EXHIBIT 10.1
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AGREEMENT FOR PURCHASE AND SALE
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THIS AGREEMENT FOR PURCHASE AND SALE (this "Agreement") is made and
entered into as of December 30, 1997, by and between ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Associates Trust, a Massachusetts business trust organized under the laws
of the State of Massachusetts (hereinafter referred to as "Seller"), and
260 Franklin, Inc., a Florida corporation (hereinafter referred to as
"Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller is the owner of that certain tract or parcel of land
described on EXHIBIT A attached hereto and made a part hereof (the "Land")
and the Property (as hereinafter defined); and,
WHEREAS, Purchaser desires to purchase the Property from Seller and
Seller desires to sell the Property to Purchaser all upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the sum of One Hundred
Dollars ($100.00) and other good and valuable consideration in hand paid by
Seller to Purchaser and by Purchaser to Seller upon the execution of this
Agreement, the receipt and sufficiency of which are hereby acknowledged by
each of Seller and Purchaser, Purchaser and Seller hereby agree as follows:
1. DEFINITIONS. Wherever used in this Agreement, the following
terms shall have the meanings set forth below:
"Affiliate" shall mean Seller, JMB Realty Corporation ("JMB"),
Carlyle Real Estate Limited Partnership XV and Carlyle Real Estate Limited
Partnership XVI (collectively the "Partnerships"), or any of the officers
or partners of Seller, JMB or the Partnerships or a corporation,
partnership, individual or other entity owned (in whole or in part) or
controlled by Seller, JMB or either of the Partnerships or any of the
officers or partners of Seller, JMB or either of the Partnerships, or a
corporation, partnership, individual or other entity owning or controlling,
or under common ownership or control with, Seller, JMB or either of the
Partnerships or any of such other officers or partners, or otherwise
affiliated with Seller, JMB or either of the Partnerships or such other
officers or partners.
"Agreement" shall mean this Agreement for Purchase and Sale
between Seller and Purchaser with respect to the Property.
"Business Day" shall mean Monday through Friday excluding
holidays recognized by the state government of Florida and of the State in
which the Property is located.
"Cash Portion" shall mean Two Hundred and No/100 ($200.00)
Dollars.
"Closing" shall mean the consummation and closing of the
purchase and sale contemplated in this Agreement.
"Closing Date" shall mean the date on which the Closing occurs
and shall be the Closing Deadline.
"Closing Deadline" shall mean the date of January 2, 1998.
"Commissions" shall mean all leasing commissions, referral
fees, payments and obligations to make payments to agents, leasing agents,
leasing brokers or other parties with respect to the Space Leases, whether
such agreements are contained in a Space Lease or in any separate
commission agreement.
"Commission Agreements" shall mean all obligations to pay
Commissions, whether such agreements are contained in a Space Lease or in
any separate commission agreement.
"Concession" shall mean any discount, concession, "free rent",
payment, gift, allowance, promise, incentive, inducement, understanding or
other agreement whereby any item or consideration of value (other than the
right of occupancy of such Space Tenant's demised premises) is granted to,
extended to or provided to or for the benefit of any Space Tenant.
"Condemnation Proceeding" shall mean any proceeding in
condemnation, eminent domain or any written request for a conveyance in
lieu thereof, or any notice that such proceedings have been or will be
commenced against any portion of the Property.
"▇▇▇▇▇▇▇ Money" shall mean the sum of Two Hundred and No/100
Dollars ($200.00).
"Environmental Laws" shall mean any applicable local, state or
federal law with respect to the release of Hazardous Substances, the
regulation of the discharge of solid, liquid or gaseous waste into the
environment or the placement of structures or materials into the waters of
the United States, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), 42 U.S.C. Section 9601 et seq.; the Resource Conservation and
Recovery Act, as amended ("RCRA") 42 USC Section 6901 et seq.; the
Hazardous Materials Transportation Act, as amended, 49 U.S. U.S.C. Section
1801, et seq.; the Federal Water Pollution Control Act, as amended, 33
U.S.C. Section 1251, et seq.; and any other applicable law or regulation.
"Environmental Litigation" shall mean any claims, actions,
suits, proceedings or investigations related to Environmental Matters
pending or threatened against Seller with respect to the ownership, use,
condition, or operation of the Property in any court or before or by any
federal, state or other governmental agency or private arbitration
tribunal.
"Environmental Matter" shall mean any matter related in any
manner whatsoever to (i) the disposal or release of solid, liquid or
gaseous waste into the environment, (ii) the treatment, storage or other
handling of any Hazardous Substance, (iii) the placement of structures or
materials into waters of the United States, or (iv) the presence of any
Hazardous Substance, including, but not limited to, asbestos, in any
building, structure or workplace.
"Existing Indebtedness" shall mean that certain loan evidenced
by the Existing Loan Documents as such loan may be increased or decreased
from time to time.
"Existing Lender" shall mean Teachers Insurance and Annuity
Association of America.
"Existing Loan Documents" shall mean loan documents described
on EXHIBIT B attached hereto and made a part hereof.
"Hazardous Substance" shall mean any hazardous or toxic
substance or waste as those terms are defined by any applicable
Environmental Law, including, but not limited to, petroleum, petroleum
products and oil.
"Improvements" shall mean the buildings, structures (surface
and subsurface) and other improvements and fixtures now or hereafter
situated on or attached to any parcel of the Land.
"Land" shall mean that certain tract or parcel of land
described on EXHIBIT A attached hereto and made a part hereof.
"Land Use Requirements" shall mean all deed restrictions,
restrictive covenants, building codes, zoning restrictions and
Environmental Laws, and any other law, ordinance, covenant, restriction or
regulation affecting the Real Property or Improvements.
"Lien" shall mean any mortgage, security deed, lien, judgment,
pledge, conditional sales contract, security interest, past-due taxes,
past-due assessments, contractor's lien, materialmen's lien, judgment or
similar encumbrance against the Property of a monetary nature.
"Loss" shall mean any and all direct or indirect demands,
claims, payments, obligations, actions or causes of action, assessments,
losses, liabilities, costs and expenses, including, without limitation,
penalties, interest on any amount payable to a third party as a result of
the foregoing, lost income and profits, and any legal or other expenses
reasonably incurred in connection with investigating or defending any
claims or actions, whether or not resulting in any liability.
"Names" shall mean any name or trade name by which the
Improvements or the Real Property or any part thereof may be known, if any,
including, but not limited to the name "260 Franklin Street", and all other
fictitious names used on the date hereof in connection with the ownership
and operation of the Property and all registrations for such names.
"Operating Statements" shall mean any operating statements,
including income and expense statements, with respect to the Property, all
of which shall be prepared in the ordinary course of business.
"Other Interest" shall mean any other interest of Seller in and
to the Real Property and the Improvements or pertaining thereto, including,
without limitation, all of the right, title and interest of the Seller in
and to:
(i) All entitlement of the Seller in and to any award made or
to be made in lieu of any of Seller's interests to be conveyed, including
any award or payment made or to be made (a) for any taking in any
Condemnation Proceeding of land lying in the bed of any street, road,
highway or avenue, open or proposed, in front of or adjoining all or any
part of the Land, (b) for damage to the Property or any part thereof by
reason of change of grade or closing of any such street, road, highway or
avenue, and (c) for any taking in a Condemnation Proceeding of any part of
the Property;
(ii) All catalogs, booklets, manuals, files, records,
correspondence, tenant lists, tenant prospect lists and other mailing
lists, leasing brochures and materials, advertising materials and other
items which are directly related to the leasing, promotion, ownership and
operation of the Property;
(iii) The Names;
(iv) The right to the use of any telephone number
located under the Names and the right to list telephone numbers under the
Names;
(v) The Warranties;
(vi) All of Seller's files relating to the original
construction of the Improvements and replacements made to such Improvements
or additional improvements after construction, as well as all repair and
maintenance files (including, without limitation, those relating to the
building systems such as elevators and HVAC systems), operating manuals
relating to the building systems and all guaranties and warranties
concerning the foregoing in favor of Seller, to the extent in the
possession or control of Seller;
(vii) All licenses, permits, approvals and certificates
used in or relating to the ownership, occupancy or operation of any part of
the Property;
(viii) All plans and specifications in the
possession or control of Seller, as well as copies of existing surveys in
the possession or control of Seller;
(ix) The original executed copies of any appurtenant and
reciprocal easements, parking agreements, including all amendments and
modifications and Seller's operating files relating thereto; and
(x) All soils reports with respect to the Property and
engineering studies relating to the Property, to the extent in
the possession or control of Seller, together with all written
communications and documents relating to such reports in the possession or
control of Seller.
"Permits" shall mean all licenses, certificates (including
certificates of occupancy), consents, variances, approvals, permits and
similar instruments required for the operation of the Property by Purchaser
and issued by governmental authorities having jurisdiction over the
Property or by private parties or associations pursuant to any of the
Permitted Title Exceptions or otherwise in connection with any Land Use
Requirement.
"Permitted Title Exceptions" shall mean, subject to Purchaser's
rights to review and make objection to the status of title and survey as
set forth herein, each and all of the following:
(i) The Space Leases and any new leases entered into
between the date hereof and the Closing Date in accordance with the terms
of this Agreement.
(ii) All real estate taxes not yet due and payable as of
the Closing Date.
(iii) Local, state and federal (if applicable) zoning and
building laws, ordinances and regulations, provided that neither the
Improvements nor the existing use of the Property (nor Purchaser's proposed
use of the Property as disclosed to Seller) violates any of such laws,
ordinances and regulations, or results in any "non-conforming" use
thereunder.
(iv) The Record Exceptions (to the extent that Purchaser
does not object to such matters pursuant to Paragraph 6 hereof).
