SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report: August 30, 1996
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(Date of earliest event reported)
MGI PROPERTIES
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(Exact name of Registrant as specified in its charter)
Massachusetts 1-6833 04-6268740
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
One Winthrop Square, Boston, Massachusetts 02110
(Address of Principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 422-6000
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This report consists of three consecutively numbered pages.
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Item 2. Acquisition or Disposition of Assets.
On August 30, 1996, MGI Properties acquired a 100,000 square-foot
research and development industrial building located at Forge Park in Franklin,
Massachusetts. MGI purchased the building from Prudential Insurance Company of
America for $5,060,000, which consisted of $4,500,000 from advances under the
Trust's lines of credit and $560,000 from available cash. The property is 100%
leased to and occupied by Thermo Instrument Systems Inc., which is
publicly-traded on the American Stock Exchange, through January 31, 2006. The
lease, which was executed in February 1996, provides for rents at an average
rate of $5.94 per square foot where the tenant pays for property operating
expenses, real estate tax and insurance.
Forge Park is a 360-acre, master-planned business park positioned at
the intersection of Route 140 and Interstate 495 in Franklin, Massachusetts,
approximately thirty miles southwest of downtown Boston. MGI owns two other
properties in the park. The park is located in the Interstate 495 South
industrial/flex submarket, which comprises 7,800,000 square feet in 70
buildings, with a vacancy rate of approximately 8%. The Interstate 495 South
market is an attractive market for both industrial research and development and
distribution properties primarily due to the excellent highway system
(Interstate 495, Interstate 95, Interstate 90 and Route 24), reasonable rental
rates, growing, quality residential communities and access to a large labor pool
both in southeastern Massachusetts and Rhode Island. Comparative rents in the
marketplace, including three lease transactions executed during 1996 in Forge
Park, indicate that market rent for Forge Park range from $5 to $6 per square
foot "as is", with any additional tenant improvements amortized over the term.
As of this date, the buildings in Forge Park are virtually full.
Certain matters discussed in this report are forward-looking
statements that are subject to risks and uncertainties that could cause actual
results to differ materially from those projected. Such risks and uncertainties
include, but are not limited to, the Risk Factors referred to in Registrant's
Form 10-Q report for the quarter ended May 31, 1996 and in the Item 1 discussion
of the Registrant's Business in its Form 10-K report for the year ended November
30, 1995 under the captions entitled "Environmental Matters" and "Competition,
Regulation and Other Factors."
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a), (b) Financial Statements of properties acquired and Pro Forma
Financial Information will be filed on Form 8-K/A as soon as practicable, but
not later than November 15, 1996, as it is currently impracticable to file such
information.
(c) Exhibits
1. Purchase and Sale Agreement, dated as of July 3, 1996, by and
between Prudential Realty Acquisition Fund II Limited Partnership and MGI
Properties, a Massachusetts business trust.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: September , 1996
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Phillip C. Vitali
Executive Vice President and Treasurer
(Chief Financial Officer)
Date: September , 1996
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David P. Morency
Controller
(Principal Accounting Officer)
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REAL ESTATE SALE CONTRACT
8 FORGE PARK
FRANKLIN, MA
1. PARTIES: PRUDENTIAL REALTY ACQUISITION FUND II LIMITED PARTNERSHIP, a
Delaware limited partnership, having an office at c/o Prudential Real
Estate Investors, 51 JFK Parkway, Short Hills, NJ 07078 ("PREI"),
Attention: Gary H. Picone, V.P. and Ellen T. Kendall, Assistant General
Counsel ("Seller"), with a copy to Goodwin, Procter & Hoar LLP,
Exchange Place, Boston, Massachusetts 02109, Attention: Daniel J.
Mullen, Esq., and MGI PROPERTIES, a Massachusetts business trust having
an office at 30 Rowes Wharf, Boston, Massachusetts 02110 ("Buyer"),
with a copy to Olshan, Grundman, Frome & Rosenweig, 505 Park Avenue,
New York, New York 10022, Attention: Neil Grundman, Esq. Seller agrees
to sell to Buyer and Buyer agrees to buy from Seller all of Seller's
right, title and interest in and to the Property (as defined in Section
2 below) for the consideration and upon and subject to the terms,
provisions, and conditions hereinafter set forth.
2. PROPERTY: A certain parcel of unregistered and registered land situated
in Franklin, County of Norfolk, Commonwealth of Massachusetts, shown as
Lot 6 on a plan of land captioned "Subdivision Plan of Land in
Franklin, MA" dated October 31, 1986 by Beals and Thomas, Inc., and
recorded with the Norfolk Registry of Deeds in Plan Book 350, Page
211A, containing 8.433 acres according to said Plan, more particularly
described in Exhibit A attached hereto and made a part hereof and
located at Eight Forge Park, together with all buildings, improvements,
fixtures, and all property of every kind, character and description
owned by Seller located in, on,
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attached to, or used in connection therewith (the "Improvements" and
hereinafter the Real Estate and Improvements are referred to as "the
Property"), all privileges and appurtenances pertaining thereto
including any right, title and interest, if any, of Seller in and to
adjacent streets, alleys, or rights-of-way and Seller's interest in and
to all subleases or rents actually held by Seller and pertaining to the
Property.
3. PURCHASE PRICE: The Purchase Price shall be Five Million Two Hundred
Thousand and 00/100 ($5,200,000.00) Dollars payable in U.S. dollars by
Buyer as follows:
(1) Non-refundable (except in accordance with Paragraph
13 hereof) Earnest Money Deposit in the amount of
Five Hundred Thousand and 00/100 ($500,000.00)
Dollars which is due when Buyer signs and submits
this Contract, and is payable by immediately
available funds and deposited to the order of
Seller's attorney, Goodwin, Procter & Hoar LLP. The
Earnest Money Deposit made hereunder shall be held in
escrow by Goodwin, Procter & Hoar LLP, subject to the
terms of this Agreement, and shall be duly accounted
for at the closing. The balance of the Purchase
Price, Four Million Seven Hundred Thousand and 00/100
Dollars ($4,700,000.00), plus or minus prorations and
closing adjustments, if any, is due at the closing
and must be paid to Seller by Wire Transfer.
Interest on the Earnest Money Deposit shall be paid
over or credited in the same manner as the Earnest
Money Deposit.
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4. CLOSING: The Closing of the sale ("Closing") shall take place at the
offices of Goodwin, Procter & Hoar LLP, Seller's attorney, in Boston,
Massachusetts, or at such other location as Seller and Buyer mutually
elect in writing, on or before August 19, 1996 ("Closing Date").
