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<PAGE>
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)May 23,2000
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)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Pursuant to a Purchase and Sale Agreement dated as
of April
4, 2000, as amended (the "Agreement"), Taxter
Park Associates ("TPA") sold the land and
buildings which comprise Taxter Corporate Park
(the "Property") on May 23, 2000 to a
subsidiary of Mack-Cali Realty Corporation (the
"Purchaser"), an unaffiliated party, for a
negotiated sale price of $42.725 million. In
connection with the sale, TPA acquired from DW
Taxter Special Corp., an affiliate, and
conveyed to the Purchaser certain interests
in the Property, including interests that
the affiliate had acquired from KLM Royal
Dutch Airlines, for $6.75 million, in February
1999. Of the $42.725 million, TPA will remit
$6.75 million of the sale proceeds to the
affiliate in connection with the transaction.
TPA is owned 14.8% by Dean Witter Realty Income
Partnership II, L.P. (the "Partnership"),
40.6% by Dean Witter Realty
Income Partnership IV, L.P., an affiliated
public partnership, and 44.6% by Dean Witter
Realty Income Partnership III, L.P., an affiliated
public partnership.
The purchase price was paid in cash at closing. At
closing, the Partnership received approximately
$4.9 million representing its 14.8% share of the cash
received by TPA, net of its share of TPA's closing
costs, the amount of the obligation owed to the
affiliate and other deductions.
<PAGE>
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
On a pro forma basis, if the sale of the Property had
been consummated on January 31, 2000, the Partnership's
Balance Sheet as of such date would have reflected an
increase in cash and cash equivalents from $1.4 million
to $6.3 million, the elimination of the $2.3 million
investment in joint venture, and an increase in
partner's capital from $3.6 million to $6.2 million.
For the Income Statement for the quarter ended January
31, 2000, if the Property was sold on November 1,
1999, the equity in earnings of joint venture of
approximately $48,000 would have been eliminated and
the Partnership would have incurred a net loss of
approximately $34,000 ($0.17 per limited partnership
unit).
For the Income Statement for the year ended October 31,
1999, if the Property was sold on November 1, 1998, the
equity in earnings of joint venture of approximately
$239,000 would have been eliminated and net income
would have decreased from approximately $4,861,000
($27.29 per limited partnership unit) to approximately
$4,622,000 ($26.08 per limited
partnership unit).
The pro forma adjustments to the Income Statements
exclude the Partnership's share of the non-recurring gain
on the sale of the Property.
(c) Exhibits
(1) Purchase and Sale Agreement Dated as of April
4, 2000
between Taxter Park Associates as Seller, DW Taxter
Special Corp. as Sublandlord and Mack-Cali Realty
Acquisition Corporation as Purchaser.
(2) First Amendment to Purchase and Sale Agreement as of
May
3, 2000 between Taxter Park Associates as Seller,
DW Taxter Special Corp. as Sublandlord and Mack-
Cali Realty Acquisition Corp. as Purchaser.
(3) Second Amendment to Purchase and Sale Agreement as
of
May 11, 2000 between Taxter Park Associates as
Seller, DW Taxter Special Corp. as Sublandlord
and Mack-Cali Realty Acquisition Corp. as
Purchaser.
<PAGE>
(4) Third Amendment to Purchase and Sale Agreement as of
May
17, 2000 between Taxter Park Associates as
Seller, DW Taxter Special Corp. as Sublandlord
and Mack-Cali Realty Acquisition Corp. as
Purchaser.
(5) Fourth Amendment to Purchase and Sale Agreement as
of
May 18, 2000 between Taxter Park Associates as
Seller, DW Taxter Special Corp. as Sublandlord
and Mack-Cali Taxter-
Associates L.L.P. as Purchaser.
(6) Termination, Assignment and Recognition
Agreement as of May 23, 2000 between Taxter
Park Associates, DW Taxter Special Corp.,
Mack-Cali Realty Acquisition Corp. and KLM
Royal Dutch Airlines.
(7) Termination Agreement as of May 23, 2000
between Taxter Park Associates and DW Taxter
Special Corp.
<PAGE>
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.
By: Dean Witter
Realty Income
Partnership II,
L.P.
General Partner
By: Dean Witter
Realty Income Properties II, Inc.
Managing General
Partner
Date: June 6, 2000 By:
/c/ Charles
M. Charrow
Charles M. Charrow
Controller
(Principal Financial
and Accounting
Officer)
<PAGE>
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this
"Agreement"), dated as of the 4th day of
April, 2000, by and between TAXTER PARK
ASSOCIATES, a New York general partnership,
having an office c/o Dean Witter Realty Inc.,
Two World Trade Center, 64th Floor, New York,
New York 10048, (the "Seller"), DW TAXTER
SPECIAL CORP., a Delaware corporation having an
office c/o Dean Witter Realty Inc., Two World
Trade Center, 64th Floor, New York, New York
10048 (the "Sublandlord") and MACK-CALI REALTY
ACQUISITION CORPORATION, a Delaware
corporation, having an office at 11 Commerce
Drive, Cranford, New Jersey 07016 (the
"Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the
real property known and numbered as 555 and 565
Taxter Road, Elmsford, New York consisting of
two (2) six (6) story office buildings commonly
referred to as Taxter Corporate Park; and
WHEREAS, the Seller, as successor in
interest to Dean Witter Realty, Inc., is a
party to that certain Agreement Granting
Lease, dated as of October 23, 1987
(the "Overlease") among Dean Witter Realty Inc.,
KLM Royal Dutch
Airlines, a Netherlands Corporation ("KLM"), and
URBCO, Inc., pursuant to which KLM was granted a
leasehold interest in a portion of the
Buildings (the "Leased Premises") more
particularly described in the Overlease; and
WHEREAS, Sublandlord and KLM entered into
that certain sublease dated February 5, 1999
(the "KLM Lease") pursuant to which KLM agreed
to lease from Sublandlord and Sublandlord agreed
to lease to KLM a certain portion of the
Leased Premises located at the Property; and
WHEREAS, Sublandlord acquired the tenant's
interest in the Overlease from KLM pursuant to
a certain Assignment and Assumption of Lease
dated as of February 8, 1999; and
WHEREAS, the Seller and the Purchaser have
entered into negotiations wherein the Purchaser
expressed its intent to purchase the Property
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; and
<PAGE>
WHEREAS, in connection with the sale of the
Property to the Purchaser, Seller and
Sublandlord wish to terminate the Overlease; and
WHEREAS, in connection with the sale of the
Property to Purchaser, Seller wishes to
acquire from Sublandlord and Sublandlord
wishes to convey to Seller its interest under the
KLM Lease; and
WHEREAS, subsequent to the termination of
the Overlease, the KLM Lease shall be a direct
lease by and between Seller and KLM; and
WHEREAS, subsequent to the execution and
delivery of the A & A Agreements (as
hereinafter defined) at Closing (as hereinafter
defined) Seller, KLM and Purchaser wish to
acknowledge and agree that the KLM Lease shall
be a direct lease by and between Purchaser,
as landlord, and KLM, as tenant;
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
by the parties hereto as follows:
1. Sale of the Property.
The Seller agrees to sell and convey to the
Purchaser, and the Purchaser agrees to
purchase from the Seller, at the price and
upon the terms and conditions set forth in this
Agreement, all those certain plots, pieces and
parcels of land described in Schedule 1 hereto
(the "Land"), together with (i) all buildings
and other improvements (including, without
limitation the two (2) office buildings situated
on the Land) (collectively, the
"Buildings"), (ii)all
easements, rights of way, reservations,
privileges,
appurtenances, and other estates and rights of
the Seller pertaining to the Land and the
Buildings, (iii) all right,
title and interest of the Seller in and to
all fixtures, machinery, equipment, supplies and
other articles of personal property attached or
appurtenant to the Land orthe
Buildings, or used in connection therewith
(collectively, the "Personal Property"), and (iv)
all right, title and interest of the Seller,
if any, in and to the trade names of the
Buildings (the Land, together with all of the
foregoing items listed in clauses (i)-(iv) above
being hereinafter sometimes referred to as the
"Property").
1.1. Excluded Property.
Specifically excluded from the
Property and this sale are all items of
personal property not described in Section
1 (and all personal property of tenants
under the Leases) and the items
described in Schedule 2 annexed hereto
and made a part hereof.
1.2. Closing Date.
The delivery of the Deed and the
consummation of the transactions
contemplated by this Agreement (the
"Closing") shall take place at the offices
of Bingham Dana LLP, 399 Park Avenue, New
York, New York 100224689, at 10:00 A.M. on
May 2, 2000 or the date which is ten (10)
days after the end of the Due Diligence
Period unless such day is not a day on which
the office of the Clerk of the County of
Westchester, Division of Land Records
(the "Recorders Office") of Westchester
County, New York is open for business,
in which case, the Closing shall take
place on the next day on which such
Recorder's Office
<PAGE>
is open or such earlier or later date
as the Seller and Purchaser may agree in
writing (the "Closing Date").
Notwithstanding the foregoing sentence,
Purchaser shall have one (1) option to
extend the Closing Date for ten (10) days,
provided Purchaser delivers to Seller
written notice of its intent to exercise
such option no later than May 2, 2000
or the date which is ten (10) days after
the end of the Due Diligence Period.
2. Purchase Price.
The purchase price to be paid by the
Purchaser to the Seller for the Property (the
"Purchase Price") is Forty-Three Million and
No/100 Dollars ($43,000,000) payable as
follows:
(a) Eight Hundred Fifty Thousand
and No/100
Dollars ($850,000) (the "Downpayment")
shall be payable simultaneously with the
execution and delivery of this Agreement,
by delivery to Commonwealth Land Title
Insurance Company (the "Escrow Agent") of
<PAGE>
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 and disbursed by
the Escrow Agent in accordance with the
terms of Section 15 and the Escrow
Agreement. 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(b);
(b) Upon the Closing, 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 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 in writing to
Purchaser at least two (2) business day
prior to the Closing Date.
3. Apportionments
The following shall be apportioned between
the Seller and the Purchaser at the Closing as
of 11:59 p.m. of the day preceding the
Closing Date (the "Adjustment Date"):
(a) fixed or base rents ("Rents")
which have been
prepaid, security deposits referred to in
Section 8(e), Rents collected 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 and used for 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;
<PAGE>
(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) outstanding tenant improvement obligations in
connection with those Leases listed on Schedule 12
hereto, whereby any tenant improvement obligations
remaining at Closing shall be a credit to Purchaser
against the Purchase Price at Closing;
(l) such other items as are customarily
apportioned between sellers and purchasers of real
properties of a type similar to the Property and located
in Westchester County, New York.