(v) Any existing utility easements serving only the
Real Property and no other land.
(vi) Any other matters approved as Permitted Title
Exceptions in writing by Purchaser prior to Closing or deemed approved as
Permitted Title Exceptions pursuant to this Agreement.
"Personal Property" shall mean all personal property owned by
Seller and used or usable in connection with any present or future
occupation or operation of all or any part of the Real Property or the
Improvements or both, together with (to the extent not constituting a
portion of the Real Property) all fixtures, furniture, furnishings,
carpeting, draperies, fittings, equipment, machinery, apparatus, building
materials, appliances and articles, whether located on or off the Real
Property and used or usable in connection with any present or future
occupation or operation of all or any part of the Real Property or the
Improvements or both, including, without limitation, all elevators,
escalators, boilers, furnaces, heating, ventilating and air-conditioning
systems, office furnishings and equipment, building drawings, plans and
specifications, building materials and wall partitions, sprinkler and well
systems, sewerage systems, electrical equipment, fire prevention and
extinguishing apparatus, engineering, maintenance and housekeeping supplies
and materials, mowers and edgers and other lawn maintenance equipment and
supplies, fuel and other supplies of all kinds whether used, unused or in
stock for future use in connection with the maintenance and operation of
the Property, which are on hand on the date hereof, subject to such
depletion and including such resupplying as shall occur and be made in the
normal course of business, excluding, however, (a) all items of personal
property which are the property of Space Tenants, and (b) the rights of the
owner of any equipment leased pursuant to, or owned by parties other than
Seller pursuant to, the Service Contracts. An inventory of the Personal
Property is attached hereto as EXHIBIT C and made a part hereof.
"Property" shall mean the Real Property, the Improvements, the
Space Leases, the Tenant Deposits, the Service Contracts, the Personal
Property and the Other Interests.
"Purchase Price" shall mean Two Hundred and No/100 Dollars
($200.00), subject to the Existing Indebtedness.
"Purchaser" shall mean the purchaser referenced in the first
paragraph of this Agreement.
"Real Property" shall mean the Land, including, without
limitation, (a) any and all buildings located on the Land and all other
Improvements, (b) all easements appurtenant to the Land and other
easements, grants of right, licenses, privileges or other agreements for
the benefit of, belonging to or appurtenant to the Land whether or not
situate upon the Land, including, without limitation, signage rights and
parking rights or agreements, all whether or not specifically referenced on
EXHIBIT A attached hereto, (c) all mineral, oil and gas rights, riparian
rights, water rights, sewer rights and other utility rights allocated to
the Land, and (d) all right, title and interest, if any, of Seller in and
to any and all strips and gores of land located on or adjacent to the Land,
(e) all right, title and interest of the owner of the Land in and to any
roads, streets and ways, public or private, open or proposed, in front of
or adjoining all or any part of the Land and serving the Land, and (f) all
rights to development of the Land granted by governmental entities having
jurisdiction over the Land.
"Record Exceptions" shall mean all instruments recorded in the
real estate records of the County in which the Land is located which affect
the status of title to the Real Property, including, but not limited to,
those items described in the title commitment No. ________ issued by
_______________.
"Rent Roll" shall mean the rent roll prepared in the ordinary
course of business by Seller for managing the Property, a copy of the most
recent rent roll being set forth on EXHIBIT D attached hereto and made a
part hereof.
"Rental Payments" shall mean all payments received by on or
behalf of Seller from Space Tenants or with respect to the Space Leases or
with respect to any other use or occupancy of the Property for items such
as minimum or base rent, additional rent, percentage rent, termination or
cancellation charges, reimbursement for real estate taxes, utilities,
operating and maintenance expenses and insurance, as well as any other
reimbursements or charges received thereunder.
"Seller" shall mean the seller referenced in the first
paragraph of this Agreement.
"Seller's Knowledge" or "actual knowledge" means (i) the actual
knowledge of the following individual: ▇▇▇▇▇ ▇▇▇▇ (the "Knowledgeable
Party"), without independent investigation, (ii) any written notice with
respect to an item or condition delivered to a Knowledgeable Party (but not
including such notices delivered to the predecessors of such Knowledgeable
Party in their respective positions with Seller or any notices delivered to
the Knowledgeable Party as a transfer of files and other data upon their
assumption of responsibility with respect to the Property), or (iii) any
oral communication by any third party with a Knowledgeable Party.
"Service Contracts" shall mean all service, maintenance, and
other contracts respecting leasing, management, maintenance or operation of
the Real Property or the Improvements.
"Space Leases" shall mean all leases, subleases, rental
agreements and other occupancy agreements, whether oral or written and
whether or not of record, for the use or occupancy of any portion of the
Property, together with all amendments to, modifications of, renewals and
extensions of said leases, subleases, rental agreements and other occupancy
agreements, all guaranties with respect thereto, all work letter
agreements, improvement agreements and other agreements with Space Tenants,
all default notices, estoppel letters, escalation notices and other
correspondence in regard thereto, all accounting records in regard thereto.
"Space Tenant" shall mean a tenant under a Space Lease;
collectively, all tenants under the Space Leases are referred to as the
"Space Tenants".
"Survey" shall mean a current plat of survey of the Land
prepared for and certified by a registered land surveyor licensed as such
in the state in which the Property is located. The Survey shall be
satisfactory to Purchaser. The Survey and the surveyor's certifications
should be addressed to Purchaser, Seller and the Title Company.
"Tenant Deposits" shall mean all prepaid rents, advance
rentals, security deposits and other deposits, including any non-cash
deposits or collateral such as securities or letters of credit, made with
respect to the Space Leases.
"Tenant Estoppels" shall mean the estoppel certificates
executed by the Space Tenants, which estoppel certificates shall be in form
satisfactory to Purchaser shall be dated no earlier than thirty (30) days
prior to the Closing Date and shall not indicate any defaults or
discrepancies in information previously made available to Purchaser.
"Termination Deadline" shall mean 11:59 P.M. local Atlanta,
Georgia time on January 2, 1998.
"Title Company" shall mean the title insurance company selected
by Purchaser to insure Purchaser's title to the Real Property.
"Title Cure Deadline" shall mean the Closing Date.
"Title Examination Deadline" shall mean 11:59 P.M. local
Atlanta, Georgia time on December 30, 1997.
"Title Policy" shall mean the full coverage, standard, revised
ALTA-1987 Owner's Policy of Title Insurance, Form B issued by the Title
Company in the amount of the Purchase Price.
"Warranties" shall mean each and every now existing and
outstanding bond and warranty concerning the Real Property, the
Improvements located thereon or the Personal Property, including, but not
limited to, any and all bonds and warranties, if any, now or hereafter in
effect, arising out of, made, given or issued, whether express or implied,
in conjunction with any contracts between Seller (or any predecessors in
title of Seller) and any third party relative to the construction,
operation and/or maintenance of the Improvements on the Real Property or
related to the Personal Property, together with all claims in contract or
quasi-contract and any similar chose-in-action arising out of or resulting
therefrom; the Warranties shall include, without limitation, any roofing,
air conditioning, heating, elevator or other bond or warranty relating to
construction of the Improvements, subject to any applicable express
limitations contained in each such bond or warranty.
2. PURCHASE AND SALE. Purchaser shall purchase from Seller, and
Seller shall sell to Purchaser, good, indefeasible and marketable title to
the Property. The purchase and sale of the Property shall be upon the
terms and conditions hereinafter set forth.
3. PURCHASE PRICE. The Purchase Price shall be due and payable at
Closing to Seller as follows:
A. CASH AT CLOSING. Two Hundred and No/100 ($200.00)
Dollars shall be due and payable in cash at Closing to Seller or by Federal
Reserve Funds check drawn for value received on an account in the
metropolitan area in which the Closing is to take place and dated no
earlier than the day prior to the Closing Date.
B. EXISTING FINANCING. An amount equal to the unpaid
principal balance at Closing of the Existing Indebtedness shall be
evidenced by Purchaser accepting the conveyance of the Property subject to
the Existing Indebtedness. Purchaser shall receive the conveyance of the
Property subject to the Existing Indebtedness. Purchaser shall neither
assume the obligation to pay the Note in accordance with its terms nor the
obligation to comply with the covenants, terms and obligations of the
Existing Loan Documents.
4. ▇▇▇▇▇▇▇ MONEY.
A. DEPOSIT WITH ESCROW AGENT. As security for Purchaser's
faithful performance of its obligations hereunder, Purchaser shall deposit,
in cash, with the Seller , simultaneously with Purchaser's execution and
delivery of this Agreement to Seller for Seller's acceptance, the ▇▇▇▇▇▇▇
Money.
B. RELEASE OF ▇▇▇▇▇▇▇ MONEY. In the event this transaction
is closed pursuant to the terms hereof, Seller shall retain the ▇▇▇▇▇▇▇
Money at Closing and Purchaser shall receive a credit against the Purchase
Price in the amount of the ▇▇▇▇▇▇▇ Money; if the transaction does not close
pursuant to the terms hereof, then the ▇▇▇▇▇▇▇ Money shall be disposed of
pursuant to the provisions hereof and pursuant to the terms of any separate
escrow agreement entered into by Purchaser, and Seller with respect to this
Agreement and the ▇▇▇▇▇▇▇ Money. In any case in which the ▇▇▇▇▇▇▇ Money is
provided herein to be returned to Purchaser, then nevertheless One Hundred
Dollars ($100.00) thereof shall be paid to or retained by Seller and
deducted from the amount due Purchaser; such amount shall belong to Seller
in any and all events and shall in effect constitute option money, making
this Agreement binding even if any conditions or provisions herein are
entirely with the discretion or control of Purchaser.
