7
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)December 3, 1997
DEAN WITTER REALTY INCOME PARTNERSHIP II, L.P.
(Exact name of registrant as specified in its charter)
Delaware 0-18150 13-
3244091
(State or other jurisdiction Commission (I.R.S. Employer
of incorporation) File Number) Identification
No.)
Two World Trade Center, New York, New York 10048
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code(212) 392-1054
(Former name or former address, if changed since
last report)
Item 2. Acquisition or Disposition of Assets
Pursuant to an agreement dated as of October 22, 1997,
Framingham Corporate Center Limited Partnership (which is
owned 95% by the Partnership and 5% by the Managing General
Partner) entered into an agreement with Massachusetts Mutual
Life Insurance Company, an unaffiliated party, to sell the
land and building which comprise the Framingham Corporate
Center property for a negotiated sale price of $26,050,000.
As permitted by the agreement, Massachusetts Mutual Life
Insurance Company assigned its right to purchase the
property to Cornerstone Suburban Office Limited Partnership.
The purchase price was paid in cash at closing on December
3, 1997. At closing, Framingham Corporate Center Limited
Partnership received proceeds, net of closing costs and
other deductions, of approximately $25.3 million. All of
the net proceeds from the sale were allocated to the
Partnership.
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
(1) Pro Forma Consolidated Balance Sheet as of July
31, 1997.
(2) Pro Forma Consolidated Statements of Operations
for the fiscal year ended October 31, 1996 and
of Income for the nine months ended July 31, 1997.
(c) Exhibit
(2) Purchase and Sale Agreement, dated as of October
22, 1997 between Framingham Corporate Center Limited
Partnership as Seller and Massachusetts Mutual Life
Insurance Company as Purchaser.
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.
FRAMINGHAM CORPORATE CENTER,
L.P.
By: Dean Witter Realty Income
Partnership II, L.P.
General Partner
By: Dean Witter Realty Income
Properties II, Inc.
Managing General Partner
Date: December 18, 1997 By: /s/E.
Davisson Hardman, Jr.
E. Davisson Hardman, Jr.
President
<TABLE>
Dean Witter Realty Income Partnership II, L.P.
Pro Forma Consolidated Balance Sheet
As of July 31, 1997
The following unaudited pro forma balance sheet has been
presented as if the Framingham Corporate Center property was
sold as of July 31, 1997. The pro forma adjustments reflect
a) the cash proceeds from the sale, b) the elimination of
the net carrying value of the property, and c) the
elimination of deferred leasing commissions and other assets
and liabilities relating to the property sold.
<CAPTION>
Pro Forma
Historical
Adjustments Pro Forma
<S> <C> <C> <C>
ASSETS
Cash and cash equivalents $ 1,895,246 $
25,371,182 $27,266,428
Real estate 34,973,452
(13,614,100) 21,359,352
Investments in joint venture 2,608,949 -
2,608,949
Deferred leasing commissions, net 631,954
(322,901) 309,053
Other assets 1,183,463
(577,822) 605,641
$41,293,064 $
10,856,359 $52,149,423
LIABILITIES AND PARTNERS' CAPITAL
Accounts payable and accrued
liabilities $ 967,803 $
(52,150) $ 915,653
Security Deposits 157,941
(62,177) 95,764
1,125,744
(114,327) 1,011,417
Partners' capital 40,167,320
10,970,686 51,138,006
$41,293,064
$10,856,359 $52,149,423
</TABLE>
<TABLE>
Dean Witter Realty Income Partnership II, L.P.
Pro Forma Consolidated Statement of Operations
For the year ended October 31, 1996
The following unaudited pro forma consolidated statement of
operations has been presented as if the Framingham Corporate
Center property was sold as of the beginning of fiscal year
1996. The pro forma adjustments reflect elimination of
rental and other revenues, property operating expenses,
depreciation, amortization, and loss on impairment relating
to the property sold. The pro forma adjustments do not
reflect the Partnership's nonrecurring gain on the sale of
the property.
<CAPTION>
Pro Forma
Historical
Adjustments Pro Forma
<S> <C> <C> <C>
Revenues:
Rental $16,206,557
$(2,851,874) $13,354,683
Equity in earnings of joint venture 250,109 -
250,109
Interest and other 957,941
(307,812) 650,129
17,414,607
(3,159,686) 14,254,921
Expenses:
Property operating 6,459,867
(1,468,659) 4,991,208
Depreciation 5,011,419
(1,202,054) 3,809,365
Amortization 537,220
(74,370) 462,850
General and administrative 759,445 -
759,445
Losses on impairment of real estate 11,870,000
(2,323,000) 9,547,000
24,637,951
(5,068,083) 19,569,868
Loss before minority interest (7,223,344)
1,908,397 (5,314,947)
Minority interest 589,362 -
589,362
Net loss $(7,812,706) $
1,908,397 $(5,904,309)
Net loss per Unit of Limited
Partnership interest $ (39.72) $
9.70 $ (30.02)
</TABLE>
<TABLE>
Dean Witter Realty Income Partnership II, L.P.
Pro Forma Consolidated Statement of Income
For the nine months ended July 31, 1997
The following unaudited pro forma consolidated statement of
operations has been presented as if the Framingham Corporate
Center property was sold as of the beginning of fiscal year
1996. The pro forma adjustments reflect elimination of
rental and other revenues, property operating expenses,
depreciation and amortization relating to the property sold.
The pro forma adjustments do not reflect the Partnership's
nonrecurring gain on the sale of the property.
<CAPTION>
Pro Forma
Historical
Adjustments Pro Forma
<S> <C> <C> <C>
Revenues:
Rental $ 9,377,686
$(2,394,171) $ 6,983,515
Gain on sales of real estate 16,968,609 -
16,968,609
Equity in earnings of joint ventures 164,011 -
164,011
Interest and other 404,620
(20,577) 384,043
26,914,926
(2,414,748) 24,500,178
Expenses:
Property operating 3,670,285
(1,195,228) 2,475,057
Depreciation 1,730,716
(641,262) 1,089,454
Amortization 255,057
(71,222) 183,835
General and administrative 547,952 -
547,952
6,204,010
(1,907,712) 4,296,298
Income before minority interest 20,710,916
(507,036) 20,203,880
Minority interest 2,457,842 -
2,457,842
Net income $18,253,074 $
(507,036) $17,746,038
Net income per Unit of Limited
Partnership interest $ 101.18 $
(2.58) $ 98.60
</TABLE>
Exhibit Index for Dean Witter Realty Income Partnership II,
L.P.
Exhibit Sequential
No. Description Page No.
(2) Purchase and Sale Agreement, dated as of
October 22, 1997 between Framingham Corporate
Center Limited Partnership as Seller and
Massachusetts Mutual Life Insurance Company
as Purchaser.
E-1
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of
the 22nd day of October, 1997, by and between FRAMINGHAM
CORPORATE CENTER LIMITED PARTNERSHIP, a Massachusetts limited
partnership, having an office c/o Dean Witter Realty Inc., Two
World Trade Center, 64th Floor, New York, New York 10048, (the
"Seller"), and MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation, having an address at c/o
Cornerstone Real Estate Advisers, Inc., One Financial Plaza,
Suite 1700, Hartford, Connecticut 06103-2604 (the
"Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property at
the Framingham Corporate Center known and numbered as 492 Old
Connecticut Path, Framingham, Massachusetts.
WHEREAS, the Seller and the Purchaser have entered into
negotiations wherein the Purchaser expressed its intent to
purchase the Property (as defined herein) from the Seller and
the Seller expressed its intent to sell the Property to the
Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to enter
into an agreement whereby, subject to the terms and conditions
contained herein, the Seller shall sell the Property to the
Purchaser and the Purchaser shall purchase the Property from
the Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars
and the mutual covenants and agreements hereinafter set forth,
and intending to be legally bound hereby, it is hereby agreed as
follows:
Sale of the Property.
The Seller agrees to sell and convey to the Purchaser, and the
Purchaser agrees to purchase from the Seller, at the price and
upon the terms and conditions set forth in this Agreement, all
those certain plots, pieces and parcels of land described in
Schedule 1 hereto (the "Land") listed thereon as owned by the
Seller, together with (i) all buildings and other
improvements, including at least 575 parking spaces situated on
the Land (collectively, the "Buildings"), (ii) all
easements, rights of way, reservations, rights, privileges,
appurtenances, and other estates and rights of the Seller
pertaining to the Land and the Buildings, and (iii) all right,
title and interest of the Seller in and to all furniture,
supplies, appliances, tools, fixtures, machinery, equipment,
supplies and other articles of personal property located on or
about or attached or appurtenant to the Land or the Buildings, or
used in connection therewith (collectively, the "Personal
Property"), and (v) all right, title and interest of the
Seller, if any, in and to the trade names of the Buildings
(the Land, together with all of the foregoing items listed in
clauses (i)-(v) above being hereinafter sometimes referred to as
the "Property").
Excluded Property.
Specifically excluded from the Property and this
sale are all items of personal property not described in
Section 1 (and all personal property of tenants under the Leases)
and the items described in Schedule 2 annexed hereto and made
a part hereof.
Closing Date.
The delivery of the Deed and the consummation of the
transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Bingham Dana
LLP, 150 Federal Street, Boston, Massachusetts, at 10:00 A.M.
on December 3, 1997 (the "Closing Date") or such earlier or
later date as the Seller and Purchaser may agree in writing.
Purchase Price.
The purchase price to be paid by the Purchaser to the
Seller for the Property (the "Purchase Price") is Twenty-Six
Million Fifty Thousand and 00/100 Dollars ($26,050,000)
payable as follows:
(a) Four Hundred Thousand and 00/100 Dollars
($400,000) (the "Downpayment") shall be payable
simultaneously with the execution and delivery of this
Agreement, by delivery to First American Title Insurance Company
(the "Escrow Agent") of a certified or bank check drawn on or by
a bank which is a member of the New York Clearing House
Association (a "Clearing House Bank") or by wire transfer of
immediately available funds to the Escrow Agent's account as
set forth in the Escrow Agreement. The Downpayment shall be
held in an interestbearing account and disbursed by the Escrow
Agent in accordance with the terms of Section 15. At the
Closing, the Deposit shall be delivered to the Seller and
such amount shall be credited against the portion of the
Purchase Price payable pursuant to Section 2(d);
(b) If that certain Standard Communications Site
Lease Agreement dated as of September 18, 1997, by and between
Seller, as Landlord, and Omnipoint Communications MB Operations,
Inc., as Tenant (the "Antennae Lease"), has not been executed
and delivered by the Closing Date and the "Rent Commencement
Date" (as defined in the Antennae Lease) has not occurred on
or before the Closing Date, then Four Hundred Thousand and
00/100 Dollars ($400,000) of the Purchase Price shall be
paid by Purchaser to the Escrow Agent under that certain
Antenna Escrow Agreement attached hereto as Exhibit A, to be paid
to Seller or Purchaser as therein provided;
(c) Seller shall pay for all leasing costs
associated with the Omnipoint Communications antenna lease,
CDI lease for 2,464 square feet on the third floor and the CIO
Communications lease for 4,744 square feet on the second floor,
and Seller shall furnish evidence reasonably satisfactory to
the Purchaser that such
payments have been made on or before the Closing Date.