3.1. Taxes.
If the amount of real estate taxes, special
assessments or other taxes for the Property for the
fiscal year during which the 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.
3.2. Rents.
3.2.1. Arrearages.
If on the Closing Date any tenant is in
arrears in the payment of Rent or has not paid the
Rent payable by it for the month in which the
Closing occurs (whether or not it is in arrears for
such month on the Closing Date), any Rents received
by the Purchaser or the Seller from such tenant
after the Closing shall be applied to amounts due
and payable by such tenant during the following
periods in the following order of priority:
(i) first, to the month in which the Closing
occurred, (ii) second, to
<PAGE>
the current month, and (iii) third, to the months
in which any arrearages exist, paying off the most
recent arrears first. If Rents or any portion
thereof received by the Seller or the Purchaser
after the Closing are due and payable to the other
party by reason of this allocation, the appropriate
sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in
connection with the collection thereof, shall be
promptly paid to the other party (to the extent not
collected from or reimbursed by tenants). At
Closing, Seller shall deliver to Purchaser a
schedule of any Rents in arrears as of the Closing
Date.
3.2.2. Additional Rents.
If any tenants are required to pay
percentage rent, escalation charges for
real estate taxes, parking charges,
operating expenses and maintenance
escalation charges, cost-of-living
increases, utility, sewer or water charges
or other charges, however characterized
("Additional Rents") and any Additional
Rents are collected by the Purchaser from
a tenant after the Closing Date, then
the Purchaser shall promptly apply such
sums received from such tenant during the
following periods in the following order of
priority: (i) first, to the month in which
the Closing occurred, (ii) second, to the
current month, and (iii) third, to the
months in which any arrearages exist,
paying off the most recent arrears first.
If Additional Rents or any portion thereof
received by the Seller or the Purchaser
after the Closing are due and payable to
the other party by reason of this
allocation, the appropriate sum, less a
proportionate share of any reasonable
attorneys' fees and costs and
expenses expended in connection with the
collection thereof, shall be promptly paid
to the other party (to the extent not
collected from or reimbursed by tenants).
At the Closing, Seller shall deliver to
Purchaser a list of Additional Rent
billed to tenants for the calendar year in
which the Closing occurs (both on a
monthly basis and in the
aggregate), the basis for which the monthly
amounts are being billed and the amounts
incurred by Seller on account of the
components of Additional Rent for such
calendar year. Upon the reconciliation
by Purchaser of the Additional Rents
billed to
Tenants, and the amounts actually incurred
for such calendar year, Seller and Purchaser
shall be liable for overpayments of
Additional Rents, and shall be entitled to
payments from Tenants, as the case may be,
on a pro-rata
<PAGE>
basis based upon each party's
period of
ownership during such calendar year. To the
extent Seller is liable for an overpayment,
it shall make such overpayment to
Purchaser within thirty (30) days after
request, for further distribution by
Purchaser to the tenants, as applicable.
3.2.3. Collection After the Closing.
After the Closing, the Seller shall
continue to have the right, in its own
name, to demand payment of and to collect
Rent and Additional Rent arrearages owed to
the Seller by any tenant, which right
shall include, without limitation, the right
to continue or commence legal
actions or
proceedings against any tenant; provided,
however, Seller shall be limited to a
contract action for recover of monies
only, and under no circumstances shall
Seller be permitted to bring an action for
eviction, ouster or removal of any
tenant the Purchaser agrees to cooperate
with the Seller for all reasonable respects
and at no
<PAGE>
cost or expense to Purchaser, in
connection with such 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. If for any fiscal period which
includes the Adjustment Date tenants are
paying Additional Rent based upon estimates
prepared by the
Seller, such Additional Rents shall
be
reapportioned when the actual expenses for
the fiscal period are known.
3.3. Water.
If there is a water meter on the Property,
the Seller shall furnish a reading to a date not more
than 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.
3.4. Utilities.
The Seller will use all commercially
reasonable efforts 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.
3.5. Post-Closing Adjustments.
The items set forth in this Section 3 shall
be apportioned at the Closing by payment of the net
amount of such apportionments to the Seller in the
manner set forth herein for the
<PAGE>
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 the period of the statute of
limitations in connection with such claims.
<PAGE>
3.6. Tax Certiorari.
Seller hereby acknowledges that tax
proceedings are currently pending for a
reduction in the assessed valuation of the
Property for fiscal tax years 1997, 1998, 1999
and 2000. Seller hereby covenants that it
shall not, in connection with the proceedings
referenced in the prior sentence, take any
action which would have any affect on the
assessed value of the Property for the fiscal
tax years 2000 and later without the prior
written consent of Purchaser, such consent not
to be unreasonably withheld or delayed.
4. 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 and to review the
Property Information (including, without
limitation,
environmental reports). Neither the Purchaser
nor the
Purchaser's Representatives shall contact (i) any
governmental authority or any of the Seller's
vendors, employees, consultants or contractors prior
to the Closing without first notifying the Seller,
or (ii) any of Seller's tenants, without (a)
obtaining the Seller's prior written consent in
each instance, which consent shall not
be
reasonably withheld, conditioned or delayed and (b)
arranging and scheduling each such meeting with
Seller's tenants with Seller or Seller's on-site
Property manager.
4.1. Access to the Property.
During the Due Diligence Period, the
Purchaser and the Purchaser's Representatives
shall have the right to enter upon the
Property for the sole purpose
of
inspecting the Property and making surveys,
soil
borings, engineering tests and other
investigations, inspections and tests
(collectively, "Investigations"), provided (i)
the Purchaser shall give the Seller not less
than two (2) 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 invasive samplings to be done on
the Property without the Seller's prior
written consent, not to
be
unreasonably withheld, conditioned 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 Purchaser shall
use all commercially reasonable efforts so as
to minimize
interference with the day-to-day operation
of the
Property. The Purchaser shall:
(a) promptly repair any damage
to the
Property resulting from any such
Investigations, 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
substantially 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;
<PAGE>
(c) permit the Seller to
have a
representative present during all
Investigations undertaken hereunder;
(d) take all commercially
reasonable actions
and implement all commercially
reasonable 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) only in the event this
Agreement is
terminated, if requested by the Seller
in writing, furnish to the Seller, at
Seller's sole cost and expense,
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;
(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 by
Purchaser or
Purchaser's Representatives, 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;
(g) indemnify the Seller and
the Seller's Affiliates and hold the
Seller and the Seller's
Affiliates harmless from and against
any and all
claims, demands, causes of action, losses,
damages, liabilities, costs and expenses
(including without limitation reasonable
attorneys' fees and
disbursements), suffered or incurred by the
Seller or any of the Seller's Affiliates to
the extent arising out of or in connection
with (i) any negligent or reckless
<PAGE>
acts or omissions of the Purchaser
and/or Purchaser's Representatives during
(A) the
Purchaser and/or the Purchaser's
Representatives' entry upon the Property or (B)
any Investigations or other
activities conducted thereon by the
Purchaser or the Purchaser's Representatives,
and (ii) any liens or encumbrances filed or
recorded against the Property as a
consequence of the Investigations or any
other activities conducted thereon by the
Purchaser or the Purchaser's Representatives.
Notwithstanding the foregoing, in no event shall
Purchaser indemnify Seller for any pre-existing
conditions or findings, including, without
limitation, any violation of Applicable
Environmental Law or the existence of any
Hazardous Substance discovered during the
course
of
Purchaser's due diligence activities; and
(h) 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, not to be unreasonably withheld,
conditioned 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.
The provisions of this Section 4.1 shall
survive the termination of this Agreement and the
Closing.
4.2. Purchaser's Termination Notice.
Subject to the provisions of the last paragraph
of this Section 4.2, the Purchaser shall have the
right to elect to terminate this Agreement by
giving written notice (the "Purchaser's Termination
Notice") of such election to the Seller at any time
prior to 5:00 p.m. on the last day of the Due
Diligence Period if the Purchaser shall determine
(in the exercise of its sole and exclusive
discretion) that Purchaser does not wish to purchase
the Property.
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.
4.3. Estoppel Certificates.
Promptly after execution and delivery of
this Agreement, the Seller agrees to use all
commercially reasonable efforts to obtain an
Estoppel Certificate from each tenant under a Lease
(as hereinafter defined and with the exception of
the Overlease) dated no earlier than thirty (30)
days prior to Closing, 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 (i) all tenants who
lease space in excess of 10% of the net rentable
area of
<PAGE>
each of the Buildings, (ii) one-half of all
other tenants at the Buildings, and (iii)
the following tenants: (x) Nationwide
Insurance; (y) Paging Network and (z)
American Home Assurance. The Estoppel
Certificates shall be in the form annexed
hereto as Exhibit G and made a part hereof;
provided, however, if any tenant is required or
permitted under its Lease to make different
statements in a certificate of such nature
than are set forth in Exhibit G and Seller first
requests that such tenant sign an Estoppel
Certificate in the form of Exhibit G and such
tenant declines, the Seller may modify the
Estoppel Certificate for such tenant to set
forth only the statements required under such
tenant's Lease to be made by such tenant in such
a certificate. If any tenant who is required to
deliver an Estoppel Certificate pursuant to
this Section 4.3 fails to deliver an Estoppel
Certificate in the form required by this
Agreement, Seller shall have the right to
substitute in lieu thereof an estoppel
certificate substantially in such form executed
by Seller and such estoppel certificate shall
be treated for all purposes as an Estoppel
Certificate from such failing tenant. In the
event that after the Closing the Seller obtains
and delivers to the Purchaser an Estoppel
Certificate from any tenant in the form
required by this Section 4.3 for which the Seller
has substituted an estoppel certificate executed
by it at the Closing, then such Seller estoppel
shall be of no further force and effect and the
Seller shall thereafter have no liability under
such Seller estoppel certificate.
5. Title.
The Seller shall convey and the Purchaser shall
accept title to the Property subject only to those
matters set forth on Schedule 5 hereto
(collectively the "Permitted
Encumbrances"). The Purchaser has ordered at the
Purchaser's expense, a commitment for an owner's
fee title insurance policy with respect to the
Property (the "Title Commitment") from Commonwealth
Land 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. Purchaser shall instruct
the Title Company to send to Seller's counsel a
copy of the Title Commitment and all related title
exception documents to Seller upon receipt of
same. The Seller has delivered to the Purchaser, an
as-built survey which may, at Purchaser's option
and expense be updated, ("Survey") of the Land and
Buildings and prepared in accordance with the
"Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys" jointly established
and adopted by ALTA and ACSM in 1992.