5. CLOSING. The Closing shall be held in the metropolitan area in
which the Property is located at 9:00 a.m. Eastern Standard Time on the
Closing Date at the offices of the Title Company in Boston, Massachusetts.
In addition, Seller and Purchaser shall conduct a "pre-closing" on the
Business Day preceding the Closing Date, in order to finalize and execute
(but not deliver, until the Closing) the documents to be executed and
delivered at Closing. Alternatively, the parties may elect to conduct the
Closing by mail using an escrow procedure with such escrow to be
administered by the title agent of the Title Company selected by Purchaser.
The parties agree to execute and deliver into escrow the Business Day prior
to the Closing Date all documents required for Closing, with funding and
the release of the escrow to occur on the Closing Date.
A. DELIVERY; POSSESSION. At Closing, Seller shall deliver
to Purchaser the items required of Seller as elsewhere set forth herein and
Purchaser shall deliver to Seller the Purchase Price and the other items
required of Purchaser as elsewhere set forth herein. Seller shall deliver
possession of the Property, subject only to the Permitted Title Exceptions,
to Purchaser at the time of Closing.
B. SELLER'S CLOSING COSTS. Seller shall pay the fees and
expenses of Seller's own attorneys.
C. PURCHASER'S CLOSING COSTS. Purchaser shall pay for the
costs of all title searches, examinations and abstracts of title ordered by
Purchaser, the costs of any new or updated surveys of the Property obtained
by Purchaser, the costs of any other investigations, studies and appraisals
conducted by Purchaser, the costs and premiums of Purchaser's owner's title
insurance, all recording charges due on recordation of any conveying
documents executed in connection with this Agreement, and the fees and
expenses of Purchaser's own attorneys.
6. TITLE. Seller shall convey and transfer to Purchaser such
good, indefeasible and marketable title to the Real Property and the
Improvements as will enable the Title Company to issue its Title Policy in
the amount of the Purchase Price, subject, however, to the Permitted Title
Exceptions, but without exception as to matters of survey (except as
otherwise permitted hereby or as otherwise approved by Purchaser) or to
mechanics' or similar liens, and free and clear of any and all other
pledges, mortgages, liens, judgments, conditional sales, encumbrances,
ground rents, leases, tenancies, parties in possession, licenses, security
interests, covenants, conditions, restrictions, rights-of-way, easements,
encroachments and any agreements, contracts, rights, acts, charges or other
matters of any nature affecting the title, except to the extent the
foregoing constitute Permitted Title Exceptions (subject to the following
provisions of this Paragraph 6 with respect to Record Exceptions).
A. EXAMINATION OF TITLE. Purchaser shall have until the
Title Examination Deadline to examine title to the Property and to prepare
and examine any survey of the Land and to notify Seller in writing of any
defects in title (including any Record Exceptions which are not acceptable
to Purchaser) or survey which may be revealed by Purchaser's examination
(which such defects shall include any matters which would be revealed by a
current as-built survey of the Land); any such notice shall be accompanied
by a copy of Purchaser's title report or title insurance commitment and
Purchaser's survey and any other materials which evidence or disclose such
objections to title. In the event that Purchaser fails to notify Seller on
or before the Title Examination Deadline, then, notwithstanding any other
provisions set forth herein, such failure to notify Seller timely shall
constitute a waiver of such right to object to any such defects and this
Agreement shall remain in full force and effect in accordance with its
terms and the purchase and sale contemplated hereby shall be closed as
herein provided except that Seller's conveyance to Purchaser shall be made
expressly subject to all such matters of record and survey with respect to
the Property not objected to by Purchaser and any other Permitted Title
Exceptions.
B. SURVEY MATTERS. The sale of the Property shall be
subject to the state of facts disclosed by a current Survey of the Land
obtained by Purchaser, provided such state of facts does not, in
Purchaser's reasonable judgment, materially interfere (a) with the current
use, or the use contemplated by Purchaser as disclosed to Seller, of any
portion of the Land or the Improvements, (b) the performance of any
covenant, obligation, representation or warranty of the owner of the
Property under any Space Lease or any Permitted Title Exceptions, (c) with
the maintenance and operation of the Improvements or the continued use
thereof for the same purposes as presently used, (d) with the meeting of
the normal requirements of a mortgage lender, or (e) with Purchaser's
obtaining title insurance (including insurance of marketability)
satisfactory to Purchaser.
C. PERMITTED TITLE EXCEPTIONS. Subject to Purchaser's
rights to review, and make objection to, the status of title and survey set
forth herein, the sale of the Property shall be subject to the Permitted
Title Exceptions.
D. CURE OF TITLE MATTERS. If Purchaser has notified Seller
in writing of any defects in title as set forth above, Seller shall have
the right, but not the obligation , until the Title Cure Deadline within
which to cure any such defects in title provided however, that Seller shall
not be under any obligation to pay any amounts or to bring any action or
proceeding or to otherwise incur any expense in order to effect cure of any
such defect in title.
E. PURCHASER'S RIGHT TO TERMINATE. If any such defect in
title of which Seller has been so notified on a timely basis is not so
cured on or before the Title Cure Deadline, then Purchaser may by written
notice to Seller actually received by Seller at or prior to Closing,
terminate this Agreement in which event Escrow Agent shall promptly refund
the ▇▇▇▇▇▇▇ Money to Purchaser and thereafter neither party hereto shall
have any further rights, obligations or liabilities hereunder except to the
extent that any right, obligation or liability set forth herein expressly
survives termination of this Agreement.
F. MISCELLANEOUS TITLE MATTERS.
(i) PRE-CLOSING "GAP" DEFECTS. Whether or not Purchaser
shall have furnished to Seller any notice of defects in title pursuant to
the foregoing provisions of this Agreement, Purchaser may at or prior to
Closing further notify Seller in writing of any defects in title arising
between the earlier of (i) the effective date of Purchaser's title
examination referenced above and (ii) the Title Examination Deadline, and
the date on which this transaction is closed; with respect to any defects
in title set forth in such further notice, Seller shall have the same
obligations and Purchaser shall have the same rights as those which apply
to any notice of defects in title resulting from a title examination made
by Purchaser on or before the Title Examination Deadline.
(ii) EXTENSION OF CLOSING DATE. If necessary, the date for
Closing shall be automatically extended to allow all time periods specified
in this Paragraph to run fully.
(iii) NO ALTERATION OF TITLE. Except as otherwise provided
herein, Seller shall not, so long as this Agreement remains in effect,
further alter or encumber in any way Seller's title to the Property after
the date hereof without the prior written consent of Purchaser.
(iv) WAIVER PERMITTED. Purchaser shall have the right at any
time to waive any objections to the status of title that it may have made
and thereby to preserve this Agreement in effect.
(v) MERGER. Any exceptions set forth in the documents of
conveyance as delivered to Purchaser by Seller and as accepted by Purchaser
at Closing shall be conclusively deemed acceptable to Purchaser.
7. PRORATIONS AND CREDITS AT CLOSING.
A. Seller shall continue to comply until Closing with the
terms of a Reserve Escrow Agreement dated January 1, 1991, as modified by
modification to Reserve Escrow Agreement dated January 1, 1994, and by
Reserve Pledge Agreement dated December 4, 1996 and the Real Estate Tax
Pledge and Security Agreement among Seller, Existing Lender and Boston
Mortgage Capital Corp. dated __________ (collectively "Reserve") between
Seller and Existing Lender and, subject to the rights of Existing Lender,
shall assign any of Seller's rights under the Reserve (including the
Reserve Escrow Account, Tenant Security Deposit Account, Working Capital
Account and Tax Escrow Account created under the Reserve) to Purchaser at
Closing.
B. RENTS. Any checks for Rental Payments received after
Closing by Seller or its agents shall be promptly endorsed to Purchaser by
the payee thereof and promptly transmitted to Purchaser. This provision
shall survive Closing.
(i) PAST DUE RENTS. In the event that on the Closing Date
there shall be any past due and unpaid Rental Payments under any Space
Lease, then any Rental Payment received subsequent to the Closing Date by
Purchaser or its agents or Seller or its agents with respect to such Space
Lease shall be retained by Purchaser.
(ii) POST-CLOSING ADJUSTMENT PAYMENTS. In the event that on
the Closing Date there shall be any Rental Payments under any Space Lease
which, although relating to a period prior to as of the Closing Proration
Time, do not become due and payable until after Closing (such as year end
common area expense reimbursements and the like), then any Rental Payments
of such type received by Purchaser or its agents or Seller or its agents
subsequent to the Closing Date shall, be retained by Purchaser.
(iii) SELLER'S COLLECTION RIGHTS. Seller shall not have the
option to collect any Rental Payments after Closing.
C. UTILITY DEPOSITS AND PREPAID ITEMS. There shall be no
credits for the amount of any utility or similar deposits nor any prepaid
items, all of the same are to be assigned to Purchaser at Closing.
D. [INTENTIONALLY OMITTED]
8. CONVEYANCES AND DELIVERIES AT CLOSING.
A. DEED. At Closing, Seller shall convey the Real Property
and the Improvements to Purchaser by Quitclaim Deed in the form of
EXHIBIT E attached hereto and made a part hereof, subject only to the
Permitted Title Exceptions.
B. ▇▇▇▇ OF SALE. At Closing, Seller shall convey the
Personal Property to Purchaser by Quitclaim ▇▇▇▇ of Sale (without warranty
of title) in the form of EXHIBIT F attached hereto and made a part hereof,
subject only to the Permitted Title Exceptions.