Purchaser shall receive a credit against the Purchase Price
of $110,000 at Closing for costs associated with resurfacing
the parking deck, as described in Exhibit B.
(d) The balance of the Purchase Price (i.e., the
Purchase Price minus the credit set forth in Section 2(a) above),
plus or minus the apportionments set forth in Section 3,
shall be paid at the Closing by bank wire transfer of
immediately available funds to the Seller's
account or to the account or accounts of such other party or
parties as may be designated by the Seller on or before the
Closing Date.
Apportionments
The following shall be apportioned between the Seller and
the Purchaser at the Closing as of 11:59 p.m. of the day
preceding the Closing Date (the "Adjustment Date"):
(a) fixed or base rents ("Rents") which have
been
prepaid, security deposits referred to in Section 8(e), Rents
for the month in which the Closing occurs and Additional
Rents and other amounts paid by tenants applicable to
periods which expire after the Closing Date, which have been
received by Seller;
(b) real estate taxes, special assessments
(but
only any installment relating to the period in which the
Adjustment Date occurs), water charges, sewer rents and charges
and vault charges, if any, on the basis of the fiscal years (or
applicable billing period if other than a fiscal year),
respectively, for which same have been assessed;
(c) value of prepaid fuel belonging to the
Seller
stored on the Property, at the Seller's cost, including any
taxes, on the basis of a statement from the Seller's suppliers;
(d) charges and payments under Contracts that
are
being assigned to the Purchaser pursuant to the terms of this
Agreement and listed on Schedule 3 hereto or permitted
renewals or replacements thereof;
(e) any prepaid items, including,
without
limitation, fees for licenses which are transferred to the
Purchaser at the Closing and annual permit and inspection
fees;
(f) utilities, to the extent required by
Section
3.4;
(g) deposits with telephone and other
utility
companies, and any other persons or entities who supply goods
or services in connection with the Property if same are assigned
to the Purchaser at the Closing;
(h) personal property taxes, if any, on the
basis
of the fiscal year for which assessed;
(i) all other revenues from the operation of
the
Property other than Rents and Additional Rents
(including, without limitation, parking charges, tenant direct
electrical reimbursements, HVAC overtime charges, and telephone
booth and vending machine revenues);
(j) New Lease Expenses as provided in
Section
10.1.2; and
(k) such other items as are customarily apportioned
between sellers and purchasers of real properties of a type
similar to the Property and located in Middlesex County,
Massachusetts.
Taxes.
If the amount of real estate taxes, special
assessments or other taxes for the Property for the fiscal
year during which Closing occurs is not finally determined at
the Adjustment Date, such taxes shall be apportioned on the
basis of the full amount of the assessment for such period
(or the assessment for the prior tax period if the assessment
for the current tax period is not then known) and the
rate for the
immediately prior tax year, and shall be reapportioned as soon
as the new tax rate and valuation, if any, has been finally
determined. If any taxes which have been apportioned
shall subsequently be reduced by abatement, the amount of such
abatement, less the cost of obtaining the same and after
deduction of sums payable to tenants under Leases or expired or
terminated Leases, shall be equitably apportioned between the
parties hereto.
Rents.
Arrearages.
If on the Closing Date any tenant is in arrears in the
payment of Rent or has not paid the Rent payable by it for
the month in which the Closing occurs (whether or not it is
in arrears for such month on the Closing Date), any Rents
received by the Purchaser or the Seller from such tenant after
the Closing shall be applied to amounts due and payable by
such tenant in the manner specified by such tenant, provided,
that, if the tenant does not so specify, such Additional Rents
shall be applied to amounts due and payable by such tenant
during the following periods in the following order
of
priority: (i) first, to the month in which the
Closing occurred, (ii) second, to the months following
the month in which the Closing occurred and (iii) third, to the
month preceding the month in which the Closing occurred. If
Rents or any portion thereof received by the Seller or the
Purchaser after the Closing are due and payable to the other
party by reason of this allocation, the appropriate sum, less
a proportionate share of any reasonable attorneys' fees and
costs and expenses expended in connection with the collection
thereof, shall be promptly paid to the other party (to the
extent not collected from or reimbursed by tenants).
Additional Rents.
If any tenants are required to pay percentage rent,
escalation charges for real estate taxes, parking charges,
operating expenses and maintenance escalation charges, cost-of-
living increases or
other charges of a similar nature ("Additional Rents") and
any Additional Rents are collected by the Purchaser from a
tenant after the Closing Date, then such Additional Rents
shall be applied to amounts due and payable by such tenant in
the manner specified by such tenant, provided, that, if the
tenant does not so specify, such Additional Rents shall be
applied to amounts due and payable by such tenant during the
following periods in the following order of priority: (i) first,
to the month in which the Closing occurred, (ii) second, to
the months following the month in which the Closing occurred,
and (iii) third, to the months preceding the month in which
the Closing occurred. If Additional Rents or any portion
thereof received by the Purchaser after the Closing are
due and payable to the Seller
by reason of this allocation, the appropriate sum, less
a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in connection
with the collection thereof, (to the extent not collected
from or reimbursed by tenants) shall be promptly paid to the
Seller.
Collection After the Closing.
After the Closing, the Seller shall continue to
have the right, in its own name, to demand payment
of and to collect Rent and Additional Rent
arrearages owed to the Seller by any tenant, which right
shall include, without limitation, the right
to continue or commence legal actions or proceedings against
any tenant (but which right shall specifically exclude
any right to terminate any Lease). The Purchaser agrees to
cooperate with the Seller in connection with all efforts by the
Seller to collect such Rents and Additional Rents and to take
all steps, whether before or after the Closing
Date, as may be reasonably necessary to carry out
the intention of the foregoing, including, without limitation,
the delivery to the Seller, upon demand, of any relevant books
and records (including any Rent or Additional Rent
statements, receipted bills
and copies of tenant checks used in payment of such Rent
or Additional Rent), the execution of any and
all consents or other documents, and the undertaking of any act
reasonably necessary for the collection of such Rents and
Additional Rents by the Seller, provided that the cooperation
required pursuant to this sentence shall not require the
Purchaser to be a party to any legal action against any tenant.
If for any fiscal period which includes the Adjustment Date
tenants are paying Additional Rent based upon
estimates prepared by the Seller, such Additional Rents
shall be reapportioned when the actual
expenses for the fiscal period are known.
Water.
If there is a water meter on the Property, the Seller
shall furnish a reading to a date not more than thirty (30)
days prior to the Closing Date, and the unfixed water
charges and sewer rent, if any, based thereon for the
intervening time shall be apportioned on the basis of such last
reading.
Utilities.
The Seller will attempt to obtain final cut-off
readings of fuel, telephone, electricity, and gas to be made as
of the Adjustment Date. The Seller shall pay the bills based on
such readings promptly after the same are rendered.
If arrangements cannot be made for any such
cut-off reading, the parties shall apportion the charges for
such services on the basis of the bill therefor for the most
recent billing period prior to the Adjustment
Date, and when final bills are rendered for the period
which includes the Adjustment Date the Seller and
Purchaser shall promptly readjust the apportionments in
accordance with such final bills.
Post-Closing Adjustments.
The items set forth in this Section 3 shall be
apportioned at the Closing by payment of the net amount of
such apportionments to the Seller in the manner set forth
herein for the payment of the Purchase Price if the net
apportionment is in favor of the Seller or by a credit
against the Purchase Price if the net
apportionment is in favor of the Purchaser. However, if any of
the items subject to apportionment under the foregoing
provisions of this Section 3 cannot be
apportioned at the Closing because of the unavailability of
the information necessary to compute such
apportionment, or if any errors or omissions in computing
apportionments at the Closing are discovered subsequent to the
Closing, then such item shall be reapportioned and such errors
and omissions corrected as soon as
practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a
period of one year after the Closing Date. Notwithstanding
any of the foregoing provisions of this Section 3.5 to the
contrary, the Purchaser and the Seller agree that the one year
limitation set forth in this Section 3.5 shall not apply to
the parties' obligations under Sections 3.1 and 3.2 and that
such obligations shall survive the Closing for a period of two
(2) years.
Due Diligence Period.
Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a thirty (30) day period
commencing on the date hereof (the "Due Diligence Period") to
examine title to the Property, to inspect the physical and
financial condition of the Property to determine the
Property's compliance with applicable law, to review the
Property Information. Neither the Purchaser nor the
Purchaser's Representatives shall contact any of the Seller's
tenants, vendors, employees, consultants or contractors prior to
the Closing without obtaining the Seller's prior written
consent in each instance, which consent shall not
be
unreasonably withheld or delayed.
Access to the Property.