<PAGE>
5.1. 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 and the Purchaser gives the Seller notice
of the same within ten (10) business days
after receipt of the Title Commitment and the
Survey, the Seller shall undertake to eliminate
the same (or to arrange for title insurance
insuring against enforcement of such
Unacceptable Encumbrances against, or collection
of the same out of, the Property) 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) business day period unless (i) such
Unacceptable Encumbrance was first raised by
the Title Company subsequent to the date of the
Title Commitment and the Survey, respectively,
and (ii) the Purchaser shall notify the Seller
of the same within ten (10) business days
after the Title Company first notifies
Purchaser 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.
5.2. Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to
bring any action or proceeding, to make any
payments or otherwise to incur any expense in
order to eliminate Unacceptable Encumbrances not
waived by the Purchaser or to arrange for title
insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection
of the same out of, the Property; except that
the Seller, at its sole cost and expense,
shall satisfy and cure Unacceptable
Encumbrances which are (i) mortgages, UCC-1
financing statements 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 $100,000 in the aggregate for all
such judgments and other Liens. The Seller may
eliminate any such Unacceptable Encumbrance by
the payment of amounts necessary to cause the
removal thereof of record, by bonding over
such Unacceptable Encumbrance in a manner
reasonably satisfactory to the Purchaser or by
arranging for title insurance reasonably
satisfactory to the Purchaser insuring
against enforcement of
such
Unacceptable Encumbrance against, or collection
of the same out of, the Property.
<PAGE>
5.3 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 for title insurance
reasonably 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.
5.3. 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 (plus penalties
and interest, if any) 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 (plus penalties and
interest, if any) acceptable to
said company to insure the obtaining
and the recording of such
satisfactions. 5.4. 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 or
excepts same but insures the Purchaser
against collection thereof out of the
Property.
5.5. 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 State of
New York 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 Returns")
required thereby which shall be duly
executed, and
<PAGE>
acknowledged where necessary 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. The
provisions of this Section 5.6 shall
survive for six months following the
Closing Date.
5.6. Bulk Sales.
The Closing shall be consummated
without compliance with bulk sales laws.
If by reason of any applicable bulk sales
law, any claims are asserted by creditors
of Seller related to periods prior to the
Closing, such
claims shall be the responsibility of Seller, and
Seller shall jointly and severally indemnify,
defend and hold harmless Purchaser (and their
respective directors, officers, employees,
affiliates, successors and assigns) from and
against all losses or liabilities, if any,
based upon, arising out of or otherwise in
respect of the failure to comply with such bulk
sales laws.
6. 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 general partnership organized under the
laws of the State of New York and is qualified
under the laws of the State of New York 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.
<PAGE>
(c) This Agreement and the Seller's
Documents do
not and will not contravene any provision
of the partnership agreement of the
Seller, any other agreements, documents or
instruments to which the Seller is a party or may
be bound, any judgment, order, decree, writ or
injunction issued against the Seller, or, to the
Seller's actual knowledge, any provision of any
laws or governmental ordinances, rules,
regulations, orders or requirements
(collectively, the "Laws") applicable to the
Seller. The consummation of the
transactions contemplated hereby will not
result in a breach or constitute a default
or event of default by the Seller under any
agreement to which the Seller or any of its
assets are subject or bound and will not result
in a violation of any Laws applicable to the
Seller.
(d) There are no leases, subleases,
tenancies,
licenses or other use or occupancy agreements
affecting any portion of the Property on the
date hereof, or any amendments or modifications
thereof, except for those items listed in
Schedule 7 annexed hereto and made a part
hereof (collectively, the "Leases"). 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 and/or
tenants
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. As of the
Closing Date, all of the leasing commissions
in connection with the Leases have been paid or
satisfied.
(e) To the Seller's actual knowledge, there
are no pending actions, suits, labor
disputes, litigation proceedings or
investigations to which the Seller is a party
before any court or other governmental authority
with respect to the Property or 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, refinement,
production, transferring, 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, nor does
Seller have any knowledge, of any
violation of Applicable Environmental Law or
any Permit 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, defined or referred to as
hazardous, toxic or dangerous or as a
pollutant or contaminant 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 federal, state and local laws,
ordinances, regulations, orders,
directives or requirements implementing such
statutes in effect on the date hereof
imposing liability or
establishing standards of conduct for
environmental protection or in any way
related to Hazardous
Substances.
<PAGE>
(g) There are no service
contracts, union
contracts, employment agreements or other
agreements affecting the Property or the
operation thereof, except the Contracts as
defined in Section 8(c) below. All of the
Contracts are and will on the Closing
Date be unmodified and to Seller's
actual knowledge in full force and effect
without any default or claim of default by
any of the parties thereto, except those
Purchaser elects not to assume. To Seller's
actual knowledge all sums presently due
and payable by Seller under the Contracts
have been fully paid and all sums which
become due and payable between the date
hereof and the Closing Date shall be fully
paid by Seller on the Closing Date or,
with respect to work being performed to
implement tenant improvements, any lien
that could result therefrom will have
been insured against by the Title Company. Provided that
Purchaser delivers to Seller
written notice of those Contracts Purchaser
shall assume at Closing, Seller hereby
covenants and agrees to
terminate as of the Closing Date those
Contracts not being assumed by Purchaser.
<PAGE>
(h) The Licenses include all
certificates, licenses, permits and
authorizations, including those relating
to any environmental matters, necessary
to operate and occupy the Buildings and
are listed on Schedule 11. Seller has
not received any notice that any of the
Permits and Licenses are subject to, or in
jeopardy of, revocation or non-renewal.
Seller is current in the payment of any
fees required to be paid for the permits
and licenses. All permits and licenses are
in full force and effect.
(i) Seller has received no written
notice and has no knowledge of (i)
any pending or contemplated
annexation or condemnation proceedings,
or private purchase in lieu thereof,
affecting or which may affect the Property,
or any part thereof, (ii) any proposed or
pending proceeding to change or redefine
the zoning classification of all or any
part of the Property, (iii) any proposed
or pending special assessments affecting
the Property or any portion thereof
and (iv) any proposed change(s) in any
road or grades with respect to the roads
providing a means of ingress or egress to
the Property. Seller agrees to furnish
Purchaser with a copy of any such notice
received within two (2) days after
receipt.
(j) To Seller's actual knowledge,
Seller has provided Purchaser with (x)
all reports, including without
limitation, the Environmental Documents,
in Seller's possession or under its control
related to the physical condition of the
Property, and (y) all books, records,
tenant data, leasing material and
forms, current rent rolls, files,
statements, tax returns, market studies,
plans, specifications, reports, tests and
other materials of any kind owned by or
in the possession or control of Seller
which are or may be used by Seller in the
use and operation of the Property or
Personal Property (collectively, and
together with the Promotional Materials,
the "Books and Records").
"Environmental Documents" shall mean all
Phase I environmental reports in
connection with the Property in the
possession of Seller.
(k) Seller has no knowledge of any
violations, or of any notices, suits,
investigations or judgments relating to
any violations (including, without
limitation, Environmental Laws), or any
laws, ordinances or regulations affecting
the Property, or any violations or
conditions that may give rise thereto.
(l) To the Seller's knowledge, there
are no tenant improvement obligations
affecting the Property on the date
hereof, except for those items listed in
Schedule 12 annexed hereto and made a part
hereof.
6.1. Survival of Representations.
The representations and warranties of
the Seller set forth in this Section 6 (i)
shall be true,
<PAGE>
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 six (6) months following the
Closing Date and then shall expire, and
no action or claim based thereon shall be
commenced after such period.
6.2. 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 sixty (60) 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.
6.3. 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
<PAGE>
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) Seller has advised that
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
(except that Seller represents that it
has
provided Purchaser with true, accurate and
complete copies of the Property Information in
its possession or control); (iii) except as
otherwise set forth
herein,
the Purchaser is relying solely on
its own
investigations, examinations and inspections
of the
Property and those of the Purchaser's
Representatives and is not
relying in any way on the Property
Information furnished by the Seller or any
of the
Seller's Affiliates, or any of their
agents or
representatives; and (iv) the Seller expressly
disclaims any representations or warranties with
respect to the
accuracy or completeness of the Property
Information (except that Seller represents that
it has provided Purchaser with true, accurate
and complete copies of the Property Information
in its possession or control), and, except as
otherwise set forth herein, the Purchaser
releases the Seller and the Seller's
Affiliates, and their agents and
representatives, from any and all liability
with respect thereto. The Purchaser or anyone
claiming by, through or under the Purchaser,
hereby fully and irrevocably releases the
Seller and the Seller's Affiliates from any and
all claims that it may now have or hereafter
acquire against any of the Seller or the
Seller's Affiliates for any cost, loss,
liability, damage, expense, action or cause of
action,
whether foreseen or unforeseen, arising from or
related to the presence of environmentally
hazardous, toxic or dangerous substances, or
any other conditions (whether patent, latent
or otherwise) affecting the Property, except
for claims against the Seller based upon any
obligations and liabilities of the Seller
expressly provided in this Agreement.
The provisions of this Section 6 shall
survive the Closing.
7. 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
State of Delaware, and is qualified under the
laws of the State of New York to conduct
business therein on the date hereof.
<PAGE>
(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 By-
Laws of the Purchaser, any judgment, order,
decree, writ or injunction issued against the
Purchaser, or any provision of any Laws
applicable to the Purchaser. The
consummation of the transactions contemplated
hereby will not result in a breach or constitute
a default or event of default by the Purchaser
under any agreement to which the Purchaser or any
of its assets are subject or bound and will
not result in a violation of any Laws
applicable to the Purchaser.
(d) There are no pending actions,
suits, proceedings or investigations to which the
Purchaser is a party before any court or other
governmental authority which may have an
adverse impact on the transactions contemplated
hereby.
The representations and warranties of the
Purchaser set forth in this Section 7 and elsewhere in
this Agreement 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 six (6) months.
8. 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 bargain and sale deed with covenants
against grantor's acts (the "Deed") conveying
title to the Property in the form of Exhibit
A annexed hereto and made a part hereof.
(b) The Assignment and Assumption of
Leases and Security Deposits in the form of
Exhibit B annexed hereto and made a part hereof
assigning without warranty or representation,
except as set forth in this
Agreement, all of the Seller's right,
title and
interest, if any, in and to the Leases in effect
on the Closing Date, all guarantees thereof and
the security deposits thereunder, if any (the
"Lease Assignment").
(c) The Assignment and Assumption of Contracts
and Licenses
in the form of Exhibit C annexed hereto and made a part
hereof (the "Contract and LicenseAssignment") assigning
without warranty or representation, except as set forth in
this Agreement, 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, leasing and brokerage agreements and other
service contracts relating to the operation of the Property
(collectively, the "Contracts") which Purchaser has
elected, by written notice to Seller delivered at least
five (5) days prior to the Closing, to assume.