C. ASSIGNMENT AND ASSUMPTION OF LEASES. At Closing, Seller
shall assign to Purchaser the landlord and lessor interest in and to the
Space Leases by a duly executed Assignment in the form of EXHIBIT G
attached hereto and made a part hereof and Purchaser shall assume the
performance of Seller's covenants and obligations whether accruing before
or after the Closing Date under the Space Leases.
D. ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS AND OF
OTHER INTERESTS. At Closing, Seller shall assign to Purchaser, to the
extent assignable, Seller's interest in the Service Contracts and Other
Interests, by a duly executed Assignment in the form of EXHIBIT H attached
hereto and made a part hereof and Purchaser shall assume the performance of
Seller's covenants and obligations whether accruing before or after the
Closing Date.
E. TENANT ESTOPPELS. As a condition precedent to
Purchaser's obligation to purchase the Property at Closing, each of the
Space Tenants shall have executed an estoppel certificate satisfactory to
Purchaser in its reasonable judgment.
F. NOTICES OF ASSIGNMENT AND ASSUMPTION. On the Closing
Date, Seller and Purchaser shall send a written notice, in form and content
satisfactory to Purchaser and Seller, to each tenant under a Space Lease
informing each such tenant of the sale of the Property and of the
assignment of Seller's interest in and obligations under the Space Leases
and directing that all rent and other sums payable after the Closing Date
under each such Space Lease shall be paid as set forth in the notice.
G. DELIVERY OF SPACE LEASES, AND OTHER INTERESTS. At or
simultaneously with Closing, Seller shall deliver to Purchaser the
originals of the Space Leases, and Seller shall also deliver to Purchaser
all leasing, accounting, maintenance and other property files and records
related to the continued operation, leasing and maintenance of the Property
and any items comprising, documenting or relating to any of the Other
Interests to the extent in Seller's possession.
H. NON-FOREIGN CERTIFICATE. At Closing, Seller shall
execute and deliver to Purchaser a certificate in the form of EXHIBIT I
attached hereto and made a part hereof with respect to Section 1445 of the
Internal Revenue Code stating whether or not Seller is a foreign person as
defined in said Section 1445 and applicable regulations thereunder, and
shall otherwise comply with all requirements under Section 1445 of the
Internal Revenue Code and related provisions with respect to sales of real
property.
I. TERMINATION OF MANAGEMENT AGREEMENT AND LEASING
AGREEMENT. At Closing, Seller shall deliver to Purchaser an executed
original copy of each agreement terminating, as of the Closing Date, any
and all management agreements and leasing agreements between Seller and
Seller's property manager and leasing agents with respect to the Property.
J. AFFIDAVIT OF TITLE. At Closing, Seller shall execute and
deliver to Purchaser an Affidavit with respect to liens and title matters
in substantially the form of EXHIBIT J attached hereto and made a part
hereof and otherwise as may be reasonably required by the Title Company.
K. CLOSING STATEMENT. At Closing, Seller and Purchaser
shall execute and deliver a Closing Statement which shall, among other
items, set forth the Purchase Price, all credits against the Purchase
Price, the amounts of all prorations and other adjustments to the Purchase
Price and all disbursements made at Closing on behalf of Purchaser and
Seller.
L. EVIDENCE OF AUTHORITY. At Closing, Seller shall deliver
to Purchaser evidence that Seller has the requisite power and authority to
execute and deliver, and perform under, this Agreement and all closing
documents to be signed by Seller, including a Direction of Beneficiary and
Certificate of JMB Realty Corporation in the form attached hereto as
Exhibit K.
M. AGREEMENT AND COVENANT NOT TO ▇▇▇ At Closing, Seller,
Purchaser and the holder of the Existing Loan Documents shall execute an
agreement and covenant not to ▇▇▇ in the form attached hereto as Exhibit L.
N. [INTENTIONALLY OMITTED]
O. OTHER CONVEYANCES AND INSTRUMENTS. At Closing, Seller
shall also execute and deliver to Purchaser a conveyance or assignment of
any portion of the Property sold hereunder for which the conveyance is not
otherwise provided in this Agreement.
9. SELLER'S REPRESENTATIONS AND WARRANTIES.
9.1 REPRESENTATIONS AND WARRANTIES. Seller, as of the date
of the execution of this Agreement by Seller, represents and warrants to
Purchaser, and covenants with Purchaser, as follows:
Seller is a Massachusetts business trust duly organized,
validly existing and in good standing under the laws of the State of
Massachusetts, is, to the extent required by law, duly qualified to do
business in the State in which the Property is located and has all
necessary power to execute and deliver this Agreement and perform all its
obligations hereunder. Seller has the full power and authority to enter
into and perform this Agreement and the execution, delivery and performance
of this Agreement by Seller (i) has been duly and validly authorized by all
necessary action on the part of Seller, (ii) does not conflict with or
result in a violation of Seller's Declaration of Trust or any judgment,
order or decree of any court or arbiter in any proceeding to which Seller
is a party, and (iii) does not conflict with or constitute a material
breach of, or constitute a material default under, any contract, agreement
or other instrument by which Seller is bound or to which it is a party.
This Agreement is the valid and legally binding obligation of Seller
enforceable in accordance with its terms.
9.2 [INTENTIONALLY OMITTED]
9.3 NO SURVIVAL. The representations, warranties and
covenants set forth above shall be merged with the execution and delivery
of the deed and other closing documents and shall not survive Closing
hereunder.
10. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser, as of
the date of the execution of this Agreement by Purchaser, represents and
warrants to Seller as follows:
A. ORGANIZATION, POWER AND AUTHORITY. Purchaser has the
full power and authority to enter into and perform this Agreement and the
execution, delivery and performance of this Agreement by Purchaser and has
been duly and validly authorized by all necessary action on the part of
Purchaser.
B. NO BANKRUPTCY. Purchaser has not (A) commenced a
voluntary case, or had entered against it a petition, for relief under any
federal bankruptcy act or any similar petition, order or decree under any
federal or state law or statute relative to bankruptcy, insolvency or other
relief for debtors, (B) caused, suffered or consented to the appointment of
a receiver, trustee, administrator, conservator, liquidator or similar
official in any federal, state or foreign judicial or non-judicial
proceeding, to hold, administer and/or liquidate all or substantially all
of its assets, (C) made an assignment for the benefit of creditors.
As a condition precedent to Seller's obligation to sell the Property to
Purchaser at Closing under this Agreement, the representations of Purchaser
set forth in this Agreement shall be true and correct in all material
respects as of the Closing Date.
11. OPERATION OF THE PROPERTY. Between the date hereof and the
Closing Date:
A. INSPECTION OF PROPERTY. Subject to the agreements set
forth in this Agreement, Seller shall allow Purchaser and its agents to
inspect and audit the Property and any part thereof and all books, records
and accounts, wherever located, relating to the Property, or Seller, or any
of its operations, at such reasonable times and from time to time as
Purchaser may reasonably request.
B. COMPLIANCE WITH LAWS, LEASES, CONTRACTS. Seller shall
not violate any laws, ordinances, regulations and orders relating to the
Property and nor the terms, conditions and provisions of the Space Leases
nor the requirements of any liens or encumbrances, agreements or other
contractual arrangements to which the Property or Seller is subject.
C. STANDARD OF OPERATION AND MAINTENANCE. Seller shall
operate, manage and maintain the Property in the manner consistent with the
manner in which it has been operated, managed and maintained prior to the
date hereof.
D. NEW SPACE LEASES AND MODIFICATIONS TO EXISTING SPACE
LEASES. Seller shall not enter into any new Space Leases or cancel,
modify, extend or renew any existing Space Lease, nor waive any default
under, accept any surrender of, any Space Lease or accept any prepayment of
rent thereunder without in each case the prior written consent of
Purchaser. No space in the Property is now, or shall after the Closing
Date be, occupied by Seller or any person affiliated with Seller under any
written or oral lease or other agreement, rent free or for rent less than
fair market rent.
E. [INTENTIONALLY OMITTED]
F. PERSONAL PROPERTY INVENTORY. Seller shall not remove any
of the Property, including Personal Property, from the Real Property or the
Improvements nor use any of the Personal Property prior to the Closing Date
except such use thereof as is normal and customary in the operation and
maintenance of the Property. Seller warrants that supplies and maintenance
items shall be maintained at a customary level and will be available and
conveyed to Purchaser on the Closing Date.
G. TRANSFER OF PERMITS. Seller shall execute all
applications and instruments required in connection with the transfer of
all Permits, to the extent transferable, in order to transfer the benefits
of each such Permit to the Purchaser and, if requested by Purchaser, to
cooperate with Purchaser's efforts to have all permits, licenses and
certificates of occupancy or equivalent governmental instruments required
for the operation of the Property issued to and in the name of the
Purchaser on or prior to the Closing Date. Seller shall use its best
efforts to preserve in force all existing Permits and rights of signage and
to renew all those expiring prior to the Closing Date on terms acceptable
to Purchaser. If any such Permit shall be suspended or revoked, Seller
shall promptly notify Purchaser and shall diligently take all measures
reasonably necessary to cause the reinstatement of such Permit without any
additional limitation or condition. Seller shall not seek or allow any
amendment to any Permit which would alter the existing permissible uses of
the Property or any part thereof.
H. OTHER THIRD PARTY NEGOTIATION. Seller shall not
negotiate with any third party with respect to a "back up" or similar
agreement as to the sale of the Property unless or until this Agreement is
properly terminated by Seller or Purchaser hereunder.
