PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "AGREEMENT"), dated as of the 14th day
of June, 2000, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee
and not individually, for GOVERNMENT CENTER GARAGE REALTY TRUST, a Massachusetts
nominee trust, acting for GCGA Limited Partnership, a Massachusetts Limited
Partnership and the sole beneficiary of the Seller, having an office c/o ▇▇▇▇
▇▇▇▇▇▇ Realty Inc., Two World Trade Center, 64th Floor, New York, New York 10048
(the "SELLER"), and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ JV LLC, a Delaware limited liability
company, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "PURCHASER").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property known as "The
Government Center Garage", or "One Congress Street", which is located in Boston,
Massachusetts;
WHEREAS, the Seller and the Purchaser have entered into negotiations
wherein the Purchaser expressed its intent to purchase the Property (as defined
herein) from the Seller and the Seller expressed its intent to sell the Property
to the Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to enter into an
agreement whereby, subject to the terms and conditions contained herein, the
Seller shall sell the Property to the Purchaser and the Purchaser shall purchase
the Property from the Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars and the mutual
covenants and agreements hereinafter set forth, and intending to be legally
bound hereby, it is hereby agreed as follows:
1. Sale of the Property. The Seller agrees to sell and convey to the
Purchaser, and the Purchaser agrees to purchase from the Seller, at the price
and upon the terms and conditions set forth in this Agreement, all those certain
plots, pieces and parcels of land described in SCHEDULE 1 hereto (the "LAND")
listed thereon as owned by the Seller, together with (i) all buildings and other
improvements situated on the Land (collectively, the "BUILDINGS"), (ii) all
easements, rights of way, reservations, privileges, appurtenances, and other
estates and rights of the Seller pertaining to the Land and the Buildings and
all licenses and permits pertaining thereto held by the Seller (to the extent
the same are transferable), (iii) all right, title and interest of the Seller in
and to all fixtures, machinery, equipment, supplies and other articles of
personal property attached or appurtenant to the Land or the Buildings, or used
in connection therewith (collectively, the "PERSONAL PROPERTY"), and (iv) all
right, title and interest of the Seller, if any, in and to the trade names of
the Buildings (the Land, together with all of the foregoing items listed in
clauses (i)-(iv) above being hereinafter sometimes referred to as the
"PROPERTY").
1.1. EXCLUDED PROPERTY. Specifically excluded from the Property and
this sale are all items of personal property not described in Section 1
(and all personal property of tenants under the Leases) and the items
described in SCHEDULE 2 annexed hereto and made a part hereof.
1.2. CLOSING DATE. The delivery of the Deed and the consummation of
the transactions contemplated by this Agreement (the "CLOSING") shall take
place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, at 10:00 A.M. on (i) the date which is fifteen (15) days
after the end of the Due Diligence Period or such earlier or later date as
the Seller and Purchaser may agree in writing, or (ii) at the option of
the Purchaser upon payment by the Purchaser of the Contract Extension
Deposit (pursuant to and as defined in Section 2(c) below), the date which
is thirty (30) days after the end of the Due Diligence Period, unless
either such day is not a day on which the Registry of Deeds and the
Suffolk Registry District of the Land Court of Suffolk County,
Massachusetts is open for business, in which case, the Closing shall take
place on the next day on which such offices are open (the "CLOSING DATE").
2. Purchase Price. The purchase price to be paid by the Purchaser to the
Seller for the Property (the "PURCHASE PRICE") shall be $121,000,000, unless the
Purchaser shall have delivered to the Seller an Early Closing Notice pursuant to
Section 4 hereof, in which case the Purchase Price shall be that price which is
listed on SCHEDULE 3 hereof for the date of such Early Closing Notice. The
Purchase Price shall be payable as follows:
(a) Initial Contract Deposit. Five Hundred Thousand Dollars
($500,000.00) (the "INITIAL CONTRACT DEPOSIT") shall be
payable simultaneously with the execution and delivery
of this Agreement, by delivery to First American Title
Insurance Company (the "ESCROW AGENT") of a certified or
bank check drawn on or by a bank which is a member of
the New York Clearing House Association (a "CLEARING
HOUSE BANK") or by wire transfer of immediately
available funds to the Escrow Agent's account as set
forth in the Escrow
(b) Agreement. The Initial Contract Deposit shall be held
and disbursed by the Escrow Agent in accordance with the
terms of Section 15. At the Closing, the Initial
Contract Deposit, along with interest accrued thereon,
shall be
(c) delivered to the Seller and such amount shall be
credited against the portion of the Purchase Price
payable pursuant to Section 2(c);
(b) Contract Extension Deposit. An additional Two Hundred and
Fifty Thousand Dollars ($250,000.00) (the "CONTRACT EXTENSION DEPOSIT")
shall be payable simultaneously with the request for an extension of the
Closing Date pursuant to Section 1.2(ii), by delivery to the Escrow Agent
of a certified or bank check drawn on or by a Clearing House Bank or by
wire transfer of immediately available funds to the Escrow Agent's account
as set forth in the Escrow Agreement. The Contract Extension Deposit shall
be held and disbursed by the Escrow Agent in accordance with the terms of
Section 15. At the Closing, the Contract Extension Deposit, along with
interest accrued thereon, shall be delivered to the Seller and such amount
shall be credited against the portion of the Purchase Price payable
pursuant to Section 2(d);
(c) Additional Contract Deposit. An additional deposit, which
amount shall be determined in accordance with the schedule set forth in
SCHEDULE 3 (the "ADDITIONAL CONTRACT DEPOSIT") shall be payable no later
than one (1) business day after the expiration or early termination of
the Due Diligence Period pursuant to Section 4 hereof, by delivery to the
Escrow Agent of a certified or bank check drawn on or by a Clearing House
Bank or by wire transfer of immediately available funds to the Escrow
Agent's account as set forth in the Escrow Agreement. The Additional
Contract Deposit shall be held and disbursed by the Escrow Agent in
accordance with the terms of Section 15. At the Closing, the Additional
Contract Deposit, along with interest accrued thereon, shall be delivered
to the Seller and such amount shall be credited against the portion of the
Purchase Price payable pursuant to Section 2(d);
(d) Balance of the Purchase Price. The balance of the Purchase Price
(i.e., the Purchase Price minus the Deposit), plus or minus the
apportionments set forth in Section 3, shall be paid at the Closing by
bank wire transfer of immediately available funds to the Seller's account
or to the account or accounts of such other party or parties as may be
designated by the Seller on or before the Closing Date.
3. Apportionments The following shall be apportioned between the
Seller and the Purchaser at the Closing as of 11:59 p.m. of the day preceding
the Closing Date (the "ADJUSTMENT DATE"):
(a) for all Leases, fixed or base rents ("RENTS") which have been
prepaid, Rents received by Seller for the month in which the Closing
occurs and Additional Rents and other amounts paid by tenants applicable
to periods which expire after the Closing Date, which have been received
by Seller;
(b) real estate taxes, special assessments (but only any installment
relating to the period in which the Adjustment Date occurs), water
charges, sewer rents and charges and vault charges, if any, on the basis
of the fiscal years (or applicable billing period if other than a fiscal
year), respectively, for which same have been assessed;
(c) value of prepaid fuel belonging to the Seller stored on the
Property, at the Seller's cost, including any taxes, on the basis of a
statement from the Seller's suppliers;
(d) charges and payments under Contracts that are being assigned to
the Purchaser pursuant to the terms of this Agreement and listed on
SCHEDULE 4 hereto or permitted renewals or replacements thereof and
interest payments under the Garage Tenant Note;
(e) utilities, to the extent required by Section 3.4;
(f) deposits with telephone and other utility companies, and any
other persons or entities who supply goods or services in connection with
the Property if same are assigned to the Purchaser at the Closing;
(g) personal property taxes on the Personal Property, if any, on the
basis of the fiscal year for which assessed;
(h) all other revenues from the operation of the Property collected
by the Seller other than Rents and Additional Rents (including, without
limitation, parking charges, tenant direct electrical reimbursements, HVAC
overtime charges, and telephone booth and vending machine revenues);
(i) New Lease Expenses as provided in Section 10.1.2 and Section
10.1.3; and
(j) such other items as are customarily apportioned between sellers
and purchasers of real properties of a type similar to the Property and
located in Boston, Massachusetts.
3.1. TAXES. If the amount of real estate taxes, special assessments
or other taxes for the Property for the fiscal year during which Closing
occurs is not finally determined at the Adjustment Date, such taxes shall
be apportioned on the basis of the full amount of the assessment for such
period (or the assessment for the prior tax period if the assessment for
the current tax period is not then known) and the rate for the immediately
prior tax year, and shall be reapportioned as soon as the new tax rate and
valuation, if any, has been finally determined. If any taxes which have
been apportioned shall subsequently be reduced by abatement, the amount of
such abatement, less the cost of obtaining the same and after deduction of
sums payable to tenants under Leases or expired or terminated Leases,
shall be equitably apportioned between the parties hereto.
The Seller has advised the Purchaser that tax abatement proceedings
are currently pending for the tax years 1997, 1998 and 1999 and that it
intends to file such abatement proceedings for the tax year 2000. The
Seller will make reasonable efforts to settle such proceedings on or
before March 31, 2001. If and to the extent Seller shall receive any
refund of any taxes which are the subject of such proceedings, the Seller
shall promptly remit to any present or former tenants who are entitled to
the same each such tenant's share of any such refund. The provisions of
this Section 3.1 will survive the Closing.
3.2. RENTS.
3.2.1. ARREARAGES. If on the Closing Date any tenant is in
arrears in the payment of Rent or has not paid the Rent payable by
it for the month in which the Closing occurs (whether or not it is
in arrears for such month on the Closing Date), any Rents received
by the Purchaser or the Seller from such tenant after the Closing
shall be applied to amounts due and payable by such tenant during
the following periods in the following order of priority: (i) first,
to the then current month in which the payment was received if Rent
is due and owing for such month, (ii) second, to the months in which
any arrearages exist, paying off the most recent arrears first. If
Rents or any portion thereof received by the Seller or the Purchaser
after the Closing are due and payable to the other party by reason
of this allocation, the appropriate sum, less a proportionate share
of any reasonable attorneys' fees and costs and expenses expended
in connection with the collection thereof, shall be promptly paid to
the other party (to the extent not collected from or reimbursed by
tenants).
