDING AND ESCROW AGREEMENT
This Funding and Escrow Agreement (this "Agreement") is made as of this ___ day
of ____________, 2006, by and among FR HOLLINS FERRY, LLC, having an address of
c/o SunTrust Equity Funding, LLC, 303 Peachtree Street, 24th Floor, MC 3951,
Atlanta, Georgia 30303 ("Seller"), OLP BALTIMORE LLC having an address of Sixty
Cutter Mill Road, Suite 303, Great Neck, New York 11201 ("Buyer"), and
LANDAMERICA COMMERCIAL SERVICES, having an address of 600 East Main Street,
Suite 1400, Richmond, Virginia 23219 ("Escrow Agent").
This Agreement is made in connection with the purchase and sale of
property located in Baltimore County, Maryland, (the "Premises"), pursuant to
that certain Purchase and Sale Agreement dated ________________________, 2006
between Seller and Buyer. The parties hereto have entered into this Funding and
Escrow Agreement in order to facilitate the purchase and sale of the Premises
and the payment of the purchase price in connection therewith. Terms which are
not otherwise defined herein shall have the meanings given them in the Purchase
Agreement.
Annexed hereto are copies of the following documents as schedules:
A. Schedule I, consisting of an invoice of Escrow Agent to Buyer and
Seller listing Escrow Agent's charges and wiring instructions of Escrow Agent
("Escrow Agent's Wiring Instructions").
B. Schedule II, consisting of a list of the documents and instruments
to be executed by Seller and delivered into escrow with Escrow Agent (the
"Seller Documents").
C. Schedule III, consisting of a list of the documents and instruments
to be executed by Buyer and delivered into escrow with Escrow Agent (the "Buyer
Documents").
D. Schedule IV, consisting of a Disbursement Schedule (the
"Disbursement Schedule") for the Closing Funds (as hereinafter defined).
E. Schedule V, consisting of wiring instructions of Seller ("Seller's
Wiring Instructions").
Upon Escrow Agent's receipt of (i) written notice from Seller's counsel
to proceed (a copy of which notice shall also be sent to Buyer) and (ii) written
notice from Buyer's counsel to proceed (a copy of which notice shall also be
sent to Seller), Buyer shall (a) wire to Escrow Agent, in accordance with Escrow
Agent's Wiring Instructions, to be held in escrow in accordance with the
provisions of this Agreement, $_______________ ("Closing Funds"), which amount
represents the sum of the purchase price for the Premises of
$_______________________(the "Purchase Price"), less the deposit of
$______________________ (the "Deposit") previously delivered by Buyer to Escrow
Agent, plus the charges of Escrow Agent set forth on Exhibit "B" (the "Buyer's
Charges"), plus the amount of other closing costs which are Buyer's
responsibility as set forth on the Disbursement Schedule (the "Buyer's Closing
Costs"), and (b) deliver to Escrow Agent to be held in escrow in accordance with
the terms of this Agreement, original, executed counterpart copies of the Buyer
Documents. Simultaneously therewith, Seller shall deliver to Escrow Agent, to be
held in escrow in accordance with the provisions of this Agreement, original
counterpart copies of the Seller Documents fully executed by all parties thereto
except Buyer. Once Escrow Agent has received the Closing Funds, the Buyer
Documents and the Seller Documents, Escrow Agent shall simultaneously (a) apply
the Closing Funds and the Deposit in accordance with the Disbursement Schedule,
and (b) transmit the Buyer Documents to Seller and the Seller Documents to
Buyer. The application of the Closing Funds and the Deposit and transmission of
the Buyer Documents and the Seller Documents as hereinabove provided shall be
referred to herein as the "Closing Conditions."
Upon satisfaction of the Closing Conditions, Escrow Agent shall be
entitled to payment of the Escrow Charges from the amount held in escrow.
If the Closing Conditions have not been satisfied by 5:00 p.m., EST, on
__________, 2006, unless otherwise instructed jointly by both Buyer and Seller,
Escrow Agent shall immediately (i) wire transfer the Closing Funds and the
Deposit to Buyer, together with any interest earned thereon, in accordance with
Buyer's wiring instructions, (ii) return the Seller Documents to Seller, and
(iii) return the Buyer Documents to Buyer.