I. COMPLIANCE OF IMPROVEMENTS AND REAL PROPERTY. Seller
shall assist Purchaser's efforts to obtain satisfactory evidence that all
of the Real Property and Improvements meet and comply with all Land Use
Requirements. Such evidence shall include but shall not be limited to
obtaining certificates of completion, occupancy or compliance from the
agencies administering compliance with Land Use Requirements indicating
that all of the Improvements, as constructed, fully comply with said
requirements. The foregoing evidence shall be subject to the approval of
Purchaser in all reasonable respects. In addition, said items shall be
directed to Purchaser specifically with knowledge on the part of the party
issuing same that Purchaser will be relying upon the same, and shall be
submitted to Purchaser as soon as it is reasonably possible to do so. All
materials submitted in advance of Closing shall be updated, if necessary in
Purchaser's judgment, for the Closing.
J. INSURANCE. Seller will keep all Improvements and
Personal Property continuously insured in an amount not less than the full
insurable replacement value thereof, including the cost of debris removal,
against loss or damage by fire, lightning and risks customarily covered by
standard extended coverage endorsement, and including not less than one
year's rent loss insurance. Seller shall also obtain and maintain in full
force and effect commercial general liability insurance, together with such
other insurance with respect to Seller and the Property as may be
reasonably required by Purchaser. At Closing, Seller shall cancel said
policies of insurance.
K. OTHER COVENANTS AND AGREEMENTS. Seller shall fully and
promptly comply with all of the covenants, obligations and liabilities of
Seller as set forth in the instruments which evidence and secure the
Existing Indebtedness, including, but not limited to, the obligation to pay
all taxes, liens, insurance premiums and other charges owed by Seller or
due with respect to the Property, the obligation to maintain insurance with
respect to the Property and to restore the Improvements following a
casualty substantially in accordance with the Plans and Specifications, the
obligations to maintain and repair the Property and all Improvements, the
obligations to comply with the covenants and obligations of the Space
Leases and contracts affecting the Property, and compliance with laws and
all other provisions of such instruments which relate to the Property.
L. ZONING MATTERS. Without the prior written consent of
Purchaser, which consent may be withheld in Purchaser's sole discretion,
Seller shall not apply for, consent to, promote or acquiesce in any
modification of any zoning restrictions or other restrictions or
regulations of governmental or quasi-governmental authorities with respect
to the Property or any property located adjacent to the Property.
Purchaser's sole recourse should any of the above conditions A
through L, inclusive, fail to be fulfilled prior to Closing shall be to
terminate this Agreement or waive such failure and proceed to close the
sale contemplated hereby.
12. CONDITIONS TO CLOSING. The obligation of the Purchaser to
consummate the Closing hereunder is further subject to the satisfaction of
Purchaser, not to be unreasonably withheld, at or prior to Closing of the
following conditions precedent:
A. DUE DILIGENCE. Purchaser shall have completed all audits
and due diligence review of all aspects of the Property and all
documentation related thereto, including, but not limited to, the Space
Leases, the environmental condition of the Property and any other items and
issues related to the Property, its operation and this transaction, the
results of which audits and review shall be entirely satisfactory to
Purchaser in the exercise of its sole discretion.
B. ACCURACY OF REPRESENTATIONS (and of facts recited
therein). All of the warranties, representations and covenants of Seller
contained in this Agreement shall be true on the Closing Date with the same
effect as if they had been made on the Closing Date, except as modified in
a manner permitted by the Agreement; Seller shall have performed all
covenants to have been performed and satisfied by Seller prior to the
Closing Date.
C. OCCUPANCY OF IMPROVEMENTS. At the time of closing there
shall be not less than 348,901 square feet of space leased and occupied
within the Real Property and the Improvements under the Space Leases.
D. CONDITION OF IMPROVEMENTS. On the Closing Date, the
Improvements (including tenant improvements) (i) shall be in a state of
repair at least as good as the state of repair thereof on the date hereof
(and on the date on which Purchaser completed its physical inspections of
the Improvements), normal wear and tear alone excepted; and (ii) shall be
free from structural defects and free from termites or other
wood-destroying insects, except for items disclosed to and accepted by
Purchaser on or before the aforesaid date on which said physical inspection
was completed. Purchaser at Purchaser's cost shall have the right, at
Purchaser's option and prior to Closing, to verify the physical condition
of the Improvements by having an inspection conducted and by having a
report prepared by a licensed engineer or architect and by a licensed
entomologist chosen by Purchaser.
E. BUILDING PERMIT/CERTIFICATE OF OCCUPANCY. On the Closing
Date, Purchaser shall have received a copy of the final, unconditional
certificates of occupancy for all of the Improvements.
F. UTILITIES AND DRAINAGE. On the Closing Date, Purchaser
shall have determined that the Property is benefited by all necessary
easements and facilities necessary to handle, in accordance with applicable
law and regulations, all drainage and storm water flow the Property, and
that the Property is benefited by all utilities and easements necessary or
desirable by Purchaser in connection with the construction, development,
ownership, occupancy and operation of all of the Improvements. All such
utilities shall either enter the Land through adjoining public streets or,
if they pass through adjoining private land, shall do so in accordance with
valid and recorded public easements or private easements which will inure
to the benefit of Purchaser.
G. ENVIRONMENTAL CONDITION. On the Closing Date, the
Property shall be free of any and all Hazardous Substances either within
the Improvements or on or under the surface of the Property, except for
Hazardous Substances used in the ordinary course of business by Seller or
Space Tenants, which uses are in compliance with all Environmental laws.
Prior to Closing, Purchaser, at Purchaser's cost and expense, shall have
the right to verify the environmental condition of the Improvements by
having an environmental audit conducted by an engineer as may be selected
by Purchaser (the "Environmental Engineer"). In the event that the audit
and report prepared by the Environmental Engineer recommends further
investigation by Purchaser, the Closing Date shall be extended in order to
permit such further tests. In the event that the audit and report prepared
by the Environmental Engineer is unsatisfactory to Purchaser, then
Purchaser shall have the right, at Purchaser's option, by notice to Seller,
to terminate this Agreement and, in such event, neither Party shall have
any further rights or obligations hereunder.
H. OTHER CONDITIONS. All construction allowances due Space
Tenants shall have been paid.
I. TITLE TO REAL PROPERTY. Seller is the owner of the Real
Property free and clear of all encumbrances except for the Permitted Title
Exceptions.
J. TITLE TO PERSONAL PROPERTY. Seller is the owner of the
Personal Property free and clear of all encumbrances except for the
Permitted Title Exceptions.
K. SPACE LEASES:
(i) LEASING COMMISSIONS. There are no Commissions due
or payable now or hereafter with respect to the Space Leases or the
Property.
(ii) COPIES OF SPACE LEASES AND COMMISSION AGREEMENTS.
All copies of the Space Leases and Commission Agreements which have been
furnished by the Seller to Purchaser are true, correct and complete copies
thereof. None of the Space Leases has been modified, amended or extended
and, to Seller's Knowledge, there are no other understandings, concessions,
promises or agreements between the parties thereto which would be
enforceable against Purchaser.
L. NO OTHER LEASES OR OCCUPANCIES. There are no leases or
other agreements relating to occupancy of the Property, except for the
Space Leases. Attached hereto as Exhibit ___ and made a part hereof is a
list of all Space Leases. No party other than the Space Tenants has any
right to occupancy of any portion of the Real Property or the Improvements.
No party other than the Space Tenants is actually occupying any portion of
the Real Property or the Improvements.
M. ACCURACY OF OPERATING STATEMENTS. Seller has delivered
to Purchaser true, correct and complete copies of the Operating Statements
for calendar years 1996 and 1997 and year-to-date operating statements for
the calendar year in which this Agreement is executed.
N. LITIGATION PROCEEDINGS. There are no judgments
unsatisfied against Seller or the Property or consent decrees or
injunctions to which Seller or the Property is subject, and there is no
litigation, claim or proceeding pending or, to Seller's Knowledge,
threatened against or relating to Seller or the Property, nor does Seller
know of any basis for any such action or of any governmental investigation
relative to Seller or the Property.
O. COMPLIANCE OF REAL PROPERTY AND IMPROVEMENTS WITH ZONING
AND OTHER LAWS. The Property and all Improvements thereon conform to and
comply with all Land Use Requirements. Seller has not received and is not
aware of any notification from any governmental or public authority that
the Property violates any existing fire, health, building, handicapped
persons, environmental, sanitation, use and occupancy or zoning laws to the
extent such laws are applicable to the Property or that any work is
required to be done upon or in connection with the Property. Seller has
obtained all governmental permits or licenses required for the Property,
all of which are currently in full force and effect.
P. ENVIRONMENTAL MATTERS.
(i) Seller has heretofore delivered to Purchaser all
environmental audit reports covering the Property in Seller's possession or
control.
(ii) To Seller's Knowledge, there is no Environmental
Litigation with respect to Seller or the Property. To Seller's Knowledge,
there are no existing violations of federal, state or local laws,
regulations, ordinances or orders related to Environmental Matters by
Seller with respect to the ownership, use, condition, or operation of the
Property. Neither Seller nor, to Seller's Knowledge, any other party has
used the Property or any part thereof for the handling, treatment, storage,
or disposal of any Hazardous Substance, except for uses by Seller and Space
Tenants of certain materials which are categorized as Hazardous Materials
and which uses are in the ordinary course of business and in compliance
with all Environmental Laws. No written or, to Seller's knowledge, oral
notice from any court or governmental agency, official or instrumentality,
of any alleged violation of any ordinance, law, decree, order, code, or
governmental rule or regulation relating to Environmental Matters has been
filed or communicated to management of Seller with respect to the
ownership, use, condition, or operation of the Property or any part
thereof, and Seller does not know of any basis for the allegation of any
such violations.
(iii) To Seller's Knowledge, no release, discharge,
spillage or disposal of any Hazardous Substance has occurred or is
occurring on the Property and no soil or water in or under or adjacent to
any of the Property has been contaminated by any Hazardous Substance while
or before such premises were owned, leased, operated, or managed, directly
or indirectly, by Seller.