3.2.2. ADDITIONAL RENTS. If any tenants are required to pay
percentage rent, escalation charges for real estate taxes, parking
charges, operating expenses and maintenance escalation charges,
cost-of-living increases or other charges of a similar nature
("ADDITIONAL RENTS") and any Additional Rents are collected by the
Purchaser from a tenant after the Closing Date, then the Purchaser
shall promptly apply such sums received from such tenant during the
following periods in the following order of priority: (i) first, to
the then current month in which the payment was received if
Additional Rent is due and owing for such month, (ii) second, to the
months in which any arrearages exist, paying off the most recent
arrears first. If Additional Rents or any portion thereof received
by the Seller or the Purchaser after the Closing are due and payable
to the other party by reason of this allocation, the appropriate
sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection
thereof, shall be promptly paid to the other party (to the extent
not collected from or reimbursed by tenants). At the Closing, Seller
shall deliver to Purchaser a list of Additional Rent billed to
tenants for the calendar year in which the Closing occurs (both on a
monthly basis and in the aggregate), the basis for which the monthly
amounts are being billed and the amounts incurred by Seller on
account of the components of Additional Rent for such calendar year.
Upon the reconciliation by Purchaser of the Additional Rents billed
to Tenants, and the amounts actually incurred for such calendar
year, Seller and Purchaser shall be liable for overpayments of
Additional Rents, and shall be entitled to payments from Tenants, as
the case may be, on a pro-rata basis based upon each party's period
of ownership during such calendar year. To the extent Seller is
liable for an overpayment, it shall make such overpayment to
Purchaser within thirty (30) days after request, for further
distribution by Purchaser to the tenants, as applicable.
3.2.3. COLLECTION AFTER THE CLOSING. After the Closing,
the Seller shall continue to have the right, in its own name, to
demand payment of and to collect Rent and Additional Rent arrearages
owed to the Seller by any tenant, which right shall include, without
limitation, the right to continue or commence legal actions or
proceedings against any tenant other than legal actions or
proceedings against a Government Tenant for any reason other than
nonpayment of Rent. The Purchaser agrees to cooperate with the
Seller, at the Seller's sole cost and expense, in connection with
all efforts by the Seller to collect such Rents and Additional Rents
and to take all steps, whether before or after the Closing Date, as
may be reasonably necessary to carry out the intention of
the foregoing, including, without limitation, the
delivery to the Seller, upon demand, of any relevant books and
records (including any Rent or Additional Rent statements, receipted
bills and copies of tenant checks used in payment of such Rent or
Additional Rent), the execution of any and all consents or other
documents, and the undertaking of any act reasonably necessary for
the collection of such Rents and Additional Rents by the Seller;
provided however, that the Purchaser shall not be required to join
in any legal action against any tenant. If for any fiscal period
which includes the Adjustment Date tenants are paying Additional
Rent based upon estimates prepared by the Seller, such Additional
Rents shall be reapportioned when the actual expenses for the fiscal
period are known.
3.3. WATER. If there is a water meter on the Property, the Seller
shall furnish a reading to a date not more than ten (10) days prior to the
Closing Date, and the unfixed water charges and sewer rent, if any, based
thereon for the intervening time shall be apportioned on the basis of such
last reading.
3.4. UTILITIES. The Seller will attempt to obtain final cut-off
readings of fuel, telephone, electricity, and gas to be made as of the
Adjustment Date. The Seller shall pay the bills based on such readings
promptly after the same are rendered. If arrangements cannot be made for
any such cut-off reading, the parties shall apportion the charges for such
services on the basis of the ▇▇▇▇ therefor for the most recent billing
period prior to the Adjustment Date, and when final bills are rendered for
the period which includes the Adjustment Date the Seller and Purchaser
shall promptly readjust the apportionments in accordance with such final
bills.
3.5. POST-CLOSING ADJUSTMENTS. The items set forth in this Section 3
shall be apportioned at the Closing by payment of the net amount of such
apportionments to the Seller in the manner set forth herein for the
payment of the Purchase Price if the net apportionment is in favor of the
Seller or by a credit against the Purchase Price if the net apportionment
is in favor of the Purchaser. However, if any of the items subject to
apportionment under the foregoing provisions of this Section 3 cannot be
apportioned at the Closing because of the unavailability of the
information necessary to compute such apportionment, or if any errors or
omissions in computing apportionments at the Closing are discovered
subsequent to the Closing, then such item shall be reapportioned and such
errors and omissions corrected as soon as practicable after the Closing
Date and the proper party reimbursed, which obligation shall survive the
Closing for a period of one year after the Closing Date. Notwithstanding
any of the foregoing provisions of this Section 3.5 to the contrary, the
Purchaser and the Seller agree that the one year limitation set forth in
this Section 3.5 shall not apply to the parties' obligations under
Sections 3.1 and 3.2 and that such obligations shall survive the Closing
forever.
4. Due Diligence Period. Subject to the third sentence of this paragraph,
the Purchaser shall have a sixty (60) day period commencing on the date hereof
(the "DUE DILIGENCE PERIOD") to examine title to the Property, to inspect the
physical and financial condition of the Property and to review the Property
Information. Included in the Property Information which is to be provided to
Purchaser or otherwise made available by Seller for review by Purchaser, upon
execution hereof or promptly following request therefor by Purchaser, are the
following: leases, lease files (including correspondence), maintenance logs,
financial books and records (excluding financial information of the
Seller-entity, as opposed to the Property, any appraisals received by Seller and
internal memoranda regarding Seller's partnership matters, as opposed to matters
relating to the Property), contracts, plans and specifications, engineering
reports, construction contracts, environmental reports, permits, licenses and
approvals, bills, escalation calculations, operating statements, operating and
capital budgets, to the extent that the same are in the possession of the Seller
or the Property Manager and located at the office of the Property Manager in
Boston or Maryland. The Purchaser may at its option elect to terminate the Due
Diligence Period at any time on or after the forty-fifth (45th) day thereof,
upon written notice (the "EARLY CLOSING NOTICE") of such election to the Seller
and payment to the Seller of the Additional Contract Deposit as determined in
accordance with Schedule 3 hereof.
4.1. ACCESS TO THE PROPERTY. During the Due Diligence Period, the
Purchaser and the Purchaser's Representatives shall have the right to
enter upon the Property for the sole purpose of inspecting the Property
and making surveys, soil borings, engineering tests and other
investigations, inspections and tests (collectively, "INVESTIGATIONS"),
provided (i) the Purchaser shall give the Seller not less than one (1)
business days' prior written notice before each entry, (ii) the first such
notice shall include sufficient information to permit the Seller to review
the scope of the proposed Investigations, and (iii) neither the Purchaser
nor the Purchaser's Representatives shall permit any borings, drillings or
samplings to be done on the Property without the Seller's prior written
consent, which consent shall not be unreasonably withheld or delayed. Any
entry upon the Property and all Investigations shall be during the
Seller's normal business hours or at such other time or times as may be
reasonably acceptable to Seller and at the sole risk and expense of the
Purchaser and the Purchaser's Representatives, and shall not unreasonably
interfere with the activities on or about the Property of the Seller, its
tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from
any such Investigations and replace, refill and regrade any holes
made in, or excavations of, any portion of the Property used for
such Investigations so that the Property shall be in the same
condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the
Investigations and all other activities undertaken in connection
therewith;
(c) permit the Seller to have a representative present during
all Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary
to ensure that all actions taken in connection with the
Investigations, and the equipment, materials, and substances
generated, used or brought onto the Property pose no threat to the
safety or health of persons or the environment, and cause no undue
damage to the Property or other property of the Seller or other
persons;
(e) maintain or cause to be maintained, at the Purchaser's
expense, a policy of comprehensive general public liability
insurance with a combined single limit of not less than $1,000,000
per occurrence for bodily injury and property damage, automobile
liability coverage including owned and hired vehicles with a
combined single limit of $1,000,000 per occurrence for bodily injury
and property damage, and an excess umbrella liability policy for
bodily injury and property damage in the minimum amount of
$3,000,000, insuring the Purchaser and the Seller and certain of
Seller's Affiliates listed on SCHEDULE 5, as additional insureds,
against any injuries or damages to persons or property that may
result from or are related to (i) the Purchaser's and/or the
Purchaser's Representatives' entry upon the Property, (ii) any
Investigations or other activities conducted thereon, and (iii) any
and all other activities undertaken by the Purchaser and/or the
Purchaser's Representatives in connection with the Property, and
deliver evidence of such insurance policy to the Seller at the
earlier of ten (10) days after the date of this Agreement or the
first entry on the Property;
(f) indemnify the Seller and the Seller's Affiliates and hold
the Seller and the Seller's Affiliates harmless from and against any
and all claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including without limitation
reasonable attorneys' fees and disbursements) (a "Loss"), suffered
or incurred by the Seller or any of the Seller's Affiliates and
arising out of or in connection with (i) the Purchaser and/or the
Purchaser's Representatives' entry upon the Property, and (ii) any
investigations or other activities conducted thereon by the
Purchaser or the Purchaser's Representatives except to the extent
such Loss results from a condition existing at the Property prior to
the time of such investigations or other activities; and
(g) not, at any time, contact or communicate with any tenant
of the Property for any reason whatsoever without having first
afforded to Seller an opportunity to contact such tenant in order to
notify such tenant that Purchaser wishes to communicate with such
tenant and to set up an appointment for same. Seller or its designee
shall have the right to be present at or otherwise participate in
such meetings.
The provisions of this Section 4.1 (other than Section 4.1(g)) shall
survive the termination of this Agreement and the Closing.
4.2. PURCHASER'S TERMINATION NOTICE. Subject to the provisions of
the last paragraph of this Section 4.2, the Purchaser shall have the right
to elect to terminate this Agreement for any reason or for no reason, in
its sole and absolute discretion by giving written notice (the
"PURCHASER'S TERMINATION NOTICE") of such election to the Seller at any
time prior to the expiration of the Due Diligence Period.