In connection with this Agreement, Escrow Agent may rely upon written
instructions from (i) Seller's counsel, Charles T. Sharbaugh of Paul, Hastings,
Janofsky & Walker LLP, and (ii) Buyer or Buyer's counsel, Jane E. Sheehan of
Ballard, Spahn, Andrews & Ingersoll, L.L.P. All written notices and/or
instructions from any party to another, including Escrow Agent shall be sent to
all other parties of this Escrow Agreement.
Executed as of the date first written above.
SELLER: FR HOLLINS FERRY, LLC, a Delaware
limited liability company
By: MRLL, LLC, a Delaware limited
liability company, its Sole Member
By: SunTrust Equity Funding, LLC,
a Delaware limited liability
company, its Sole Member
By:
Name: Paul Severn
Title: Manager
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
BUYER: OLP BALTIMORE LLC
By:
Name:
Title:
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ESCROW AGENT: LANDAMERICA COMMERCIAL SERVICES
By:
Name:
Title:
[END OF SIGNATURES]
EXHIBIT "G"
FORM OF TENANT ESTOPPEL CERTIFICATE
(--------------, ---------)
The undersigned, FERGUSON ENTERPRISES, INC., a Virginia Corporation
("Tenant"), hereby certifies to OLP BALTIMORE LLC "Proposed Landlord"), as
follows:
1. The undersigned is the tenant under that certain Lease Agreement
dated as of June 29, 2006 (the "Lease") executed by FR HOLLINS FERRY, LLC, a
Delaware limited liability corporation, as landlord (the "Landlord"), and the
undersigned, as tenant, demising certain premises located in Baltimore, Maryland
(the "Premises"). Capitalized terms used in this Certificate and not otherwise
defined herein shall have the meanings assigned thereto in the Lease.
2. Tenant has paid all Rent through ___________, 200 . The
current Basic Rent for the Premises is $___________ per month. No Rent
has been paid more than one (1) month in advance.
3. The current term of the Lease will expire pursuant to its terms on
___________________________. Tenant has an option to renew the Term of the Lease
for _________ (__) additional terms of _________ (__) years. The Rent increases
referred to in Section 3.2 of the Lease continue to apply throughout all five
year Extension Periods under the Lease.
4. To the best knowledge of the undersigned, there are no offsets,
deductions or credits against rentals payable under the Lease and no unexpired
free rent periods or rental concessions or abatements have been granted to
Tenant.
5. To the best knowledge of the undersigned, neither the Landlord nor
Tenant is in default in the payment or performance of their respective
obligations under the Lease and there is no condition existing which with the
passing of time or the giving of notice, or both, would constitute a default or
event of default under the Lease.
6. This Certificate may be relied upon and inure to the benefit of
Landlord, Proposed Landlord and their affiliates, designees and agents and their
successors and assigns.
7. The Lease is in full force and effect, and the Lease has not been
modified, amended or altered in writing or otherwise.
8. To the knowledge of the undersigned, there are no proceedings
pending or threatened against Tenant before or by any court or administrative
agency which if adversely decided would materially and adversely affect the
financial condition and operations of Tenant.
As used in this Estoppel Certificate, "to the best of Tenant's
knowledge" means to the best actual knowledge (without duty to investigate) of
the person executing this Certificate, who in the normal course of business
would be informed of material information regarding the Lease.
Nothing in this Estoppel Certificate modifies the Lease or any of its terms.
Dated: ____________, 200
TENANT:
FERGUSON ENTERPRISES, INC., A Virginia Corporation
By:
-------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
EXHIBIT "H"
ASSIGNMENT AND ASSUMPTION OF LEASE
KNOW ALL MEN BY THESE PRESENTS THAT, FR HOLLINS FERRY, LLC having an address at
303 Peachtree Street, 24th Floor, MC 3951, Atlanta, Georgia 30308 ("Assignor"),
for the consideration of Ten Dollars ($10.00) and other valuable considerations,
received to its full satisfaction from OLP BALTIMORE LLP, a Maryland limited
liability company, having an address at Sixty Cutter Mill Road, Suite 303, Great
Neck, New York 11201 ("Assignee"), has granted, bargained, sold, assigned,
transferred and conveyed, and by these presents does grant, bargain, sell,
assign, transfer and convey unto Assignee all of the right, title and interest
in and to the lease and the non-disturbance and estoppel agreement, both as
described on Exhibit A attached hereto and made a part hereof (collectively
"Lease"),
together with all rentals, security deposits, advance rentals, receivables,
reimbursements and other monetary items, to the extent existing, payable by the
tenant under the Lease ("Tenant").