(d) The Assignment and Assumption of Intangible
Property in the form of Exhibit D 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
"Taxter Corporate Park" (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").
<PAGE>
(e) Original executed counterparts of
all Leases
and New Leases, if any, 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
and certified copies of such Leases where
Seller, using all commercially reasonable
efforts is unable to deliver originals of
same.
(f) A bill of sale in the form of
Exhibit E
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. The
Purchaser shall indemnify the Seller for
any sales tax which may be owed or claimed
to be owed in connection with the conveyance
of the Personal Property. Notwithstanding
the foregoing, the Seller and Purchaser
hereby agree that no portion of the
Purchase Price is being allocated to the
Personal Property.
<PAGE>
(g) Notices to the tenants of the
Property in the
form of Exhibit F 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 each of the
general partners
of the Seller that the Seller and each of
the general partners have taken all
necessary partnership action to authorize
the execution, delivery and performance
of this Agreement, the consummation of
the transaction contemplated hereby and
the documents to be delivered hereunder.
(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) Keys to all entrance doors to,
and equipment
and utility rooms located in, the
Property; provided, however, if the keys
are located in the Property manager's
office on the Property, the keys may
be delivered to Purchaser's Representative
at such office.
(k) All other original documents or
instruments
referred to herein, including without
limitation those Contracts being assigned
to Seller, and all original Licenses and
Books and Records, and certified copies of
same where Seller, using its best efforts,
is unable to
deliver originals.
(l) To the extent in the Seller's
possession or
control and not located at the Buildings,
plans and specifications of the Buildings.
(m) The Transfer Tax Returns, if any.
(n) A "FIRPTA" affidavit sworn to by
the Seller in the form of Exhibit H
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.
(o) The Termination, Assignment and
Recognition
Agreement in the form of Exhibit L attached
hereto and made a part hereof (the
"Termination, Assignment and Recognition
Agreement") pursuant to which (i) the
Overlease shall be terminated; (ii)
Sublandlord's
interest under the KLM Lease shall be
assigned to
Seller; and (iii) Seller and
<PAGE>
KLM shall recognize and agree that
subsequent to
the termination of the Overlease, the KLM
Lease shall be a direct lease by and between
Seller as landlord and KLM as tenant or,
if Purchaser shall have waived Seller's
obligation to deliver the Termination,
Assignment and Recognition Agreement, an
assignment of the Overlease and of all
Sublandlord's rights under the KLM Lease.
(p) An affidavit, and such other
document or
instruments required by the Title Company,
executed by
Seller to the Title Company (i)
indemnifying it against any work done or
supplies delivered to the Property which
might be grounds for a materialman's or
mechanic's lien under or pursuant to
New York Law, in form sufficient to
enable the Title Company to affirmatively
insure Purchaser against any such lien,
and (ii)
certifying that the signatures on the
Deed are
sufficient to bind Seller and convey the
Property to
Purchaser, together with good standing
certificates issued by the State of Delaware
and qualification to do
business certificates issued by the State of
New York.
(q) A list of security deposits and
all non-cash
security deposits (including letters
of credit)
delivered by tenants under the Leases,
together with other instruments of
assignment, transfer or consent as
may be necessary to permit Purchaser to
realize upon same.
(r) A certificate indicating
that the
representations and warranties of Seller
made in this Agreement are true and
correct as of the Closing Date, or if
there have been any changes, a
description thereof.
(s) All proper instruments as shall
be reasonably
required for the conveyance to Purchaser of
all right, title and interest, if any, of
Seller in or to any award or payment made,
or to be made, (i) for any taking in
condemnation, eminent domain or agreement in
lieu thereof of land affecting all or any
portion of the Property, (ii) for damage to
the Property or any part thereof by reason of
change of grade or closing of any street,
road, highway or avenue adjacent to or abutting
the Property, (iii) for any taking in
condemnation or eminent domain of any part of
the Property and (iv) as a result of any casualty
to the Property.
(t) A statement setting forth the
Purchase Price
with all adjustments and prorations shown thereon.
(u) A computer diskette containing this
Agreement
in either WordPerfect or Microsoft Word format.
(v) All other documents the Seller is
required to deliver pursuant to the provisions
of this Agreement or which may be reasonably
requested by the Title Company.
<PAGE>
(w) A schedule of any Rents in arrears as
of the
Closing Date.
9. 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 State of New York, dated within
thirty (30) days of the Closing Date; and (iv)
an incumbency certificate executed by the
Secretary or Assistant Secretary of the
Purchaser with respect to those officers of the
Purchaser executing any documents or instruments
in connection with the transactions
contemplated herein.
(e) If the Purchaser is a partnership, (i)
copies
of the Purchaser's partnership agreement and
partnership certificate (if applicable) and, if
required by law or its partnership
agreement, copies of partnership resolutions
and/or consents of the partners authorizing
the execution, delivery and performance of
this Agreement and the consummation of the
transactions contemplated by this Agreement, all
certified as true and correct by the
managing general partner of the Purchaser, or
in the absence thereof, then by all of the
Purchaser's general partners; (ii) a legal
existence certificate issued by the state of
organization of the Purchaser, dated within
thirty (30) days of the Closing Date; and
(iii) a qualification to do business
certificate issued by the State of New York,
dated within thirty (30) days of the Closing
Date.
(f) If the Purchaser is a limited
liability
company, (i) copies of the Purchaser's
operating
agreement and, if required by law or its
<PAGE>
operating agreement, copies of resolutions
of the manager authorizing the execution,
delivery and
performance of this Agreement and the
consummation of the transactions contemplated
by this Agreement, all certified as true and
correct by the manager of the Purchaser; (ii)
a good standing certificate issued by the state
of organization of the Purchaser, dated within
thirty (30) days of the Closing Date; and
(iii) a qualification to do business certificate
issued by the State of New York, dated within
thirty (30) days of the Closing Date.
(g) The A & A Agreements.
(h) The Transfer Tax Returns;
(i) The Termination, Assignment and
Recognition
Agreement; and
(j) All other documents the Purchaser is
required
to deliver pursuant to the provisions of this
Agreement. 10. 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; provided, however, Seller
shall continue to operate and maintain the Property
in the ordinary course of business and use
commercially reasonably efforts to reasonably
preserve for Purchaser the relationships of
Seller and Seller's tenants, suppliers, managers,
employees and others having on-going relationships
with the Property.
10.1. 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 execution and delivery of this Agreement,
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 seven (7) days
after receipt by the Purchaser of the Seller's
notice, which notice shall set forth all the
details of the transaction sufficient for
Purchaser to make its
decision, including,
<PAGE>
without limitation, (i) the terms,
plus any
options, (ii) the Rents and Additional Rents,
(iii) the scope and cost of tenant
improvements, (iv) brokerage commissions, (v)
the space being let, and (vi) a detailed
summary of all New Lease Expenses, 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.
10.1.1. New Lease Expenses.
If after the date of this
Agreement, the Seller, pursuant to Section
10.1, enters into any Leases or any
extension, renewal, expansion or
modification of any Leases (where such
extension, renewal, expansion or
modification is not provided for in such
Lease), or if tenant exercises any
extension, renewal, 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) 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).
10.1.2. Allocation of New Lease Expenses.
The New Lease Expenses for each New
Lease allocable to and payable by the
Seller shall be determined by multiplying
the amount of such New Lease Expenses by
a fraction, the numerator of which shall
be the number of days contained in that
portion, if any, of the term of such New
Lease commencing on the date on which
the tenant thereunder shall have
commenced to pay fixed rent ("Rent
Commencement Date") and expiring on the date
immediately preceding the Closing Date,
and the denominator of which shall be the
total number of days contained in the
period commencing on the Rent
Commencement Date and expiring on the date
of the scheduled expiration of the term of
such New Lease, without provision for any
optional extensions or renewals, and the
<PAGE>
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 which is renewed, extended, expanded
on or modified after the date hereof
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.
<PAGE>
10.2. Termination of Existing Leases.
Notwithstanding anything to the contrary
contained in this Agreement, the Seller reserves
the right, but is not obligated, to institute
summary proceedings against any tenant or
terminate any Lease as a result of a default
by the tenant thereunder prior to the Closing
Date with the prior written consent of
Purchaser, such consent not to be
unreasonably withheld or delayed; provided,
however, that such consent will not be
required with respect to leases with Resource
Mortgage and AAT Communications. 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.
The removal of a tenant whether by summary
proceedings or otherwise prior to the Closing
Date shall not give rise to any claim on the part
of the Purchaser, provided Seller has obtained
Purchaser's prior written consent (as provided
in the first sentence of this Section 10.2)
for such summary proceedings or otherwise, and
provided further that no such consent from
Purchaser shall be required with respect to
leases with Resource Mortgage and AAT
Communications. 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. The terms
of this Section 10.2 are not applicable
to the
Overlease, which Purchaser recognizes
shall be terminated at Closing pursuant to
the Termination, Assignment and Recognition
Agreement.
10.3. Contracts.
Except as hereinafter provided in this
Section 10.3, the Seller may cancel, modify,
extend, renew or permit the expiration of
Contracts or enter into any new Contract without
the Purchaser's prior consent but only after
giving Purchaser prior notice of such
cancellation, modification, extension or
renewal. Any new Contracts entered into
between the date of this Agreement and the
expiration of the Due Diligence Period will be
terminable at or prior to the Closing without
charge or penalty to Purchaser. 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 the Purchaser has given
notice pursuant to Section 6(g) that a Contract
is not to be assumed) 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
<PAGE>
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.
10.4. Operation and Maintenance of Property.
The Seller covenants and agrees that
between the date hereof and the Closing Date
the Seller shall perform or observe the
following:
(a) Seller shall not:
(i) Enter into any agreement
requiring Seller to do work for any
tenant after the Closing Date without
first obtaining the prior written
consent of Purchaser;
(ii) Apply any Security
Deposits with respect to any tenant
in occupancy on the Closing Date;
(iii) Remove any Personal
Property located in or on the Property,
except as may be required for repair
and replacement. All
replacements shall be free and clear of
liens and encumbrances and shall be of
quality at least equal to the replaced
items and shall be deemed included in
this sale, without cost or expense to
Purchaser; or
(iv) Cause or permit the Property,
or any interest therein, to be
alienated, mortgaged, licensed,
encumbered or otherwise be
transferred.
(b) Up to and including the Closing
Date, Seller agrees to maintain and keep
such hazard, liability and casualty
insurance policies in full force and
effect in such amounts and covering such
risks sufficiently to protect the Property
and to protect, to a reasonable and
prudent extent, the owner of the
Property, in such amounts as are required
so as not to be deemed a co-insurer, and
for actual replacement cost, against any
loss, damage, claim or liability.