(iv) Seller has complied with all applicable reporting
requirements under Environmental Laws concerning the disposal or release of
Hazardous Substances, and Seller has made no such reports concerning the
Property.
(v) No Improvement contains any asbestos or
asbestos-containing materials.
(vi) All waste containing any Hazardous Substance
generated, used, handled, stored, treated or disposed of (directly or
indirectly) by the Seller and has been disposed of in compliance with all
applicable legal requirements.
Q. TAXES AND ASSESSMENTS. The Property is separately
assessed for real property tax assessment purposes and is not combined with
any other real property for such tax assessment purposes. Seller has not
received notice of any contemplated or actual re-assessments of the
Property or any part thereof for general real estate tax purposes. No
assessments for public improvements, impact fees or similar exactions have
been made against the Property which remain unpaid.
R. INSURANCE COMPLIANCE. There are no outstanding or
unfulfilled requirements or recommendations of any insurance company
insuring the Property or board of fire underwriters regarding any repairs
to or work to be performed with respect to the Property. Seller has
complied with all such requirements and recommendations as to which Seller
has received a written notice.
S. NO OPTIONS OR OTHER INTERESTS. No Space Tenant or any
other party whatsoever has any deed, option, contract or other evidence of
any right or interest in or to the Property except occupancy rights as a
tenant under such Space Tenant's Space Lease.
T. BANKRUPTCY. Seller has not (A) commenced a voluntary
case, or had entered against it a petition, for relief under any federal
bankruptcy act or any similar petition, order or decree under any federal
or state law or statute relative to bankruptcy, insolvency or other relief
for debtors, (B) caused, suffered or consented to the appointment of a
receiver, trustee, administrator, conservator, liquidator or similar
official in any federal, state or foreign judicial or non-judicial
proceeding, to hold, administer and/or liquidate all or substantially all
of its assets, (C) made an assignment for the benefit of creditors
U. PENDING CONDEMNATION PROCEEDINGS. There are no pending
or threatened Condemnation Proceedings which would affect the Property, or
any part thereof.
V. EMPLOYEES. Seller has no employees.
W. DISCLOSURE. No statement, warranty or representations by
the Seller contains an untrue statement of material fact or omits to state
an untrue statement of material fact necessary in order to make the
statements made in light of the circumstances under which such statements
are made not misleading.
13. PURCHASER'S DUE DILIGENCE AND INSPECTION RIGHTS; TERMINATION
RIGHT.
A. REVIEW OF MATERIALS. Seller shall deliver to Purchaser
or make available to Purchaser for its inspection, to the extent and in the
possession or control of Seller and without representation or warranty, the
following:
(1) All Space Leases, including all amendments thereto
or modifications thereof, including letter amendments;
(2) All tenant correspondence, rental adjustment
notices, leasing activity records, default letters or notices, lease files
and other records pertaining to actual (current) or prospective tenants as
well as Seller's standard form of lease for the Property, and credit
information for both signed and proposed Spaces Leases;
(3) All Commission Agreements, all amendments thereto
or modifications thereof, and all correspondence, notices, files and other
records pertaining to Commission Agreements and Commissions related to the
Property, including future Commissions due upon extension, renewal or
expansion of existing Space Leases;
(4) Copies of the Operating Statements with respect to
the Property for the two (2) full calendar years prior to the year in which
this Agreement is dated, and year-to-date Operating Statements and
supporting ledgers, data and records with respect thereto;
(5) Copies of all tax bills (including bills for
special assessments, fees and other governmental charges and impositions)
for the two (2) full calendar years prior to the year in which this
Agreement is dated, and for the year of Closing, if available;
(6) [Intentionally Omitted];
(7) Copies of all existing surveys of the Property in
the possession of Seller;
(8) Copies of all plans and specifications in the
possession of Seller pertaining to the Property, as well as copies of
existing surveys in the possession of Seller;
(9) All Service Contracts which affect the Property,
including, without limitation, service contracts, construction contracts,
maintenance contracts, brokerage agreements, annuity agreements, management
agreements and operating files relating thereto;
(10) Copies of all appurtenant and reciprocal easements,
parking agreements, including all amendments and modifications and Seller's
operating files relating thereto;
(11) All of Seller's files relating to the original
construction of the Improvements and replacements made to such Improvements
or additional improvements after construction, as well as all repair and
maintenance files (including, without limitation, those relating to the
building systems such as elevators and HVAC systems), operating manuals
relating to the building systems and all Warranties concerning the
foregoing in favor of Seller, to the extent in the possession of Seller;
(12) All environmental assessments, tests of soils,
groundwater, aboveground and underground storage tanks, radon tests,
investigation of prior uses of the Property, inspection for PCBs, and any
other hazardous or toxic wastes or substances;
(13) All soils reports with respect to the Property and
engineering studies relating to the Property, to the extent in the
possession of Seller, together with all written communications and
documents relating to such reports sent or received by Seller and in
Seller's possession or control;
(14) Copies of all Permits, including, without
limitation, those relating to the construction of the Improvements on the
Property, the occupancy thereof by tenants and the maintenance, repair,
operation and ownership of the Property; and
(15) A current rent roll, together with a list of all
lessees and contract parties which are, to Seller's Knowledge, in default
as of such date, together with the statement of Seller describing any such
default as well as all other information reasonably requested by Purchaser
with respect thereto.
To the extent that the aforesaid do not yet exist as of the date hereof, as
such items are updated, received and/or created, Seller shall deliver such
items to Purchaser in accordance with the terms hereof within ten (10) days
after such items become available. Until the Closing Date, Seller shall
provide Purchaser and Purchaser's officers, employees, agents, advisors,
attorneys, accountants, architects and engineers with access to the
above-referenced items at all reasonable times during business hours (and
during evenings, weekends and holidays) to review the items referenced
above and, subject to the rights of tenants under the Space Leases, to make
such reasonable studies, inspections, tests, copies and verifications as
Purchaser considers necessary. Purchaser shall have the right to make
photocopies of all of the aforesaid instruments. In the event that the
transaction contemplated hereby is not closed, all originals, copies and
photocopies of the aforesaid items in Purchaser's possession or under
Purchaser's control shall be returned immediately to Seller.
B. [INTENTIONALLY OMITTED]
C. INSPECTION OF PROPERTY. Purchaser shall, at a reasonable
time or times mutually agreeable to Seller or Seller's property manager
prior to the Closing Date and subject to the rights of tenants under the
Space Leases, have the privilege of going upon the Property with its
agents, representatives and contractually retained independent contractors
as needed to inspect, audit, examine, test, appraise and survey the
Property and all records and files with respect thereto, including, but not
limited to, investigations of the zoning status and physical status thereof
and verification of all information made or to be made available to
Purchaser with respect to Property, such inspection rights to include the
right to interview Space Tenants. In addition, Purchaser shall have the
right to obtain such letters, certificates or statements from appropriate
governmental officials or other experts concerning zoning and other matters
related to the Property, at Purchasers sole cost and expense, provided that
prior to requesting any certificate, letter or other statement from any
governmental official, Purchaser shall first give Seller prior written
notice of such request and allow Seller, if Seller desires, itself to make
such request or to join with Purchaser in making such request. This
privilege shall include the right to make surveys, examinations, appraisals
and other tests to obtain any relevant information necessary to determine
subsurface and topographic conditions, including, but not limited to, toxic
and hazardous materials and substances studies, soil tests, asbestos
analysis and structural review, all of which tests, studies and reviews
shall be performed at Purchaser's sole cost and expense, provided, however,
Purchaser must obtain Seller's consent prior to making any physically
intrusive inspections and Seller may require that Purchaser be accompanied
by a representative of Seller for all inspections. Furthermore, in
consideration of Purchaser's right to inspect the Property as described in
this Paragraph, Purchaser shall pay any costs incurred by Seller arising
out of the exercise of such privileges by Purchaser (including, without
limitation, any rights or claims of materialmen or mechanics to liens on
the Property or costs to restore the Property from the results of such
inspection to its condition prior to inspections), and Purchaser shall pay
any costs incurred by Seller arising out of any claims or liabilities
relating to such inspection; such obligations shall survive the Closing or
any termination of this Agreement. Purchaser shall provide evidence of
commercial general liability insurance with a limit of at least $3,000,000,
including contractual liability, prior to any inspection.
D. TERMINATION RIGHT. In the event that Purchaser is not
satisfied with any matters relating to the Property, including any matter
revealed by Purchaser's investigations referenced in Subparagraphs A
through C of this Paragraph, Purchaser shall have the right, in Purchaser's
sole and absolute discretion, to terminate this Agreement by written notice
to Seller received by Seller on or before the Termination Deadline, in
which Seller shall return the ▇▇▇▇▇▇▇ Money to Purchaser and thereafter
neither party hereto shall have any further rights, obligations or
liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this
Agreement.
E. "AS-IS" AND "WHERE-IS" CONVEYANCE. In consideration of
Purchaser's receiving access to the Property as set forth in this Paragraph
so that Purchaser may conduct such studies, tests, investigations,
inspections and analyses with respect to the Property as Purchaser might
desire, Purchaser acknowledges and confirms that unless Purchaser elects to
terminate this Agreement as provided above, Purchaser shall accept Seller's
conveyance of the Property to Purchaser in "as-is" and "where-is" condition
free of any warranty by Seller except as otherwise expressly provided in
this Agreement and free of any obligation by Seller to perform any repairs
or other improvement work with respect to the Property except as otherwise
expressly provided in this Agreement.