During the Due Diligence Period, the Purchaser and
the Purchaser's Representatives shall have the right to enter
upon the Property for the sole purpose of
inspecting the Property and making surveys, soil borings,
engineering tests and other investigations, inspections and
tests (collectively, "Investigations"), provided (i) the
Purchaser shall give the Seller not less than one (1) business
days' prior written notice before each entry, (ii) the first
such notice shall include sufficient information to permit the
Seller to review the scope of the proposed Investigations,
and (iii) neither the Purchaser nor the Purchaser's
Representatives shall permit any borings, drillings or
samplings to be done on the Property without the Seller's prior
written consent, which consent shall not be unreasonably
withheld or delayed. Any entry upon the Property and
all
Investigations shall be during the Seller's normal
business hours and at the sole risk and expense of the
Purchaser and the Purchaser's Representatives, and shall not
interfere with the activities on or about the
Property of the Seller, its tenants and their employees and
invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting
from any such Investigations and replace, refill and regrade any
holes made in, or excavations of, any portion of the Property
used for such Investigations so that the Property shall be in
the same condition as that which existed prior to such
Investigations;
(b) fully comply with all Laws applicable to the
Investigations and all other activities
undertaken in connection therewith;
(c) permit the Seller to have a representative present
during all Investigations undertaken
hereunder;
(d) take all actions and implement all
protections necessary to ensure that all actions taken in
connection with the Investigations, and the equipment, materials,
and substances generated, used or brought onto the Property pose
no threat to the safety or health of persons or the environment,
and cause no damage to the Property or other property of the
Seller or other persons;
(e) if requested by the Seller, furnish to the Seller, at
no cost or expense to the Seller, copies of all surveys, soil
test results, engineering, asbestos, environmental and
other studies and
reports relating to the Investigations which the Purchaser
shall obtain with respect to the Property promptly after the
Purchaser's receipt of same;
(f) maintain or cause to be maintained, at the Purchaser's
expense, a policy of comprehensive general public liability
insurance with a combined single limit of not less than
$1,000,000 per
occurrence for bodily injury and property damage, automobile
liability coverage including owned and hired vehicles with a
combined single limit of $1,000,000 per occurrence for
bodily injury and property damage, and an excess umbrella
liability policy for bodily injury and property damage in the
minimum amount of $3,000,000, insuring the Purchaser and the
Seller and certain of Seller's Affiliates listed on Schedule
4, as additional insureds,
against any injuries or damages to persons or property
that may result from or are related to (i) the Purchaser's
and/or the Purchaser's Representatives' entry upon the
Property, (ii) any Investigations or other activities
conducted
thereon, and (iii) any and all other activities undertaken
by the Purchaser and/or the Purchaser's Representatives in
connection with the Property, and deliver evidence of such
insurance policy to the Seller at the earlier of ten (10)
days after the date of this Agreement or the first entry on
the Property; and
(g) not, at any time, contact or communicate with any
tenant of the Property for any reason whatsoever without the
prior written approval of the Seller, which approval shall not
be unreasonably
withheld or delayed, which communications, whether by
telephone, in writing or in person, Seller or its designee shall
have the right to be present at or otherwise participate in.
(h) indemnify the Seller and the Seller's
Affiliates and hold the Seller and the Seller's Affiliates
harmless from and against any and all claims, demands, causes
of action, losses, damages, liabilities, costs and expenses
(including without limitation attorneys' fees and
disbursements), suffered or incurred by the Seller or any of
the Seller's Affiliates and arising out of or in
connection with (i) the Purchaser and/or the
Purchaser's Representatives' entry upon the
Property, (ii) any investigations or other activities
conducted thereon by the Purchaser or the Purchaser's
Representatives, and (iii) any liens or encumbrances filed or
recorded against the Property as a consequence of
Purchaser's or Purchaser's Representatives investigations.
The provisions of this Section 4.1 shall survive the
termination of this Agreement and the Closing.
Purchaser's Termination Notice.
Subject to the provisions of the last paragraph of this
Section 4.2, the Purchaser shall have the right to
elect to terminate this Agreement by giving written notice
(the "Purchaser's Termination Notice") of such election to
the Seller at any time prior to the
expiration of the Due Diligence Period if the Purchaser shall
determine (in the exercise of its reasonable discretion)
that any of the following conditions to termination are
met as of the date of the Purchaser's Termination Notice, in
which event the provisions of Section 14.1 shall apply:
(a) The Purchaser shall have determined, based upon
a site assessment study conducted at
Purchaser's sole expense by (i) Loitherstein
Environmental Engineering, Inc., (ii) GZA
GeoEnvironmental, Inc., or (iii) Dames & Moore, Inc., each
of the foregoing firms being a qualified engineering firm or
environmental firm selected by Purchaser and pre-approved by
Seller, that there is (yy) oil, ash substances, hazardous
substances, hazardous materials, hazardous or toxic waste, or
friable and accessible asbestos-containing materials present on
the Property, or (zz) lead in the drinking water or radon
or other contaminants in the Building's indoor air, in the case
of (yy) or (zz) in an amount which would require remediation
under the applicable environmental laws costing, when
aggregating all required remediation under (yy) and (zz) above,
in excess of Twenty-Five Thousand and
00/100 Dollars ($25,000) or, if no remediation is required
under applicable environmental laws, which would have a
substantial and material adverse impact on the value of the
Property.
(b) The Purchaser shall have determined, based upon
a final engineering study covering the
Buildings and any other existing structures on the Property,
that there are material defects in any
roof, foundation, sprinkler mains, structural elements
and masonry walls of any of the Buildings or related
heating, ventilating and air-
conditioning, electrical, sanitation, water,
or
mechanical systems.
(c) The Purchaser shall have determined, based upon a
legal opinion from its special counsel or a letter from Day,
Berry & Howard setting forth with sufficient specificity the
nature of the violation, that the Land or Buildings as presently
constructed and used violate in a material respect applicable
federal or state law or governmental regulation, or
local ordinance, order or regulation, including but not limited
to laws, regulations or ordinances relating to land use,
zoning, building use and occupancy, subdivision control,
fire protection, public health and safety, wetlands protection
and protection of the environment.
(d) The Purchaser shall have determined that
the Leases, the income and expenses and property tax bills for
the Property do not conform in all material respects to
the information contained in
the Confidential Offering Memorandum, prepared by
the Broker, or the Leases contain terms
not
disclosed in the Confidential Offering Memorandum, but which
terms materially adversely effect (i) the ability to use the
Property as currently used, or
(ii) the value of the Property.
(e) The Purchaser shall have determined that
the Contracts are not in form and substance
reasonably acceptable to the Purchaser. If any Contracts
are not reasonably acceptable to the Purchaser, the
Purchaser shall notify the Seller which Contracts are not
acceptable to the Purchaser and the reasons
therefor. Any so identified
Contracts which Seller agrees to terminate or accept financial
responsibility for on the Closing Date shall not give rise
to a right of termination by
Purchaser hereunder.
If for any reason whatsoever the Seller shall not have
received the Purchaser's Termination Notice prior to the
expiration of the Due Diligence Period, the Purchaser shall be
deemed to have irrevocably waived the right of
termination granted under this Section 4.2, and such right
of termination shall be of no further force or
effect.
Purchaser's Termination Notice shall state with
sufficient particularity the conditions precedent to the
Purchaser's obligation to purchase the Property which have
not been satisfied and the Seller shall have the option,
exercisable by giving written notice of such exercise to the
Purchaser within seven (7) days of the Seller's receipt of the
Purchaser's Termination Notice, to elect to use reasonable
efforts (the cost of which shall not exceed $25,000 in the
aggregate) to cause the satisfaction of such unsatisfied
conditions precedent specified in Purchaser's Termination
Notice, in which event this Agreement shall not terminate as a
result of
the Purchaser delivery of the Purchaser's Termination Notice,
provided that in no event shall the Closing Date be extended for
more than forty-five (45) days.
In the event that the Purchaser has not delivered a
Purchaser's Termination Notice and provided that the
Purchaser is not in default under this Agreement, upon written
notice from the Purchaser describing the presence of any of the
substances set forth in Section 4.2(a)(yy) in an amount which
would require remediation under applicable environmental laws
costing, in the aggregate, $25,000 or less, which notice shall be
accompanied by the environmental report substantiating such
required
remediation, the Seller shall remediate such condition in
accordance with applicable Laws on or before the Closing Date
and pay the costs of such remediation up to but not exceeding
$25,000. In the event that such remediation cannot reasonably
be completed by the Seller or its contractors on or before
the Closing Date, the Seller shall have the right to adjourn
the Closing Date one or
more times up to 45 days in order to complete such
remediation.
Estoppel Certificates.
Promptly after execution and delivery of
this
Agreement, the Seller agrees to request an Estoppel
Certificate from each tenant under a Lease, but in no
event shall it be deemed to be an obligation of the Seller
under this Agreement to obtain executed Estoppel Certificates
except for Estoppel Certificates from the following four (4)
tenants: (i) TJX Companies; (ii) International
Communications, Inc., (iii) International Data Group, Inc.,
and (iv) CIO Communications, Inc. (collectively, the
"Required Tenants"), which Estoppel Certificates shall be
delivered to Purchaser prior to
Closing. The Estoppel Certificates shall be in the form annexed
hereto as Exhibit J and made a part hereof; provided,
however, if any tenant, except the Required Tenants, is
required or permitted under its Lease to make different
statements in a certificate of such nature than are set forth
in Exhibit J, prior to requesting an
Estoppel Certificate from such tenant, the Seller may modify
the Estoppel Certificate for such tenant, except the Required
Tenants, to set forth only the statements required under such
tenant's Lease to be made by such tenant in such a
certificate.
Work Product.
The Seller has delivered to the Purchaser, at its
sole expense, legible copies of the documents listed in
Exhibit C attached hereto.
Performance/Maintenance.
The Seller shall use all reasonable efforts
to
operate the Building and maintain the Property in the normal
course of business through and including the Closing Date.
Title.
The Seller shall convey and the Purchaser shall accept
title to the Property subject to those matters set forth
on
Schedule 5 hereto (collectively the "Permitted Encumbrances").
The Seller shall deliver to the Purchaser, at the Purchaser's
expense, within five (5) days after the execution of this
Agreement a commitment for an owner's fee title insurance
policy with respect to the Property (the "Title Commitment")
from First American Title Insurance Company (the "Title
Company"), together with true and complete copies of all
instruments giving rise to any defects or exceptions to title to
the Property. The Seller has delivered to the Purchaser, at
the Purchaser's expense, an as-built survey ("Survey") of the
Land and Building dated September 26, 1997 and prepared by
Norwood Engineering Co., Inc. in accordance with the "Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys"
jointly established and adopted by ALTA and ACSM in 1992. The
Purchaser may elect to have the Seller's Survey updated and
recertified at the Purchaser's sole cost and expense.
Unacceptable Encumbrances.