TO HAVE AND TO HOLD the foregoing unto Assignee, its successors and assigns,
forever.
And, Assignor does for itself and its successors and assigns, covenant and agree
with Assignee, its successors and assigns, that this Assignment includes all of
landlord's interest in and to such Lease, advance rentals, receivables,
reimbursements and other monetary items payable by the Tenant thereunder, to the
extent existing, and that Assignor is the true and lawful owner of the Lease and
has good right and lawful authority to grant, bargain, sell, assign, transfer
and convey the Lease unto Assignee in the manner and form as herein set forth
subject to the matters on Exhibit B ("Permitted Exceptions").
And, without limiting the foregoing, Assignor will indemnify, defend and hold
harmless Assignee and its members, officers, directors, shareholders, employees,
attorneys and agents and all of its and their respective heirs, legal
representatives, successors and assigns from and against any and all claims,
demands, suits, actions, proceedings, damages, liabilities, penalties, costs,
expenses, and fees (including reasonable attorneys' fees) arising from
liabilities under the Lease accruing on and prior to the date hereof subject to
the Permitted Exceptions.
In consideration of the foregoing and subject thereto, Assignee accepts the
within Assignment and assumes all obligations under the Lease after the date
hereof and will indemnify, defend and hold harmless Assignor and its members,
and its officers, directors, shareholders, employees, attorneys and agents and
their respective heirs, legal representatives, successors and assigns, subject
to the Permitted Exceptions, from and against any and all claims, demands,
suits, actions, proceedings, damages, liabilities, penalties, costs, expenses
and fees (including reasonable attorneys' fees) arising from liabilities under
the Lease first accruing after the date hereof.
The representations, warranties and indemnities contained herein shall survive
the delivery hereof for the Survival Period as described in the Purchase and
Sale Agreement dated October 30, 2006 between Assignor and Assignee ("Purchase
and Sale Agreement"). The liabilities and indemnities for the representations
and warranties and indemnities shall be subject to the limitations set forth in
Section 11 of the Purchase and Sale Agreement.
This Assignment may be executed in multiple counterparts or with multiple
signature pages which, when assembled as a single document or, if not so
assembled, when taken together shall be deemed to be fully effective and
operative as an original document.
IN WITNESS WHEREOF the parties have executed this instrument as of the 30th day
of November, 2006.
ASSIGNOR:
WITNESS OR ATTEST: FR HOLLINS FERRY, LLC,
a Delaware limited liability company
By: MRLL, LLC, a Delaware
----------------------- limited liability company
By: SUNTRUST EQUITY FUNDING, LLC,
a Delaware limited liability company,
its Sole Member
By:
Name: Paul Severn
Title: Manager
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ASSIGNEE:
WITNESS OR ATTEST: OLP BALTIMORE LLP,
a Maryland limited liability company
By:
Name:
Title:
STATE OF GEORGIA: CITY/COUNTY OF FULTON: TO WIT:
I CERTIFY that on this ____ day of November, 2006, before me, a Notary Public
for the state and county aforesaid, personally appeared , known to me or
satisfactorily proven to be the person whose name is subscribed to the foregoing
document, who acknowledged that he/she is the Manager of SUNTRUST EQUITY
FUNDING, LLC, the Sole Member of MRLL, LLC which is the Sole Member and Manager
of FR HOLLINS FERRY, LLC, a Delaware limited liability company, that he/she has
been duly authorized to sign, and has signed, such document on its behalf for
the purposes therein set forth; and that the same is its act and deed. In
witness whereof, I have set my hand and Notarial Seal, the date first above
written.
Notary Public
My commission expires on
----------------------------
STATE OF __________: CITY/COUNTY OF __________: TO WIT:
I CERTIFY that on this ____ day of November, 2006, before me, a Notary Public
for the state and county aforesaid, personally appeared
________________________, known to me or satisfactorily proven to be the person
whose name is subscribed to the foregoing document, who acknowledged that he/she
is the of the OLP BALTIMORE LLP, that he/she has been duly authorized to sign,
and has signed, such document on its behalf for the purposes therein set forth;
and that the same is its act and deed. In witness whereof, I have set my hand
and Notarial Seal, the date first above written.
Notary Public
My commission expires on .
----------------------------
EXHIBIT A
1. Lease Agreement dated June 29, 2006 between Assignor and Ferguson
Enterprises, Inc.