A. At the Closing, Seller shall deliver to Buyer, at
Seller's sole cost and expense, the following:
(1) A duly executed and acknowledged Massachusetts
Quitclaim Deed ("Deed") in the form attached
hereto as Exhibit B, including the permitted
title exceptions ("Permitted Exceptions") listed
in Exhibit B-1 attached hereto and referenced in
Seller's Title Insurance Policy ("Seller's Title
Policy") attached hereto as Exhibit B-2;
(2) An assignment of lease, security deposit and
prepaid rents, if any ("Assignment") in the form
attached as Exhibit C;
(3) Tenant's Estoppel Certificate regarding the
lease dated February 1, 1996 by and between
Seller as Landlord and Thermo Instrument Systems
Inc. ("Tenant") as tenant (the "Lease"), in the
form attached as Exhibit D;
(4) Evidence of Seller's capacity and authority for
the Closing of this transaction in the form of
an Assistant Secretary's Certificate;
(5) FIRPTA Affidavit in the form attached as Exhibit
E;
(6) The original, executed counterpart of the Lease;
and
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(7) All instruments, if any, necessary to enable the
Buyer to obtain a Certificate of Title with
respect to the portion of the Property which is
registered land.
B. At the Closing, Buyer shall pay the cash portion of
the Purchase Price including prorations and
adjustments, if any, and execute all other documents
necessary to closing this transaction.
C. Buyer shall obtain an owner's title policy from
Buyer's title company (Title Company) and Buyer shall
pay all premiums and costs of such Title Company and
Buyer shall not be entitled to terminate this
Contract by reason of a failure of title that arises
because of the failure of Buyer's Title Company to
insure by endorsement or otherwise that which
Seller's Title Company, Commonwealth Land Title
Insurance Company, is willing to so insure.
5. POSSESSION: The possession of the Property, subject to the rights of
the Tenant, as the only tenant, shall be delivered to Buyer at Closing,
but Seller shall, upon request of Buyer, allow Buyer or Buyer's agents,
representatives or employees continued access to the Property at
reasonable times prior to Closing. Buyer shall indemnify, defend, and
save harmless Seller for any of Buyer's or Buyer's agents,
representatives or employees' acts or failure to act which may give
rise to any liability, damage costs or expenses of Seller in connection
with any of Buyer's continued access to or inspection of the Premises.
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6. SALES EXPENSE TO BE PAID IN CASH AT OR PRIOR TO CLOSING:
A. SELLER'S EXPENSE: All costs of local transfer taxes; 1/2 of
any escrow fee; preparation of the documents listed as items
(1) - (4) in Article 4, Paragraph A; Real Estate Brokerage
fees pursuant to the Exclusive Listing Agreement between Lynch
Murphy Walsh & Partners and Seller and other expenses
stipulated to be paid by Seller under provisions of this
Contract.
B. BUYER'S EXPENSES: All costs of recording of the Deed; expense
of ALTA Title Policy and ALTA Survey; 1/2 of any escrow fee;
copies of restrictions, easements, reservations, or conditions
affecting the Property; and expenses stipulated to be paid by
Buyer under other provisions of this Contract.
7. PRORATIONS: Assessments, current real estate taxes and rents shall be
prorated as of date of the Closing, except that there shall be no
adjustment for same if paid through Closing by Tenant. No proration
shall be made at Closing for delinquent rents existing as of Closing,
which rents will be collected after Closing by Buyer and will be
delivered to Seller promptly after collection by Buyer less prorations
and costs of collections, if any. At the Closing, Seller shall credit
to Buyer with the amount of any prepaid rents paid to Seller by the
Tenant of the Property for periods subsequent to the date of the
Closing. Any special assessments applicable to the Property for
improvements previously made to benefit the Property shall be prorated
through the Closing. All other assessments to the Property shall be the
responsibility of Buyer. Seller shall credit or assign to Buyer at
Closing the amount of any security deposits, if any, delivered to
Seller by the Tenant of the Property pursuant to the Lease of the
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Property, including but not limited to, all rental security, cleaning,
utility, key damage, and other deposits in the possession of Seller.
All other ordinary operating expenses of the Property, including but
not limited to, public utility charges, maintenance, management, and
other normal operation charges shall be prorated as of the Closing
Date. The expenses of any proceeding affecting real estate taxes
assessed against the Property (including attorney's fees) shall be
prorated between Seller and Buyer in proportion to the time periods to
which allocable. Real estate tax assessment reductions, tax refunds and
credits received after the Closing that are attributable to the tax
year during which the Closing occurs shall be prorated between Seller
and Buyer, after deducting the expenses of collection thereof
(including attorney's fees), which obligation shall survive the
Closing.
8. SELLER'S DEFAULT:
A. If Seller shall be unable to convey title to the Property at
Closing in accordance with the provisions of this Contract,
Buyer may elect to accept such title as Seller conveys with a
credit against the monies payable at the Closing equal to the
reasonably estimated cost as agreed upon by Buyer and Seller
to cure the same (up to the Maximum Expense described below),
but without any other credit or liability on the part of
Seller. If Buyer shall not so elect, this Contract shall be
terminated and sole liability of Seller in the absence of
fraud or deceit shall be to cause the refund of the Earnest
Money Deposit and accrued interest, if any, to Buyer. Seller
shall not be required to bring any action or proceeding or to
incur any expense in excess of two percent of the Purchase
Price (the
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"Maximum Expense") to cure any title defect, but the foregoing
shall not permit Seller to refuse to pay off existing
mortgages which are unpermitted title exceptions.
B. If Seller shall default with respect to Seller's obligation to
convey the Property, Buyer may, as its sole remedy, either (i)
terminate this Contract in which event the Earnest Money
Deposit shall be due and payable to Buyer as liquidated
damages or (ii) bring an action for specific performance.
Buyer acknowledges that under no circumstances except Seller's
fraud or deceit shall Seller be liable for Buyer's damages,
consequential, actual, punitive, speculative, or otherwise.
9. BUYER'S DEFAULT: Unless otherwise provided herein, if Buyer fails to
comply with the terms and conditions hereof, Seller may terminate this
Contract, in which event the Earnest Money Deposit shall be due and
payable to Seller as liquidated damages, and this shall be the Seller's
sole remedy at equity or law. Buyer shall be liable for payment of
Earnest Money Deposit if not previously paid. The parties agree that
actual damages in the event of default are difficult to ascertain and
further agree that the amount set forth as liquidated damages is a
reasonable estimate of the damages to Seller in the event of Buyer's
default. Such sum is intended to be liquidated damages, and not a
penalty.
10. REPRESENTATION, WARRANTIES AND COVENANTS OF SELLER:
A. As of the date of the execution of this Contract, Seller
hereby represents and warrants to Buyer that:
(1) Seller is duly authorized and empowered to sell the
Property.
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(2) Seller has paid or will pay, through the Closing, all
taxes, charges, debts, and other assessments due by
Seller including all Brokerage commissions due to
Lynch, Murphy, Walsh and Partners in connection with
the Lease with respect to the Property which are now
or previously were due and payable unless same are
being contested.