If for any reason whatsoever the Purchaser shall not have given the
Purchaser's Termination Notice prior to the expiration of the Due
Diligence Period, the Purchaser shall be deemed to have irrevocably waived
the right of termination granted under this Section 4.2, and such right of
termination shall be of no further force or effect.
4.3. ESTOPPEL CERTIFICATES. Promptly after execution and delivery of
this Agreement, the Seller agrees to use commercially reasonable efforts
to obtain Estoppel Certificates from each tenant under a Lease, but in no
event shall it be deemed to be an obligation of the Seller under this
Agreement to obtain executed Estoppel Certificates except for Estoppel
Certificates from the Garage Tenant and the Government Tenants. In order
to satisfy the requirements hereof, all Estoppel Certificates shall
disclose no (i) information which is inconsistent with the information
contained in Schedule 8, nor (ii) any modifications to such Estoppel
Certificates which are otherwise unacceptable to Purchaser in Purchaser's
reasonable judgment. The Estoppel Certificates shall be in the form
annexed hereto as EXHIBIT H and made a part hereof; provided, however, if
any tenant is required or permitted under its Lease to make different
statements in a certificate of such nature than are set forth in EXHIBIT
H, after requesting an Estoppel Certificate from such tenant in the form
of EXHIBIT H, the Seller may modify the Estoppel Certificate for such
tenant to set forth only the statements required under such tenant's Lease
to be made by such tenant in such a certificate. All Estoppel Certificates
received from tenants will be delivered to Purchaser promptly following
receipt by Seller. If any tenant other than a Government Tenant or the
Garage Tenant fails to deliver an Estoppel Certificate in the form
required by this Agreement, Seller shall have the right to substitute in
lieu thereof an estoppel certificate substantially in such form executed
by Seller and such estoppel certificate shall be treated for all purposes
as an Estoppel Certificate from such failing tenant.
5. Title. The Seller shall convey and the Purchaser shall accept title to
the Property subject to those matters set forth on SCHEDULE 6 hereto
(collectively the "PERMITTED ENCUMBRANCES"). The Seller is in possession of (i)
a specimen policy for an owner's fee title insurance policy with respect to the
Property (the "SPECIMEN POLICY") from First American Title Insurance Company
(the "TITLE COMPANY"), together with true and complete copies of all instruments
giving rise to any defects or exceptions to title to the Property, and (ii) an
as-built survey ("SURVEY") entitled Plan of Land Government Center Parking
Garage, Boston, Mass. and dated September 16, 1998. On the Closing Date,
Purchaser will obtain, at Purchaser's expense, a policy of title insurance (the
"TITLE POLICY") from the Title Company in form contemplated by the Specimen
Policy. The Seller shall deliver to the Purchaser, at the Seller's expense,
within thirty (30) days after the execution of this Agreement an update to the
Survey (the "UPDATED SURVEY") certified to the parties designated by the
Purchaser.
5.1. UNACCEPTABLE ENCUMBRANCES. If the Title Policy or the Updated
Survey indicate the existence of any liens or encumbrances (collectively,
"LIENS") or other defects or exceptions in or to title to the Property
other than the Permitted Encumbrances (collectively, the "UNACCEPTABLE
ENCUMBRANCES") subject to which the Purchaser is unwilling to accept title
and the Purchaser gives the Seller notice of the same on or prior to the
Closing Date, the Seller shall undertake to eliminate the same (or to
arrange for title insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the same out of, the
Property, which additional title insurance shall be obtained at the sole
cost and expense of the Seller and shall, if it is in the form of
affirmative insurance rather than an elimination of reference to the
Unacceptable Encumbrances in the Title Policy, be in form and substance
satisfactory to Purchaser in its sole discretion) subject to Section 5.2.
The Seller may adjourn the Closing one or more times for up to thirty (30)
days in the aggregate in order to eliminate Unacceptable Encumbrances,
subject to the consent of the Purchaser.
5.2. REMOVAL OF UNACCEPTABLE ENCUMBRANCES. The Seller shall not be
obligated to bring any action or proceeding, to make any payments or
otherwise to incur any expense in order to eliminate Unacceptable
Encumbrances not waived by the Purchaser or to arrange for title insurance
insuring against enforcement of such Unacceptable Encumbrances against,
or collection of the same out of, the Property; except that the Seller
shall satisfy Unacceptable Encumbrances which are (i) mortgages and past
due real estate taxes and assessments secured by or affecting the Property
and any other Liens placed on the Property with the Seller's consent, and
(ii) judgments against the Seller or other Liens secured by or affecting
the Property which judgments and other Liens can be satisfied by payment
of liquidated amounts not to exceed $120,000 in the aggregate for all such
judgments and other Liens. The Seller may eliminate any such Unacceptable
Encumbrance by the payment of amounts necessary to cause the removal
thereof of record, by bonding over such Unacceptable Encumbrance in a
manner reasonably satisfactory to the Purchaser or by arranging for title
insurance at the sole cost and expense of the Seller which, if it is in
the form of affirmative insurance rather than an elimination of reference
to the Unacceptable Encumbrances in the Title Policy, be in form and
substance satisfactory to Purchaser in its sole discretion.
5.3. OPTIONS UPON FAILURE TO REMOVE UNACCEPTABLE LIENS. If the
Seller is unable to eliminate all Unacceptable Encumbrances not waived by
the Purchaser after having made the efforts to eliminate the Unacceptable
Encumbrances required by Section 5.2, or to bond over or arrange for title
insurance with respect to such Unacceptable Encumbrances as
provided by Section 5.2, and to convey title in accordance with the terms
of this Agreement on or before the Closing Date (whether or not the
Closing is adjourned as provided in Section 5.1), the Purchaser shall
elect on the Closing Date, as its sole remedy for such inability of the
Seller, either (i) to terminate this Agreement by notice given to the
Seller pursuant to Section 14.1, in which event the provisions of Section
14.1 shall apply, or (ii) to accept title subject to such Unacceptable
Encumbrances and receive no credit against, or reduction of, the Purchase
Price.
5.4. USE OF PURCHASE PRICE. If on the Closing Date there may be any
Liens or other encumbrances which the Seller must pay or discharge in
order to convey to the Purchaser such title as is herein provided to be
conveyed, the Seller may use any portion of the Purchase Price to satisfy
the same, provided:
(a) the Seller shall deliver to the Purchaser or the Title
Company, at the Closing, instruments in recordable form and
sufficient to satisfy such Liens or other encumbrances of record
together with the cost of recording or filing said instruments; or
(b) the Seller, having made arrangements with the Title
Company, shall deposit with said company sufficient moneys
acceptable to said company to insure the obtaining and the recording
of such satisfactions.
5.5. TRANSFER TAXES; TITLE INSURANCE PREMIUMS. At the Closing, the
Seller shall pay all transfer taxes (the "TRANSFER TAX PAYMENTS") imposed
pursuant to the Laws of the Commonwealth of Massachusetts in respect of
the transactions contemplated by this Agreement by delivery to the Title
Company of sufficient funds to pay such taxes. At the Closing, the
premiums due the Title Company to obtain title insurance policies in the
form contemplated by the Specimen Policy (as the same may be amended
pursuant to this Agreement), the cost of obtaining the survey and other
Closing-related expenses shall be paid in the manner set forth on SCHEDULE
7 hereto.
Representations and Warranties of the Seller. The Seller represents and warrants
to the Purchaser as follows:
(a) The Seller is a duly formed and validly existing nominee
trust organized under the laws of the Commonwealth of Massachusetts and is
qualified under the laws of the Commonwealth of Massachusetts to conduct
business therein.
(b) The Seller has the full, legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to
be executed by the Seller pursuant to this Agreement (collectively, the
"SELLER'S DOCUMENTS"), to consummate the transaction contemplated hereby,
and to perform its obligations hereunder and under the Seller's Documents
and all of the foregoing have been duly authorized and directed by the
beneficiaries of the Seller.
(c) This Agreement and the Seller's Documents do not and will
not contravene any provision of the trust indenture of the Seller, any
judgment, order, decree, writ or injunction issued against the Seller, or,
to the Seller's actual knowledge, any provision of any laws or
governmental ordinances, rules, regulations, orders or requirements
(collectively, the "LAWS") applicable to the Seller. The consummation of
the transactions contemplated hereby will not result in a breach or
constitute a default or event of default by the Seller under any agreement
to which the Seller or any of its assets are subject or bound and will not
result in a violation of any Laws applicable to the Seller.
(d) There are no leases, licenses or other occupancy agreements
affecting any portion of the Property (collectively, the "LEASES") on the
date hereof, except for the Leases listed in SCHEDULE 8 annexed hereto and
made a part hereof. The copies of the Leases furnished by the Seller to
the Purchaser are true, correct and complete, and to the Seller's
knowledge, all of the Leases are in full force and effect. Except as
listed on SCHEDULE 8, the Seller has not given or received any notice of
default which remains uncured or unsatisfied. To the Seller's knowledge,
as of the date hereof, there are no current defaults with respect to any
of the Leases, except as listed on SCHEDULE 8. Except as listed on
SCHEDULE 8, there are (i) no brokerage commissions, with respect to any of
the Leases or any extensions thereof, and (ii) no outstanding obligations
with respect to tenant improvements made or to be made by the landlord
under any of the Leases or other work done or to be done by the landlord
under any of the Leases.
(e) To the Seller's actual knowledge, there are no pending
actions, suits, proceedings or investigations to which the Seller is a
party before any court or other governmental authority with respect to the
Property owned by the Seller except as set forth on SCHEDULE 9 hereto.
Except as set forth on SCHEDULE 9, in the period from October 27, 1997
through the date hereof, the Seller has not received any written notice
from any governmental authority of any violation of law (other than an
Applicable Environmental Law) relating to the Property.