If the Title Commitment or the Survey indicate the
existence of any liens or encumbrances (collectively,
"Liens") or other defects or exceptions in or to title to the
Property other than the Permitted Encumbrances
(collectively, the "Unacceptable Encumbrances") subject to
which the Purchaser is unwilling to accept title (excluding
the Right of First Refusal which shall be governed by
Section 5.7 hereof) and the Purchaser gives the Seller notice
of the same within five (5) Business Days after the date hereof,
the Seller shall undertake to eliminate the same (or to arrange
and pay for title insurance satisfactory to the Purchaser
insuring against enforcement of such Unacceptable Encumbrances
against, or collection of the same out of, the Property) subject
to Section 5.2. The Purchaser hereby waives any right the
Purchaser may have to advance as objections to title or as
grounds for the Purchaser's refusal to close this transaction
any Unacceptable Encumbrance which the Purchaser does not
notify the Seller of within such ten (10) day period unless
(i) such Unacceptable Encumbrance was first raised by the Title
Company subsequent to the date of the Title Commitment or
the Purchaser shall otherwise first discover same or be
advised of same subsequent to the date of the Title
Commitment or the Survey, respectively, and (ii) the Purchaser
shall notify the Seller of the same within five (5) days after
the Purchaser first becomes aware of such Unacceptable
Encumbrance. The Seller, in its sole discretion, may adjourn
the Closing one or more times for up to sixty (60) days in
the aggregate in order to eliminate Unacceptable
Encumbrances.
Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring any action
or proceeding, to make any payments or otherwise to incur any
expense in order to eliminate Unacceptable Encumbrances not
waived by the Purchaser or to arrange for title insurance
insuring against enforcement of such Unacceptable Encumbrances
against, or collection of the same out of, the Property;
except that the Seller shall satisfy Unacceptable Encumbrances
which are (i) mortgages (other than the Continuing Mortgage),
and past due real estate taxes and assessments secured by or
affecting the Property, and (ii) judgments against the Seller or
other Liens secured by or affecting the Property which
judgments and other Liens can be satisfied by payment of
liquidated amounts not to exceed $50,000 in the aggregate for
all such judgments and other Liens. The Seller may eliminate
any such Unacceptable Encumbrance by the payment of amounts
necessary to cause the removal thereof
of record, by bonding over such Unacceptable Encumbrance in a
manner reasonably satisfactory to the Purchaser or by arranging
and paying for title insurance satisfactory to the Purchaser
insuring against enforcement of such Unacceptable Encumbrance
against, or collection of the same out of, the Property.
Options Upon Failure to Remove Unacceptable Liens.
If the Seller is unable or is not
otherwise
obligated (pursuant to Section 5.2) to eliminate all
Unacceptable Encumbrances not waived by the Purchaser, or to
bond over in a manner reasonably satisfactory to the Purchaser
any Unacceptable Encumbrances not waived by the Purchaser, or
to arrange and pay for title insurance acceptable to the
Purchaser insuring against enforcement of such Unacceptable
Encumbrances against, or collection of the same out of, the
Property, and to convey title in accordance with the terms of
this Agreement on or before the Closing Date (whether or not the
Closing is adjourned as provided in Section 5.1), the Purchaser
shall elect on the Closing Date, as its sole remedy for such
inability of the Seller, either (i) to terminate this Agreement
by notice given to the Seller pursuant to Section 14.1, in
which event the provisions of Section 14.1 shall apply, or
(ii) to accept title subject to such Unacceptable
Encumbrances and receive no credit against, or reduction of, the
Purchase Price.
Use of Purchase Price.
If on the Closing Date there may be any Liens or
other encumbrances which the Seller must pay or discharge in
order to convey to the Purchaser such title as is herein
provided to be conveyed, the Seller may use any portion of
the Purchase Price to satisfy the same, provided:
(a) the Seller shall deliver to the Purchaser or
the Title Company, at the Closing, instruments in recordable form
and sufficient to satisfy such Liens or other encumbrances of
record together with the cost of recording or filing said
instruments; or
(b) the Seller, having made arrangements with
the Title Company, shall deposit with said company sufficient
moneys acceptable to said company to insure the obtaining
and the recording of such satisfactions.
Franchise Taxes.
Any franchise or corporate tax open, levied or
imposed against the Seller or other owners in the chain of
title that may be a Lien on the Closing Date shall not be an
objection to title if the Title Company omits same from the
title policy issued pursuant to the Title Commitment.
Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller shall pay all transfer
and recording taxes (the "Transfer Tax Payments") imposed
pursuant to the Laws of the Commonwealth of Massachusetts or any
other governmental authority in respect of the transactions
contemplated by this Agreement by delivery
to the Title Company of sufficient funds to pay such taxes
together with any return (the "Transfer Tax
Return") required thereby which shall be duly executed by the
Seller and the Purchaser to the extent required by applicable
law. At the Closing, the premiums due the Title Company to
obtain title insurance policies in the form contemplated by the
Title Commitment (as the same may be amended pursuant to this
Agreement), the cost of obtaining the survey and other Closing-
related expenses shall be paid in the manner set forth on
Schedule 6 hereto.
Purchaser Termination Option.
Notwithstanding anything to the contrary herein, the
Purchaser shall have the right, in its sole and absolute
discretion, to elect to terminate this Agreement by giving
written notice to the Seller within five (5) Business Days
of the date hereof that the Purchaser has determined that it is
unwilling to accept title to the Property subject to that
certain Notice of Right of First Refusal dated March 25, 1983
executed by the Trustee of Summit Point Trust and recorded as
Instrument No. 227 of June 17, 1983 and the Right of First
Refusal referred to therein (the "Right of First Refusal"),
modified by affirmative insurance from the Title Company to
the effect that the Right of First Refusal has expired, in
which event the provisions of Section 14.1 shall apply.
If for any reason whatsoever the Seller shall not
have received such a termination notice from the
Purchaser prior to the expiration of such five (5)
Business Day period, the Purchaser shall be deemed to have
irrevocably waived the right of termination granted under this
Section 5.7, such right of termination shall be of no further
force or effect, and the Right of First Refusal, as modified
by the affirmative insurance
described above, shall be deemed a Permitted Encumbrance to the
same extent as if listed on Schedule 5 hereto except to the
extent that the Right of First Refusal has been released of
record.
Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser as
follows:
(a) The Seller is a duly formed and validly
existing limited partnership organized under the laws of the
Commonwealth of Massachusetts and is qualified under the laws of
the Commonwealth of Massachusetts to conduct business therein.
(b) The Seller has the full, legal right, power and
authority to execute and deliver this Agreement and all
documents now or hereafter to be executed by the Seller
pursuant to this Agreement (collectively, the "Seller's
Documents"), to consummate the transaction contemplated hereby,
and to perform its obligations hereunder and under the
Seller's Documents.
(c) This Agreement and the Seller's Documents do
not and will not contravene any provision of the limited
partnership agreement of the Seller, any judgment, order, decree,
writ or injunction issued against the Seller, or, to the
Seller's actual knowledge, any provision of any
laws or governmental ordinances, rules, regulations, orders
or requirements (collectively, the "Laws")
applicable to the Seller. The consummation of the
transactions contemplated hereby will not result in a breach
or constitute a default or event of default by the Seller under
any agreement to which the Seller or any of its assets are
subject or bound and will not result in a violation of any Laws
applicable to the Seller.
(d) The Seller has no actual knowledge of
any
leases, licenses or other occupancy agreements affecting any
portion of the Property (collectively, the "Leases") on the
date hereof, except for the Leases listed in Schedule 7
annexed hereto and made a part hereof. To
Seller's actual knowledge, the copies of the Leases
furnished by the Seller to the Purchaser are true and
complete. To the Seller's actual knowledge, the Leases are in
full force and effect, without any material default by the
Seller thereunder. To the Seller's actual knowledge, except as
listed on Schedule 7, the Seller has not given or received any
notice of default which remains uncured or unsatisfied, with
respect to any of the Leases.
(e) To the Seller's actual knowledge, there are no
pending actions, suits, proceedings or investigations to which
the Seller is a party before any court or other governmental
authority with respect to the Property owned by the Seller except
as set forth on Schedule 8 hereto.
(f) Except as disclosed on Schedule 9 hereto, since
the date the Seller acquired legal and beneficial title to the
Property (i) to Seller's actual knowledge, neither Seller nor any
third party has engaged in the generation, use, manufacture,
treatment, storage or disposal of any Hazardous Substance (as
hereinafter defined) on the Property in violation of
Applicable Environmental Law (as hereinafter defined), the
cost of correction or
remediation of which would have a material adverse effect upon
the value of the Property, and (ii) to Seller's actual
knowledge, neither Seller nor any third party has received
any written notice from any governmental
authority having jurisdiction over the Property of any
violation of Applicable Environmental Law with respect to the
Property which requires corrective action, the cost of which
would have a material adverse effect upon the value of the
Property. Disclosure of any matter on Schedule 9 hereto
shall not constitute any admission by Seller that such matter
was material or a violation of Applicable Environmental Law. As
used in this Agreement, the term "Hazardous Substance" shall
mean any substance, chemical or waste that is currently listed
as hazardous, toxic or dangerous under Applicable Environmental
Law. As used in this Agreement, the term "Applicable
Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. 9601 et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901,
et seq.; the Water Pollution Control Act, 33 U.S.C.
1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et
seq.; and the Toxic Substances Control Act, 15 U.S.C. 2601
et seq.; as the foregoing have been amended from time to
time to the date of this Agreement; and any similar state
and local laws and ordinances and the regulations
implementing such statutes in effect on the date hereof
imposing liability or establishing standards
of conduct for environmental protection.
(g) There is now, fully paid and in force, adequate fire
and casualty insurance with extended coverage on the Land and
Buildings and the Seller will continue to maintain such
coverage until Closing Date.
(h) The Rent Roll contains, in all material
respects, a true, correct and complete list of all leases and
tenancy agreements affecting any portion of the Property and
all amendments, extensions and modifications thereto, showing
the name of each Tenant, its space number and approximate
square footage, the date of each such lease and any amendment
thereto, the minimum rent, additional rent and percentage rent
due under each such lease, the options relating to such lease,
and the other information set forth in the Rent Roll. To the
best of the Seller's knowledge, information and belief,
and except as disclosed in the Tenant Estoppel Certificates or
any estoppel certificate given by the Seller to the Purchaser,
the Tenant Leases are in full force and effect.
(i) To the best of Seller's knowledge, there are no leasing
commissions or fees payable by Seller with respect to the
Leases, as to the current Lease terms or any renewal or
extension options therein, in effect as of the date hereof which
are due after the Closing Date.
(j) To the best of Seller's knowledge, Seller has not
received notice from any governmental authority indicating
that the Property is not in full compliance with any federal,
state or local law, ordinance, rule, regulation or order
(collectively, "Laws").
(k) To the best of Seller's knowledge, Seller has not
received notice from any third party vendee
indicating that Seller is not in compliance with any
Contract in connection with the Property.
Survival of Representations.