14. NOTICES. All notices, consents, approvals and other
communications which may be or are required to be given by either Seller or
Purchaser under this Agreement shall be properly given only if made in
writing and sent by (a) hand delivery or (b) certified mail, return receipt
requested, or (c) a nationally recognized overnight delivery service (such
as Express Mail, Federal Express, UPS Next Day Air, Purolator Courier or
Airborne Express), or (d) by telecopying to the telecopy number listed
below (provided that a copy of such notice is also delivered within 24
hours to the party by one of the other methods listed herein) with all
postage and delivery charges paid by the sender and addressed to the
Purchaser or Seller, as applicable, as follows, or at such other address as
each may request in writing. Such notices delivered by hand, by telecopy,
or overnight delivery service shall be deemed received on the date of
delivery and, if mailed, shall be deemed received upon the earlier of
actual receipt or two days after mailing. Said notice addresses are as
follows:
If to Seller: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
1999 Avenue of the Stars
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Notices (▇. ▇▇▇▇▇▇▇)
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: 260 Franklin, Inc.
c/o State Board of Administration
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: State Board of Administration
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to: Heitman Capital Management Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ & Bird
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
15. CASUALTY AND CONDEMNATION.
A. CASUALTY. In the event that prior to the Closing Date
any of the Improvements is damaged or destroyed by fire or other casualty,
then Seller shall immediately deliver written notice to Purchaser of such
casualty and the following provisions shall apply with respect to such
casualty:
(i) if such damage or destruction results in a casualty loss
in an amount exceeding One Hundred Thousand Dollars ($100,000.00) (the
"Damage Limit"), Purchaser shall have the right to terminate this Agreement
by written notice to Seller in which event the ▇▇▇▇▇▇▇ Money shall be
promptly refunded to Purchaser and thereafter neither party hereto shall
have any further rights, obligations or liabilities. In the event that
this Agreement is not terminated pursuant to this Subparagraph (i),
Purchaser shall be obligated to close the purchase and sale contemplated by
this Agreement as scheduled without adjustment of the Purchase Price and
Seller shall assign to Purchaser at Closing all insurance proceeds payable
under Seller's insurance policies on account of such damage or destruction
(and co-operate with Purchaser in collecting under such insurance
policies) or pay to Purchaser all such insurance proceeds previously paid
to Seller (unless delivered to the Existing Lender) and Seller shall not
be obligated to repair or restore the Property
(ii) if such damage or destruction results in a casualty loss
in an amount not exceeding the Damage Limit, neither Purchaser nor Seller
shall have such right to terminate this Agreement, and Purchaser and Seller
shall be obligated to close the purchase and sale contemplated by this
Agreement as scheduled without adjustment of the Purchase Price and Seller
shall assign, subject to the rights of the Existing Lender, to Purchaser at
Closing all insurance proceeds payable under Seller's insurance policies on
account of such damage or destruction or pay to Purchaser all such
insurance proceeds previously paid.
B. CONDEMNATION. In the event that prior to the Closing
Date there shall be instituted against the Property any Condemnation
Proceeding, Seller shall immediately give written notice (hereinafter
referred to as "Seller's Condemnation Notice") of such Condemnation
Proceeding to Purchaser, and Purchaser shall have the right to terminate
this Agreement by written notice to Seller , in which event the ▇▇▇▇▇▇▇
Money shall be refunded to Purchaser and thereafter neither party hereto
shall have any further rights, obligations or liabilities hereunder. In
the event that Purchaser shall not elect to terminate this Agreement
pursuant to this paragraph, Purchaser shall be obligated to close the
purchase and sale contemplated hereby as scheduled less the portion of the
Property so taken or subject to said Condemnation Proceeding without
adjustment of the Purchase Price and Seller shall assign or pay to
Purchaser, except to the extent Seller has assigned or delivered same to
the Existing Lender, at Closing all of Seller's right, title and interest
in any award payable on account of such Condemnation Proceeding or pay to
Purchaser all such awards previously paid, except to the extent Seller has
delivered same to the Existing Lender, and Seller shall have no obligation
to repair or restore the Property not so taken by said Condemnation
Proceeding.
16. NO BROKER. Seller and Purchaser each represent and warrant to
the other that neither has employed, retained or consulted any broker,
agent, or finder in carrying on a negotiation in connection with this
Agreement or the purchase and sale referred to herein, and Seller and
Purchaser each hereby agree to pay any and all claims, demands, causes of
action, debts, liabilities, judgments and damages (including costs and
reasonable attorneys' fees incurred in connection with this provision)
which may be asserted or recovered against the second party on account of
any brokerage fee, commission or other compensation arising by reason of
the first party's breach of this representation and warranty. This
Paragraph shall survive the closing or any termination of this Agreement.
17. [INTENTIONALLY OMITTED].
18. DEFAULT.
A. In the event that Purchaser defaults in the observance or
performance of its covenants and obligations hereunder, Seller shall be
entitled to (i) ▇▇▇ Purchaser for specific performance of this Agreement,
or (ii) terminate this Agreement (except to the extent that any right,
obligation or liability set forth herein expressly survives termination of
this Agreement, which Seller shall be entitled to enforce notwithstanding a
termination of this Agreement and a return of the ▇▇▇▇▇▇▇ Money) by written
notice to Purchaser of such termination and receive payment of the ▇▇▇▇▇▇▇
Money as full liquidated damages for such default of Purchaser, the parties
hereto acknowledging the difficulty of ascertaining the actual damages in
the event of such a default, that it is impossible more precisely to
estimate the damages to be suffered by Seller upon Purchaser's default,
that such payment of the ▇▇▇▇▇▇▇ Money is intended not as a penalty, but as
full liquidated damages and that such amount constitutes a reasonable good
faith estimate of the potential damages arising therefrom, it being
otherwise difficult or impossible to estimate Seller's actual damages which
would be suffered by Seller in the event of default by Purchaser. Except
with respect to any right, obligation or liability which survives
termination of this Agreement (as to which Seller shall be entitled to
exercise any and all rights and remedies at law or in equity), the Seller's
right to ▇▇▇ for specific performance or to terminate this Agreement and to
receive payment of the ▇▇▇▇▇▇▇ Money as full liquidated damages are
Seller's sole and exclusive remedies in the event of default hereunder by
Purchaser, and Seller hereby waives, relinquishes and releases any and all
other rights and remedies, including, but not limited to: (1) any right to
▇▇▇ Purchaser for damages or to prove that Seller's actual damages exceed
the ▇▇▇▇▇▇▇ Money which is hereby provided Seller as full liquidated
damages or (2) any other right or remedy which Seller may otherwise have
against Purchaser, either at law, in equity or otherwise; provided,
however, this waiver is not intended to in any way limit Seller's recourse
against Purchaser with respect to the requirements of Purchaser under the
documents delivered at Closing.
B. In the event that Seller defaults in the observance or
performance of its covenants and obligations hereunder, Purchaser shall be
entitled to terminate this Agreement by the delivery to Seller of notice of
such termination and to receive immediate payment of the ▇▇▇▇▇▇▇ Money,
and, if Purchaser has theretofore complied with all of Purchaser's
obligations under this Agreement, Purchaser shall also be entitled, as its
sole and exclusive additional remedy for Seller's failure to make the
conveyances set forth in Paragraph 8 hereof, to ▇▇▇ Seller for specific
performance of such obligation. Purchaser's rights to so terminate this
Agreement, receive payment of the ▇▇▇▇▇▇▇ Money as aforesaid and ▇▇▇ for
specific performance as aforesaid are Purchaser's sole and exclusive
remedies in the event of default hereunder by Seller, and Purchaser hereby
waives, relinquishes and releases any and all other rights and remedies,
including, but not limited to: (1) any right to ▇▇▇ Seller for damages, and
(2) any other right or remedy which Purchaser may otherwise have against
Seller either at law, in equity or otherwise. Purchaser agrees that its
rights hereunder against Seller shall be limited to Seller's interest in
the Property and Seller shall have no personal liability to Purchaser
hereunder beyond Seller's interest in the Property.
19. ASSIGNABILITY OF AGREEMENT. Without the prior written consent
of Seller, Purchaser shall not, voluntarily or by operation of law, sell,
assign, transfer, convey, hypothecate or otherwise assign to any transferee
or transferees all or any part of its rights under this Agreement and any
such attempted assignment shall be void ab initio.
20. GENERAL PROVISIONS.
A. AGREEMENT BINDING. This Agreement shall be binding upon each
party hereto and such party's successors and assigns and shall inure to the
benefit of each party hereto and such party's successors and permitted
assigns.
B. ENTIRE AGREEMENT. This Agreement and all the exhibits
referenced herein and annexed hereto contain the entire agreement of the
parties hereto with respect to the matters contained herein, and no prior
agreement or understanding pertaining to any of the matters connected with
this transaction shall be effective for any purpose. Except as may be
otherwise provided herein, the agreements embodied herein may not be
amended except by an agreement in writing signed by the parties hereto.
C. EXECUTION NECESSARY. This Agreement shall not be binding upon
Seller until fully executed and delivered by a proper official of Seller,
and no action taken by Seller's corporate executives shall be deemed an
acceptance of this Agreement until this Agreement has been so executed by
Seller and delivered to Purchaser.
D. CONFIDENTIALITY. The transaction contemplated by this
Agreement, this Agreement and all documents and information concerning
Seller and the Property furnished to Purchaser in connection with this
Agreement are confidential and will be treated as such by the parties to
this Agreement. Neither Seller nor Purchaser without the consent of the
other shall disclose the transaction contemplated by this Agreement in any
way (except to the extent as may be required by law or as required by the
Title Company). If the purchase and sale of the Property under this
Agreement fails to close for any reason, Purchaser shall immediately return
to Seller all documents, materials and information furnished by Seller to
Purchaser and the provisions of this Paragraph shall survive such failure.