(3) To the best of Seller's knowledge, as defined in
subsection 7 of this Paragraph 10A, Seller has
received no written notice and is unaware of the
commencement of any legal action against Seller for
the damaging, taking or acquiring of all or any part
of the Property, either temporarily or permanently,
by condemnation or by exercise of the right of
eminent domain.
(4) To the best of Seller's knowledge, there is no
pending litigation against the Seller relating to the
Property or the Lease, except matters which are
covered by Seller's insurance program.
(5) To the best of Seller's knowledge, the Lease is in
full force and effect.
(6) Seller shall maintain in full force and effect until
Closing, the insurance policies covering the
Property.
(7) Except as noted in Exhibit F, to the best of Seller's
knowledge, Seller has not received any written notice
of any violation of law or governmental ordinances,
orders or requirements, including any notice with
respect to any environmental rules and regulations
relating to the Property, that was issued prior to
the date of the Contract to Seller by any
governmental department or agency having jurisdiction
as to the conditions affecting the Property, and with
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respect to which any corrective action was not completed prior
to the date of the execution of this Contract by Seller.
(8) All references in this Agreement to the "actual
knowledge" or "knowledge" of Seller shall refer only
to the current, (i.e., upon execution of this
Agreement and at Closing) actual knowledge of the
Designated Employee (as hereinafter defined) Short
Hills, New Jersey PREI Transactions Office of PREI
and shall not be construed to refer to the knowledge
of any other office, officer, agent or employee of
Seller or any affiliate thereof or to impose upon
such Designated Employee any duty to investigate the
matter to which such actual knowledge, or the absence
thereof, pertains, including but not limited to the
contents of the files, documents and materials made
available to or disclosed to Buyer: Seller
affirmatively states that neither it nor the
Designated Employees have reviewed such files,
documents, or materials and that Seller's
representations and warranties hereunder are made
only as to the actual knowledge of the Designated
Employee and not as to or based upon the contents of
any such files, documents, materials or any other
files, documents or materials in any other office of
Seller. For purposes of this Agreement, the term
"Designated Employee" shall refer to Gary Picone.
B. The representations and warranties contained in Paragraph 10A
herein shall be deemed made by Seller to Buyer as of the
Closing Date unless Seller notifies Buyer in writing to the
contrary.
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C. From the date of this Contract until the Closing Date or
earlier termination of this Contract, Seller covenants to:
(1) Operate the Property diligently and in the ordinary
course of its business;
(2) Keep, maintain, and repair the Property in its
present condition, reasonable wear and tear excepted;
(3) Keep, observe, and perform its obligations as
landlord under the Lease, and as long as Tenant is
not in default under the Lease, not cause the
termination of the Lease;
(4) Not to enter or amend or modify the Lease without the
consent of Buyer which shall not be unreasonably
withheld or delayed;
(5) Not further encumber the Property or modify the terms
or conditions of any existing encumbrances without
Buyer's consent which shall not be unreasonably
withheld or delayed; and
(6) Not take, or omit to take, any action that would have
the effect of violating any of the representations,
warranties, covenants, and agreements of Seller
contained in this Contract.
D. If any representation or warranty in this Contract is known by
Buyer, prior to Closing, to be untrue or Buyer knows that any
covenant has not been performed or is not remedied by Seller
prior to Closing except those liens, charges or unpaid bills
or expenses that can be remedied by funds paid by Seller at
Closing out of the Purchase Price, Buyer may, as its sole
remedy, either (i) terminate
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this Contract whereupon the Earnest Money Deposit shall be
refunded to Buyer, and neither party shall have any further
rights or obligations pursuant to this Contract, or (ii) waive
its objections and close the transaction without abatement of
the Purchase Price.
11. REPRESENTATION, WARRANTIES AND COVENANTS OF BUYER:
A. Buyer represents, warrants and covenants to Seller as follows:
(1) Buyer has all requisite power and authority to
consummate the transaction contemplated by this
Contract and by proper proceedings duly authorized
the execution and delivery of this Contract and the
consummation of the transaction contemplated hereby;
(2) This Contract, when executed and delivered by Buyer
and Seller, will constitute the valid and binding
agreement of Buyer; and
(3) Neither the execution and delivery of this Contract
nor the consummation of the transaction contemplated
hereby will violate or be in conflict with (i) any
applicable provisions of law, (ii) any order of any
court or government agency having jurisdiction over
the Buyer, or (iii) any agreement or instrument to
which Buyer is party or by which Buyer is bound.
(4) Buyer's source of funds for the purchase of the
Property come from a publicly traded real estate
investment trust and funds borrowed from banks and
other lending institutions.
B. From the date of this Contract, Buyer covenants to Seller
that, in addition to the acts and deeds recited herein and
contemplated to be performed, executed, and
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delivered by Buyer, Buyer shall perform, execute, and deliver
or cause to be performed, executed, and delivered at, prior
to, or after the Closing, any and all further reasonable acts,
deeds, and assurances as Seller or the Title Company may
reasonably require consistent with Buyer's obligations under
this Contract in order to consummate the transaction
contemplated herein.
12. SURVIVAL OF WARRANTIES: The representations and warranties and
covenants (to the degree applicable) of Seller and Buyer set forth in
Sections 10 and 11 above shall survive the Closing for a period of one
(1) year from the date hereof.
13. BUYER'S DUE DILIGENCE; CONDITION OF SALE: For the period beginning
on the date of this Contract and ending twenty-seven (27) days
thereafter (the "Diligence Period"), Buyer shall have access to the
Property (subject to the rights of Tenant under the Lease) for the
purpose of conducting, at its sole cost and expense, Buyer's due
diligence review and examination of all documents, books, files and
records of Seller pertaining to the Property which Buyer deems
important or material to Buyer. During the Diligence Period, Seller
shall make available to Buyer all files of Seller relating to the
Project requested by Buyer. During the Diligence Period, Buyer shall
(a) make such inspections of the Property, market conditions, laws,
ordinances, regulations or any other aspects of the proposed
transaction as Buyer deems necessary and (b) conduct its own
investigation with respect to the structural integrity of the Property
and (c) conduct such tests and surveys, and engage such specialists as
Buyer deems appropriate to fairly evaluate the Property and its risks
as to matters regarding Hazardous Substance (the "Buyers Tests").
"Hazardous Substance" means any
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substance which is toxic, ignitable, reactive, or corrosive and which
is regulated by a local government, the Commonwealth of Massachusetts,
or the United States Government. "Hazardous Substances" includes any
and all material or substances which are defined as "hazardous waste",
"extremely hazardous waste" or a "hazardous substance" pursuant to
state, federal or local governmental law. "Hazardous Substance"
includes, but is not restricted to, asbestos, polychlorobiphenyls
("PCB's") and petroleum. Except as set forth in Paragraph 10 herein,
Buyer shall not rely on any representation or warranty of Seller.