(f) Except as disclosed on SCHEDULE 10 hereto, since October 27,
1997, (i) neither the Seller nor, to the Seller's actual knowledge, any
third party has engaged in the generation, use, manufacture, treatment,
storage or disposal of any Hazardous Substance (as hereinafter
defined) on the Property in violation of Applicable Environmental Law (as
hereinafter defined), and (ii) neither the Seller nor, to the Seller's
actual knowledge, any third party has received any written notice from any
governmental authority having jurisdiction over the Property of any
violation of Applicable Environmental Law with respect to the Property
which requires corrective action. Disclosure of any matter on SCHEDULE 10
hereto shall not constitute any admission by Seller that such matter was
material or a violation of Applicable Environmental Law. As used in this
Agreement, the term "HAZARDOUS SUBSTANCE" shall mean any substance,
chemical or waste that is currently listed as hazardous, toxic or
dangerous under Applicable Environmental Law. As used in this Agreement,
the term "APPLICABLE ENVIRONMENTAL LAW" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42
U.S.C. ▇▇.▇▇. 9601 et seq.; the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. ▇▇.▇▇. 6901, et seq.; the Water Pollution Control Act,
33 U.S.C. ▇▇.▇▇. 1251 et seq.; the Clean Air Act, 42 U.S.C. ▇▇.▇▇. 7401 et
seq.; and the Toxic Substances Control Act, 15 U.S.C. ▇▇.▇▇. 2601 et seq.;
as the foregoing have been amended from time to time to the date of this
Agreement; and any similar state and local laws and ordinances and the
regulations implementing such statutes in effect on the date hereof
imposing liability or establishing standards of conduct for
environmental protection.
(g) The list of Contracts provided on SCHEDULE 4 hereto is true,
correct and complete. Except as set forth on SCHEDULE 4, to the Seller's
actual knowledge there are no material defaults under any of the Contracts
to be assumed by the Purchaser. Any management, leasing and/or brokerage
agreements affecting the Property shall be terminated at Closing. On or
prior to the date of this Agreement, Seller has elected and has directed
the contractor under the Repairs Contract to proceed with all of
Alternatives A, B and C pursuant to Article II of the Repairs Contract.
Attached hereto as EXHIBIT N is a true and correct copy of that certain
Promissory Note issued by the Seller to the Garage Tenant, dated as of
November 1, 1983, in the stated principal amount of $3,000,000 (the
"GARAGE TENANT NOTE"), all obligations under which shall be assigned by
the Seller to the Purchaser pursuant to the Assignment and Assumption of
Contracts and License, attached hereto as EXHIBIT D, as of Closing. The
Seller has not given or received any notice of default which remains
uncured or unsatisfied under the Garage Tenant Note. To the Seller's
knowledge, as of the date hereof, there are no current defaults with
respect to the Garage Tenant Note. Interest under the Garage Tenant Note
has been paid through the June 30, 2000. The current principal balance of
the Garage Tenant Note as of June 30, 2000 is $2,331,140.
5.6. SURVIVAL OF REPRESENTATIONS. The representations and warranties
of the Seller set forth in this Section 6 (i) shall be true, accurate and
correct in all material respects upon the execution of this Agreement and
shall be deemed to be repeated on and as of the Closing Date (except as
they relate only to an earlier date), and (ii) shall remain operative and
shall survive the Closing and the execution and delivery of the Deed for a
period of nine (9) months following the Closing Date and then shall
expire, and no action or claim based thereon shall be commenced after such
period.
5.7. DISCOVERY OF UNTRUE REPRESENTATION. If at or prior to the
Closing, (i) the Purchaser shall become aware that any of the
representations or warranties made herein by the Seller is untrue,
inaccurate or incorrect in any material respect and shall give the Seller
notice thereof at or prior to the Closing, or (ii) the Seller shall notify
the Purchaser that a representation or warranty made herein by the Seller
is untrue, inaccurate or incorrect, then the Seller may, in its sole
discretion, elect by notice to the Purchaser to adjourn the Closing one or
more times for up to thirty (30) days in the aggregate in order to cure or
correct such untrue, inaccurate or incorrect representation or warranty.
If any such representation or warranty is not cured or corrected by the
Seller on or before the Closing Date (whether or not the Closing is
adjourned as provided above), then the Purchaser, as its sole remedy for
such inability of Seller, shall elect either (i) to waive such
misrepresentations or breaches of warranties and consummate the
transactions contemplated hereby without any reduction of or credit
against the Purchase Price, or (ii) to terminate this Agreement by notice
given to Seller pursuant to the provisions of Section 14.1. In the event
the Closing occurs, the Purchaser hereby expressly waives, relinquishes
and releases any right or remedy available to it at law, in equity or
under this Agreement to make a claim against the Seller for damages that
the Purchaser may incur, or to rescind this Agreement and the transactions
contemplated hereby, as the result of any of the Seller's representations
or warranties being untrue, inaccurate or incorrect if the Purchaser
actually knew that such representation or warranty was untrue, inaccurate
or incorrect at the time of the Closing and the Purchaser nevertheless
closes title hereunder.
5.8. LIMITED NATURE OF REPRESENTATIONS. The Purchaser acknowledges
that neither the Seller nor any of the Seller's Affiliates, nor any of
their agents or representatives, nor Broker has made any representations
or held out any inducements to the Purchaser other than those specifically
set forth in this Agreement. As of the Closing (and not as of the date
hereof), the Purchaser acknowledges that the Seller, pursuant to the terms
of this Agreement, has afforded the Purchaser the opportunity for full and
complete investigations, examinations and inspections of the Property and
all Property Information. The Purchaser acknowledges and agrees that (i)
the Property Information delivered or made available to the Purchaser and
the Purchaser's Representatives by the Seller or the Seller's Affiliates,
or any of their agents or representatives may have been prepared by third
parties and may not be the work product of the Seller and/or any of the
Seller's Affiliates; (ii) neither the Seller nor any of the Seller's
Affiliates has made any independent investigation or verification of, or
has any knowledge of, the accuracy or completeness of, the Property
Information; (iii) the Purchaser is relying solely on its own
investigations, examinations and inspections of the Property and those of
the Purchaser's Representatives and is not relying in any way on the
Property Information furnished by the Seller or any of the Seller's
Affiliates, or any of their agents or representatives; and (iv) the Seller
expressly disclaims any representations or warranties with respect to the
accuracy or completeness of the Property Information, and the Purchaser
releases the Seller and the Seller's Affiliates, and their agents and
representatives, from any and all liability with respect thereto. The
Purchaser or anyone claiming by, through or under the Purchaser, hereby
fully and irrevocably releases the Seller and the Seller's Affiliates from
any and all claims that it may now have or hereafter acquire against any
of the Seller or the Seller's Affiliates for any cost, loss, liability,
damage, expense, action or cause of action, whether foreseen or
unforeseen, arising from or related to the presence of environmentally
hazardous, toxic or dangerous substances, or any other conditions (whether
patent, latent or otherwise) affecting the Property, except for claims
against the Seller based upon any obligations and liabilities of the
Seller expressly provided in this Agreement. Nothing in this Section 6.3
shall diminish the representations or warranties of the Seller set forth
in this Section 6.
The provisions of this Section 6 shall survive the Closing.
6. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Seller as follows:
(a) The Purchaser is a duly formed and validly existing limited
liability company organized under the laws of the State of Delaware, and
is as of the Closing, registered under the laws of the Commonwealth of
Massachusetts to conduct business therein.
(b) The Purchaser has the full, legal right, power, authority and
financial ability to execute and deliver this Agreement and all documents
now or hereafter to be executed by it pursuant to this Agreement
(collectively, the "PURCHASER'S DOCUMENTS"), to consummate the
transactions contemplated hereby, and to perform its obligations hereunder
and under the Purchaser's Documents.
(c) This Agreement and the Purchaser's Documents do not and will not
contravene any provision of the certificate of organization or operating
agreement of the Purchaser, any judgment, order, decree, writ or
injunction issued against the Purchaser, or any provision of any Laws
applicable to the Purchaser. The consummation of the transactions
contemplated hereby will not result in a breach or constitute a default or
event of default by the Purchaser under any agreement to which the
Purchaser or any of its assets are subject or bound and will not result in
a violation of any Laws applicable to the Purchaser.
(d) There are no pending actions, suits, proceedings or
investigations to which the Purchaser is a party before any court or other
governmental authority which may have an adverse impact on the
transactions contemplated hereby.
The representations and warranties of the Purchaser set forth in this
Section 7 and elsewhere in this Agreement (i) shall be true, accurate and
correct in all material respects upon the execution of this Agreement, shall be
deemed to be repeated on and as of the Closing Date (except as they relate only
to an earlier date) and shall survive the Closing, and (ii) shall remain
operative and shall survive the Closing and the execution and delivery of the
Deed for a period of nine (9) months following the Closing Date and then shall
expire, and no action or claim based thereon shall be commenced after such
period.
7. Documents to be Delivered by the Seller at Closing. At the Closing, the
Seller shall execute, acknowledge and/or deliver, as applicable, the following
to the Purchaser:
(a) A quitclaim deed or its equivalent (the "DEED") conveying
title to the Property in the form of EXHIBIT A annexed hereto and made a
part hereof.
(b) A lease agreement, by and between the Seller and ▇▇▇▇▇▇
Educational Center, Inc. (the "KAPLAN LEASE"), executed and delivered on a
date prior to the Closing Date and substantially in the form of EXHIBIT B
annexed hereto, with such alterations or modifications as may be
negotiated by the Seller on or after the date hereof, which alterations or
modifications shall be subject to the approval of the Purchaser, which
approval, if requested prior to the conclusion of the Due Diligence
Period, shall not be unreasonably withheld or delayed and, if requested
thereafter, may be denied or granted in Purchaser's sole discretion.
(c) The Assignment and Assumption of Leases and Security Deposits in
the form of EXHIBIT C annexed hereto and made a part hereof assigning all
of the Seller's right, title and interest, if any, in and to the Leases in
effect on the Closing Date, all guarantees thereof and the security
deposits thereunder together with any interest thereon which Purchaser may
be obligated to pay over to tenants pursuant to the Leases, if any (the
"LEASE ASSIGNMENT").
(d) The Assignment and Assumption of Contracts and Licenses in the
form of EXHIBIT D annexed hereto and made a part hereof (the "CONTRACT AND
LICENSE ASSIGNMENT") assigning all of the Seller's right, title and
interest, if any, in and to (i) all of the assignable licenses, permits,
certificates, approvals, authorizations and variances issued for or with
respect to the Property by any governmental authority (collectively, the
"LICENSES"), and (ii) all assignable purchase orders, guaranties and
warranties, equipment leases, advertising agreements, franchise
agreements, license agreements, management agreements, leasing and
brokerage agreements and other contracts relating to the Property
(collectively, the "Contracts") not terminated by Seller pursuant to the
terms of this Agreement.