(c) Seller shall cancel, at its sole
cost and expense, those Contracts which
Purchaser elects not to assume.
(d) Seller shall permit Purchaser
and its authorized representatives to
inspect the Books and Records of its
operations at all reasonable times. All
Books and Records not conveyed to
Purchaser hereunder shall be maintained
for Purchaser's inspection at Seller's
address as set forth above.
(e) Seller shall promptly
notify the
Purchaser of, and shall also promptly
deliver to the Purchaser, a certified true
and complete copy of any Notice the Seller
may receive, on or before the Closing Date,
from any Governmental Authority, concerning
a violation of Applicable Environmental Laws
or discharge of Hazardous Substances.
<PAGE>
10.4.1. Broker.
The Purchaser and the Seller represent and
warrant to each other that Insignia/ESG, 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.
<PAGE>
11. Casualty; Condemnation.
11.1. Damage or Destruction.
If a "material" part (as hereinafter
defined) of the Property is damaged or
destroyed by fire or other casualty, the Seller
shall notify the Purchaser of such fact and
the Purchaser shall have the option to
terminate this Agreement upon notice to the
Seller given not later than ten (10) days
after receipt of the Seller's notice. If (i)
the Purchaser does not elect to terminate this
Agreement as to the damaged Property, or (ii)
there is damage to or destruction
of an
"immaterial" part ("immaterial" is herein deemed
to be any damage or destruction which is not
"material", as such term is hereinafter
defined) of the Property, the Purchaser shall
close title as provided in this Agreement
and, at the Closing, the Seller shall, unless
the Seller has repaired such damage or
destruction prior to the Closing, (x) pay
over to the Purchaser the proceeds of any
insurance collected by the Seller plus any
deductible 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. A "material" part of the Property
shall be deemed to have been damaged or destroyed
if the cost of repair or replacement shall
exceed $500,000.
11.2. 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 promptly 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) any portion of the Buildings, (ii) any
portion of the parking areas, or (iii) any
legally required driveway on the Land.
11.3. Termination.
If the Purchaser effectively terminates
this Agreement pursuant to Section 12.1 or
12.2, this Agreement shall be terminated and
the rights of the parties shall be the same
as if notice of termination were given pursuant
to Section 14.1. The provisions of this
Section 12 are intended to supercede and
replace any inconsistent or conflicting
provisions set forth in Section 5-1311 of the
General Obligations Law of the State of New
York.
12. Conditions Precedent to Closing.
<PAGE>
12.1. Conditions Precedent to the Purchaser's
Obligations to Perform.
The Purchaser's obligation under this
Agreement to purchase the Property is subject
to the fulfillment of each of the following
conditions: (i) the
representations and warranties of the Seller
contained herein shall be materially true,
accurate and correct as of the Closing Date;
(ii) the Seller shall be ready, willing and
able to deliver title to the Property in
accordance with the terms and conditions of
this Agreement; (iii) Seller, KLM and Sublandlord
shall have executed and delivered the
Termination, Assignment and Recognition
Agreement and (iv) 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.
12.2. Conditions Precedent to the Seller's
Obligations to Perform.
The Seller's obligation under this
Agreement to sell the Property to the
Purchaser is subject to the fulfillment of each
of the following conditions: (i) the
representations and warranties of the
Purchaser contained herein shall be materially
true, accurate and correct as of the Closing
Date; (ii) the Purchaser shall have delivered the
funds required hereunder and all the documents
to be executed by the Purchaser set forth in
Section 9 and shall have performed all other
covenants, undertakings and obligations, and
complied with all conditions required by this
Agreement to be performed or complied with by
the Purchaser at or prior to the Closing;
(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) KLM and Sublandlord shall
have executed and delivered the
Termination, Assignment and Recognition
Agreement or Purchaser shall have waived the
requirement that that Seller deliver the
Termination, Assignment and
Recognition Agreement at the Closing. Seller
agrees to use commercially reasonable
efforts to obtain the Termination, Assignment
and Recognition Agreement.
12.3. Remedies Upon Failure to Satisfy Conditions.
In the event that any condition
contained in Sections 13.1 or 13.2 is not
satisfied, the party entitled to the
satisfaction of such condition as a condition
to its obligation to close title shall have as
its sole remedy hereunder the right to elect
to (i) waive such unsatisfied condition
whereupon title shall close as provided in this
Agreement or (ii) proceed as provided in Section
14 hereof.
<PAGE>
13. Remedies.
13.1. Seller's Inability to Perform.
If the Closing fails to occur by reason
of the Seller's inability to perform its
obligations under this Agreement which has not
been waived pursuant to Section
13.3, then the Purchaser, as its sole remedy
for such inability of the Seller, may terminate
this Agreement by notice to the Seller. If
the Purchaser elects to terminate this
Agreement, then this Agreement shall be
terminated and neither party shall have any
further rights, obligations or liabilities
hereunder other than those obligations, rights
and liabilities which by the terms of this
Agreement expressly survive the
termination of this Agreement (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.
13.2. 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 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.
<PAGE>
13.3. Seller's Failure to Perform.
If the Closing fails to occur by reason
of the Seller's failure or refusal to perform
its obligations hereunder or
due to the willful breach of any
representation or warranty set forth herein
which has not been waived by the Purchaser, then
the Purchaser, as its sole remedy hereunder,
may (i) terminate this Agreement by notice to
the Seller or (ii) seek specific performance
from the Seller. As a condition precedent to
the Purchaser exercising any right it may have
to bring an action for specific performance as
the result of the Seller's failure or refusal
to perform their obligations hereunder, the
Purchaser must commence such an action within
ninety (90) days after the occurrence of such
default. The Purchaser agrees that its failure
to timely commence such an action for
specific
performance within such ninety (90) day period
shall be deemed a waiver by it of its right to
commence such an action. Notwithstanding
anything to the
contrary
herein, if the Seller's failure or refusal to
perform its obligations under this Agreement is
a result of any 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. Notwithstanding
the above provisions, in the event Seller
voluntarily transfers or conveys
the
Property to a third-party purchaser during the
pendency of this Agreement and prior to
Closing, Purchaser may bring a claim against
Seller for money damages, provided that such
damages shall not, in any event exceed One
Million Dollars ($1,000,000.00).
<PAGE>
14. Escrow.
The Escrow Agent shall hold the Downpayment
and all interest accrued thereon, if any
(collectively,
the
"Deposit") in escrow and shall dispose of the Deposit
only in accordance with the provisions of that
certain Escrow Agreement of even date herewith by
and among the Escrow Agent, the Purchaser and the
Seller relating to the Property (the "Escrow
Agreement") in the form of Exhibit I 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
shall be the party responsible for the payment of
any tax due on the interest on the Downpayment.
The provisions of the Escrow Agreement shall
survive the termination of this Agreement and the
Closing.
15. Notices.
All notices, elections, consents, approvals,
demands, objections, requests or other communications
which the Seller or the Purchaser may be required or
desire to give pursuant to, under or by virtue of
this Agreement must be in writing and (i) delivered
by hand to the addresses set forth below, or (ii)
(a) sent by express mail or courier (for next
business day delivery), or (b) sent by
certified or registered mail, return receipt
requested with proper postage prepaid, addressed as
follows:
If to the Seller:
Taxter Park Associates
c/o Dean Witter Realty Inc.
Two World Trade Center
64th Floor
New York, NY 10048 Attention:
Robert B. Austin
with copies to:
Vincent M. Sacchetti, Esq.
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
<PAGE>
If to the Purchaser:
Mack-Cali Realty Acquisition Corporation
11 Commerce Drive
Cranford, NJ 07016
Attention: Roger W. Thomas, Esq.
with a copy to:
Mack-Cali Realty Acquisition Corporation
11 Commerce Drive
Cranford, NJ 07016
Attention: Mitchell Hersh
with a copy to:
Pryor Cashman Sherman & Flynn, LLP
410 Park Avenue
New York, NY 10022
Attention: Andrew S. Levine, Esq.
The Seller or the Purchaser may
designate another addressee or change its
address for notices and other communications
hereunder by a notice given to the other
parties in the manner provided in this Section
16. A notice or other communication sent in
compliance with the provisions of this Section
16 shall be deemed given and received (i) if by
hand, at the time of the delivery thereof 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.
16. Property Information and Confidentiality.
The Purchaser agrees that, prior to the
Closing, all Property Information shall be kept
strictly confidential and shall not, without
the prior consent of the Seller, be disclosed
by the Purchaser or the Purchaser's
Representatives, in any manner whatsoever, in
whole or in part, and will not be used by
the Purchaser or the Purchaser's
Representatives, directly or indirectly, for any
purpose other than evaluating the Property.
Moreover, the Purchaser agrees that, prior to
the Closing, the Property Information will be
transmitted only to the Purchaser's
Representatives 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. Purchaser shall be liable for any
breach of either or both of this Section 17 or
Section 6.3 by Purchaser
or Purchaser's Representatives. The
provisions of this Section 17 shall in no
event apply to Property Information which is a
matter of public record and shall not prevent
the Purchaser from complying with Laws,
including, without limitation, governmental
regulatory, disclosure, tax and reporting
requirements.
16.1. Press Releases.
The Purchaser and Seller, for the
benefit of each other, hereby agree that
between the date hereof and the Closing
Date, they will not release or cause or
permit to be released any press notices,
<PAGE>
publicity (oral or written) or
advertising
promotion relating to, or otherwise announce
or disclose or cause or permit to be
announced or disclosed, in any manner
whatsoever, the terms, conditions or
substance of this Agreement or the
transactions contemplated herein, without
first obtaining the written consent of the
other party hereto. It is understood that
the foregoing shall not preclude either
party from discussing the substance or any
relevant details of the transactions
contemplated in this Agreement with
any of its attorneys,
accountants, professional consultants or
potential lenders, as the case may be, or
prevent either party hereto from
complying with Laws, including, without
limitation, governmental regulatory,
disclosure, tax and reporting requirements.
16.2. Return of Property Information.
In the event this Agreement is
terminated, the Purchaser shall promptly
deliver to the Seller a letter signed by
Purchaser certifying that all commercially
reasonable efforts have been made by
Purchaser in connection with the return to
Seller of all originals and copies of the
Property Information delivered to or made
by Purchaser or Purchaser's
Representatives,
together with all originals and copies of
the Property Information then in the
possession of Purchaser after having made
such commercially reasonable
efforts.
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 shall
have performed the obligations contained
in the preceding sentence.