Buyer or a representative of Buyer shall continue to have
access to the Property (subject to the rights of Tenant under the
Lease) after the Diligence Period, but prior to the Closing Date during
normal business hours if Buyer notifies Seller twenty-four (24) hours
in advance of the time Buyer desires access to the Property and Buyer
is accompanied by a representative of Seller during any such visit to
the Property. Seller agrees to either cooperate with Buyer to provide
such representative or to waive the foregoing requirement.
Buyer is responsible for any and all losses, damages, charges
and other costs associated with such inspections, studies, and access,
and Buyer covenants and agrees to return the Property to the same
condition as existed prior to such inspections and studies. Buyer
agrees not to allow any liens to arise against the Property as a result
of such inspections and studies and agrees to indemnify and hold Seller
harmless from and against any and all claims, charges, actions, costs,
suits, damages, injuries, or other liabilities which arise, either
directly or indirectly, from Buyer's or its agent's or
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employee's entry onto the Property prior to Closing. The obligations of
Buyer set forth in this paragraph shall survive the termination or
performance of this Contract. Upon Buyer's execution and delivery of
this Agreement to Seller, SELLER AND BUYER AGREE THAT (A) THE PROPERTY
SHALL BE SOLD "AS IS" (AS HEREINAFTER DEFINED), WHERE IS, WITH ALL
FAULTS" WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE,
(B) SELLER HAS NO OBLIGATION TO CONSTRUCT OR REPAIR ANY IMPROVEMENTS ON
THE PROPERTY OR TO PERFORM ANY OTHER ACT REGARDING THE PROPERTY, EXCEPT
AS EXPRESSLY PROVIDED HEREIN, AND (C) EXCEPT AS SET FORTH IN PARAGRAPH
10 HEREOF, SUCH SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTY OF
INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE BUT SPECIFICALLY EXCLUDING THE CONDITION OF
TITLE TO BE GIVEN IN THE QUITCLAIM DEED AS SET FORTH IN PARAGRAPH 13
HEREOF) AND SELLER DOES HEREBY DISCLAIM AND RENOUNCE ANY SUCH
REPRESENTATION OR WARRANTY. THE SOLE OBLIGATION OF SELLER WITH RESPECT
TO THE PHYSICAL CONDITION OF THE PROPERTY SHALL BE TO DELIVER
POSSESSION OF THE PROPERTY IN SUBSTANTIALLY THE SAME CONDITION
(EXCLUDING NORMAL WEAR AND TEAR AND CASUALTY DAMAGE EXCEPT AS SET
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FORTH IN PARAGRAPH 15 HEREOF) AS EXISTED AS OF THE DATED
HEREOF.
For purposes of this Agreement, the term "AS IS" shall mean
(without limitation thereon) AS IS with respect to (a) the physical
condition of the Property (including defects seen and unseen and
conditions natural and artificial), (b) title to the Property as
disclosed by the Seller's Title Policy, a copy of which is attached as
Exhibit B-2, and subject to the Permitted Exceptions, (c) any
documents, agreements or restrictions encumbering the Property and
previously disclosed to Buyer and (d) all laws, ordinances, rules and
regulations to which the Project is subject under any applicable
governmental or regulatory jurisdiction.
By its execution of this Agreement, Buyer hereby: (a) releases
Seller from any and all liability to Buyer and to Buyer's successors in
interest attributable to the presence, discovery or removal of any
Hazardous Substance in, at, or under the Property, (b) as between Buyer
and Seller, takes responsibility and liability for all obligations
attributable to any Hazardous Substance in, at, or under the Property,
and (c) shall at all times comply with all applicable federal and state
laws, rules and regulations involving Hazardous Substance in, at, or
under the Property or their removal from the Property. Notwithstanding
the foregoing, Buyer shall not be liable to Seller, or responsible to
Seller in any respect, for any cleanup or remediation obligations with
respect to the Property attributable to any Hazardous Substances, in,
at, or under the Property prior to Closing or for any loss or damage
Seller may sustain as a result of actions against Seller by third
parties and in connection therewith, Buyer
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shall be entitled to seek enforcement of any order or directive by a
court or other authorized governmental body having jurisdiction,
directed to Seller, which obligates Seller for the cleanup or
remediation of the Property on account of any Hazardous Substance in,
at, or under the Property prior to Closing. Notwithstanding anything
herein to the contrary, the agreements of Buyer set forth in this
Paragraph 13 shall survive the closing and shall be enforceable at any
time.
Buyer acknowledges that it is a condition precedent to the
closing of the transaction and Seller's obligation to deliver the Deed
(as defined in Paragraph 4A hereof) that Seller receive at closing from
Buyer a fully executed and sworn affidavit and agreement in the form
attached hereto as Exhibit G.
Prior to the expiration of the Diligence Period, Buyer may
terminate this Contract by giving written notice stating the reasons
for its decision to terminate the Contract (the "Termination Notice"),
and thereafter the Earnest Money Deposit, including interest accrued
thereon, shall be returned to Buyer, and Seller and Buyer shall have no
further obligations or liabilities to each other. In the event that
this contract is terminated by Buyer, Seller shall have access to the
Buyer's Test. If Buyer gives notice to Seller prior to the expiration
in the Diligence Period that it waives any right not to purchase the
property based on its due diligence investigations or if Buyer fails to
give the Termination Notice prior to the expiration of the Diligence
Period, Buyer shall conclusively and unconditionally be deemed to have
elected (i) to waive its right to terminate this contract under this
Section 13 (ii) to purchase the property in accordance with the terms
hereof.
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14. CONDEMNATION. If, prior to Closing, condemnation proceedings are
commenced against any portion of the Property (except for road
widenings not affecting any structure or parking on the Property),
Buyer may, at its option, terminate this Contract by written notice to
Seller within ten (10) days after Buyer is advised of the commencement
of such condemnation proceedings and the Earnest Money Deposit shall be
refunded to Buyer, or Buyer shall have the right to proceed to
consummate the purchase of the Property, in which event Buyer may
appear and defend any such condemnation proceedings, and any award in
condemnation shall become the property of Buyer and the Purchase Price
shall not be reduced.
15. CASUALTY LOSS: Risk of loss by damage or destruction to the Property
prior to the Closing shall be borne by Seller. If Seller elects to
repair, Seller shall proceed with due diligence to complete such
repairs prior to the Closing Date. If Seller cannot complete such
repairs prior to the Closing Date, Seller, upon written notice to Buyer
at least five (5) business days before the Closing, shall be entitled
to extend the Closing Date for a period of time not to exceed one
hundred and twenty (120 ) days. If Seller elects not to repair, Buyer
may, upon written notice to Seller within ten (10) business days of
such damage or destruction, either (a) terminate this Contract in which
event the Earnest Money Deposit shall be refunded to Buyer, and neither
party shall have any further rights or obligations pursuant to this
Contract, or (b) elect to close the transaction, in which event, at
Buyer's option, either (i) Seller's right to all insurance proceeds
resulting from such damage or destruction shall be assigned in writing
by Seller to Buyer, without affecting the Purchase Price, or (ii) the
Purchase Price shall be
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reduced by the mutually agreed upon estimated cost of repair or
replacement of the damaged property. Any dispute as to the
determination of the estimated cost of repair shall not delay Closing.