(e) The Assignment and Assumption of Intangible Property in the
form of EXHIBIT E annexed hereto and made part hereof assigning all of the
Seller's right, title and interest, if any, in and to all intangible
property owned by the Seller with respect to the operation of the Property
listed on SCHEDULE 11 annexed hereto and made a part hereof, including,
without limitation, the trade names "Government Center Garage" and "One
Congress Street" (the "INTANGIBLE PROPERTY ASSIGNMENT") (the Lease
Assignment, the Contract and License Assignment and the Intangible
Property Assignment are herein referred to collectively as the "A
& A AGREEMENTS").
(f) To the extent in the Seller's possession, executed counterparts
of all Leases and New Leases and any amendments, guarantees and other
documents relating thereto, together with a schedule of all tenant
security deposits thereunder and the accrued interest on such security
deposits payable to tenants which are in the possession of or received by
the Seller. In addition to the foregoing, Seller will make available to
Purchaser, for copying at Purchaser's expense, all correspondence in
Seller's possession relating to the Leases, but Seller makes no
representation or warranty concerning the completeness of such
correspondence.
(g) A ▇▇▇▇ of sale in the form of EXHIBIT F annexed hereto and made
a part hereof (the "▇▇▇▇ OF SALE") conveying, transferring and selling to
the Purchaser without warranty or representation all right, title and
interest of the Seller in and to all Personal Property and any other
documentation reasonably required by the Title Company to close the
transaction in accordance with the provisions of this Agreement.
(h) Notices to the tenants of the Property in the form of EXHIBIT G
annexed hereto and made a part hereof advising the tenants of the sale of
the Property to the Purchaser and directing that rents and other payments
thereafter be sent to the Purchaser or as the Purchaser may direct.
(i) A certificate of a trustee of the Seller that the Seller has
taken all necessary trust action to authorize the execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated hereby.
(j) Executed originals of all Estoppel Certificates required by
Section 4.3 and any other Estoppel Certificates, received by the Seller
from tenants prior to the Closing Date and not previously delivered to the
Purchaser.
(k) To the extent in the Seller's possession and not already located
at the Property, keys to all entrance doors to, and equipment and utility
rooms located in, the Property.
(l) To the extent in the Seller's possession and not already located
at the Property, all Licenses.
(m) To the extent in the possession of the Seller or otherwise
located at the Property, executed counterparts of all Contracts and all
warranties in connection therewith which are in effect on the Closing Date
and which are assigned by the Seller.
(n) To the extent in the Seller's possession and not located at the
Building, plans and specifications of the Buildings.
(o) A "FIRPTA" affidavit sworn to by the Seller in the form of
EXHIBIT I annexed hereto and made a part hereof. The Purchaser
acknowledges and agrees that upon the Seller's delivery of such affidavit,
the Purchaser shall not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
(p) The Transfer Tax Payments.
(q) A certificate of Seller that all representations and warranties
are true and correct on the Closing Date, except to the extent they relate
only to an earlier date.
(r) All other documents the Seller is required to deliver pursuant
to the provisions of this Agreement, including without limitation, any
documents required to assign the General Services Administration Lease.
8. Documents to be Delivered by the Purchaser at Closing. At the Closing,
the Purchaser shall execute, acknowledge and/or deliver, as applicable, the
following to the Seller:
(a) The cash portion of the Purchase Price payable at the Closing
pursuant to Section 2, subject to apportionments, credits and adjustments
as provided in this Agreement.
(b) The ▇▇▇▇ of Sale.
(c) (i) reasonable evidence of the authority of the person executing
documents at Closing on behalf of the Purchaser; (ii) a good standing
certificate issued by the state of incorporation of the Purchaser, dated
within thirty (30) days of the Closing Date; and (iii) a qualification to
do business certificate issued by the Commonwealth of Massachusetts, dated
within thirty (30) days of the Closing Date.
(d) The A & A Agreements.
(e) All other documents the Purchaser is required to deliver
pursuant to the provisions of this Agreement, including without
limitation, any documents required to assign the General Services
Administration Lease, and any other documents which are otherwise
reasonably required by the Title Company in connection with this
transaction.
9. Operation of the Property prior to the Closing Date. Between the date
hereof and the Closing Date, the Seller shall operate and maintain the Property,
consistent with its past practices.
9.1. NEW LEASES. The Seller shall not modify, extend, renew or
cancel (subject to Section 10.2) any Lease or enter into any proposed
Lease of all or any portion of the Property without the Purchaser's prior
consent in each instance, which consent, if sought prior to the conclusion
of the Due Diligence Period, shall not be unreasonably withheld and, if
sought thereafter, may be given or denied, in Purchaser's sole discretion,
but in any event shall be given or denied, with the reasons for any such
denial, within five business (5) days after receipt by the Purchaser of
the Seller's notice requesting the Purchaser's consent to the proposed
action relating to such existing or proposed Lease; provided, however,
that the foregoing provisions shall not apply to the Kaplan Lease. If the
Purchaser fails to reply to the Seller's request for consent in a notice
given within such period or if the Purchaser expressly denies its consent
but fails to provide the Seller with the reasons for such denial, the
Purchaser's consent shall be deemed to have been granted.
9.1.1. NEW LEASE EXPENSES. If after the date of this Agreement
the Seller enters into any Leases, or if there is any extension or
renewal of any Leases, whether or not such Leases provide for their
extension or renewal, or any expansion or modification of any Leases
(each, a "NEW LEASE"), the Seller shall keep accurate records of all
expenses (collectively, "NEW LEASE EXPENSES") incurred in connection
with each New Lease, including, without limitation, the following:
(i) brokerage commissions and fees relating to such leasing
transaction, (ii) expenses incurred for repairs, improvements,
equipment, painting, decorating, partitioning and other items to
satisfy the tenant's requirements with regard to such leasing
transaction, including any expenses incurred for architectural or
engineering services, (iii) reimbursements to the tenant for the
cost of any of the items described in the preceding clause (ii),
(iv) legal fees for services in connection with the preparation of
documents and other services rendered in connection with the
effectuation of the leasing transaction, (v) rent concessions
relating to the demised space provided the tenant has the right
to take possession of such demised space during the period of such
rent concessions, and (vi) expenses incurred for the purpose of
satisfying or terminating the obligations of a tenant under a New
Lease to the landlord under another lease (whether or not such other
lease covers space in the Property).
9.1.2. ALLOCATION OF NEW LEASE EXPENSES. The New Lease
Expenses for each New Lease allocable to and payable by the Seller
shall be determined by multiplying the amount of such New Lease
Expenses by a fraction, the numerator of which shall be the number
of days contained in that portion, if any, of the term of such New
Lease commencing on the date on which the tenant thereunder shall
have commenced to pay fixed rent ("RENT COMMENCEMENT DATE") and
expiring on the date immediately preceding the Closing Date,
and the denominator of which shall be the total number of days
contained in the period commencing on the Rent Commencement Date and
expiring on the date of the scheduled expiration of the term of such
New Lease, without provision for any optional extensions or
renewals, and the remaining balance of the New Lease Expenses for
each New Lease shall be allocable to and payable by the Purchaser by
addition to the Purchase Price. At the Closing, the
Purchaser shall reimburse the Seller for all New Lease Expenses
theretofore paid by the Seller, if any, in excess of the portion of
the New Lease Expenses allocated to the Seller pursuant to the
provisions of the preceding sentence. For purposes of this Section
10.1.2, the Rent Commencement Date under a renewal, extension,
expansion or modification of a Lease shall be deemed to be (i) in
the case of a renewal or extension (whether effective prior to or
after the Closing, or in the form of an option exercisable in the
future), the first date during such renewal or extension period
after the originally scheduled expiration of the term of such Lease
on which the tenant under such Lease commences to pay fixed rent,
(ii) in the case of an expansion (whether effective prior to or
after the Closing, or in the form of an option exercisable in the
future), the date on which the tenant under such Lease commences to
pay fixed rent for the additional space, and (iii) in the case of a
modification not also involving a renewal, extension or expansion of
such Lease, the effective date of such modification agreement. The
provisions of this Section 10.1.2 shall survive the Closing.
9.1.3. ▇▇▇▇▇▇ LEASE. The foregoing provision, Section 10.1.2,
shall not apply to the ▇▇▇▇▇▇ Lease. All of the New Lease Expenses
in connection with the ▇▇▇▇▇▇ Lease (other than the Additional
Allowance (as defined in the ▇▇▇▇▇▇ Lease)) shall be paid by the
Seller on or prior to the Closing Date, except as hereinafter set
forth. If and to the extent the Allowance (as defined in the ▇▇▇▇▇▇
Lease) has not been fully funded to ▇▇▇▇▇▇ prior to the Closing, the
Seller shall credit to the Purchaser the remaining portion of such
Allowance, and the Purchaser shall be required to fund such
remaining portion to ▇▇▇▇▇▇ as and when owing pursuant to the ▇▇▇▇▇▇
Lease. If and to the extent that any portion of the Additional
Allowance shall have been paid by Seller to ▇▇▇▇▇▇ prior to the
Closing Date, the Purchaser shall reimburse to the Seller such
portion at Closing. The provisions of this Section 10.1.3 shall
survive the Closing.
9.2. TERMINATION OF EXISTING LEASES. Notwithstanding anything to the
contrary contained in this Agreement, the Seller reserves the right, but
is not obligated, to institute summary proceedings against any tenant
other than any Government Tenant, the Garage Tenant or the tenant under
the ▇▇▇▇▇▇ Lease (collectively, such tenants, the "KEY TENANTS") or
terminate any Lease (other than a lease with a Key Tenant) as a result of
a default by the tenant thereunder prior to the Closing Date. The Seller
makes no representations and assumes no responsibility with respect to (i)
the continued occupancy of the Property or any part thereof by any tenant
and (ii) the fulfillment after the date hereof, by any tenant of its
obligations under any Lease. The removal of a tenant other than a Key
Tenant whether by summary proceedings or otherwise prior to the Closing
Date shall not give rise to any claim on the part of the Purchaser.