16.3. Property Information Defined.
As used in this Agreement, the
term "Property Information" shall mean
(i) all information and
documents in any way relating to the
Property, the operation
thereof or the sale thereof (including,
without limitation, Leases, Contracts and
Licenses and Environmental Documents)
furnished 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, 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 (including, without
limitation,
environmental engineers) and financial
advisors (collectively, the "Purchaser's
Representatives"), and (ii) all analyses,
compilations, data, studies, reports or
other information or documents prepared or
obtained by the Purchaser or the
Purchaser's Representatives containing or
based, in whole or in part, on the
information or documents described in
the preceding clause (i), or the
Investigations, or otherwise
reflecting their review or
investigation of the
Property.
16.4. Remedies.
In addition to any other remedies
available to the Seller, the Seller shall
have the right to seek equitable
relief, including, without limitation,
injunctive relief or specific performance,
against the Purchaser or the Purchaser's
Representatives in order to enforce the
provisions of this Section 17 and 6.3.
Purchaser shall have the right to seek
equitable relief, in the form of
injunctive relief, in order to enforce the
provisions of Section 17.1.
The provisions of this Section 17 shall
survive the termination of this Agreement and
the Closing.
17. Access to Records.
For a period of seven (7) years
subsequent to the Closing Date at no cost and
expense to Purchaser, 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
<PAGE>
compliance, and cooperation with governmental
investigations upon reasonable prior notice to
the Purchaser, and shall have the right, at their
sole cost and expense, to make copies of such
documents, books and records.
18. Assignments.
This Agreement shall be binding upon and
shall inure to the benefit of the parties
hereto and to their respective heirs,
executors, administrators, successors and
permitted assigns. This Agreement may not be
assigned by the Purchaser except to an
affiliate of Purchaser (any such entity, a
"Permitted Assignee"). Any other assignment
or attempted assignment by Purchaser shall
constitute a default by
Purchaser hereunder and shall be deemed null and
void and of no force and effect. No assignment
of this Agreement shall relieve Purchaser from
its obligations under this Agreement. For
purposes of this Section 19, "affiliate" shall
mean any other person or entity that directly,
or indirectly through one or more
intermediaries, controls, is controlled by or is
under common control with the specified person or
entity. As used in this definition,
"control", "controlled by" and "under common
control with" shall mean the power, directly or
indirectly, to direct or cause the direction of
management or policies of such person
(whether through ownership of
securities or other partnership or ownership
interests, by contract or otherwise); provided,
however, that in any event, any person which
owns directly, indirectly or beneficially fifty-
one percent (51%) or more of the securities
having voting power for the election of directors
or other governing body of a corporation or
fifty-one percent (51%) or more of
the general partnership interests or fifty-one
percent (51%) or more of the managing
membership interests or other ownership interests of any
other person will be deemed to
control such person.
19. Entire Agreement, Amendments.
All prior statements, understandings,
representations and agreements between the
parties, oral or written, are superseded by
and merged in this Agreement, which alone fully
and completely expresses the agreement
between them in connection with this
transaction and which is entered into after
full investigation, neither party relying upon
any statement, understanding, representation or
agreement made by the other not embodied in
this Agreement. This Agreement shall be given a fair and
reasonable construction in
accordance with the intentions of the parties
hereto, and without regard to or aid of
canons requiring construction against the
Seller or the party drafting this Agreement.
This Agreement shall not be altered,
amended, changed, waived, terminated or
otherwise modified in any respect or
particular, and no consent or approval required
pursuant to this Agreement shall be effective,
unless the same shall be in writing and signed
by or on behalf of the party to be charged.
20. Merger.
Except as otherwise expressly provided
herein, 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.
21. 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
<PAGE>
Agreement or the transactions contemplated
hereby. The
Purchaser agrees to look solely to the
Seller and the
Seller's assets directly attributable to the
Buildings for the satisfaction of the
Seller's liability or obligation arising under
this Agreement or the transactions contemplated
hereby, or for the performance of any of the
covenants, warranties or other agreements of
the Seller contained herein, and further
agrees not to 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 an amount equal to One
Million and 00/100 Dollars ($1,000,000.00).
Seller 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 Purchaser
(collectively, the "Purchaser's Affiliates"),
arising out of or in connection with this
Agreement or the transactions
contemplated hereby. The Seller agrees to look
solely to the Purchaser and the Purchaser's
assets for the satisfaction of the Purchaser'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 Purchaser contained herein, and further
agrees not to sue or otherwise seek to enforce
any personal obligation against any of the
Purchaser's Affiliates with respect to any
matters arising out of or in connection with
this Agreement or the transactions contemplated
hereby.
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
State of New York without reference to
principles of
conflicts of laws.
23. Time of the Essence.
Time is of the essence with respect to this
Agreement, including but not limited to the
occurrence of the Closing as of the originally
scheduled date.
24. IRS Form 1099-S Designation.
In order to comply with information
reporting requirements of Section 6045(e) of the
Internal Revenue Code of 1986, as amended, and
the Treasury Regulations thereunder, the
parties agree (i) to execute an IRS Form
1099-S Designation Agreement in the form attached
hereto as Exhibit K at or prior to the Closing
to designate the Title Company as the party
who shall be responsible for reporting the
contemplated sale of the Property to the
Internal Revenue Service (the "IRS") on IRS
Form 1099-S; (ii) to provide the Title Company
with the information necessary to complete Form
<PAGE>
1099-S; (iii) that the Title Company shall not be
liable for the actions taken under this
Section 25, or for the consequences of
those actions, except as they may be the
result of gross negligence or willful misconduct
on the part of the Title Company; and (iv) that
the Title Company shall be indemnified by the
parties for any costs or expenses incurred as
a result of the actions taken under this Section
25, except as they may be the result of gross
negligence or willful misconduct on the part
of the Title Company. The
Title Company shall provide all parties to this
transaction with copies of the IRS Forms 1099-S
filed with the IRS and with any other documents
used to complete IRS Form 1099-S. 25. 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. The provisions of this Section 26
shall survive Closing.
26. Counterparts.
This Agreement may be executed by the
parties hereto in
separate counterparts, each of which when so
executed and delivered shall be deemed an
original, but all such
counterparts shall together constitute but one
and the same instrument.
27. Tax Free Exchange.
Purchaser may consummate the purchase of the
Property as part of a so called like kind
exchange (the "Exchange") pursuant to 1031 of
the Internal Revenue Code of 1986, as
amended (the "Code"), provided that: (i) the
Closing shall not be delayed or affected by
reason of the Exchange nor shall the
consummation or accomplishment of the Exchange be
a condition precedent or condition subsequent
to Purchaser's obligations under this Agreement;
(ii) Purchaser shall effect the Exchange through
an assignment of this Agreement, or its rights
under this Agreement, to a qualified
intermediary; (iii) Seller shall not be required
to take an assignment of
the purchase agreement for the relinquished
property or be
required to acquire or hold title to any real
property for purposes of consummating the
Exchange; and (iv) Purchaser shall pay any
additional costs that would not otherwise have
been incurred by Purchaser or Seller had
Purchaser not consummated its purchase through
the Exchange. Seller shall not by this
agreement or acquiescence to the Exchange (1)
have its rights under this Agreement affected
or diminished in any manner or (2) be responsible
for compliance with or be deemed to have
warranted to Purchaser that the Exchange in
fact complies with 1031 of the Code.
28. Termination of Overlease and Assignment of
KLM Lease.
At Closing, Seller, KLM, Sublandlord and
Purchaser shall execute a Termination,
Assignment and
<PAGE>
Recognition Agreement pursuant to which (i)
Sublandlord and Seller shall agree to
terminate the Overlease; (ii)
Sublandlord shall assign without warranty or
representation all of its interest in under
the KLM Lease to Seller; and (iii) KLM,
Seller, Sublandlord and Purchaser recognize and
agree (a) that after termination of the
Overlease, the KLM Lease shall be a direct
lease by and between Seller and KLM; and (b)
after execution and delivery of the A&A
Agreements at Closing, the KLM Lease shall be
a direct lease between Purchaser and KLM.
29. Further Assurances/Partnership.
On or prior to the Date of Closing, each
party to this Agreement shall, from time to
time, execute, acknowledge and deliver such
further instruments, and perform such additional
acts, as the other party may reasonably request
in order to
effectuate the Closing contemplated by this
Agreement. Nothing contained in this Agreement
shall be deemed to create any rights or
obligations of partnership, joint venture or
similar association between Seller and Purchaser.
<PAGE>
IN WITNESS WHEREOF, this Agreement has
been duly
executed by the parties hereto as of the day and
year first above written.
SELLER:
TAXTER PARK ASSOCIATES
By: Dean Witter
Realty Income
Partnership
II, L.P.,
general
partner
By: Dean
Witter Realty
Income Properties II, Inc.
managing general partner
By:
/s/ Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
By: Dean Witter Realty Income Partnership
III, L.P.,
general partner
By: Dean Witter
Realty Income Properties III, Inc.
managing
general partner
By:
/s/ Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
By: Dean Witter
Realty Income Partnership IV,
L.P.
general
partner <PAGE>
By: Dean Witter
Realty Fourth Income Properties,
Inc.
managing general
partner
By:
/s/ Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
PURCHASER:
MACK-CALI REALTY
ACQUISITION CORPORATION
By: /s/ Roger W. Thomas
Name: Roger W. Thomas Title: Executive
Vice President & General Counsel
<PAGE>
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement
(this "Amendment") is entered into as of May 3, 2000 by and
between Taxter Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Realty Acquisition
Corporation ("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller entered into a
Purchase and Sale Agreement dated as of April 4, 2000 (the
"Agreement"), with respect to certain property known and
numbered as 555 and 565 Taxter Road, Elmsford, New York and
more particularly described in the Agreement (the
"Property").
B. The Agreement currently provides that the Due
Diligence Period expires May 4, 2000.
C. Purchaser and Seller wish to amend the Agreement
to extend the Due Diligence Period to May 11, 2000.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Purchaser, Sublandlord and Seller hereby agree to amend the
Agreement as follows:
1. Defined Terms. All capitalized terms used herein
and not otherwise defined shall have the meaning ascribed to
such terms in the Agreement.
2. Due Diligence Period. The first sentence in
Section 4 of the Agreement shall be deleted in its entirety
and the following sentence shall be inserted in place
thereof:
"Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a thirty-seven (37) day
period, commencing on April 4, 2000 and expiring on May 11,
2000 (the "Due Diligence Period") to examine title to the
Property, to inspect the physical and financial condition of
the Property and to review the Property Information
(including, without limitation, environmental reports)."
The parties acknowledge and agree that, notwithstanding
anything to the contrary contained in the Agreement,
Purchaser shall have the right to deliver a Purchaser's
Termination Notice on or prior to 5:00 p.m. E.S.T. on May
11, 2000 pursuant to Section 4.2 of the Agreement. After
5:00 p.m. E.S.T. on May 11, 2000, Purchaser shall have no
further right to deliver a Purchaser's Termination Notice
pursuant to the provisions of Section 4.2 of the Agreement.