The foregoing shall not prohibit Purchaser or Seller from disclosing the
existence of this Agreement, including any of its terms, to its lawyers,
consultants, engineers, architects, advisors, Existing Lender or any other
parties that Purchaser or Seller reasonably deem necessary in connection
with the proposed purchase and sale of the Property, or to otherwise
prudently proceed to closing, or as otherwise required by law. Neither
party shall issue any press release without the approval of the other
party. This provision shall survive closing.
E. TIME IS OF THE ESSENCE. TIME IS OF THE ESSENCE of the
transaction contemplated by this Agreement.
F. GOVERNING LAW. This Agreement shall be governed by the laws of
the state of Massachusetts.
G. [INTENTIONALLY OMITTED]
H. EXCLUSIVE APPLICATION. Nothing in this Agreement is intended
or shall be construed to confer upon or to give to any person, firm or
corporation other than the Parties hereto any right, remedy or claim under
or by reason of this Agreement. All terms and conditions of this Agreement
shall be for the sole and exclusive benefit of the parties hereto and may
not be assigned.
I. PARTIAL INVALIDITY. If all or any portion of any of the
provisions of this Agreement shall be declared invalid by laws applicable
thereto, then the performance of said offending provision shall be excused
by the parties hereto; provided, however, that, if the performance of such
excused provision materially affects any material aspect of this
transaction, then the party hereto for whose benefit such excused provision
was inserted in this Agreement shall have the right, exercisable by written
notice given to the other party within ten days after such provision is so
declared invalid, to terminate this Agreement; thereupon this Agreement
shall be null and void, and the ▇▇▇▇▇▇▇ Money shall be promptly refunded in
full to Purchaser.
J. INTERPRETATION. The titles, captions and paragraph headings
are inserted for convenience only and are in no way intended to interpret,
define, limit or expand the scope or content of this Agreement or any
provision hereof. If any party to this Agreement is made up of more than
one person or entity, then all such persons and entities shall be included
jointly and severally, even though the defined term for such party is used
in the singular in this Agreement. If any time period under this Agreement
ends on a day other than a Business Day, then the time period shall be
extended until the next business day. This Agreement shall be construed
without regard to any presumption or other rule requiring construction
against the party causing this Agreement to be drafted. If any words or
phrases in this Agreement shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Agreement shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Agreement and no
implication or inference shall be drawn from the fact that said words or
phrases were so stricken out or otherwise eliminated. All references in
this Agreement to "the date of this Agreement" shall be deemed to refer to
that date of acceptance of this Agreement.
K. PURCHASER'S WAIVER RIGHT. The Purchaser reserves the right to
waive, in whole or in part, any provision hereof which is for the benefit
of Purchaser.
L. COUNTERPARTS. This Agreement may be executed in separate
counterparts. It shall be fully executed when each party whose signature
is required has signed at least one counterpart even though no one
counterpart contains the signatures of all of the parties to this
Agreement.
M. NO IMPLIED WAIVER. Unless otherwise expressly provided herein,
no waiver by Seller or Purchaser of any provision hereof shall be deemed to
have been made unless expressed in writing and signed by such party. No
delay or omission in the exercise of any right or remedy accruing to Seller
or Purchaser upon any breach under this Agreement shall impair such right
or remedy or be construed as a waiver of any such breach theretofore or
thereafter occurring. The waiver by Seller or Purchaser of any breach of
any term, covenant or condition herein stated shall not be deemed to be a
waiver of any other breach, or of a subsequent breach of the same or any
other term, covenant or condition herein contained.
N. RIGHTS CUMULATIVE. All rights, powers, options or remedies
afforded to Seller or Purchaser either hereunder or by law shall be
cumulative and not alternative, and the exercise of one right, power,
option or remedy shall not bar other rights, powers, options or remedies
allowed herein or by law, unless expressly provided to the contrary herein.
O. MEMORANDUM OR SHORT FORM OF AGREEMENT. At either party's
request, a memorandum or short form of this Agreement in recordable form
shall be executed and delivered to the other party.
P. EXHIBITS. The exhibits referred to in and attached to this
Agreement are incorporated herein in full by reference.
Q. ATTORNEY'S FEES. Should either party employ an attorney or
attorneys to enforce any of the provisions hereof or to protect its
interest in any manner arising under this Agreement, or to recover damages
for breach of this Agreement, the non-prevailing party in any action
pursued in a court of competent jurisdiction (the finality of which is not
legally contested) agrees to pay to the prevailing party all reasonable
costs, damages and expenses, including attorney's fees, expended or
incurred in connection therewith.
R. LIMITATION ON RIGHTS AND REMEDIES. NOTWITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR IN ANY OTHER AGREEMENT OR
INSTRUMENT ENTERED INTO IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY
THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE AGREEMENTS OR INSTRUMENTS
TO BE ENTERED INTO AT OR IN CONNECTION WITH CLOSING (COLLECTIVELY, THE
"DOCUMENTS"):
1. PURCHASER'S RIGHTS AND REMEDIES IN THE EVENT SELLER FAILS TO
COMPLY WITH ANY OBLIGATION ("OBLIGATION") UNDER ANY DOCUMENT, INCLUDING,
BUT NOT LIMITED TO ANY REPRESENTATION, WARRANTY, COVENANT AND INDEMNITY
(OTHER THAN SELLER'S FAILURE TO MAKE THE CONVEYANCE AT CLOSING SET FORTH IN
PARAGRAPH 8) SHALL BE LIMITED TO THE RIGHT TO TERMINATE THIS AGREEMENT ON
OR BEFORE THE CLOSING DATE.
2. NO OBLIGATION OF SELLER SHALL SURVIVE THE CLOSING (OTHER THAN
THE OBLIGATION TO TURN OVER RENTS RECEIVED).
3. SELLER SHALL NOT BE OBLIGATED TO PERFORM ANY ACT OR EXECUTE ANY
DOCUMENT WHICH REQUIRES INCURRING OUT OF POCKET COSTS (OTHER THAN ITS OWN
LEGAL FEES).
4. SELLER SHALL NOT BE REQUIRED TO CLOSE THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT UNLESS A PARENT OR AFFILIATE OF PURCHASER
SHALL HAVE ACQUIRED FROM EXISTING LENDER (AND GIVEN TO SELLER EVIDENCE
THEREOF REASONABLY SATISFACTORY TO SELLER) ALL RIGHT, TITLE AND INTEREST OF
EXISTING LENDER IN AND TO THE EXISTING LOAN DOCUMENTS, INCLUDING BUT NOT
LIMITED TO ANY RIGHT WHICH EXISTING LENDER MAY HAVE TO ASSERT ANY CLAIM,
ACTION OR CAUSE OF ACTION AGAINST SELLER.
5. THERE SHALL BE NO PRORATIONS OF ANY KIND OR OBLIGATIONS TO PAY
ANY AMOUNTS TO PURCHASER OR ANY OTHER PERSON OR ENTITY, WHETHER OR NOT ANY
SUCH AMOUNTS ARE DELINQUENT, INCLUDING, BUT NOT LIMITED TO TAXES.
PURCHASER ACKNOWLEDGES AND AGREES THAT THE EXISTING LOAN DOCUMENTS IMPOSE
UPON SELLER CERTAIN OBLIGATIONS WITH RESPECT TO PAYMENT OF AVAILABLE CASH
FLOW. THE RIGHTS OF THE HOLDER OF THE EXISTING LOAN DOCUMENTS SHALL BE
LIMITED TO THE EXTENT SET FORTH THEREIN, INCLUDING BUT NOT LIMITED TO
PARAGRAPH 36 OF THE SECURITY AGREEMENT AND MORTGAGE DEEDS DESCRIBED IN
EXHIBIT ___ HERETO.
6. WITHOUT LIMITATION ON THE FOREGOING, BUT IN ADDITION THERETO,
NEITHER SELLER NOR ANY PRESENT OR FUTURE ADVISOR, TRUSTEE, DIRECTOR,
OFFICER, EMPLOYEE, BENEFICIARY, SHAREHOLDER, PARTICIPANT, DIRECT OR
INDIRECT PARTNER OR AGENT OF SELLER, OR ANY OTHER PERSON OR ENTITY, SHALL
HAVE ANY PERSONAL LIABILITY, DIRECTLY OR INDIRECTLY, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY INSTRUMENT OR AGREEMENTS ENTERED INTO IN
CONNECTION HEREWITH; AND PURCHASER AND ITS SUCCESSORS AND ASSIGNS, AND,
WITHOUT LIMITATION, ALL OTHER PERSONS, AND ENTITIES SHALL LOOK SOLELY TO
SELLER'S INTEREST IN THE PROPERTY FOR THE PAYMENT OF ANY CLAIM OR FOR ANY
PERFORMANCE; AND PURCHASER HEREBY WAIVES ANY AND ALL SUCH PERSONAL
LIABILITY. THE LIMITATIONS OF LIABILITY APPLICABLE TO SELLER ARE IN
ADDITION TO, AND NOT IN LIMITATION OF, ANY LIMITATION OF LIABILITY PROVIDED
BY LAW OR BY ANY OTHER CONTRACT, AGREEMENT OR INSTRUMENT.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement
under seal as of the day and year first above written.
SELLER:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates Trust,
a Massachusetts business trust
By:
------------------------------
not personally but solely as Trustee of
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates Trust
as aforesaid for self and co-trustees
PURCHASER:
260 Franklin, Inc., a Florida Corporation
By:
------------------------------
Title:
------------------------------
(CORPORATE SEAL)