Further, the Purchaser agrees that it shall not be grounds for the
Purchaser's refusal to close this transaction that any tenant is a
holdover tenant or in default under its Lease pursuant to any economic or
non-economic terms of its Lease on the Closing Date and the Purchaser
shall accept title subject to such holding over or default without credit
against, or reduction of, the Purchase Price.
9.3. CONTRACTS. Except as hereinafter provided in this Section 10.3,
the Seller may cancel, modify, extend, renew or permit the expiration of
Contracts or enter into any new Contract without the Purchaser's prior
consent. After the expiration of the Due Diligence Period, the Seller
shall not modify, extend, renew or cancel any Contracts, or enter into any
new Contract without the Purchaser's prior consent in each instance, which
consent shall not be unreasonably withheld or delayed, and if withheld,
the Purchaser shall promptly give the Seller a notice stating the reasons
therefor. If the Purchaser fails to reply within five (5) days to the
Seller's request for consent in a notice given pursuant to this Section
10.3 or if the Purchaser expressly denies its consent but fails to provide
the Seller with the reasons for such denial, the Purchaser's consent shall
be deemed to have been granted. The Purchaser shall give notice to the
Seller at least ten (10) business days prior to the Closing Date of any
Contracts (including any Contracts entered into after the date hereof)
that the Purchaser does not desire to assume. The Seller shall terminate
any such Contracts on or prior to the Closing Date. All other Contracts
will be assumed by the Purchaser on the Closing Date.
9.4. REPAIRS. Prior to the Closing Date, the Seller shall cause to
be undertaken the remedial improvements and repairs to the Property (such
repairs, the "REMEDIAL REPAIRS") contemplated in that certain contract by
and between the Seller and T Equipment Corp., dated as of February 4,
2000, a complete and correct copy of which is annexed hereto as EXHIBIT L
(the "REPAIRS CONTRACT"). Seller agrees that the Repairs Contract will not
be amended to effect a reduction in the scope of the work thereunder
without the consent of Purchaser, which consent may be granted or denied
in Purchaser's sole discretion. Seller further agrees that there shall be
no other change orders or amendments effected under such Contract without
the prior consent of Purchaser, which consent will not be withheld or
delayed unreasonably. To the extent that the Remedial Repairs have not
been completed prior to the Closing Date, the Purchaser shall assume the
Repairs Contract at Closing and thereafter the Purchaser shall diligently
complete such Remedial Repairs pursuant to the Repairs Contract. In
addition to the foregoing, Seller shall cause Engineers Design Group, Inc.
("EDG"), in accordance with the contract between EDG and Seller for such
services a complete and correct copy of which is annexed hereto as EXHIBIT
M (the "EDG CONTRACT"), to provide reasonable and customary architectural
and engineering services with respect to the Repairs Contract, which will
include, without limitation, requirements for reasonable and customary
oversight, field supervision of work, monitoring of compliance of the work
with the Contract Documents, reviews of shop drawings and reviews of
contractors' requisitions for payments. Seller shall be responsible for
all payments due to EDG pursuant to the EDG Contract. At Closing, the
Seller shall place in escrow with the Escrow Agent, pursuant to an escrow
agreement mutually acceptable to the Seller and the Purchaser and
reflecting the terms of this Section 10.4, the form of which escrow
agreement shall be negotiated to completion no later than ten (10) days
after the end of the Due Diligence Period (or if the Due Diligence Period
is prematurely terminated and an early Closing Date is established
pursuant to Section 1.3, prior to such early Closing Date), an amount
equal to the product of 1.25 and the estimated cost to complete the
portion of the Remedial Repairs remaining unfinished as of the Closing
Date (the "ESTIMATED COST"). The Estimated Cost shall be determined by one
or more certificates to be obtained by the Seller from the contractor
performing the Remedial Repairs. Completion of the work shall be
determined by an independent, licensed architect mutually agreeable to the
Seller and the Purchaser, the cost of whose services shall be the sole
expense of the Seller. The Escrow Agent shall disburse to the Purchaser
escrowed funds to pay the Purchaser's actual, invoiced, third-party costs
of effecting the Remedial Repairs, within ten (10) business days after
Purchaser's proper written requisition therefor (but no more frequently
than twice a month) which shall be accompanied by invoices and other
commercially reasonable supporting documentation as set forth in the
escrow agreement, which requisition and supporting documentation shall be
simultaneously delivered to the Seller for review and approval, which
approval shall not be unreasonably withheld or delayed and shall be deemed
to have been given if written objection is not given to the Purchaser and
the Escrow Agent within such ten (10) day period. The balance of the
escrowed funds shall be returned to the Seller within thirty (30) days
after the final retainage payments have been made to the contractor under
the Repairs Contract. If the Seller disapproves any requisition, or if the
Seller and the Purchaser can not agree on a mutually agreeable architect,
the disagreement shall be arbitrated by a licensed architect selected by
the Seller, a licensed architect selected by the Purchaser, and a third
licensed architect selected by those two architects, and the decision of a
majority of these three shall be binding on the parties, with detailed
arbitration procedures and time lines to be established in the escrow
agreement. The Seller shall be responsible for the cost of all Remedial
Repairs pursuant to the Repairs Contract which are completed on or prior
to the Closing Date. The provision of this Section 10.4 shall survive the
Closing.
9.5. REMEDIAL REPAIRS CLAIMS. The Seller agrees (i) to indemnify the
Purchaser for any claims made by the Garage Tenant for monetary damages or
off-set rent resulting solely from the Garage Tenant's loss of use of
parking spaces in the Property occasioned by and occurring during the
duration of the Remedial Repairs, and (ii) to promptly pay any claim made
or reimburse any offset taken by the Garage Tenant resulting solely from
such loss of use of parking spaces, notice of which is given to the Seller
prior to March 25, 2001; provided, however, that should such claims be
made by the Garage Tenant, giving rise to such a indemnification
obligation, the Seller shall have the right to continue or commence legal
actions or proceedings against the Garage Tenant with respect to the same;
provided further that the Purchaser shall not be obligated to join in such
a proceeding. Any rent so recovered from the Garage Tenant will not be
subject to the adjustment provisions of Section 3.2.1. The provisions of
this Section 10.5 shall survive the Closing.
10. Broker. The Purchaser and the Seller represent and warrant to each
other that ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ (the "BROKER") is the sole broker with whom they
have dealt in connection with the Property and the transactions described
herein. The Seller shall be liable for, and shall indemnify the Purchaser
against, all brokerage commissions or other compensation due to the Broker
arising out of the transaction contemplated in this Agreement, which
compensation shall be paid subject and pursuant to a separate agreement between
the Seller and the Broker. Each party hereto agrees to indemnify, defend and
hold the other harmless from and against any and all claims, causes of action,
losses, costs, expenses, damages or liabilities, including reasonable attorneys'
fees and disbursements, which the other may sustain, incur or be exposed to, by
reason of any claim or claims by any broker, finder or other person, except (in
the case of the Purchaser as indemnitor hereunder) the Broker, for fees,
commissions or other compensation arising out of the transactions contemplated
in this Agreement if such claim or claims are based in whole or in part on
dealings or agreements with the indemnifying party. The obligations and
representations and warranties contained in this Section 11 shall survive the
termination of this Agreement and the Closing.
11. Casualty; Condemnation.
11.1. DAMAGE OR DESTRUCTION. If a "MATERIAL" part (as hereinafter
defined) of the Property is damaged or destroyed by fire or other
casualty, the Seller shall notify the Purchaser of such fact and the
Purchaser shall have the option to terminate this Agreement upon notice to
the Seller given not later than ten (10) days after receipt of the
Seller's notice; provided, however, that the Purchaser's election shall be
ineffective if within ten (10) days after the Seller's receipt of the
Purchaser's election notice, the Seller shall elect by notice to the
Purchaser to repair such damage or destruction and shall thereafter
complete such repair within thirty (30) days after the then scheduled
Closing Date at the time of the Purchaser's election. If the Seller makes
such election to repair, the Seller shall have the right, with the consent
of the Purchaser, to adjourn the Closing Date one or more times for up to
thirty (30) in the aggregate in order to complete such repairs and shall
have the right to retain all insurance proceeds which the Seller may be
entitled to receive as a result of such damage or destruction. If (i) the
Purchaser does not elect to terminate this Agreement as to the damaged
Property, or (ii) there is damage to or destruction of an "IMMATERIAL"
part ("IMMATERIAL" is herein deemed to be any damage or destruction which
is not "MATERIAL", as such term is hereinafter defined) of the Property,
the Purchaser shall close title as provided in this Agreement and, at the
Closing, the Seller shall, unless the Seller has repaired such damage or
destruction prior to the Closing, (x) pay over to the Purchaser the
proceeds of any insurance collected by the Seller, together with any
deductible thereunder, less the amount of all costs incurred by the Seller
in connection with the repair of such damage or destruction, together with
any coinsurance payments required by the insurer, and (y) assign and
transfer to the Purchaser all right, title and interest of the Seller in
and to any uncollected insurance proceeds which the Seller may be entitled
to receive from such damage or destruction. A "MATERIAL" part of the
Property shall be deemed to have been damaged or destroyed if the cost of
repair or replacement shall be equal to or in excess of $1,000,000.
11.2. CONDEMNATION. If, prior to the Closing Date, all or any
portion of the Property is taken by eminent domain or condemnation (or is
the subject of a pending taking which has not been consummated), the
Seller shall notify the Purchaser of such fact and the Purchaser shall
have the option to terminate this Agreement upon notice to the Seller
given not later than ten (10) days after receipt of the Seller's notice.
If the Purchaser does not elect to terminate this Agreement, at the
Closing the Seller shall assign and turnover, and the Purchaser shall be
entitled to receive and keep, all awards or other proceeds for such taking
by eminent domain or condemnation.
11.3. TERMINATION. If the Purchaser effectively terminates this
Agreement pursuant to Section 12.1 or 12.2, this Agreement shall be
terminated and the rights of the parties shall be the same as if notice of
termination were given pursuant to Section 14.1.