A sufficient amount to cover such cost as may be acceptable to both
parties plus ten percent (10%) shall be held in escrow and any
unresolved issues shall be settled by arbitration under the rules of
the American Arbitration Association ("AAA") and each party agrees to
submit to the jurisdiction of the AAA. The arbitration award shall be
enforceable in a court of competent jurisdiction in the state where the
Property is located.
16. ASSIGNMENT. Buyer may not assign this Contract or any rights
thereunder, except to a corporation wholly owned by Buyer and provided
Buyer gives Seller notice of such assignment at least five (5) days
prior to Closing and remains liable for Buyer's obligations hereunder.
Any such assignee shall reaffirm Buyer's representation number 5 set
forth on Page 10. Notwithstanding anything to the contrary contained
herein, Buyer shall not assign this Contract or any rights thereunder
if such assignment results in a prohibited transaction under ERISA, as
more fully set forth in Paragraph 17 hereof.
17. ERISA COMPLIANCE. Buyer hereby represents and warrants that the assets
of the Buyer involved in this Transaction do not constitute "plan
assets" within the meaning of Department of Labor Regulations, Section
2510.3-101 of any employee benefit plan subject to Title 1 of the
Employee Retirement Income Security Act of 1974 as amended.
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18. BROKERAGE. Buyer and Seller represent to one another that neither has
dealt with any broker or other intermediary with regard to this
transaction except for Lynch Murphy Walsh & Partners (the "Broker").
Each shall indemnify, defend and hold the other harmless from and
against any claims or damages occurring as the result of a breach of
the foregoing representation. Buyer acknowledges that the Broker
represents Seller. Seller agrees to pay a Sales Commission to Broker at
Closing pursuant to Seller's Exclusive Listing Agreement with Broker.
19. NOTICES: All notices, elections, consents, demands and communications
(collectively called "Notices" or individually called "Notice") shall
be in writing and delivered personally or by registered or certified
mail, return receipt requested, postage prepaid, express mail or
mailgram, or by facsimile (provided a copy is contemporaneously sent by
a nationally recognized overnight carrier), and, if sent to Buyer,
addressed to Buyer at Buyer's address on the signature page of this
Contract and, if sent to the Seller, addressed to the Seller at
Seller's address given on the signature page of this Contract. Copies
of all Notices shall be sent to the Attorneys and Brokers for the
respective parties, if identified on the signature page or in Paragraph
1 of this Contract. Either party may, by written notice to the other,
change the address to which notices are to be sent. Unless otherwise
provided herein, all notices shall be deemed given when personal
delivery is effected or when deposited in any branch, station or
depository maintained by the U.S. Postal Service or the express mail
service within the United States of America, except that a Notice of a
change of address shall be deemed given when actually received.
Seller's affidavit of the date
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and time of deposit in a mailbox or with the express mail service or
the postmark, whichever is earlier shall constitute evidence of the
effective date when the notice has been given.
20. NO RECORDING: Neither this Contract nor any type of memorandum thereof
shall be recorded with the office of the Register of Deeds or with any
other governmental agency, and any purported recordation or filing
hereof by Buyer shall constitute a default on the part of Buyer.
21. ENTIRE AGREEMENT: This Contract constitutes the entire agreement
between Seller and Buyer with respect to the subject matter hereof and
supersedes all prior understandings and agreements. There are no
representations, agreements, arrangements or understandings, oral or
written, between Seller and Buyer, relating to the subject matter
contained in this Contract which are not fully expressed or referred to
herein.
22. FURTHER ASSURANCES: Either party shall execute, acknowledge and deliver
to the other party such instruments and take such other action, in
addition to the instruments and actions specifically provided for
herein at any time and from time to time after execution of this
Contract whether before or after the Closing, as such other party may
reasonably request in order to effectuate the provisions of this
Contract or the transaction contemplated herein or to confirm or
perfect any right to be created or transferred hereunder or pursuant to
this transaction, provided that neither party shall be required to
incur any material expense in connection therewith.
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23. SEVERABILITY: If any clause or provision of this Contract is held to be
invalid or unenforceable by any court of competent jurisdiction as
against any person or under any circumstances, the remainder of this
Contract and the applicability of any such clause or provision to other
persons or circumstances shall not be affected thereby. All other
clauses or provisions of this Contract, not found invalid or
unenforceable, shall be and remain valid and enforceable.
24. TIME: Time is of the essence in the performance of all covenants,
agreements, or obligations under this Contract.
25. STRICT COMPLIANCE/WAIVER: Any failure by either party to insist upon
strict performance by the other party of any of the provisions of this
Contract shall not be deemed a waiver of any of the provisions hereof,
irrespective of the number of violations or breaches that may occur,
and each party, notwithstanding any such failure, shall have the right
thereafter to insist upon strict performance by the other of any and
all of the provisions of this Contract.
26. GOVERNING LAW: The provisions of this Contract and all questions with
respect to the construction and enforcement thereof and the rights and
liabilities of the parties hereto shall be governed by, and construed
and enforced in accordance with, the laws of the Commonwealth of
Massachusetts without regard to the application of any conflicts of law
provisions.
27. WAIVER OF TRIAL: Except as prohibited by law, the parties shall, and
they hereby do, expressly waive trial by jury in any litigation arising
out of, connected with, or relating to this Contract or the
relationship created hereby. With respect to any matter
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for which a jury trial cannot be waived, the parties agree not to
assert any such claim as a counterclaim in, nor move to consolidate
such claim with, any action or proceeding in which a jury trial is
waived.
28. ATTORNEYS FEES: A party to this Contract who is the prevailing party in
any legal proceeding against any other party brought under or with
respect to this Contract or the transaction contemplated hereby shall
be additionally entitled to recover court costs and reasonable
attorney's fees from the non-prevailing party.
29. CAPTIONS: The captions in this Contract are for convenience and
reference only and in no way define, limit or describe the scope of
this Contract or the intent of any provision hereof.
30. NO ORAL CHANGES: This Contract cannot be changed or any provision
waived orally. Any changes or additional provisions or waivers must be
set forth in a rider attached hereto or in a separate written agreement
signed by the parties.
31. EXHIBITS: All Exhibits described herein and attached hereto are
incorporated herein by this reference for all purposes.
32. COUNTERPARTS: This Contract may be executed in a number of
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
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<PAGE>
IN WITNESS HEREOF, Buyer and Seller have executed this Contract as of
this day of July, 1996.