<PAGE>
3. Ratification. Purchaser, Sublandlord and Seller
each hereby ratify and confirm that all of the terms and
conditions of the Agreement, as modified by this Amendment,
remain in full force and effect and constitute the valid and
binding obligation of each party.
4. Counterparts. This Amendment may be executed in
one or more counterparts, each of which is an original, but
all of which shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has been fully
executed by the parties hereto as an instrument under seal
as of the date first above written.
SELLER:
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty
Income Properties II, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice President
By: Dean Witter Realty Income
Partnership III, L.P.,
general partner
By: Dean Witter Realty
Income Properties III, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty
Income Partnership IV, L.P.
general partner
By: Dean Witter Realty
Fourth Income
Properties, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL CORP.
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: President
PURCHASER:
MACK-CALI REALTY
ACQUISITION CORPORATION
By:/s/ Timothy M. Jones
Name:Timothy M. Jones
Title:President
<PAGE>
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Second Amendment to Purchase and Sale Agreement
(this "Amendment") is entered into as of May 11, 2000 by and
between Taxter Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Realty Acquisition
Corporation ("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller entered into a
Purchase and Sale Agreement dated as of April 4, 2000, as
amended by that certain First Amendment to Purchase and Sale
Agreement dated as of May 3, 2000 (as amended, the
"Agreement"), with respect to certain property known and
numbered as 555 and 565 Taxter Road, Elmsford, New York and
more particularly described in the Agreement (the
"Property").
B. The Agreement currently provides that the Due
Diligence Period expires May 11, 2000.
C. Purchaser and Seller wish to amend the Agreement
to (i) extend the Due Diligence Period to May 17, 2000 and
(ii) provide that the Closing Date shall be May 22, 2000.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Purchaser, Sublandlord and Seller hereby agree to amend the
Agreement as follows:
1. Defined Terms. All capitalized terms used herein
and not otherwise defined shall have the meaning ascribed to
such terms in the Agreement.
2. Due Diligence Period. The first sentence in
Section 4 of the Agreement shall be deleted in its entirety
and the following sentence shall be inserted in place
thereof:
"Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a forty-three (43) day
period, commencing on April 4, 2000 and expiring on May 17,
2000 (the "Due Diligence Period") to examine title to the
Property, to inspect the physical and financial condition of
the Property and to review the Property Information
(including, without limitation, environmental reports)."
The parties acknowledge and agree that, notwithstanding
anything to the contrary contained in the Agreement,
Purchaser shall have the right to deliver a Purchaser's
Termination Notice on or prior to 5:00 p.m. E.S.T. on May
17, 2000 pursuant to Section 4.2 of the Agreement. After
5:00 p.m. E.S.T. on May 17, 2000, Purchaser shall have no
further right to deliver a Purchaser's Termination Notice
pursuant to the provisions of Section 4.2 of the Agreement.
<PAGE>
3. Closing Date. Section 1.2 of the Agreement shall
be deleted in its entirety and the following amended Section
1.2 shall be inserted in place thereof:
"1.2. Closing Date. The delivery of the
Deed and the consummation of the transactions
contemplated by this Agreement (the "Closing")
shall take place at the offices of Bingham Dana
LLP, 399 Park Avenue, New York, New York 10022
4689, at 10:00 a.m. on May 22, 2000 (the "Closing
Date"). Provided, however that Seller and
Purchaser agree that they may mutually agree to
conduct the Closing on any mutually acceptable
date after May 17, 2000 (provided the Clerk of the
County of Westchester, Division of Land Records
(the "Recorder's Office") of Westchester County,
New York is open for business), but in any event
prior to May 22, 2000. Notwithstanding the
foregoing sentence, Purchaser shall have one (1)
option to extend the Closing Date for three (3)
days, provided Purchaser delivers to Seller
written notice of its intent to exercise such
option no later than May 17, 2000."
4. Ratification. Purchaser, Sublandlord and Seller
each hereby ratify and confirm that all of the terms and
conditions of the Agreement, as modified by this Amendment,
remain in full force and effect and constitute the valid and
binding obligation of each party.
5. Counterparts. This Amendment may be executed in
one or more counterparts, each of which is an original, but
all of which shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has been fully
executed by the parties hereto as an instrument under seal
as of the date first above written.
SELLER:
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty
Income Properties II, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty Income Partnership III, L.P.,
general partner
By: Dean Witter Realty Income
Properties III, Inc.,
managing general partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice President
By: Dean Witter Realty
Income Partnership IV, L.P.
general partner
By: Dean Witter Realty Fourth
Income
Properties, Inc.,
managing general partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL CORP.
By:/s/ Robert B. Austin
Name: Robert B. Austin Title:
President
PURCHASER:
MACK-CALI REALTY ACQUISITION
CORPORATION
By:/s/ Roger W. Thomas Name:
Roger W. Thomas
Title: Executive Vice
President & General
Counsel
<PAGE>
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Third Amendment to Purchase and Sale Agreement
(this "Amendment") is entered into as of May 17, 2000 by and
between Taxter Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Realty Acquisition
Corporation ("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller entered into a
Purchase and Sale Agreement dated as of April 4, 2000, as
amended by that certain First Amendment to Purchase and Sale
Agreement dated as of May 3, 2000, and as further amended by
that certain Second Amendment to Purchase and Sale Agreement
dated as of May 11, 2000 (as amended, the "Agreement"), with
respect to certain property known and numbered as 555 and
565 Taxter Road, Elmsford, New York and more particularly
described in the Agreement (the "Property").
B. The Agreement currently provides that the Due
Diligence Period expires May 17, 2000.
C. Purchaser and Seller wish to amend the Agreement
to (i) extend the Due Diligence Period to 12:00 noon on May
19, 2000, and (ii) provide that the Closing Date shall be
May 25, 2000.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Purchaser, Sublandlord and Seller hereby agree to amend the
Agreement as follows:
1. Defined Terms. All capitalized terms used herein
and not otherwise defined shall have the meaning ascribed to
such terms in the Agreement.
2. Due Diligence Period. The first sentence in
Section 4 of the Agreement shall be deleted in its entirety
and the following sentence shall be inserted in place
thereof:
"Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a forty-five (45) day
period, commencing on April 4, 2000 and expiring on 12:00
noon on May 19, 2000 (the "Due Diligence Period") to examine
title to the Property, to inspect the physical and financial
condition of the Property and to review the Property
Information (including, without limitation, environmental
reports)."
The parties acknowledge and agree that, notwithstanding
anything to the contrary contained in the Agreement,
Purchaser shall have the right to
<PAGE>
deliver a Purchaser's Termination Notice on or prior to
12:00 (noon) E.S.T. on May 19, 2000 pursuant to Section 4.2
of the Agreement. After 12:00 (noon) E.S.T. on May 19,
2000, Purchaser shall have no further right to deliver a
Purchaser's Termination Notice pursuant to the provisions of
Section 4.2 of the Agreement.
3. Closing Date. Section 1.2 of the Agreement shall
be deleted in its entirety and the following amended Section
1.2 shall be inserted in place thereof:
"1.2. Closing Date. The delivery of the
Deed and the consummation of the transactions
contemplated by this Agreement (the "Closing")
shall take place at the offices of Bingham Dana
LLP, 399 Park Avenue, New York, New York 10022
4689, at 10:00 a.m. on May 25, 2000 (the "Closing
Date"). Provided, however that Seller and
Purchaser agree that they may mutually agree to
conduct the Closing on any mutually acceptable
date after May 19, 2000 (provided the Clerk of the
County of Westchester, Division of Land Records
(the "Recorder's Office") of Westchester County,
New York is open for business), but in any event
prior to May 25, 2000.
4. Notices. Section 16 of the Agreement shall hereby
be amended by inserting the following language at the end of
Section 16:
"Notwithstanding the above provisions,
Seller, Sublandlord and Purchaser hereby agree
that solely with respect to the transmission of
Purchaser's Termination Notice pursuant to Section
4.2 of this Agreement, Purchaser may deliver such
Purchaser's Termination Notice to Seller (with a
copy to Vincent M. Sacchetti, Esq.) by facsimile
on or before 12:00 noon, May 19, 2000 (to be
followed with original documents sent via federal
express, to be received on the next business day)
to the following numbers:
Taxter Park Associates
Attention: Robert B. Austin
Phone Number: 212-392-6888
Facsimile Number: 212-392-3123
with a copy to:
Bingham Dana LLP
Attention: Vincent M. Sacchetti, Esq.
Phone Number: 617-951-8563
Facsimile Number: 617-951-8736"
<PAGE>
5. Ratification. Purchaser, Sublandlord and Seller
each hereby ratify and confirm that all of the terms and
conditions of the Agreement, as modified by this Amendment,
remain in full force and effect and constitute the valid and
binding obligation of each party.
6. Counterparts. This Amendment may be executed in
one or more counterparts, each of which is an original, but
all of which shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has been fully
executed by the parties hereto as an instrument under seal
as of the date first above written.
SELLER:
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty
Income Properties II, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty Income
Partnership III, L.P.,
general partner
By: Dean Witter Realty
Income Properties III, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty
Income Partnership IV, L.P.
general partner
By: Dean Witter Realty
Fourth Income
Properties, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL CORP.
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: President
PURCHASER:
MACK-CALI REALTY
ACQUISITION CORPORATION
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
<PAGE>
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Fourth Amendment to Purchase and Sale Agreement
(this "Amendment") is entered into as of May 18, 2000 by and
between Taxter Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Taxter Associates
L.L.C., as successor by assignment from Mack-Cali Realty
Acquisition Corporation ("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller entered into a
Purchase and Sale Agreement dated as of April 4, 2000, as
amended by the First Amendment to Purchase and Sale
Agreement, dated as of May 3, 2000, as further amended by
the Second Amendment to Purchase and Sale Agreement, dated
as of May 11, 2000, as further amended by the Third
Amendment to Purchase and Sale Agreement, dated as of May
17, 2000,and as further affected by that certain Assignment
of Purchase and Sale Agreement dated as of May 17, 2000 (as
amended and assigned, the "Agreement"), with respect to
certain property known and numbered as 555 and 565 Taxter
Road, Elmsford, New York and more particularly described in
the Agreement (the "Property").
B. The Agreement currently provides that the Purchase
Price is Forty-Three Million and 00/100 Dollars
($43,000,000).
C. Purchaser and Seller wish to amend the Agreement
to reduce the Purchase Price to Forty-Two Million Seven
Hundred Twenty-Five and 00/100 Dollars ($42,725,000).