2. Non-Disturbance and Estoppel Agreement dated June 29, 2006 between Assignor
and Computer Distribution Services, Inc.
EXHIBIT B
1. Loan Documents between Assignee and CFW Capital LLC dated as of even
date.
2. Title exceptions contained in the Owner's Title Insurance Policy dated
as of even date insuring the Assignee as to its fee simple interest in
the Property.
3. Non-Disturbance and Estoppel Agreement dated June 29, 2006 between
Assignor and Computer Distribution Services, Inc.
[Remainder of page left intentionally blank.]
EXHIBIT "I"
TERMS AND CONDITIONS OF CW CAPITAL LOAN
Principal Not less than $23,000,000
Term Not less than 10 years
Amortization Based on not less than 30 years
Interest Rate Not greater than 5.95% fixed
EXHIBIT "J"
ESCROW AGREEMENT
ESCROW AGREEMENT
THIS AGREEMENT, dated the ______ day of November, 2006, by and among,
OLP BALTIMORE LLP (the "Purchaser"); FR HOLLINS FERRY, LLC (the "Seller"); and
Lawyers Title Insurance Corporation, a Virginia corporation (the "Escrow
Agent"). Purchaser and Seller are parties to a contract for the purchase and
sale of property dated November 2, 2006 (the "Contract").
In consideration of the mutual promises herein set forth and other good
valuable and sufficient consideration, the receipt of which is hereby
acknowledge by each of the parties hereto, the parties agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Purchaser and Seller do hereby appoint
Lawyers Title Insurance Corporation to be and act as Escrow Agent, and Escrow
Agent hereby accepts its appointment to hold in an escrow account (hereinafter
referred to as "Escrow Account") the Escrow Funds and Escrow Documents, if any,
upon the terms and conditions as set forth in this Agreement. As used herein,
the terms "Escrow Funds" and "Escrow Documents" shall mean any funds or
documents, respectively received by the Escrow Agent from Purchaser and/or
Seller designated for deposit pursuant to this Agreement (and any income earned
on the Escrow Funds).
2. INVESTMENT VEHICLE. The Escrow Agent may from time to time invest
the Escrow Funds in a Bank of America Business Investment Account for the
benefit of the Purchaser or such other account as Purchaser may direct in
writing. Purchaser's Federal Tax Identification Number is listed after its
signature. The Escrow Agent shall not be responsible for any loss, diminution in
value or failure to achieve a greater profit as a result of such investments.
Also, the Escrow Agent assumes no responsibility for, nor shall said Agent be
held liable for, any loss occurring which arises from (i) failure of the
depository institution, (ii) the fact that some banking instruments, including
without limitation repurchase agreements and letters of credit are not covered
by the Federal Deposit Insurance Corporation, or (iii) the fact that the amount
of the Escrow Deposit may cause the aggregate amount of any depositor's accounts
to exceed $100,000 and that such excess amount is not insured by the Federal
Deposit Insurance Corporation. The Escrow Agent shall not be responsible for any
delay in the electronic wire transfer of funds.
3. DISPUTES. In the event of any disagreement between Purchaser and
Seller resulting in conflicting instructions to, or adverse claims or demands
upon the Escrow Agent with respect to the release of the Escrow Funds or the
Escrow Documents, the Escrow Agent shall have the right to refuse to comply with
such instruction, claim or demand so long as such disagreement shall continue,
and in so refusing the Escrow Agent shall not release the Escrow Funds or Escrow
Documents, or make any other disposition of the Escrow Account. The Escrow Agent
shall not be nor become liable in any way to Purchaser or Seller for its failure
or refusal to comply with any such conflicting instructions or adverse claims or
demands, and it shall be entitled to continue so to refrain from acting until
such conflicting or adverse demands (a) shall have been adjusted by agreement
and it shall have been notified in writing thereof by Purchaser and Seller or
(b) shall have finally been determined in a court of competent jurisdiction.
Escrow Agent may, in the exercise of its absolute discretion, interplead and
deliver the Escrow Funds and Escrow Documents, if any, into a court of competent
jurisdiction, after deducting its reasonable expenses in bringing the
interpleader action and shall thereupon be relieved of any liability with
respect to the said funds or documents.
4. GENERAL PROVISIONS. It is understood and agreed by the parties to
this Agreement as follows:
(a) The Escrow Agent shall hold the Escrow Funds and the
Escrow Documents, if and when received by it, in accordance with the
terms of this Agreement.