BUYER: MGI PROPERTIES, a Massachusetts Business Trust
BY: /s/ Robert Ware
Robert Ware
(Print Name)
ITS: Executive Vice President
ATTEST: /s/ Phillip C. Vitali
Phillip C. Vitali
(Print Name)
ITS: Executive Vice President and Treasurer
BUYER'S ADDRESS: 30 Rowes Wharf
Boston, Massachusetts 02110
BUYER'S PHONE: (Phone) (617) 330-5335
(Fax) (617) 330-5046
BUYER'S ATTORNEY: Neil Grundman, Esq.
ATTORNEY ADDRESS: Olshan Grundman Frome & Rosenweig
505 Park Avenue
New York, New York 10022
(Phone) (212) 753-7200
(Fax) (212) 755-1467
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SELLER: PRUDENTIAL REALTY ACQUISITION FUND II
LIMITED PARTNERSHIP
PRUDENTIAL REALTY PARTNERSHIPS, INC., its
General Partner
By: /s/
(Print Name)
ITS:
ATTEST:
(Print Name)
ITS:
SELLER'S ADDRESS: c/o Prudential Real Estate Investors
51 JFK Parkway
Short Hills, NJ 07078
Attention: Gary H. Picone
SELLER'S PHONE: (Phone) (201) 912-7302
(Fax) (201) 912-7309
SELLER'S ATTORNEYS: Daniel J. Mullen, Esq.
(Phone) (617) 570-1840
(Fax) (617) 227-8591
Jamie C. Mann, Esq.
(Phone) (617) 570-1453
(Fax) (617) 227-8591
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EXHIBIT A
A certain parcel of unregistered and registered land, together with
the buildings and other improvements thereon, situated in Franklin, Norfolk
County, Massachusetts, shown as Lot 6 on a plan (the "Recorded Plan") entitled
"Subdivision Plan of Land in Franklin, MA" dated October 31, 1986, by Beals and
Thomas, Inc., recorded with the Norfolk Registry of Deeds in Plan Book 350, Plan
211A, bounded and described as follows:
SOUTHWESTERLY by the northeasterly side line of Forge Parkway as
shown on said plan, in three courses measuring
together three hundred thirty-five and 64/100
(335.64) feet;
NORTHWESTERLY by Lot 5 as shown on said plan two hundred fifty-
three and 22/100 (253.22) feet;
NORTHERLY by Lot 5 and L.C. Lot No. 33 (shown as Lot No.
38 on Land Court Plan 7594-8) as shown on said
plan in four courses measuring together seven
hundred seventy-nine and 31/100 (779.31) feet;
EASTERLY by land shown on said plan as now or formerly of
Donald G. Ranieri and Mary E. Ranieri, and now or
formerly of Northco Realty Company Limited Partnership,
in two courses measuring together four hundred
sixty-six and 00/100 (466.00) feet;
SOUTHWESTERLY by Lot 27 as shown on said plan, five hundred eight
and 06/100 (508.06) feet; and
SOUTHERLY by the same in two courses measuring together three
hundred ninety-six and 03/100 (396.03) feet.
Containing 8.433 (plus or minus) acres of land, more or less,
according to said plan.
The registered portion of the premises is bounded and described as
follows:
SOUTHWESTERLY by the northeasterly side line of Forge Parkway as
shown on the plan hereinafter referred to, in
two courses measuring together two hundred nine
and 06/100 (209.06) feet;
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NORTHERLY by said unregistered portion of the premises, in
two courses measuring together four hundred
twenty-one and 68/100 (421.64) feet;
WESTERLY by the same, one hundred forty-two and 23/100
(142.33) feet;
NORTHERLY by L.C. Lot No. 33 as shown on said plan, in two
courses measuring together four hundred seventy-
three and 83/100 (473.83) feet;
EASTERLY by land shown on said plan as now or formerly of
Donald G. Ranieri and Mary E. Ranieri, and now or
formerly of Northco Realty Company Limited
Partnership, in two courses measuring together four
hundred sixty-six and 00/100 (466.00) feet;
SOUTHWESTERLY by Lot 27 as shown on said plan, five hundred
eight and 06/100 (508.06) feet; and
SOUTHERLY by the same in two courses measuring together three
hundred ninety-six and 03/100 (396.03) feet.
All of said boundaries are located as shown on a plan (the "Land Court
Plan") entitled "Subdivision Plan of Land in Franklin, MA (Norfolk County) Being
a Subdivision of Lot 26 Shown on Land Court Plan 7594-5" dated October 31, 1986,
by Beals and Thomas, Inc., filed with the Land Registration Office in Boston,
and said registered parcel is shown thereon as L.C. Lot No. 32. Said registered
parcel is also to be shown as Lot 37 on a plan to be drawn by the Land Court
Engineers and to be filed with the Norfolk County Registry District of the Land
Court as Plan No. 7594-8.
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EXHIBIT B
Form of Quitclaim Deed
PRUDENTIAL REALTY ACQUISITION FUND II LIMITED PARTNERSHIP, a Delaware
limited partnership authorized to do business in Massachusetts with a principal
place of business at 751 Broad Street, Newark, New Jersey 07102 (the "Grantor")
for consideration paid of Five Million Two Hundred Thousand and 00/100 Dollars
($5,200,000) grants to______________, a Massachusetts ________________, with
an address c/o MGI PROPERTIES, 30 Rowes Wharf, Boston, Massachusetts 02110
(the "Grantee")
with quitclaim covenants
the land, with the building thereon, described in Exhibit A, Legal
Description of the Premises, attached hereto and incorporated herein.
Said premises are conveyed subject to a lease dated February 1, 1996 to
Thermo Instruments Systems Inc., the Grantor's interest in which is hereby
assigned to the Grantee. Said Premises are further conveyed subject to the
permitted title exceptions set forth on Exhibit B attached hereto and subject to
any and all other matters of record to extent still in full force and effect and
applicable.
The premises are conveyed subject to real estate taxes for fiscal 1997
and thereafter. This conveyance does not constitute a conveyance of all assets
of the Grantor.
Executed under seal as of this _____ day of ____________________, 1996.
PRUDENTIAL REALTY ACQUISITION
FUND II LIMITED PARTNERSHIP, a
Delaware limited partnership
PRUDENTIAL REALTY PARTNERSHIPS,
INC., its General Partner
By:
Name:
Title:
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<PAGE>
STATE OF NEW JERSEY
____________, ss. _____________, 1996
Then personally appeared before me the above-named __________________,
of Prudential Realty Partnerships, Inc., the General Partner of Prudential
Realty Acquisition Fund II Limited Partnership, and acknowledged the foregoing
instrument to be his free act and deed in said capacity, before me.
___________________________
Notary Public
My commission expires:_____
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<PAGE>
EXHIBIT B-1
1. Taxes which are not yet due and payable.
2. Title to and rights of the public and others entitled thereto in and to
those portions of the insured premises lying within the bounds of Forge
Parkway.
3. Terms and provisions of an Order of Court, Case No. 7594-S, dated June
12, 1986 and filed with the Norfolk Registry District of the Land Court
as Document No. 492399.