12. Conditions Precedent to Closing.
12.1. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS TO
PERFORM. The Purchaser's obligation under this Agreement to purchase the
Property is subject to the fulfillment of each of the following
conditions: (i) the representations and warranties of the Seller contained
herein shall be true, accurate and correct as of the Closing Date in all
material respects except to the extent they relate only to an earlier
date; (ii) the Seller shall be ready, willing and able to deliver title to
the Property in accordance with the terms and conditions of this
Agreement; (iii) the Seller shall have delivered all the documents and
other items required pursuant to Section 8, and shall have performed all
other covenants, undertakings and obligations, and complied with all
conditions required by this Agreement to be performed or complied with by
the Seller at or prior to the Closing; and (iv) if required by Section
10.4., the Seller shall have funded an escrow account with the Escrow
Agent to cover remaining Remedial Repairs.
12.2. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS TO PERFORM.
The Seller's obligation under this Agreement to sell the Property to the
Purchaser is subject to the fulfillment of each of the following
conditions: (i) the representations and warranties of the Purchaser
contained herein shall be materially true, accurate and correct as of the
Closing Date; (ii) the Purchaser shall have delivered the funds required
hereunder and all the documents to be executed by the Purchaser set forth
in Section 9 and shall have performed all other covenants, undertakings
and obligations, and complied with all conditions required by this
Agreement to be performed or complied with by the Purchaser at or prior to
the Closing; and (iii) all consents and approvals of governmental
authorities and parties to agreements to which the Purchaser is a party or
by which the Purchaser's assets are bound that are required with respect
to the consummation of the transactions contemplated by this Agreement
shall have been obtained and copies thereof shall have been delivered to
the Seller at or prior to the Closing.
12.3. REMEDIES UPON FAILURE TO SATISFY CONDITIONS. In the event that
any condition contained in Sections 13.1 or 13.2 is not satisfied, the
party entitled to the satisfaction of such condition as a condition to its
obligation to close title shall have as its sole remedy hereunder the
right to elect to (i) waive such unsatisfied condition whereupon title
shall close as provided in this Agreement or (ii) proceed as provided in
Section 14 hereof.
13. Remedies.
13.1. SELLER'S INABILITY TO PERFORM. If the Closing fails to occur
by reason of the Seller's inability to perform its obligations under this
Agreement which has not been waived pursuant to Section 13.3, then the
Purchaser, as its sole remedy for such inability of the Seller, may
terminate this Agreement by notice to the Seller. If the Purchaser elects
to terminate this Agreement as a result of such Seller's inability, then
this Agreement shall be terminated and neither party shall have any
further rights, obligations or liabilities hereunder, except as otherwise
expressly provided herein (collectively, the "SURVIVING OBLIGATIONS"), and
except that the Purchaser shall be entitled to a return of the Deposit.
Nothing contained herein shall limit or restrict the Purchaser's ability
to pursue any rights or remedies it may have against the Seller with
respect to the Surviving Obligations. Except as set forth in this Section
14.1, the Purchaser hereby expressly waives, relinquishes and releases any
other right or remedy available to it at law, in equity or otherwise by
reason of the Seller's inability to perform its obligations hereunder.
Notwithstanding anything to the contrary herein, if the Seller's inability
to perform its obligations under this Agreement is a result of any
wrongful action of, or wrongful failure to act by, the Purchaser or any of
the Purchaser's Representatives, the Purchaser shall not be relieved of
its obligations under this Agreement and Purchaser shall not be entitled
to any right or remedy provided in this Section 14.1 or elsewhere in this
Agreement.
13.2. PURCHASER'S FAILURE TO PERFORM. In the event of a material
default hereunder by the Purchaser or if the Closing fails to occur by
reason of the Purchaser's failure or refusal to perform its obligations
hereunder, then the Seller may terminate this Agreement by notice to the
Purchaser. If the Seller elects to terminate this Agreement, then this
Agreement shall be terminated and the Seller may retain the Deposit as
liquidated damages for all loss, damage and expenses suffered by the
Seller, it being agreed that the Seller's damages are impossible to
ascertain, and neither party shall have any further rights, obligations or
liabilities hereunder, except for the Surviving Obligations. Nothing
contained herein shall limit or restrict the Seller's ability to pursue
any rights or remedies it may have against the Purchaser with respect to
the Surviving Obligations. Except as set forth in this Section 14.2 and
the Surviving Obligations, the Seller hereby expressly waives,
relinquishes and releases any other right or remedy available to them at
law, in equity or otherwise by reason of the Purchaser's default hereunder
or the Purchaser's failure or refusal to perform its obligations
hereunder. Notwithstanding anything to the contrary herein, if the
Purchaser's default or the Purchaser's failure or refusal to perform its
obligations under this Agreement is a result of any wrongful action of, or
wrongful failure to act by, the Seller or any of the Seller's Affiliates,
the Seller shall not be relieved of its obligations under this Agreement
and the Seller shall not be entitled to any right or remedy provided in
this Section 14.2 or elsewhere in this Agreement.
13.3. SELLER'S FAILURE TO PERFORM. If the Closing fails to occur by
reason of the Seller's failure or refusal to perform its obligations
hereunder which has not been waived by the Purchaser, then the Purchaser,
as its sole remedy hereunder, may (i) terminate this Agreement by notice
to the Seller or (ii) seek specific performance from the Seller. As a
condition precedent to the Purchaser exercising any right it may have to
bring an action for specific performance as the result of the Seller's
failure or refusal to perform their obligations hereunder, the Purchaser
must commence such an action within ninety (90) days after the occurrence
of such default. The Purchaser agrees that its failure to timely commence
such an action for specific performance within such ninety (90) day period
shall be deemed a waiver by it of its right to commence such an action.
Notwithstanding anything to the contrary herein, if the Seller's failure
or refusal to perform its obligations under this Agreement is a result of
any wrongful action of, or wrongful failure to act by, the Purchaser or
any of the Purchaser's Representatives, the Purchaser shall not be
relieved of its obligations under this Agreement and Purchaser shall not
be entitled to any right or remedy provided in this Section 14.3 or
elsewhere in this Agreement.
14. Escrow. The Escrow Agent shall hold the Initial Contract Deposit, the
Contract Extension Deposit and the Additional Contract Deposit, and all interest
accrued thereon, if any (collectively, the "DEPOSIT") in escrow and shall
dispose of the Deposit only in accordance with the provisions of that certain
Escrow Agreement of even date herewith by and among the Escrow Agent, the
Purchaser and the Seller relating to the Property (the "ESCROW Agreement") in
the form of EXHIBIT J hereto. Simultaneously with their execution and delivery
of this Agreement, the Purchaser and the Seller shall furnish the Escrow Agent
with their true Federal Taxpayer Identification Numbers so that the Escrow Agent
may file appropriate income tax information returns with respect to any interest
earned on or credited to the Deposit. The party entitled to the economic benefit
of the Deposit representing interest earned on the Initial Contract Deposit, the
Contract
Extension Deposit and the Additional Contract Deposit, shall be the party
responsible for the payment of any tax due thereon.
The provisions of the Escrow Agreement shall survive the termination of
this Agreement and the Closing. 15. Notices. All notices, elections, consents,
approvals, demands, objections, requests or other communications which the
Seller or the Purchaser may be required or desire to give pursuant to, under or
by virtue of this Agreement must be in writing and (i) delivered by hand to the
addresses set forth below, or (ii) (a) sent by express mail or courier (for next
business day delivery), or (b) sent by certified or registered mail, return
receipt requested with proper postage prepaid, addressed as follows:
If to the Seller:
Government Center Garage Realty Trust
c/o Morgan ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Realty Inc.
Two World Trade ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Purchaser:
RAK Group Acquisition Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Kohana, President
and
PaineWebber Real Estate Fund I, L.P.
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇, Managing Director
with a copy to:
Goulston & Storrs
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
The Seller or the Purchaser may designate another addressee or change its
address for notices and other communications hereunder by a notice given to the
other parties in the manner provided in this Section 16. A notice or other
communication sent in compliance with the provisions of this Section 16 shall be
deemed given and received (i) if by hand, at the time of the delivery thereof or
tender of delivery thereof to the receiving party at the address of such party
set forth above (or to such other address as such party has designated as
provided above), (ii) if sent by express mail or overnight courier, on the date
it is delivered or tendered for delivery to the other party, or (iii) if sent by
registered or certified mail, on the third business day following the day such
mailing is made.
16. Property Information and Confidentiality. The Purchaser agrees that,
prior to the Closing, all Property Information shall be kept strictly
confidential and shall not, without the prior consent of the Seller, be
disclosed by the Purchaser or the Purchaser's Representatives, in any manner
whatsoever, in whole or in part, and will not be used by the Purchaser or the
Purchaser's Representatives, directly or indirectly, for any purpose other than
evaluating the Property. Moreover, the Purchaser agrees that, prior to the
Closing, the Property Information will be transmitted only to the Purchaser's
Representatives (i) who need to know the Property Information for the purpose of
evaluating the Property, and who are informed by the Purchaser of the
confidential nature of the Property Information and (ii) who agree to be bound
by the terms of this Section 17 and Section 6.3. The provisions of this Section
17 shall in no event apply to Property Information which is a matter of public
record and shall not prevent the Purchaser from complying with Laws, including,
without limitation, governmental regulatory, disclosure, tax and reporting
requirements.
16.1. PRESS RELEASES. The Purchaser and Seller, for the benefit of
each other, hereby agree that between the date hereof and the Closing
Date, they will not release or cause or permit to be released any press
notices, publicity (oral or written) or advertising promotion relating to,
or otherwise announce or disclose or cause or permit to be announced or
disclosed, in any manner whatsoever, the terms, conditions or substance of
this Agreement or the transactions contemplated herein, without first
obtaining the written consent of the other party hereto. It is understood
that the foregoing shall not preclude either party from discussing the
substance or any relevant details of the transactions contemplated in this
Agreement with any of its attorneys, accountants, professional consultants
or potential lenders, as the case may be, or prevent either party hereto
from complying with Laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements.