The representations and warranties of the Seller set forth
in this Section 6 (i) shall be true, accurate and
correct in all material respects upon the execution of this
Agreement and shall be deemed to be repeated on and as of the
Closing Date (except as they relate only to an earlier date), and
(ii) shall remain operative and shall survive the Closing and
the execution and delivery of the Deed for a period of one (1)
year following the Closing Date and then shall expire, and no
action or claim based thereon shall be commenced after such
period.
Discovery of Untrue Representation.
If, at or prior to the Closing, (i) the Purchaser shall
become aware that any of the representations or
warranties made herein by the Seller is untrue,
inaccurate or incorrect in any material respect and shall give
the Seller notice thereof at or prior to the Closing, or
(ii) the Seller shall notify the Purchaser that a
representation or warranty made herein by the Seller is
untrue, inaccurate or incorrect, then the Seller may, in its
sole discretion, elect by notice to the Purchaser to adjourn
the Closing one or more times for up to forty-five (45) days
in the aggregate in order
to cure or correct such untrue, inaccurate or incorrect
representation or warranty. If any such representation or
warranty is not cured or corrected by the Seller on or before
the Closing Date (whether or not the Closing is adjourned as
provided above), then the Purchaser, as its sole remedy for
such inability of Seller, shall elect either (i) to waive such
misrepresentations or breaches of warranties and
consummate the transactions
contemplated hereby without any reduction of or credit against
the Purchase Price, or (ii) to terminate this Agreement by
notice given to Seller pursuant to the
provisions of Section 14.1. In the event the Closing
occurs, the Purchaser hereby expressly
waives,
relinquishes and releases any right or remedy available to it
at law, in equity or under this Agreement to make a claim
against the Seller for damages that the Purchaser
may incur, or to rescind this Agreement and the
transactions contemplated hereby, as the result of any of the
Seller's representations or warranties being untrue, inaccurate
or incorrect if the Purchaser knew that such representation or
warranty was untrue, inaccurate or incorrect at the time of
the Closing and the Purchaser nevertheless closes title
hereunder.
Limited Nature of Representations.
The Purchaser acknowledges that neither the Seller nor
any of the Seller's Affiliates, nor any of their agents or
representatives, nor Broker has made any representations or
held out any inducements to the
Purchaser other than those specifically set forth in this Section
6 and Section 11. The Purchaser acknowledges that the Seller,
pursuant to the terms of this Agreement, has afforded the
Purchaser the opportunity for full and complete investigations,
examinations and inspections of the Property and all Property
Information. The Purchaser acknowledges and agrees that (i) the
Property Information delivered or made available to the
Purchaser and the Purchaser's Representatives by the Seller or
the Seller's Affiliates, or any of their agents or
representatives may have been prepared by third parties and may
not be the
work product of the Seller and/or any of the Seller's
Affiliates; (ii) neither the Seller nor any of the
Seller's Affiliates has made any independent
investigation or verification of, or has any knowledge of,
the accuracy or completeness of, the Property
Information prepared or provided by such third parties; (iii)
the Purchaser is relying solely on its own
investigations, examinations and inspections of the
Property and those of the Purchaser's Representatives and is not
relying in any way on the Property Information furnished by
the Seller or any of the Seller's
Affiliates, or any of their agents or representatives, except
to the extent of the Seller's representations and warranties
contained in this Agreement; and (iv) the Seller expressly
disclaims any representations or warranties with respect to
the accuracy or completeness of the Property Information
prepared or provided by such third parties, and the Purchaser
releases the Seller and the Seller's Affiliates, and
their agents and
representatives, from any and all liability with respect
to such Property Information prepared by such third
parties. The Purchaser or anyone claiming by, through or under
the Purchaser, hereby fully and irrevocably
releases the Seller and the Seller's Affiliates from any and
all claims that it may now have or hereafter acquire
against any of the Seller or the Seller's Affiliates for any
cost, loss, liability, damage, expense, action or cause of
action, whether foreseen or unforeseen, arising from or related
to the presence of environmentally hazardous, toxic or
dangerous substances, or any other conditions (whether
patent, latent or otherwise) affecting the Property,
except for claims against the Seller based upon any obligations
and liabilities of the Seller expressly provided in this
Agreement.
The provisions of this Section 6 shall survive the
Closing.
Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as
follows:
(a) The Purchaser is a duly formed and
validly
existing corporation organized under the laws of the
Commonwealth of Massachusetts.
(b) The Purchaser has the full, legal right, power,
authority and financial ability to execute and deliver this
Agreement and all documents now or hereafter to be executed by
it pursuant to this Agreement (collectively, the "Purchaser's
Documents"), to consummate the
transactions contemplated hereby, and to perform its
obligations hereunder and under the Purchaser's
Documents.
(c) This Agreement and the Purchaser's Documents do
not and will not contravene any provision of the Articles of
Organization or By-Laws of the Purchaser, any
judgment, order, decree, writ or injunction issued against
the Purchaser, or to the Purchaser's actual knowledge any
provision of any Laws applicable to the Purchaser. The
consummation of the transactions contemplated hereby will
not result in a breach or constitute a default or event of
default by the Purchaser under any agreement to which the
Purchaser or any of its assets are subject or bound and will
not result in a violation of any Laws applicable to the
Purchaser.
(d) To the Purchaser's actual knowledge there
are
no pending actions, suits, proceedings or investigations to
which the Purchaser is a party before any court or other
governmental authority which may have an adverse impact on the
transactions contemplated hereby.
The representations and warranties of the Purchaser set
forth in this Section 7 and elsewhere in this Agreement shall be
true, accurate and correct in all material respects upon the
execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date (except as they relate
only to an earlier date) and shall survive the Closing for a
period of one (1) year.
Documents to be Delivered by the Seller at Closing.
At the Closing, the Seller shall execute, acknowledge
and/or deliver, as applicable, the following to the Purchaser:
(a) A quitclaim deed or its equivalent (the "Deed")
conveying title to the Property in the form of Exhibit D annexed
hereto and made a part hereof.
(b) The Assignment and Assumption of Leases and
Security Deposits in the form of Exhibit E annexed hereto and
made a part hereof assigning without warranty or
representation all of the Seller's right, title and
interest, if any, in and to the Leases (including the
Antennae Lease) in effect on the Closing Date, all
guarantees thereof and the security deposits thereunder, if any
(the "Lease Assignment"). Any tenant security deposits as
stated in the applicable Leases, to the extent not previously
utilized by Seller and disclosed to the Purchaser in writing,
and prepaid rents are to be paid or credited to Purchaser at
closing.
(c) The Assignment and Assumption of Contracts and
Licenses in the form of Exhibit F annexed hereto and made a part
hereof (the "Contract and License Assignment") assigning
without warranty or representation all of the Seller's right,
title and interest, if any, in and to (i) all of the
assignable licenses, permits, certificates, approvals,
authorizations and variances issued for or with respect to
the Property by any governmental authority (collectively,
the "Licenses"), and (ii) all assignable purchase orders,
equipment leases, advertising agreements, franchise agreements,
license agreements, management agreements, leasing and
brokerage agreements and other service contracts relating to the
operation of the Property (collectively, the "Contracts")
not
terminated by Seller pursuant to the terms of this
Agreement and excluding any Contracts which the Purchaser has
validly objected to pursuant to Section 4.2(e) hereof.
(d) The Assignment and Assumption of Intangible
Property in the form of Exhibit G annexed hereto and made part
hereof assigning without warranty or representation all of the
Seller's right, title and interest, if any, in and to all
intangible property owned by the Seller with respect to the
operation of the Property listed on Schedule 10 annexed
hereto and made a part hereof, including, without limitation,
the trade name "Framingham Corporate Center" (the "Intangible
Property Assignment") (the Lease Assignment, the Contract
and License Assignment and the Intangible Property
Assignment are herein referred to collectively as the
"A & A
Agreements").
(e) To the extent in the Seller's or its agents',
property managers' or affiliates' possession, executed
counterparts of all Leases and New Leases and any
amendments, guarantees and other documents relating
thereto, together with a schedule of all tenant security
deposits thereunder and the accrued interest on such
security deposits payable to tenants which are in the
possession of or received by the Seller.
(f) A bill of sale in the form of Exhibit H annexed hereto
and made a part hereof (the "Bill of Sale") conveying,
transferring and selling to the Purchaser without warranty
or representation all right, title and interest of the Seller
in and to all Personal Property. It is agreed that if the value
of such property does not exceed $10,000, that the Seller
shall prepare any
required sales tax return (the "Sales Tax Return"), that such
return shall be executed by the Purchaser and delivered to
the Seller at the Closing, that the Seller
shall file such return and that the Purchaser shall pay the
sales tax due thereon in accordance with Section 9(c).
(g) Original Executed Notices to each of the
tenants of the Property in the form of Exhibit I annexed hereto
and made a part hereof advising the tenants of the sale of the
Property to the Purchaser and directing that rents and other
payments thereafter be sent to the Purchaser or as the
Purchaser may direct.
(h) A certificate of a general partner of the
Seller that the Seller has taken all necessary
partnership action to authorize the execution, delivery and
performance of this Agreement and the consummation of the
transaction contemplated hereby.
(i) Executed originals of all Estoppel Certificates
required by Section 4.3 and any other Estoppel
Certificates, received by the Seller from tenants prior to the
Closing Date and not previously delivered to the Purchaser.
(j) To the extent in the Seller's or its agents',
property managers' or affiliates' possession and not already
located at the Property, keys to all entrance doors to, and
equipment and utility rooms located in, the Property.
(k) To the extent in the Seller's or its agents',
property managers' or affiliates' possession and not already
located at the Property, all Licenses.
(l) To the extent in the Seller's or its agents',
property managers' or affiliates' possession, executed
counterparts of all Contracts and all warranties in
connection therewith which are in effect on the Closing Date
and which are assigned by the Seller.
(m) To the extent in the Seller's possession and
not located at the Building, plans and specifications of the
Buildings.
(n) The Transfer Tax Payments together with the
Transfer Tax Returns, if any.
(o) A "FIRPTA" affidavit sworn to by the Seller in the
form of Exhibit K annexed hereto and made a part hereof. The
Purchaser acknowledges and agrees that upon the Seller's
delivery of such affidavit, the Purchaser shall not withhold
any portion of the Purchase Price pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
(p) The Seller's affidavit required by the Title
Company.
(q) A good standing certificate for the Seller
issued by the Secretary of the Commonwealth of
Massachusetts.