4. Rights and easements granted by James R. Allen, Thomas M. Alperin,
William E. Balsinger, Seymour Baskin, and John P. Bollig, as Trustees of
Forge Park Realty Trust to New England Telephone and Telegraph Company,
recorded with Norfolk Registry of Deeds on September 17, 1986, as
Instrument No. 106868; and filed with said Registry District as Document
No. 501367.
5. Utility Easement granted by Thomas M. Alperin, Theodore R. Tye, Bernard
D. Horan and James W. Wetzel, Trustees of SRW Realty Trust to James R.
Allen, Thomas M. Alperin, William E. Balsinger, Seymour Baskin and John
P. Bollig, Trustees of Forge Park Realty Trust; dated June 23, 1986,
filed with said Registry District as Document No. 493443.
6. Rights, reservations, easements, restrictions, covenants, and agreements
set forth in deed from James R. Allen, Thomas M. Alperin, Theodore R.
Tye, Seymour Baskin and John P. Bollig, as Trustees of Forge Park Realty
Trust to James R. Allen, Thomas M. Alperin, Theodore R. Tye, Seymour
Baskin and John P. Bollig, as Trustees of Eight Forge Park Realty Trust,
dated April 27, 1987, recorded with said Deeds in Book 7542, Page 212;
and filed with said Registry District as Document No. 519870; as affected
by Certificate regarding compliance with restrictions dated September 30,
1987, recorded with said Deeds on October 1, 1987 as Instrument No.
117570 and filed with said Registry District as Document No. 532474.
7. Terms and provisions of Eight Forge Park Grant of Easement from James R.
Allen, Thomas M. Alperin, Theodore R. Tye, Seymour Baskin and John P.
Bollig, as Trustees of Forge Park Realty Trust to James R. Allen, Thomas
M. Alperin, Theodore R. Tye, Seymour Baskin, and John P. Bollig, as
Trustees of Eight Forge Park Realty Trust dated September 29, 1987,
recorded with said Deeds on October 1, 1987 as Instrument No. 117568; and
filed with said Registry District as Document No. 532472; as affected by
Eight Forge Park Subordination Agreement by Allomon Corporation dated
September 23, 1987, recorded with said Deeds on October 1, 1987 as
Instrument No. 117569; and filed with said Registry District as Document
No. 532473.
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8. Rights of first refusal as set forth in deed from James R. Allen, Thomas
M. Alperin, Theodore R. Tye, Seymour Baskin and John P. Bollig, as
Trustees of Eight Forge Park Realty Trust to Prudential Realty
Acquisition Fund II Limited Partnership dated September 30, 1987,
recorded with said Deeds on October 1, 1987 as Instrument No. 117571 and
filed with said Deeds Registry District as Document No. 532475.
9. Such state of facts as is disclosed on plan entitled "Plan of Land In
Franklin, MA (Norfolk County)", by Beals and Thomas, Inc. dated September
24, 1987; and, as such survey may be updated in connection with Buyer's
purchase of the Property on accompanying Surveyor's Report And
Certification dated September 24, 1987.
30
<PAGE>
EXHIBIT C
Form of Assignment of Lease
This ASSIGNMENT (this "Assignment") is made as of the ____ day of ____,
1996, by and between Prudential Realty Acquisition Fund II Limited Partnership,
a Delaware limited partnership having a principal place of business at 751 Broad
Street, Newark, New Jersey ("Seller"), and __________________, a Massachusetts
____________ having a principal place of business at c/o MGI PROPERTIES, 30
Rowes Wharf, Boston, Massachusetts 02110 ("Buyer").
Buyer is today purchasing from Seller the land, with buildings and
improvements thereon, known as 8 Forge Park, Franklin, Massachusetts, more
particularly described in Exhibit A attached hereto (the "Premises"). In
consideration of such purchase and the conveyance of the Premises by Seller and
other valuable consideration, the receipt and sufficiency of which are mutually
acknowledged, the parties agree as set forth below.
Seller hereby assigns to Buyer, without recourse, all of Seller's
right, title and interest as landlord in the lease dated February 1, 1996, by
and between Seller as landlord and Thermo Instrument Systems, Inc. as tenant
(the "Lease"); and as owner of the Premises in all licenses, permits and
approvals of governmental authorities with respect to the Premises (the
"Permits"), with respect to the period from and after the date of this
Assignment. Buyer hereby accepts the foregoing assignment and assumes and agrees
to perform all obligations of the landlord under the Lease and all obligations
of the owner of the Premises under the Permits, with respect to the period from
and after the date of this Assignment.
Seller makes no representation or warranty whatsoever with respect to
the Lease and Permits.
Seller hereby agrees to indemnify the Buyer against and hold the Buyer
harmless from all costs, claims, and liabilities of the landlord under the Lease
arising with respect to the period prior to the date of this Assignment, and the
Buyer hereby agrees to indemnify the Seller against and hold the Seller harmless
from all costs, claims, and liabilities of the landlord under the Lease arising
with respect to the period from and after the date of this Assignment.
[Remainder of Page Intentionally Left Blank]
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<PAGE>
IN WITNESS WHEREOF, the Buyer and the Seller have caused this
Assignment to be executed under seal by their duly authorized representatives as
of the day and year first above written.
SELLER
PRUDENTIAL REALTY ACQUISITION
FUND II LIMITED PARTNERSHIP
PRUDENTIAL REALTY
PARTNERSHIPS, INC., its General Partner
By: ______________________________
Name:
Title:
BUYER
By: ______________________________
Name:
Title:
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EXHIBIT D
Form of Estoppel Certificate
Prudential Realty Acquisition Fund II Limited Partnership
c/o Prudential Real Estate Investors
51 JFK Parkway
Short Hills, NJ 07078
_____________________ ("Buyer")
c/o MGI Properties
30 Rowes Wharf
Boston, Massachusetts, 02110
Re: Lease Agreement dated: February 1, 1996
Lease Amendments (if any) dated: None
Landlord: The Prudential Insurance Company of America
Tenant: Thermo Instrument Systems, Inc.
Demised Premises: 8 Forge Park, Franklin, Massachusetts
Ladies and Gentlemen:
The undersigned ("Tenant") is the tenant under the above-referenced
Lease Agreement (the "Lease"). Tenant understands that the Landlord has entered
into a Purchase and Sale Agreement to sell the Demised Premises to the Buyer and
that Buyer will rely on the representations and agreements herein contained in
connection with such sale. Tenant hereby acknowledges, certifies and represents
to Landlord and Buyer that:
1. A true and accurate copy of the Lease is attached hereto as Exhibit
1. The Lease represents the entire understanding between Landlord and Tenant
with respect to the leasing of the Demised Premises, and has not been modified,
altered or amended. The Lease has been duly authorized, executed and delivered
by Tenant, is in full force and effect and constitutes a legally valid
instrument, binding and enforceable against Tenant in accordance with its terms,
subject only to applicable limitations imposed by laws relating to bankruptcy
and creditor's rights.