(b) The Escrow Funds shall be paid and the Escrow Documents
delivered in accordance with the Contract if it includes provisions
that control their disposition (most likely termed a Deposit in the
Contract). If there is no Contract, if the Contract as silent as to the
disposition of a Deposit, or if its terms do not provide clear
direction in the reasonable judgment of the Escrow Agent, then the
Escrow Funds and Escrow Documents shall be paid and delivered in
accordance with the written instructions jointly executed by Purchaser
and Seller.
(c) The Escrow Agent is not a trustee for any party for any
purpose, and is merely acting as a depository and in a ministerial
capacity hereunder with the limited duties herein prescribed.
(d) The Escrow Agent has no responsibility in respect of any
instructions, certificate or notice delivered to it or of the Escrow
Account, other than to carry out the obligations undertaken in this
Agreement and to follow the directions in such instructions or notice
provided in accordance with the terms hereof.
(e) The Escrow Agent shall not be liable for any action taken
or omitted by it in good faith and may rely upon, and act in accordance
with, the advice of its counsel without liability on its part for any
action taken or omitted in accordance with such advise.
(f) The Escrow Agent may conclusively rely upon and act in
accordance with any certificate, instructions, notice, letter,
telegram, cablegram other written instrument believed to be genuine and
to have been signed or communicated by the proper party or parties.
(g) Subject to gross negligence or willful misconduct, as
referred to in (j) below, Escrow Agent shall not be required to defend
any legal proceeding which may be instituted against it in respect of
the subject matter of this Agreement unless requested to do so by
Purchaser or Seller and after being indemnified to the Escrow Agent's
satisfaction against the cost and expense of such defense. If any such
legal proceeding is instituted against it, the Escrow Agent agrees
promptly to give notice of such proceeding to Purchaser and Seller. The
Escrow Agent shall not be required to institute legal proceedings of
any kind.
(h) The Escrow Agent shall not, by act, delay, omission or
otherwise, be deemed to have waived any right or remedy it may have,
either under this Agreement or generally, unless such waiver be in
writing, and no waiver shall be valid unless it is in writing, signed
by the Escrow Agent, and only to the extent expressly therein set
forth. A waiver by the Escrow Agent under the terms of this Agreement
shall not be construed as a bar to, or waiver of, the same of any other
such right or remedy which it would otherwise have on any other
occasion.
(i) The Escrow Agent may resign by giving written notice of
its resignation to Purchaser and Seller. Upon resignation, the Escrow
Agent's sole responsibility shall be to deliver the Escrow Funds and
Escrow Documents, if any, to the successor escrow agent who shall be
promptly appointed in writing by the Purchaser and Seller and which
successor will issue to Lawyers Title Insurance Corporation its receipt
for the Escrow Funds or Escrow Documents so delivered. The Escrow Agent
shall have the right to petition any court of competent jurisdiction
for the appointment of a successor Escrow Agent.
(j) INDEMNIFICATION. The Seller and Purchaser shall jointly
and severally indemnify, save, defend, keep and hold harmless the
Escrow Agent from any and all loss, damage, cost, charge, liability,
cost of litigation, or other expense, including without limitation
attorney's fees and court costs, arising out of its obligations and
duties, including but not limited to (i) disputes arising or concerning
amounts of money to be paid, (ii) funds available for such payments,
(iii) persons to whom payments should be made or (iv) any delay in the
electronic wire transfer of funds, as Escrow Agent, unless Escrow
Agent's actions constitute gross negligence or willful misconduct.
(k) LIABILITY. The Seller and Purchaser shall be jointly and
severally liable to Escrow Agent for payment of its reasonable expenses
in carrying out the duties set forth herein. In no event shall the
Escrow Agent be required or expend its own funds for any out of pocket
costs, but may give notice of such cost, without being required to do
so, to the Seller and Purchaser and decline to proceed unless and until
such costs have been paid or advanced.
5. NOTICES. Each notice, instruction or other certificate required or
permitted by the terms hereof shall be in writing and shall be communicated by
personal delivery, facsimile, registered or certified mail, return receipt
requested, or overnight delivery to the parties hereto at the addresses shown
below, or at such other address as any of them may designate by notice to each
of the others:
(i) If to Purchaser:
OLP Baltimore LLC
a Maryland limited liability company
c/oONE LIBERTY PROPERTIES, INC.