(r) Certified and updated Rent Roll.
(s) All other documents the Seller is required to
deliver pursuant to the provisions of this Agreement.
Documents to be Delivered by the Purchaser at Closing.
At the Closing, the Purchaser shall execute, acknowledge
and/or deliver, as applicable, the following to the Seller:
(a) The cash portion of the Purchase Price
payable at the Closing pursuant to Section 2,
subject to
apportionments, credits and adjustments as provided in this
Agreement.
(b) The Bill of Sale.
(c) The Sales Tax Return, if required,
together with a good, unendorsed certified or official bank
check drawn on or by a Clearing House Bank payable to the order
of the appropriate collection officer in the amount of the
sales tax due thereon.
(d) If the Purchaser is a corporation, (i)
copies of the certificate of incorporation and by-laws of the
Purchaser and of the resolutions of the board of
directors of the Purchaser authorizing the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement certified as true and correct by the Secretary or
Assistant Secretary of the Purchaser; (ii) a good standing
certificate issued by the state of incorporation of the
Purchaser, dated within thirty (30) days of the Closing Date;
(iii) a qualification to do business certificate issued by
the Commonwealth of Massachusetts, dated within thirty (30) days
of the Closing Date; (iv) an incumbency and (v)
certificate executed by the
Assistant Clerk of Cornerstone Real Estate Advisers, Inc. as
agent for the Purchaser with respect to those officers of the
Purchaser executing any documents or instruments in connection
with the transactions contemplated herein.
(e) The A & A Agreements.
(f) All other documents the Purchaser is
required to deliver pursuant to the provisions of this Agreement.
Operation of the Property prior to the Closing Date.
Between the date hereof and the Closing Date, the Seller
shall have the right to continue to operate and maintain the
Property.
New Leases.
Except as hereinafter provided in this
Section 10.1,
the Seller may modify, extend, renew, cancel or permit the
expiration of any Lease or enter into any proposed Lease of
all or any portion of the Property without the Purchaser's
consent; provided, however, that such Lease is on Seller's
standard form with such changes as Seller deems appropriate in
the exercise of its reasonable discretion. After the
expiration of the Due Diligence Period, the Seller shall not
modify, extend, renew or cancel (subject to Section 10.2) any
Lease or enter into any proposed Lease of all or any portion of
the Property without the Purchaser's prior consent in each
instance, which consent shall not be unreasonably withheld
and shall be given or denied, with the reasons for any such
denial, within five (5) days after receipt by the
Purchaser of the Seller's notice requesting the
Purchaser's consent to the proposed action relating to such
existing or proposed Lease. If the Purchaser fails to reply to
the Seller's request for consent in a notice given within such
period or if the Purchaser expressly denies its consent but
fails to provide the Seller with the reasons for such denial,
the Purchaser's consent shall be deemed to have been
granted. Seller shall provide to Purchaser a copy of any New
Lease (as defined below) entered into during the Due Diligence
Period.
New Lease Expenses.
If after the date of this Agreement the Seller enters into
any Leases, or if there is any extension or renewal of any
Leases, whether or not such Leases provide for their extension
or renewal, or any expansion or modification of any Leases
(each, a "New Lease"), the Seller shall keep accurate records of
all expenses (collectively, "New Lease Expenses") incurred in
connection with each New Lease, including, without
limitation, the following: (i)
brokerage commissions and fees relating to such leasing
transaction, (ii) expenses incurred for repairs,
improvements, equipment, painting, decorating, partitioning
and other items to satisfy the tenant's requirements with
regard to such leasing transaction, (iii) reimbursements to
the tenant for the cost of any of the items described in the
preceding clause (ii), (iv) reasonable legal fees for services
in connection with the preparation of documents and other
services rendered in
connection with the effectuation of the leasing transaction,
(v) rent concessions relating to the demised space provided
the tenant has the right to take possession of such demised
space during the period of such rent concessions, and (vi)
expenses incurred for the purpose of satisfying
or
terminating the obligations of a tenant under a New Lease to
the landlord under another lease (whether or not such other
lease covers space in the
Property).
Allocation of New Lease Expenses.
The New Lease Expenses for each New Lease allocable
to and payable by the Seller shall be determined by
multiplying the amount of such New Lease Expenses by a
fraction, the numerator of which shall be the number of days
contained in that portion, if any, of the term of such New
Lease commencing on the date on which the tenant
thereunder shall have commenced to pay fixed rent ("Rent
Commencement Date") and expiring on the date immediately
preceding the Closing Date, and the denominator of which
shall be the total number of days contained in the period
commencing on the Rent Commencement Date and expiring on the
date of the scheduled expiration of the term of such New
Lease, without provision for any optional extensions or
renewals, and the remaining balance of the New Lease Expenses
for each New Lease shall be allocable to and payable by the
Purchaser by addition to the Purchase Price. At the Closing,
the Purchaser shall reimburse the Seller for all New Lease
Expenses theretofore paid by the Seller, if any, in excess of
the portion of the New Lease Expenses allocated to the Seller
pursuant to the provisions of the preceding sentence. For
purposes of this Section 10.1.2, the Rent Commencement Date
under a renewal, extension, expansion or modification of a
Lease shall be deemed to be (i) in the case of a renewal or
extension (whether effective prior to or after the Closing, or
in the form of an option exercisable in the future), the first
date during such renewal or extension period after the
originally scheduled expiration of the term of such Lease on
which the tenant under such Lease commences to pay fixed rent,
(ii) in the case of an expansion (whether effective prior to or
after the Closing, or in the form of an option exercisable in
the future), the date on which the tenant under such Lease
commences to pay fixed rent for the additional space, and (iii)
in the case of a modification not also involving a renewal,
extension or expansion of such Lease, the effective date of such
modification agreement. The provisions of this Section 10.1.2
shall survive the Closing.
Termination of Existing Leases.
Notwithstanding anything to the contrary contained in
this Agreement, the Seller reserves the right, but is not
obligated, to institute summary proceedings against any tenant
or terminate any Lease as a result of a default by the
tenant thereunder prior to the Closing Date, provided that,
after the expiration of the Due Diligence Period, the
Seller first obtains the Purchaser's consent. The Seller
makes no representations and assumes no responsibility with
respect to (i) the continued occupancy of the Property or any
part thereof by any tenant and (ii) the fulfillment by any
tenant of its obligations under any Lease. Further, the
Purchaser agrees that it shall not be grounds for the
Purchaser's refusal to close this transaction that any tenant
is a holdover tenant or in default under its Lease pursuant to
any economic or non-economic terms of its Lease on the Closing
Date and the Purchaser shall accept title subject to such
holding over or default without credit against, or reduction of,
the Purchase Price.
Contracts.
Except as hereinafter provided in this Section 10.3, the
Seller may cancel, modify, extend, renew or permit the
expiration of Contracts or enter into any new Contract
without the Purchaser's prior consent. After the expiration
of the Due Diligence Period, the Seller shall not modify,
extend, renew or cancel (except as a result of a default by the
other party thereunder or if Purchaser has given notice
pursuant to Section 4.2(e)
that a Contract is unacceptable) any Contracts, or enter into
any new Contract without the Purchaser's prior consent in
each instance, which consent shall not be unreasonably
withheld or delayed, and if withheld, the Purchaser shall
promptly give the Seller a notice stating the reasons therefor.
If the Purchaser fails to reply within five (5) days to the
Seller's request for consent in a notice given pursuant to this
Section 10.3 or if the Purchaser expressly denies its consent
but fails to provide the Seller with the reasons for such
denial, the Purchaser's consent shall be deemed to have been
granted. Seller shall provide to Purchaser copies of any
Contracts
entered into during the Due Diligence Period,
in
connection with the Property.
Broker.
The Purchaser and the Seller represent and warrant to
each other that Fallon, Hines & O'Connor, Inc. (the "Broker") is
the sole broker with whom they have dealt in connection with
the Property and the transactions described herein. The Seller
shall be liable for, and shall indemnify the Purchaser against,
all brokerage commissions or other compensation due to the
Broker arising out of the transaction contemplated in this
Agreement, which compensation shall be paid subject and pursuant
to a separate agreement between the Seller and the Broker.
Each party hereto agrees to indemnify, defend and
hold the other harmless from and against any and all claims,
causes of action, losses, costs, expenses, damages
or
liabilities, including reasonable attorneys' fees and
disbursements, which the other may sustain, incur or be
exposed to, by reason of any claim or claims by any broker,
finder or other person, except (in the case of the Purchaser as
indemnitor hereunder) the Broker, for fees, commissions or other
compensation arising out of the transactions
contemplated in this Agreement if such claim or claims are
based in whole or in part on dealings or agreements with the
indemnifying party. The obligations and representations and
warranties contained in this Section 11 shall survive the
termination of this Agreement and the Closing.
Casualty; Condemnation.
Damage or Destruction.
If a "material" part (as hereinafter defined) of the
Property is damaged or destroyed by fire or other
casualty, the Seller shall notify the Purchaser of such fact
and the Purchaser shall have the option to terminate this
Agreement upon notice to the Seller given not later than ten
(10) days after receipt of the Seller's notice; provided,
however, that the Purchaser's election shall be ineffective if
within ten (10) days after the Seller's receipt of the
Purchaser's election notice, (i) the Seller shall elect by
notice to the Purchaser to repair such damage or destruction
and shall thereafter complete such repair within 90 days after
the then scheduled Closing Date at the time of the Purchaser's
election, and (ii) no tenant(s) aggregating more than 8,000
square feet have exercised, or have the right to exercise, any
right to terminate its Lease by reason of such damage,
destruction or other casualty. If the Seller makes such
election to repair, the Seller shall have the right to adjourn
the Closing Date one or more times for up to 90 days in the
aggregate in order to complete such repairs and shall have the
right to retain all insurance proceeds which the Seller may be
entitled to receive as a result of such damage or destruction.