2. Tenant has accepted possession of the Demised Premises and is in
occupancy under the Lease. The initial term of the Lease commenced on February
1, 1996 and expires on January 31, 2006. Tenant has no rights of extension or
renewal except as set forth in the Lease and Tenant has no right to acquire or
purchase the Demised Premises or any portion thereof or interest therein.
3. The obligation to pay rent under the Lease commenced on February 1,
1996. There exists no default nor state of facts which with the passage of time
or the giving of notice or both could ripen into a default on the part of
Tenant, or to the best knowledge of Tenant,
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<PAGE>
could ripen into a default on the part of Landlord under the Lease. There are no
offsets, deductions or credits against the rents due and payable under the
Lease.
4. Those improvements to the Demised Premises which are the Landlord's
responsibility under the Lease have been completed in accordance with the terms
of the Lease.
5. Tenant has not assigned, transferred or pledged the Lease or any
interest therein or sublet all or any portion of the Demised Premises as of
the date hereof.
6. There is not pending or, to the best knowledge of Tenant, threatened
against or contemplated by the Tenant, any petition in bankruptcy, whether
voluntary or otherwise, any assignment for the benefit of creditors, or any
petition seeking reorganization or arrangement under the federal bankruptcy laws
or those of any state.
7. Tenant agrees that, at the time Buyer succeeds to the interest of
Landlord under the Lease:
(a) Buyer shall not be liable for any act or omission of
any prior landlord (including Landlord); or
(b) Buyer shall not be bound by any rent or additional rent
which Tenant might have prepaid for more than the current
month under the Lease; or
(c) Buyer shall not be bound by any amendments or
modifications of the Lease made without the consent of
Buyer; or
(d) Buyer shall not be subject to any offsets or defenses
which Tenant might have against any prior landlord
(including Landlord).
8. The monthly rent due under the Lease is $39,583.33 and has been
paid through July __, 1996.
9. The Tenant has not made a security deposit with the Landlord.
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WITNESS the execution hereof under seal the _____ day of ____________,
1996.
TENANT:
THERMO INSTRUMENT SYSTEMS INC.
By:
Name: _________________________
Title: __________________________
Commonwealth of Massachusetts
____________________, ss. ____________, 1996
Then, personally appeared the above-named ___________________________,
of Thermo Instrument Systems Inc. and acknowledged the foregoing to be the
free act and deed of said Thermo Instrument Systems Inc., before me.
____________________________
Notary Public
My commission expires:
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EXHIBIT E
Form of FIRPTA Affidavit
TO: ___________________., TRANSFEREE
FROM: The Prudential Realty Acquisition Fund II Limited Partnership, TRANSFEROR
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the Transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by Transferor, the undersigned
hereby certifies the following on behalf of the Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is ______________;
and
3. Transferor's principal office address is 751 Broad Street, Newark,
New Jersey.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
PRUDENTIAL REALTY ACQUISITION FUND II
LIMITED PARTNERSHIP
By: Prudential Realty Partnership, Inc., its
General Partner
By:__________________________________
Name: __________________________
Title: _________________________
Date: ________________________, 1996
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Exhibit G
Form of Buyer's Affidavit
STATE OF ________________
COUNTY OF _______________
This day personally came and appeared before me, the undersigned
___________________, _____________ of ____________________, a Massachusetts
______________ ("Buyer"), who, on being duly sworn, stated under oath as follows
that:
1. Pursuant to Paragraph 13 of that certain Real Estate Sale Contract
("Sale Contract") dated _________ ___, 1996 by and between Buyer and The
Prudential Insurance Company of America ("Seller"), Buyer has had access to and
has (to Buyer's satisfaction) exercised its option to inspect and evaluate for
potential purchase that certain property known as 8 Forge Park located in
Franklin, Commonwealth of Massachusetts and more particularly described on
Exhibit "A" attached hereto ("Project") and files of Seller relating thereto
which Buyer felt were important or material to Buyer, and Seller made available
to Buyer all files of Seller relating to the Project requested by Buyer.
2. Buyer and experts of Buyer's choice have had access to and has (to
Buyer's satisfaction (i) physically inspected the Project, (ii) analyzed the
present, past and Buyer's projected use of the Project, (iii) determined the
fair market value of the Project in its "As Is" condition (as defined in the
Sale Contract) as of the closing date and (iv) had the opportunity to
independently verify all material documents and information provided to Buyer by
Seller and Seller's Agents (as hereinafter defined).
3. Buyer has not relied upon and is not relying upon any document,
representation of information provided to Buyer by Seller or Seller's Agents (as
defined in Paragraph 6 below), except as otherwise provided for in the Sale
Contract.
4. There are no verbal promises or representations of Seller or
Seller's Agents upon which Buyer is relying in connection with the Project or
the Sale Contract. There are no unperformed written promises by Seller of
Seller's Agents to Buyer in connection with the Project or the Sale Contract.
5. The Project inspection reports listed in Schedule 1 attached hereto
were prepared at Buyer's request and expense for Buyer's benefit and constitute
all reports of such type which were obtained by Buyer in connection with Buyer's
evaluation and decision to purchase the Project; and said reports are a source
of information relied upon by Buyer in making Buyer's decision to purchase the
Project and Buyer has not relied upon Seller's information or reports, each of
which was disclosed for informational purposes only.
6. Buyer hereby releases Seller from and waives any and all causes of
action, claims, liabilities, damages or injury arising from, connected with or
otherwise caused by: (a) statements, opinions or information obtained from
Seller's brokers, contractors, property managers or similar individuals or
entities engaged by Seller ("Seller's Agents") related to or
37
<PAGE>
involving the Project except as provided in Paragraph 10 of the Sale Contract;
or (b) information withheld by Seller's Agents unless withheld at the express
direction of an officer of Seller's partner and related to or involving the
Project; or (c) environmental contamination existing in, at or under the
Project, including but not limited to all CERCLA (Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended) based or related
claims, liabilities or damages or environmental claims or causes of action
arising from any other federal or state based statutory or regulatory cause of
action. Seller's Agents include but are not limited to Seller's listing broker
and Seller's property manager R. M. Bradley & Co., Inc. any other agent or
representative of Seller who discussed the Project with or provided information
to Buyer or Buyer's representatives.
ACCEPTED AND AGREED TO:
[Name of Transferee]
a Massachusetts __________________
By: _______________________________
Name: _____________________________
Title: ____________________________
STATE OF _____________
COUNTY OF ___________
BEFORE ME, the undersigned authority, on this day personally appeared _________
_____________, ____________ of ____________, a Massachusetts _____________,
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated and as the
act and deed of aid corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this __________ day of __________, 1996.
__________________________________
Notary Public, State of __________
MY COMMISSION EXPIRES:
- ------------------------
38