Sixty Cutter Mill Road, Suite 303
Great Neck, New York 11201
Telephone: (516) 466-3100
Facsimile: (516) 773-2770
With a copy to:
Jane E. Sheehan
Ballard Spahr Andrews & Ingersoll, LLP
18th Floor, 300 East Lombard Street
Baltimore, MD 21202-3268
Telephone: (410) 528-5626
Facsimile: (410) 361-8945
(ii) If to the Escrow Agent at:
Lawyers Title Insurance Corporation
600 East Main Street, Suite 1400
Richmond, VA 23219 Attn:
Kim Price
(iii) If to Seller at:
FR HOLLINS FERRY, LLC
c/o SunTrust Equity Funding, LLC
303 Peachtree Street, 24th Floor
MC 3951
Atlanta, Georgia 30308
Telephone: (404) 458-4650
Facsimile: (404) 230-1344
with a copy to:
Charles T. Sharbaugh, Esq
Paul, Hastings, Janofsky & Walker LLP
Suite 2400
600 Peachtree St.,
Atlanta, Ga. 30308
All notices, instructions or certificates, given hereunder to the Escrow Agent,
shall be effective upon receipt by the Escrow Agent. All notices given hereunder
by the Escrow Agent shall be effective and deemed received upon personal
delivery or transmission by telecommunication if a confirmation of transmission
is produced by the sending machine, if mailed, five (5) calendar days after
mailing by the Escrow Agent, or on the second business day, if sent by overnight
delivery.
6. AMENDMENT. Except as provided in Paragraph 4(i) hereof, this
Agreement may be modified, altered, amended, cancelled or terminated only by the
written agreement of the parties hereto.
7. MISCELLANEOUS. Except as expressly set forth herein, no party to
this Agreement shall be responsible for the fees and expenses of any other party
to this Agreement.
(a) FEES. Escrow Agent shall be paid an escrow fee in the
amount of $150 for acting as Escrow Agent under this Agreement. Such
fee shall be deemed earned at the time this Agreement is executed by
Escrow Agent. The fee shall be paid by Purchaser and Seller who shall
be jointly and severally liable therefor.
(b) CHOICE OF LAW. The validity, interpretation and
performance of this Agreement shall be governed by the laws of the
State of Maryland, without regard to the conflicts of laws provisions
thereof, except to the extent that such laws are superseded by the
federal law of the United States of America.
(c) HEADINGS. The headings contained in this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
(d) CONSTRUCTION. (i) Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to
include the plural of such noun or pronoun and pronouns of one gender
or the neuter shall be deemed to include the equivalent pronoun of the
other gender and the neuter. (ii) In the event that any of the terms
and provisions of this Agreement shall be in conflicts with any of the
terms and provisions of the contract or agreement between the Purchaser
and the Seller, the terms and provisions of this Agreement shall be
controlling upon the parties.
(e) SUCCESSORS AND ASSIGNS. The terms, covenants, conditions,
provisions, obligations, undertakings, rights and benefits hereof,
including any addenda, exhibits and schedules hereto, shall be binding
upon and inure to the benefit of, the undersigned parties and their
respective representative, successors and assigns.
(f) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing
such counterpart.
(g) VENUE. For the purposes of any suit, action or proceeding
involving this Agreement each of the parties hereby expressly submits
to the jurisdiction of the Circuit Court of the County of Baltimore,
Maryland or the federal district court covering Maryland and consents
that any order, process, notice of motion or other application to or by
any such court or a judge thereof may be served within or without such
court jurisdiction by registered mail (with return receipt requested)
or by personal service provided that a reasonable time for appearance
is allowed, and the parties hereto agree that such court shall have
exclusive jurisdiction over any such suit, action, or proceeding
commenced by any of the said parties. In furtherance of such agreement,
each of the parties hereto agrees upon the request of any other party
hereto to discontinue (or agree to the discontinuance of) any such
suit, action, or proceeding pending in any other jurisdiction.
The parties hereto hereby irrevocably waive any objection that
they may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement
brought in the Circuit Court of the County of Baltimore, Maryland or
the federal district court covering Maryland and hereby further
irrevocably waive any claim that any such suit, action, or proceeding
brought in such court has been brought in an inconvenient forum.
(h) FINAL AGREEMENT. This Agreement and documents named herein
represents the final agreement among and between the parties hereto and
may not be contradicted by evidence of prior or contemporaneous to
subsequent oral agreements between and among the parties hereto.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their duly authorized officers on the dates noted below.