If (i) the Purchaser does not elect to terminate this Agreement
as to the damaged Property, (ii) the Purchaser elects to
terminate this Agreement as to the damaged Property but such
election is ineffective because the Seller elects to repair
such damage and completes such repair within such 90-day
period provided above, or (iii) there is damage to or
destruction of an "immaterial" part ("immaterial" is herein
deemed to be any damage or destruction which is not
"material", as such term is hereinafter defined) of the
Property, the Purchaser shall close title as provided
in this Agreement and, at the Closing, the Seller shall, unless
the Seller has repaired such damage or destruction prior to the
Closing, (x) pay over to the Purchaser the deductible and the
proceeds of any insurance collected by the Seller less the
amount of all costs incurred by the Seller in connection with
the repair of such damage or destruction, and (y) assign and
transfer to the Purchaser all right, title and interest of the
Seller in and to any uncollected insurance proceeds which the
Seller may be entitled to receive from such damage or
destruction, provided that any such casualty insurance
settlement shall have been approved by the Purchaser, such
approval not to be unreasonably withheld or delayed. A
"material" part of the Property shall be deemed to have been
damaged or destroyed if the cost of repair or replacement shall
be five percent (5%) or more of the Purchase Price.
Condemnation.
If, prior to the Closing Date, all or any
"significant" portion (as hereinafter defined) of the
Property is taken by eminent domain or condemnation (or is the
subject of a pending taking which has not been consummated),
the Seller shall notify the Purchaser of such fact and the
Purchaser shall have the option to terminate this Agreement
upon notice to the Seller given not later than ten (10) days
after receipt of the Seller's notice. If the Purchaser does
not elect to terminate this Agreement, or if an
"insignificant" portion ("insignificant" is herein deemed to
be any taking which is not "significant", as such term is herein
defined) of the Property is taken by eminent domain or
condemnation, at the Closing the Seller shall assign and
turnover, and the Purchaser shall be entitled to receive and
keep, all awards or other proceeds for such taking by eminent
domain or condemnation. A "significant" portion of the Property
means (i) 10% or more of the building on the Land, (ii) a
portion of the parking areas if the taking thereof reduces the
remaining available number of parking spaces below the minimum
legally required, or (iii) a legally required driveway on the
Land if such driveway is the predominant means of ingress
thereto or egress therefrom.
Termination.
If the Purchaser effectively terminates this
Agreement pursuant to Section 12.1 or 12.2, this
Agreement shall be terminated and the rights of the parties
shall be the same as if notice of termination were given
pursuant to Section 14.1.
Conditions Precedent to Closing.
Conditions Precedent to the
Purchaser's Obligations to Perform.
The Purchaser's obligation under this Agreement to
purchase the Property is subject to the fulfillment of each of
the following conditions: (i) the representations and warranties
of the Seller contained herein shall be materially true,
accurate and correct as of the Closing Date except to the
extent they relate only to an earlier date; (ii) no condition
shall have first occurred subsequent to the expiration of the
Due Diligence Period which, if it had occurred prior
thereto, would have
permitted the Purchaser to give a valid Purchaser's
Termination Notice; (iii) the Seller shall be ready, willing
and able to deliver title to the Property in accordance with
the terms and conditions of this Agreement; (iv) any
conditions precedent to the
Purchaser's obligation to purchase the Property which is validly
listed in the Purchaser's Termination Notice as being
unsatisfied has been satisfied; (v) Purchaser shall have obtained
an Owner's Policy of Title Insurance on an ALTA Standard form
from the Title Company insuring Purchaser's right, title and
interest in the Property in the amount of the Purchase
Price and excepting no encumbrances other than Permitted
Encumbrances; (vi) Purchaser shall have received the
original executed Estoppel Certificates; and (vii) the Seller
shall have delivered all the documents and other items
required pursuant to Section 8, and shall have performed all
other covenants, undertakings and obligations, and complied
with all conditions required by this Agreement to be
performed or complied with by the Seller at or prior to the
Closing.
Conditions Precedent to the Seller's
Obligations to Perform.
The Seller's obligation under this Agreement to
sell the Property to the Purchaser is subject to the
fulfillment of each of the following conditions: (i) the
representations and warranties of the Purchaser contained herein
shall be materially true, accurate and correct as of the
Closing Date; (ii) the Purchaser shall have delivered the
funds required hereunder and all the documents to be
executed by the Purchaser set forth in Section 9 and shall
have performed all other covenants, undertakings and
obligations, and complied with all conditions required by
this Agreement to be performed or complied with by the
Purchaser at or prior to the Closing; (iii) all consents and
approvals of governmental authorities and parties to
agreements to which the Purchaser is a party or by which the
Purchaser's assets are bound that are required with
respect to the
consummation of the transactions contemplated by this
Agreement shall have been obtained and copies thereof shall
have been delivered to the Seller at or prior to the Closing;
and (iv) the additional matters set forth in Schedule 11
annexed hereto and made a part hereof shall have occurred or
been delivered to the Seller, as applicable, at or prior to the
Closing.
Remedies Upon Failure to Satisfy Conditions.
In the event that any condition contained in
Sections 13.1 or 13.2 is not satisfied, the party
entitled to the satisfaction of such condition as a
condition to its obligation to close title shall have as its
sole remedy hereunder the right to elect to (i) waive such
unsatisfied condition whereupon title shall close as provided in
this Agreement or (ii) proceed as provided in Section 14 hereof.
Remedies.
Seller's Inability to Perform.
If the Closing fails to occur by reason of the
Seller's inability to perform its obligations under this
Agreement which has not been waived pursuant to Section 13.3,
then the Purchaser, as its sole remedy for such inability of
the Seller, may terminate this Agreement by notice to the
Seller. If the Purchaser elects to terminate this
Agreement, then this Agreement shall be terminated and
neither party shall have any further rights, obligations or
liabilities hereunder, except as otherwise expressly provided
herein (collectively, the "Surviving Obligations"), and except
that the Purchaser shall be entitled to a return of the Deposit
provided the Purchaser is not otherwise in default hereunder.
Except as set forth in this Section 14.1, the Purchaser hereby
expressly waives, relinquishes and releases any other right
or remedy available to it at law, in equity or otherwise by
reason of the Seller's inability to perform its obligations
hereunder. Notwithstanding anything to the contrary herein, if
the Seller's inability to perform its obligations under this
Agreement is a result of any action of, or failure to act by,
the Purchaser or any of the Purchaser's Representatives, the
Purchaser shall not be relieved of its obligations under this
Agreement and Purchaser shall not be entitled to any right or
remedy provided in this Section 14.1 or elsewhere in this
Agreement.
Purchaser's Failure to Perform.
In the event of a default hereunder by the Purchaser or if
the Closing fails to occur by reason of the Purchaser's
failure or refusal to perform its obligations hereunder, then, if
the Seller is not then in default on its obligations hereunder,
the Seller may terminate this Agreement by notice to the
Purchaser. If the Seller elects to terminate this
Agreement, then this Agreement shall be terminated and the Seller
may retain the Deposit as liquidated damages for all loss,
damage and expenses suffered by the Seller, it being agreed that
the Seller's damages are impossible to ascertain, and neither
party shall have any further rights, obligations or liabilities
hereunder, except for the Surviving Obligations. Nothing
contained herein shall limit or restrict the Seller's ability
to pursue any rights or remedies it may have against the
Purchaser with respect to the Surviving Obligations. Except
as set forth in this Section 14.2 and the Surviving
Obligations, the Seller hereby expressly waives,
relinquishes and releases any other right or remedy available
to them at law, in equity or otherwise by reason of the
Purchaser's default hereunder or the Purchaser's failure or
refusal to perform its obligations hereunder. Notwithstanding
anything to the contrary herein, if the Purchaser's
default or the Purchaser's failure or refusal to perform its
obligations under this Agreement is a result of any action of,
or failure to act by, the Seller or any of the Seller's
Affiliates, the Seller shall not be relieved of its
obligations under this Agreement and the Seller shall not be
entitled to any right or remedy provided in this Section
14.2 or elsewhere in this Agreement.
Seller's Failure to Perform.
If the Closing fails to occur by reason of the
Seller's failure or refusal to perform its obligations
hereunder which has not been waived by the Purchaser,
then, if the Purchaser is not then in default on its
obligations hereunder, the Purchaser, as its sole remedy
hereunder, may (i) terminate this Agreement by notice to the
Seller and the Deposit shall promptly be returned to Purchaser,
or (ii) seek specific performance from the Seller. As a
condition precedent to the Purchaser
exercising any right it may have to bring an action for
specific performance as the result of the Seller's failure
or refusal to perform their obligations
hereunder, the Purchaser must commence such an
action
within ninety (90) days after the occurrence of such
default. The Purchaser agrees that its failure to timely
commence such an action for specific performance within
such ninety (90) day period shall be deemed a waiver by it of
its right to commence such an action.
Notwithstanding anything to the contrary herein, if the
Seller's failure or refusal to perform its obligations under
this Agreement is a result of any action of, or failure to
act by, the Purchaser or any of the
Purchaser's Representatives, the Purchaser shall not be
relieved of its obligations under this Agreement and
Purchaser shall not be entitled to any right or remedy
provided in this Section 14.3 or elsewhere in this
Agreement.
Escrow.
The Escrow Agent shall hold the Downpayment in
an
interest-bearing account in accordance with the
Escrow
Agreement (as hereinafter defined) (the Downpayment and all
interest thereon, collectively, the "Deposit") in escrow and
shall dispose of the Deposit only in accordance with the
provisions of that certain Escrow Agreement of even date
herewith by and among the Escrow Agent, the Purchaser and the
Seller relating to the Property (the "Escrow Agreement") in
the form of Exhibit L hereto. Simultaneously with their
execution and delivery of this Agreement, the Purchaser and
the Seller shall furnish the Escrow Agent with their true
Federal Taxpayer Identification Numbers so that the
Escrow
Agent may file appropriate income tax information returns with
respect to any interest earned on or credited to the Deposit.
The party entitled to the economic benefit of the Deposit
representing interest earned on the Downpayment shall be the
party responsible for the payment of any tax due thereon.
The provisions of the Escrow Agreement shall survive the
termination of this Agreement and the Closing.
Notices.
All notices, elections, consents, approvals, demands,
objections, requests or other communications which the
Seller
or the Purchaser may be required or desire to give pursuant
to, under or by virtue of this Agreement must be in writing
and (i) delivered by hand to the addresses set forth below, or
(ii) (a) sent by express mail or courier (for next business
day delivery), or (b) sent by certified or registered mail,
return receipt requested with proper postage prepaid, or (c) by
telecopy, addressed as follows:
If to the Seller:
Framingham Corporate Center Limited Partnership
c/o Dean Witter Realty Inc.
Two World Trade Center
64th Floor
New York, NY 10048
Ronald J. DiPietro
Telecopy No.: 212-392-3123
with copies to:
Vincent M. Sacchetti, Esq.