16.2. RETURN OF PROPERTY INFORMATION. In the event this Agreement is
terminated, the Purchaser and the Purchaser's Representatives shall
promptly deliver to the Seller all or substantially all originals and
copies of the Property Information in the possession of the Purchaser and
the Purchaser's Representatives. Notwithstanding anything herein contained
to the contrary, a portion of the Deposit equal to One Hundred Thousand
Dollars ($100,000), which the Purchaser would otherwise be entitled to
have returned to it pursuant to this Agreement, shall be held by the
Escrow Agent until such time as the Purchaser has fulfilled its
obligations under the preceding sentence. Notwithstanding the foregoing,
the Purchaser shall not be required to deliver to Seller any internal
memoranda, projections or financial information concerning the Property
produced by or for the Purchaser, nor shall Purchaser be required to
deliver any information or documents or the like prepared for Purchaser by
counsel to Purchaser or by Purchaser's third party contractors; provided
that any such material from third-party contractors, if not given over to
the Seller, shall be promptly destroyed by the Purchaser. The foregoing
deliveries to Seller are solely in response to Seller's concerns about the
confidentiality of such information. Accordingly, Seller acknowledges that
Seller is not entitled to rely upon any information or document or other
Property Information which may be delivered by Purchaser to Seller.
16.3. PROPERTY INFORMATION DEFINED. As used in this Agreement, the
term "PROPERTY INFORMATION" shall mean (i) all information and documents
in any way relating to the Property, the operation thereof or the sale
thereof (including, without limitation, Leases, Contracts and Licenses)
furnished to, or otherwise made available for review by, the Purchaser or
its directors, officers, employees, affiliates, partners, brokers, agents
or other representatives, including, without limitation, attorneys,
accountants, contractors, consultants, engineers and financial advisors
(collectively, the "PURCHASER'S Representatives"), by the Seller or any of
the Seller's Affiliates, or their agents or representatives, including,
without limitation, their contractors, engineers, attorneys, accountants,
consultants, brokers or advisors, and (ii) all analyses, compilations,
data, studies, reports or other information or documents prepared or
obtained by the Purchaser or the Purchaser's Representatives containing or
based, in whole or in part, on the information or documents described in
the preceding clause (i), or the Investigations, or otherwise reflecting
their review or investigation of the Property.
16.4. REMEDIES. In addition to any other remedies available to the
Seller, the Seller shall have the right to seek equitable relief,
including, without limitation, injunctive relief or specific performance,
against the Purchaser or the Purchaser's Representatives in order to
enforce the provisions of this Section 17 and 6.3.
The provisions of this Section 17 shall survive the termination of this
Agreement and the Closing.
17. Access to Records. For a period of three (3) years subsequent to the
Closing Date, the Seller, the Seller's Affiliates and their employees, agents
and representatives shall be entitled to access during business hours to all
documents, books and records given to the Purchaser by the Seller at the Closing
for tax and audit purposes, regulatory compliance, and cooperation with
governmental investigations upon reasonable prior notice to the Purchaser, and
shall have the right, at their sole cost and expense, to make copies of such
documents, books and records.
18. Assignments. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and to their respective heirs, executors,
administrators, successors and permitted assigns. This Agreement may not be
assigned by the Purchaser without the prior written consent of the Seller and
any assignment or attempted assignment by the Purchaser without such prior
written consent shall constitute a default by the Purchaser hereunder and shall
be null and void; provided, however that Purchaser may assign its rights
hereunder to an affiliate controlling, controlled by or under common control
with either ▇▇▇▇▇ ▇▇▇▇▇▇ Group Inc. or PaineWebber Real Estate Fund I, L.P. or
RAK Group Acquisition Corporation, provided, further that if this Agreement is
assigned to an affiliate of RAK Group Acquisition Corporation, such affiliate
must have as a member or partner an institutional investor, the identity of
which is satisfactory to the Seller. "Control" as used in this section shall
mean ownership of 50% or more of the equity interest in such affiliate entity
and the ability to control such entity's decisions. Any assignment pursuant to
the previous sentence shall in no way affect Purchaser's obligations or
liabilities hereunder.
19. Entire Agreement, Amendments. All prior statements, understandings,
representations and agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully and completely
expresses the agreement between them in connection with this transaction and
which is entered into after full investigation, neither party relying upon any
statement, understanding, representation or agreement made by the other not
embodied in this Agreement. This Agreement shall be given a fair and reasonable
construction in accordance with the intentions of the parties hereto, and
without regard to or aid of canons requiring construction against the Seller or
the party drafting this Agreement. This Agreement shall not be altered, amended,
changed, waived, terminated or otherwise modified in any respect or particular,
and no consent or approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by or on behalf of the
party to be charged.
20. Merger. Except as otherwise expressly provided herein, (i) the
Purchaser's acceptance of the Deed shall be deemed a discharge of all of the
obligations of the Seller hereunder and (ii) all of the Seller's
representations, warranties, covenants and agreements herein shall merge in the
documents and agreements executed at the Closing and shall not survive the
Closing.
21. Limited Recourse. The Purchaser agrees that, except as explicitly set
forth below, it does not have and will not have any claims or causes of action
against any disclosed or undisclosed officer, director, employee, trustee,
shareholder, partner, principal, parent, subsidiary or other affiliate of the
Seller, including, without limitation, ▇▇▇▇ ▇▇▇▇▇▇ Realty Inc. and the parent
and affiliates of ▇▇▇▇ ▇▇▇▇▇▇ Realty Inc. (collectively, the "SELLER'S
AFFILIATES"), arising out of or in connection with this Agreement or the
transactions contemplated hereby. The Purchaser agrees to look solely to the
Seller or its beneficiary and the assets of the Seller or its beneficiary
directly attributable to the Buildings for the satisfaction of the Seller's
liability or obligation arising under this Agreement or the transactions
contemplated hereby, or for the performance of any of the covenants, warranties
or other agreements of the Seller contained herein, and further agrees not to
▇▇▇ or otherwise seek to enforce any personal obligation against any of the
Seller's Affiliates other than its beneficiary with respect to any matters
arising out of or in connection with this Agreement or the transactions
contemplated hereby. The total liability hereunder of the Seller and its
beneficiary shall in no event exceed an amount equal to the Deposit. The
beneficiary of the Seller shall maintain a liquid net worth in an amount equal
to the Deposit until the later of (i) March 31, 2001, and (ii) the date upon
which any such claim which shall have been timely made is fully resolved. The
Seller shall have the right, but not the obligation, at any time (a) to provide
a guaranty of the Seller's liabilities hereunder limited in an amount equal to
the Deposit and covering claims made on or before March 31, 2001, from a
credit-worthy, third party guarantor reasonably satisfactory to the Purchaser,
which guaranty shall be in form and substance reasonably satisfactory to the
Purchaser, or (b) to place in escrow cash in the amount of the Deposit pursuant
to an escrow agreement, in form and substance reasonably satisfactory to the
Purchaser, which shall provide that the cash will be delivered to the Seller on
March 31, 2001, if no claims have been made thereon by the Purchaser. For so
long as such guaranty or cash escrow continues in full force and effect, all
obligations of the Seller to maintain liquidity set forth in this Section 22
shall be deemed to have been satisfied.
22. Miscellaneous. Neither this Agreement nor any memorandum thereof shall
be recorded and any attempted recordation hereof shall be void and shall
constitute a default. Each of the Exhibits and Schedules referred to herein and
attached hereto is incorporated herein by this reference. The caption headings
in this Agreement are for convenience only and are not intended to be a part of
this Agreement and shall not be construed to modify, explain or alter any of the
terms, covenants or conditions herein contained. If any provision of this
Agreement shall be unenforceable or invalid, the same shall not affect the
remaining provisions of this Agreement and to this end the provisions of this
Agreement are intended to be and shall be severable. This Agreement shall be
interpreted and enforced in accordance with the laws of the Commonwealth of
Massachusetts without reference to principles of conflicts of laws.
23. Time of the Essence. Time is of the essence with respect to this
-------------------- Agreement, including but not limited to the occurrence of
the Closing as of the originally scheduled date.
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24. IRS Form 1099-S Designation. In order to comply with information reporting
requirements of Section 6045(e) of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations thereunder, the parties agree (i) to
execute an IRS Form 1099-S Designation Agreement in the form attached hereto as
EXHIBIT K at or prior to the Closing to designate the Title Company as the party
who shall be responsible for reporting the contemplated sale of the Property to
the Internal Revenue Service (the "IRS") on IRS Form 1099-S; (ii) to provide the
Title Company with the information necessary to complete Form 1099-S; (iii) that
the Title Company shall not be liable for the actions taken under this Section
25, or for the consequences of those actions, except as they may be the result
of gross negligence or willful misconduct on the part of the Title Company; and
(iv) that the Title Company shall be indemnified by the parties for any costs or
expenses incurred as a result of the actions taken under this Section 25, except
as they may be the result of gross negligence or willful misconduct on the part
of the Title Company. The Title Company shall provide all parties to this
transaction with copies of the IRS Forms 1099-S filed with the IRS and with any
other documents used to complete IRS Form 1099-S.
25. Attorneys' Fees. In any event that at any ▇▇▇▇ ▇▇▇▇▇▇ or Purchaser
shall institute any action or proceeding against the other relating to this
Agreement or any default hereunder, then and in that event the prevailing party
in such action or proceeding shall be entitled to recover from the other party
its reasonable attorneys' fees which shall be deemed to have accrued on the
commencement of such action or proceeding and shall be payable whether or not
such action is prosecuted to judgment.
26. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
SELLER:
GOVERNMENT CENTER GARAGE REALTY TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, as Trustee and not
individually, at the direction of GCGA
Limited Partnership, sole Beneficiary
of Government Center Garage Realty
Trust
SOLELY IN CONNECTION WITH SECTION 22 ABOVE:
GCGA LIMITED PARTNERSHIP, as the sole
beneficiary of Seller
By: DW GCGA I, Inc., its sole
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, its
President
PURCHASER:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ JV LLC
By: RAK GROUP ACQUISITION
CORPORATION, as an authorized Member
By: /s/▇▇▇▇▇ ▇. Kohana
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Name: ▇▇▇▇▇ ▇. Kohana
Title: President