ESCROW AGENT: LAWYERS TITLE INSURANCE CORPORATION
By:
Name:
Title:
DATED: _________
[SIGNATURES CONTINUE ON THE NEXT PAGE]
OLP BALTIMORE LLP,
PURCHASER a Maryland limited liability company
By:
Name:
Title:
Federal I.D. #:
DATED: _________
[SIGNATURES CONTINUE ON THE NEXT PAGE]
FR HOLLINS FERRY, LLC,
SELLER a Delaware limited liability company
By: MRLL, LLC, a Delaware
limited liability company
By: SUNTRUST EQUITY FUNDING, LLC,
a Delaware limited liability company,
its Sole Member
By:
Name: Paul Severn
Title: Manager
[END OF SIGNATURES]
DATED: _________
EXHIBIT "K"
1. Taxes for the year 2006 and subsequent years not yet due and payable.
2. Metered water and/or waste water, not yet due and payable.
3. Rights of Ferguson Enterprises under an unrecorded Lease FR Hollins Ferry,
LLC.
4. Rights of the Sub-Tenant under the unrecorded Non-Disturbance and Attornment
Agreement pertaining to a Sub-lease Agreement between Ferguson Enterprises and
Computer Distribution Services, Inc.
5. The following matters as indicated on the Survey Plat entitled, "ALTA/ACSM
Land Title Survey 4501 Hollins Ferry Road," performed by KCI Technologies, Inc.
dated November 28, 2004, last revised June 8, 2006:
(a) encroachment of fence into the bed of Transway Road along the west side of
the property;
(b) encroachment of fence along the bed of Baltimore Beltway on the east side of
the property;
(c) encroachment of fence in the easement area adjacent to Hollins Ferry Road;
(d) encroachment, if any, of fence, macadam paving, and tank in storm water
management areas; and
(e) railroad tracts;
(f) "high voltage area."
6. Easements, rights and/or controls relating to drainage, access and erection
of snow fences as set forth in Deed dated May 16, 1956 from Louis Heinzerling,
et ux to the Maryland State Roads Commission and recorded among the Land Records
of Baltimore County in Liber 2929, folio 333, re: denial of access and right to
erect snow fences with respect to State Roads Commission Plat No. 10722,
referred to on the Survey Plat entitled, "ALTA/ACSM Land title Survey 4501
Hollins Ferry Road," performed by KCI Technologies, Inc. dated November 28,
2004, last revised June 8, 2006.
7. Easements, rights and/or controls relating to drainage, access and erection
of snow fences as set forth in Deed dated June 12, 1956 from Henry C. Zepp to
the Maryland State Roads Commission and recorded among the Land Records of
Baltimore County in Liber 2947, folio 426, re: denial of access and right to
erect snow fences with respect to State Roads Commission Plat No. 10723,
referred to on the Survey Plat entitled, "ALTA/ACSM land Title Survey 4501
Hollins Ferry Road," performed by KCI Technologies, Inc. dated November 28,
2004, last revised June 8, 2006.
8. Rights of others and rights incident to the use of the railroad siding
traversing the property hereby insured, as shown on the Survey Plat entitled,
"ALTA/ACSM Land Title Survey 4501 Hollins Ferry Road," performed by KCI
Technologies, Inc. dated November 28, 2004, last revised June 8, 2006.
9. Rights-of-way lines and matters shown on the following State Highway Plats:
10721, 10722, 10723, 12767, 13497, 13498, 13499 and 14571, which Plats are
indicated on the Survey Plat entitled, "ALTA/ACSM Land Title Survey 4501 Hollins
Ferry Road," performed by KCI Technologies, Inc. dated November 28, 2004, last
revised June 8, 2006.
10. Deed of Dedication and Easement dated July 31, 1990 between Carling National
Breweries, Inc., et al, and Baltimore County, Maryland and recorded among the
Land Records of Baltimore County in Liber 8603, folio 95, re: storm water
management easements as shown on the Survey Plat entitled, "ALTA/ACSM Land Title
Survey 4501 Hollins Ferry road," performed by KCI Technologies, Inc. dated
November 28, 2004, last revised June 8, 2006.
11. Rights of Consolidated Gas Electric Light and Power Company by virtue of an
Agreement recorded among the Land Records of Baltimore County in Liber 2493,
folio 110.