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Purchaser and Seller hereby agree to amend the Agreement as
follows:
1. Defined Terms. All capitalized terms used herein
and not otherwise defined shall have the meaning ascribed to
such terms in the Agreement.
2. Purchase Price. The parties acknowledge and agree that
Section 2 of the Agreement is hereby amended by deleting the
dollar figure of "Forty-Three Million and No/100 Dollars
($43,000,000)" and inserting in place thereof "Forty-Two
Million Seven Hundred Twenty-Five and 00/100 Dollars
($42,725,000)."
3. Release. Purchaser hereby unconditionally releases
Seller from any and all obligations solely in connection
with certain tenant improvement obligations for the
following tenants at the Property: (i) Nextel of New York,
Inc., and (ii) Fieldworks.
4. Ratification. Purchaser and Seller each hereby
ratify and confirm that all of the terms and conditions of
the Agreement, as modified by this Amendment, remain in full
force and effect and constitute the valid and binding
obligation of such party.
<PAGE>
5. Counterparts. This Amendment may be executed in
one or more counterparts, each of which is an original, but
all of which shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has been fully
executed by the parties hereto as an instrument under seal
as of the date first above written.
SELLER:
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty
Income Properties II, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty Income
Partnership III, L.P.,
general partner
By: Dean Witter Realty
Income Properties III, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice President
By: Dean Witter Realty
Income Partnership IV, L.P.
general partner
By: Dean Witter Realty
Fourth Income
Properties, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL CORP.
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: President
PURCHASER:
MACK-CALI TAXTER ASSOCIATES
L.L.C.
By: Grove Street Associates
of Jersey City
Limited
Partnership, its member
By: Mack-Cali Sub IV,
Inc., its general
partner
By:/s/ Roger W.
Thomas
Name: Roger W.
Thomas
Title: Executive Vice
President & General
Counsel
<PAGE>
TERMINATION, ASSIGNMENT AND RECOGNITION AGREEMENT
This TERMINATION, ASSIGNMENT AND RECOGNITION AGREEMENT
(this "Agreement") is dated as of May ___, 2000, between
Taxter Park Associates, a New York general partnership
("Taxter"), DW Taxter Special Corp., a Delaware Corporation
("DWTSC"), KLM Royal Dutch Airlines, a corporation organized
under the laws of the Netherlands ("KLM"), and Mack-Cali
Realty Acquisition Corporation, a Delaware corporation, or
its permitted successors and assigns ("Mack-Cali").
WHEREAS, Taxter and Mack-Cali have entered into that
certain Purchase and Sale Agreement, dated as of April 4,
2000 (the "Purchase and Sale Agreement") for the real
property known and numbered as 555 and 565 Taxter Road,
Elmsford, New York (the "Property"); and
WHEREAS, Taxter, as successor in interest to Dean
Witter Realty, Inc., is a party to that certain Agreement
Granting Lease, dated as of October 23, 1987 (the
"Overlease") among Taxter, KLM, and URBCO, Inc., pursuant to
which KLM was granted a leasehold interest in a portion of
the Property (the "Leased Premises") more particularly
described in the Overlease; and
WHEREAS, Taxter and KLM entered into (i) that certain
Lease Agreement dated February 5, 1999 (the "KLM Lease")
pursuant to which KLM agreed to lease from Taxter and Taxter
agreed to lease to KLM a certain portion of the Leased
Premises located at the Property as more particularly
described in the KLM Lease, and (ii) that certain Purchase
and Sale Agreement, dated February 5, 1999, pursuant to
which Taxter agreed to assume from KLM and KLM agreed to
assign to Taxter the leasehold interest in certain property
within the premises commonly known as 565 Taxter Road,
Elmsford, New York, located in Taxter corporate park; and
WHEREAS, Taxter and DWTSC entered into that certain
Assignment and Option Agreement dated February 8, 1999, (the
"Assignment and Option Agreement"), pursuant to which Taxter
assigned and DWTSC assumed all of Taxter's rights and
obligations under the KLM Lease; and
WHEREAS, DWTSC acquired the tenant's interest in the
Overlease from KLM pursuant to the Assignment and Option
Agreement and a certain Assignment and Assumption of Lease
dated as of February 8, 1999; and
WHEREAS, in connection with the sale of the Property to
the Mack-Cali, Taxter and DWTSC wish to terminate the
Overlease; and
WHEREAS, in connection with the sale of the Property to
Mack-Cali, Taxter wishes to acquire from DWTSC and DWTSC
wishes to convey to Taxter its interest under the KLM Lease;
and
<PAGE>
WHEREAS, subsequent to the assignment of the KLM Lease
and the termination of the Overlease, Taxter and KLM wish to
acknowledge and agree that the KLM Lease shall be a direct
lease by and between Taxter and KLM; and
WHEREAS, subsequent to the execution and delivery of
the A & A Agreements (as defined in the Purchase and Sale
Agreement), pursuant to which the KLM Lease shall be
assigned to and shall be assumed by Mack-Cali, at Closing
(as defined in the Purchase and Sale Agreement) Taxter, KLM
and Mack-Cali wish to acknowledge and agree that the KLM
Lease shall be a direct lease by and between Mack-Cali, as
landlord, and KLM, as tenant;
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, KLM,
Mack-Cali, Taxter and DWTSC hereby agree as follows:
1. Assignment of the KLM Lease. DWTSC hereby assigns
without warranty or representation all of its interest in
under the KLM Lease to Taxter.
2. Indemnification. DWTSC hereby indemnifies and agrees to
hold harmless Taxter from and against any and all claims,
liabilities, losses, damages, causes of action, costs and
expenses (including without limitation, court costs through
all appeals and reasonable attorneys' fees and disbursements)
based upon or allegedly based upon the obligations of DWTSC
under the KLM Lease arising or accruing prior to the date
hereof.
3. Termination of the Overlease. Effective as of the date
first above written, the Overlease is hereby terminated and
of no further force or effect. DWTSC hereby surrenders any
and all interest of DWTSC in the Leased Premises to Taxter.
4. Attornment. (a) Upon execution of this
Agreement by Taxter, DWTSC, KLM and Mack-Cali, and as a
result of the termination of the Overlease each party
acknowledges and agrees that the KLM Lease shall be a direct
lease by and between Taxter and KLM.
(b) Upon execution and delivery
of the A&A Agreements at Closing by Taxter and Mack-Cali,
the KLM Lease shall be assigned to Mack-
Cali and thereafter shall be a direct lease
between Mack-Cali and KLM.
5. Counterparts. This Agreement may be executed in
one or more counterparts, each of which is an
original, but all of which shall constitute one and
the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties do hereby execute and
deliver this Agreement as of the date and year first above
written.
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty Income
Properties II, Inc.
managing general partner
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
By: Dean Witter Realty Income
Partnership III, L.P., general
partner
By: Dean Witter Realty Income
Properties III, Inc.
managing general partner
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
By: Dean Witter Realty Income
Partnership IV, L.P.
general partner
By: Dean Witter Realty Fourth
Income Properties, Inc.
managing general partner
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
<PAGE>
MACK-CALI REALTY
ACQUISITION CORPORATION:
By: /s/ Roger W. Thomas
Name: Roger W. thomas
Title: Executive Vice President &
General Counsel
DW TAXTER SPECIAL CORP.
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: President
KLM ROYAL DUTCH AIRLINES
By: /s/ Jan Willem A. Smeulers
Name: Jan Willem A. Smeulers
Title: Vice President, Executive
Officer
North America
<PAGE>
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this "Agreement") is dated
as of May ___, 2000, between Taxter Park Associates, a New
York general partnership having an office c/o Dean Witter
Realty Inc., Two World Trade Center, New York, New York,
64th floor 10048 ("Taxter"), DW Taxter Special Corp., a
Delaware corporation having an office c/o Dean Witter Realty
Inc., Two World Trade Center, New York, New York, 64th floor
10048 ("DWTSC").
WHEREAS, Taxter and Mack-Cali Taxter Associates,
L.L.C., a New York limited liability company, as assigned by
Mack-Cali Realty Acquisition Corporation, a Delaware
corporation, have entered into that certain Purchase and
Sale Agreement, dated as of April 4, 2000, as amended (as
amended and assigned, the "Purchase and Sale Agreement") for
the real property known and numbered as 555 and 565 Taxter
Road, Elmsford, New York (the "Property"); and
WHEREAS, Taxter, as successor in interest to Dean
Witter Realty, Inc., is a party to that certain Agreement
Granting Lease, dated as of October 23, 1987; as evidenced
by (i) that certain Memorandum of Agreement Granting Lease
dated March 31, 1988 and recorded on December 14, 1989 in
Liber 9698 cp 33, (ii) that certain Memorandum of Agreement
Granting Lease by and between Taxter Park Associates
(initial landlord) and KLM Royal Dutch Airlines ("KLM") (and
Urbco Inc.), as tenant, dated February 8, 1999 and recorded
February 11, 1999 in Liber 12226 cp 29, and (iii) as
assigned by that certain Assignment and Assumption of Lease
between KLM, as assignor, to DW Taxter Special Corp., as
assignee, dated February 8, 1999 and recorded February 11,
1999 in Liber 12226 cp 40 (the "Overlease") among Taxter,
KLM, and URBCO, Inc., pursuant to which KLM was granted a
leasehold interest in a portion of the Property (the "Leased
Premises") more particularly described in the Overlease; and
WHEREAS, DWTSC acquired the tenant's interest in the
Overlease from KLM pursuant to the Assignment and Option
Agreement and a certain Assignment and Assumption of Lease
dated as of February 8, 1999; and
WHEREAS, in connection with the sale of the Property to
the Mack-Cali, Taxter and DWTSC wish to terminate the
Overlease; and
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, Taxter
and DWTSC hereby agree as follows:
5. Termination of the Overlease. Effective as of the date
first above written, the Overlease is hereby terminated and
of no further force or effect. DWTSC hereby surrenders any
and all interest of DWTSC in the Leased Premises to Taxter.
<PAGE>
2. Counterparts. This Agreement may be executed in
one or more counterparts, each of which is an
original, but all of which shall constitute one and
the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties do hereby execute and
deliver this Agreement as of the date and year first above
written.
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty Income
Properties II, Inc.
managing general partner
By: /s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
By: Dean Witter Realty Income
Partnership III, L.P.,
general partner
By: Dean Witter Realty Income
Properties III, Inc.
managing general partner
By: /s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
By: Dean Witter Realty Income
Partnership IV, L.P.
general partner
By: Dean Witter Realty Fourth
Income Properties, Inc.
managing general partner
By: /s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
DW TAXTER SPECIAL CORP.
By: /s/ Robert B. Austin
Name: Robert B. Austin
Title: President
