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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 30, 1996
Commission file number: 0-14437
PRUDENTIAL REALTY ACQUISITION FUND II, L.P.
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(Exact name of Registrant as specified in its charter)
Delaware 13-3236335
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Seaport Plaza, New York, New York 10292-0116
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 214-1016
N/A
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Former name, former address and former fiscal year, if changed since last
report.
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Item 2. Acquisition or Disposition of Assets
Prudential Realty Acquisition Fund II, L.P., a Delaware limited
partnership (``Partnership''), sold for cash the Partnership's interest
in Eight Forge Park, a 102,000 square foot single-story research and
development building located in Franklin, Massachusetts, on August 30,
1996 for a gross sales price of $5,060,000 less costs to sell and
pro-rations of approximately $135,000. The gross sales price was in
excess of the appraised value. The purchaser of the Eight Forge Park
property was MGI Properties, a Massachusetts business trust (``MGI'').
A distribution will be made in September 1996 in the amount of $100.00
per $1,000 Unit from the sale of the Eight Forge Park property with the
remainder of the net proceeds being held to meet future Partnership
obligations and contingencies, if any.
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
On a pro forma basis, if the sale of the Eight Forge Park
property had been consummated on June 30, 1996, the
Partnership's Statement of Financial Condition as of such date
would have reflected an increase in cash of approximately
$4,925,000, a decrease in property held for sale of
approximately $3,816,000 and an increase in partners' capital
of approximately $1,109,000 representing the gain on the sale.
For the Statement of Operations, if the transaction were
consummated on January 1, 1995, the Partnership's net loss
for 1995 would have increased by approximately $414,000 or
by $9.31 to $39.25 per limited partnership unit. For the
Statement of Operations, if the transaction were consummated
on January 1, 1996, the Partnership's net loss for the six
months ended June 30, 1996 would have increased by approximately
$242,000 or by $5.44 to $15.75 per limited partnership unit.
These pro forma adjustments for the Statement of Operations
exclude the Partnership's non-recurring gain on the sale.
(c) Exhibits
10 (m) Real Estate Sale Contract dated July 3, 1996 by and
between the Registrant and MGI Properties (filed
herewith)
10 (n) First Amendment to Real Estate Contract dated August
27, 1996 by and between the Registrant and MGI 8
Forge Park, Inc. (filed herewith)
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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 thereunto duly authorized.
Prudential Realty Acquisition Fund II, L.P.
a Delaware Limited Partnership
(Registrant)
By: Prudential Realty Partnerships, Inc.
General Partner
By: /s/ Kevin R. Smith Date: September 13, 1996
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Kevin R. Smith
Vice President
By: Prudential-Bache Properties, Inc.
General Partner
By: /s/ Chester A. Piskorowski Date: September 13, 1996
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Chester A. Piskorowski
Vice President
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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, attached to, or
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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;
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(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; 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; 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 and time of
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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.
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
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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
<PAGE>
<PAGE>
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 for which a jury trial cannot be waived, the parties
agree not to assert any such claim as
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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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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/ Kevin Smith
Kevin Smith
(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
24
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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+ 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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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.
29
<PAGE>
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]
31
<PAGE>
<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:
<PAGE>
<PAGE>
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,
<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:
<PAGE>
<PAGE>
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
PAGE
<PAGE>
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
38
<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:
________________________
<PAGE>
August 16, 1996
BY FACSIMILE
Hyman Kindler, Esq.
Olshan Grundman Fromme & Rosenweig
505 Park Avenue
New York, NY 10022
Re: Eight Forge Park, Franklin, MA - Real Estate
Contract (the "Real Estate Contract") dated as of
July 3, 1996 by and between Prudential Realty Acquisition
Fund II Limited Partnership and MGI Properties (the "Buyer")
Dear Neil:
As we discussed, we have agreed to extend (i) the Diligence Period (as
defined in the Real Estate Contract) of the Buyer under section 13 of the Real
Estate Contract to August 22, 1996 with respect to the right of first refusal
issue and (ii) the Closing Date (as defined in Section 4 of the Real Estate
Contract) to August 27, 1996.
Please acknowledge your agreement with the foregoing by countersigning
this letter where indicated and returning it to my attention.
Very truly yours,
Prudential Realty Acquisition Fund
II Limited Partnership
By: -----------------------------------
Jamie C. Mann, its attorney-in-fact
ACCEPTED AND AGREED TO
THIS 16th DAY OF AUGUST, 1996:
MGI Properties
By:--------------------------------
cc: Gary H. Picone, Vice President
Karl Weller
Thomas A. Walsh
James E. Fox
Daniel J. Mullen, Esq.
<PAGE>
FIRST AMENDMENT TO REAL ESTATE CONTRACT
This First Amendment to Real Estate Contract is made as of the 27th day
of August, 1996 by and between 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 (the "Seller") and MGI 8 Forge Park, Inc., a Massachusetts
corporation, having an office at c/o MGI Properties, One Winthrop
Square, Boston, Massachusetts 02110, as assignee of the interest
of MGI Properties (the "Buyer") under the Contract (as defined
below).
RECITALS
Reference is made to a certain Real Estate Contract by and between the
Seller and MGI Properties dated as of July 3, 1996 (as so amended,
the "Contract") regarding certain premises located at 8 Forge Park,
Franklin, Massachusetts, as amended by certain letter agreements
dated as of July 30, 1996, August 9, 1996, August 16, 1996, and
August 23, 1996.
WHEREAS, the Seller and the Buyer desire to amend the Contract.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Seller and
the Buyer hereby agree as follows:
1. Section 3 of the Contract is amended by deleting all references
to "$5,200,000" and inserting "$5,060,000" in its place.
2. Section 3 of the Contract is amended by deleting all references
to "$4,700,000" and inserting "$4,560,000" in its place.
3. Except as expressly amended hereby, the Contract remains unmodified
and, as modified hereby, remains in full force and effect.
4. This First Amendment to Real Estate 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.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the Seller and the Buyer have caused this First Amendment
to Real Estate Contract to be executed as of the date first set forth above.
SELLER:
PRUDENTIAL REALTY ACQUISITION
FUND II LIMITED PARTNERSHIP
PRUDENTIAL REALTY
PARTNERSHIPS, INC., its General
Partner
By: /s/ Gary H. Picone
Name: Gary H. Picone
Title: Vice President
BUYER:
MGI 8 FORGE PARK, INC.
By: /s/ Karl W. Weller
Name: Karl W. Weller
Title: Senior Vice President