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
If to the Purchaser:
c/o Cornerstone Real Estate Advisers, Inc. One Financial Plaza,
Suite 1700 Hartford, Connecticut 06103-2604 Attention: Michael E.
Zimmitti
Telecopy No.: 860-509-2223
with a copy to:
c/o Cornerstone Real Estate Advisers, Inc. One Financial Plaza,
Suite 1700 Hartford, Connecticut 06103-2604 Attention: C.J.
Karbowicz, Esq.
Telecopy No.: 860-509-2223
The Seller or the Purchaser may designate another
addressee or change its address for notices and other
communications hereunder by a notice given to the other
parties in the manner provided in this Section 16. A notice or
other communication sent in compliance with the provisions of
this Section 16 shall be deemed given and received (i) if by
hand, at the time of the delivery thereof to the receiving party
at the address of such party set forth above (or to such other
address as such party has designated as provided above), (ii) if
sent by express mail or overnight courier, on the date it is
delivered to the other party, or (iii) if sent by registered
or certified mail, on the third business day following the
day such mailing is made or (iv) if sent by telecopy, upon
confirmation of sending.
Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing, all
Property Information shall be kept strictly confidential and
shall not, without the prior consent of the Seller, be
disclosed by the Purchaser or the Purchaser's Representatives, in
any manner whatsoever, in whole or in part, and will not be used
by the Purchaser or the Purchaser's Representatives, directly
or indirectly, for any purpose other than evaluating the
Property. Moreover, the Purchaser agrees that, prior to the
Closing, the Property Information will be transmitted only to
the Purchaser's Representatives (i) who need to know the
Property Information for the purpose of evaluating the
Property, and who are informed by the Purchaser of the
confidential nature of the Property Information, (ii) who
agree to be bound by the terms of this Section 17 and Section
6.3 and (iii) who have executed and delivered to the Seller
the letter regarding use of the Property Information in the
form of Exhibit M hereto. The provisions of this Section 17
shall in no event apply to Property Information which is a
matter of public record and shall not prevent the Purchaser
from complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting
requirements.
Press Releases.
The Purchaser and Seller, for the benefit of each other,
hereby agree that between the date hereof and the Closing Date,
they will not release or cause or permit to be released any
press notices, publicity (oral or
written) or advertising promotion relating to,
or
otherwise announce or disclose or cause or permit to be
announced or disclosed, in any manner whatsoever, the terms,
conditions or substance of this Agreement or the transactions
contemplated herein, without first obtaining the written
consent of the other party hereto. It is understood that the
foregoing shall not preclude either party from discussing the
substance or any relevant details of the transactions
contemplated in this
Agreement with any of its attorneys, accountants,
professional consultants or potential lenders, as the case
may be, or prevent either party hereto from complying
with Laws, including, without limitation, governmental
regulatory, disclosure, tax and reporting requirements.
Return of Property Information.
In the event this Agreement is terminated, the
Purchaser and the Purchaser's Representatives shall
promptly deliver to the Seller all originals and copies of the
Property Information in the possession of the Purchaser and
the Purchaser's Representatives (all such documents having
been listed on a certain Property Information Schedule which
was included with the delivery from Seller to Purchaser of all
such Property Information documents during the Due
Diligence Period).
Notwithstanding anything contained herein to
the
contrary, in no event shall the Purchaser be entitled to receive
a return of the Downpayment or the accrued interest
thereon, if any, if and when otherwise entitled thereto pursuant
to this Agreement until such time as the Purchaser and the
Purchaser's Representatives shall have performed the
obligations contained in the preceding sentence.
Property Information Defined.
As used in this Agreement, the term "Property
Information" shall mean (i) all information and documents in any
way relating to the Property, the operation thereof or
the sale thereof (including, without
limitation, Leases, Contracts and Licenses) furnished to, or
otherwise made available for review by, the Purchaser or its
directors, officers, employees, affiliates,
partners, brokers, agents or other representatives,
including, without limitation, attorneys, accountants,
contractors, consultants, engineers and financial
advisors (collectively, the
"Purchaser's
Representatives"), by the Seller or any of the Seller's
Affiliates, or their agents or representatives,
including, without limitation, their contractors,
engineers, attorneys, accountants, consultants, brokers or
advisors, and (ii) all third-party analyses,
compilations, data, studies, reports or other information or
documents obtained by the Purchaser or the Purchaser's
Representatives containing or based, in whole or in part,
on the information or documents described in the
preceding clause (i), or third-party Investigations, or
otherwise reflecting their review or investigation of the
Property.
Remedies.
In addition to any other remedies available to the
Seller, the Seller shall have the right to seek equitable relief,
including, without limitation, injunctive relief or specific
performance, against the Purchaser or the Purchaser's
Representatives in order to enforce the provisions of this
Section 17 and 6.3.
The provisions of this Section 17 shall survive the
termination of this Agreement and the Closing.
Access to Records.
For a period of three (3) years subsequent to the Closing
Date, the Seller, the Seller's Affiliates and their employees,
agents and representatives shall be entitled to access during
business hours to all documents, books and records given to
the Purchaser by the Seller at the Closing for tax and audit
purposes, regulatory compliance, and cooperation with
governmental investigations upon reasonable prior notice to
the Purchaser, and shall have the right, at their sole cost
and expense, to make copies of such documents, books and
records.
Assignments.
This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and to their respective
heirs, executors, administrators, successors and permitted
assigns. This Agreement may not be assigned by the Purchaser
without the prior written consent of the Seller and any
assignment or attempted assignment by the Purchaser without
such prior written consent shall constitute a default by the
Purchaser hereunder and shall be null and void. However,
Purchaser may assign this Agreement as of right to Cornerstone
Suburban Office, L.P.
Entire Agreement, Amendments.
All prior statements, understandings, representations and
agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully
and completely expresses the agreement between them
in
connection with this transaction and which is entered into
after full investigation, neither party relying upon any
statement, understanding, representation or agreement made by
the other not embodied in this Agreement. This Agreement shall be
given a fair and reasonable construction in accordance with the
intentions of the parties hereto, and without regard to or aid of
canons requiring construction against the Seller or the party
drafting this Agreement. This Agreement shall not be altered,
amended, changed, waived, terminated or otherwise modified in
any respect or particular, and no consent or approval
required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by or
on behalf of the party to be charged.
Merger.
Except as otherwise expressly provided herein, the
Purchaser's acceptance of the Deed shall be deemed a discharge of
all of the obligations of the Seller hereunder and all of the
Seller's representations, warranties, covenants and
agreements herein shall merge in the documents and agreements
executed at the Closing and shall not survive the Closing.
Limited Recourse.
The Purchaser agrees that it does not have and will
not have any claims or causes of action against any disclosed
or undisclosed officer, director, employee, trustee, shareholder,
partner, principal, parent, subsidiary or other affiliate of
the Seller, including, without limitation, Dean Witter Realty
Inc. and the parent and affiliates of Dean Witter Realty Inc.
(collectively, the "Seller's Affiliates"), arising out of or in
connection with this Agreement or the transactions
contemplated hereby, provided, however, that if the Closing
occurs, Dean Witter Realty Income Partnership II, L.P. shall
not be included within the above-defined Seller's Affiliates.
The Purchaser agrees to look solely to the Seller and the
Seller's assets directly attributable to the Building for the
satisfaction of the Seller's liability or obligation arising
under this Agreement or the transactions contemplated hereby, or
for the performance of any of the covenants, warranties or other
agreements of the Seller contained herein, and further agrees
not to sue or otherwise seek to enforce any personal obligation
against any of the Seller's Affiliates with respect to any
matters arising out of or in connection with this Agreement
or the transactions contemplated hereby. The total liability
of the Seller hereunder shall in no event exceed Four Hundred
Thousand and 00/100 Dollars ($400,000.00), except for any
claims arising out of the fraud or deceit of Seller, provided
that such limitation on liability shall not be deemed to affect
the proviso in the first sentence of this Section 22.
Miscellaneous.
Neither this Agreement nor any memorandum thereof
shall be recorded and any attempted recordation hereof shall be
void and shall constitute a default. Each of the Exhibits
and Schedules referred to herein and attached hereto
is
incorporated herein by this reference. The caption headings in
this Agreement are for convenience only and are not
intended to be a part of this Agreement and shall not be
construed to modify, explain or alter any of the terms,
covenants or conditions herein contained. If any provision of
this Agreement shall be unenforceable or invalid, the same
shall not affect the remaining provisions of this Agreement
and to this end the provisions of this Agreement are intended to
be and shall be severable. This Agreement shall be
interpreted and enforced in accordance with the laws of the
Commonwealth of Massachusetts without reference to principles of
conflicts of laws.
Time of the Essence.
Time is of the essence with respect to this Agreement,
including but not limited to the occurrence of the Closing as of
the originally scheduled date.
IRS Form 1099-S Designation.
In order to comply with information
reporting requirements of Section 6045(e) of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations
thereunder,
the parties agree (i) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Exhibit N at
or prior to the Closing to designate the Title Company as the
party who shall be responsible for reporting the
contemplated sale of the Property to the Internal Revenue
Service (the "IRS") on IRS Form 1099-S; (ii) to provide the
Title Company with the information necessary to complete Form
1099-S; (iii) that the Title Company shall not be liable for
the actions taken under this Section 25, or for the
consequences of those actions, except as they may be the
result of gross negligence or willful misconduct on the part of
the Title Company; and (iv) that the Title Company shall be
indemnified by the parties for any costs or expenses incurred as
a result of the actions taken under this Section 25, except as
they may be the result of gross negligence or willful
misconduct on the part of the Title Company. The Title
Company shall provide all parties to this transaction with
copies of the IRS Forms 1099-S filed with the IRS and with any
other documents used to complete IRS Form 1099-S.
Attorney's Fees.
In any event that at any time Seller or Purchaser
shall institute any action or proceeding against the other
relating to this Agreement or any default hereunder, then and in
that event the prevailing party in such action or proceeding
shall be entitled to recover from the other party its
reasonable attorneys' fees which shall be deemed to have accrued
on the commencement of such action or proceeding and shall be
payable whether or not such action is prosecuted to judgment.
Counterparts.
This Agreement may be executed by the
parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all
such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the day and year first
above written.
SELLER:
FRAMINGHAM
CORPORATE CENTER LIMITED PARTNERSHIP
By: Dean Witter Realty Income Partnership II, L.P., its
general
partner
By: Dean Witter Realty Income Properties II, Inc., its managing
general partner
By:
Name:
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY:
By:
Name:
Title:
