SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported) November 2, 1999
----------------
PaineWebber Equity Partners One Limited Partnership
---------------------------------------------------
(Exact name of registrant as specified in its charter)
Virginia 0-14857 04-2866287
- --------------------------------------------------------------------------------
(State or other jurisdiction) (Commission (IRS Employer
of incorporation File Number) Identification No.)
265 Franklin Street, Boston, Massachusetts 02110
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 439-8118
(Former name or address, if changed since last report)
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS ONE LIMITED PARTNERSHIP
ITEM 2 - Disposition of Assets
1881 Worcester Road Office Building - Framingham, Massachusetts
Disposition Date - November 2, 1999
On November 2, 1999, Framingham - 1881 Associates, a joint venture in
which Paine Webber Equity Partners One Limited Partnership ("the Partnership")
has an interest, sold the property known as the 1881 Worcester Road Office
Building, located in Framingham, Massachusetts, to an unrelated third party for
$7,850,000. The Partnership received net proceeds of approximately $6,540,000
after deducting a tenant improvement credit to the buyer of $295,000, closing
costs of approximately $310,000, net closing proration adjustments of
approximately $133,000, and a payment to the Partnership's co-venture partner of
approximately $572,000 as its share of the sale proceeds in accordance with the
joint venture agreement. The Partnership plans to make a special distribution to
the Limited Partners of $73 per original $1,000 investment, or $7,300,000, on
November 15, 1999. Of the $73 total, $65.37 results from the sale of 1881
Worcester Road and $7.63 is from Partnership reserves which exceed expected
future requirements.
As previously reported, while the two-story 18881 Worcester Road property
was leased to two financially strong tenants with no lease expirations until
December 31, 2002, the tenant leasing the entire second floor of the property
informed the Partnership that it would be consolidating its operations at
another location and had requested a lease termination. This tenant's lease did
not expire until February 28, 2003. Negotiations with this tenant concerning a
lease termination agreement were completed during the fourth quarter of fiscal
1999. Because of the agreement on a lease termination, the property's leasing
team was then able to negotiate and secure a new lease for all of the space
being vacated by the former tenant. The new lease is at a higher rental rate
than the rate payable under the former tenant's lease. Once this new lease was
signed, the Partnership and its co-venture partner decided to sell 1881
Worcester Road. A firm was selected to market the property for sale, and a sales
package was finalized during the first quarter of fiscal 2000. Comprehensive
sale efforts were underway by early May 1999. As a result of such efforts, nine
offers were received. Subsequent to the end of the first quarter, the
Partnership evaluated the offers, selected a prospective buyer and negotiated a
purchase and sale agreement which was signed on July 30, 1999. The buyer
completed its due diligence on August 31, 1999 and made non-refundable deposits
totalling $450,000 prior to the closing of the transaction, which occurred as
described above on November 2, 1999.
As discussed further in the Partnership's most recent Annual Report on
Form 10-K and Quarterly Reports on Form 10-Q, management has been focusing on
potential disposition strategies for the remaining investments in the
Partnership's portfolio. Subsequent to the sale of the 1881 Worcester Road
property, the only remaining investment consists of a joint venture interest in
the 625 North Michigan Office Building. The Partnership has recently selected a
real estate brokerage firm to market the 625 North Michigan property for sale.
Materials for the marketing packages have been finalized and initial sale
efforts are currently underway. While the Partnership hopes to have the 625
North Michigan property under a contract for sale before December 31, 1999, it
is unlikely that both a sale of the property and a subsequent liquidation of the
Partnership can be completed by December 31, 1999. Management currently expects
the liquidation of the Partnership to be completed by March 31, 2000.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS ONE LIMITED PARTNERSHIP
ITEM 7 - Financial Statements and Exhibits
(a) Financial Statements: None
(b) Exhibits:
(1) Purchase and Sale Agreement by and between Framingham - 1881 Associates
and Berkeley Investments, Inc., dated July 30, 1999.
(2) Reinstatement and First Amendment to Purchase and Sale Agreement by and
among Framingham - 1881 Associates and Berkeley Investments, Inc.,
dated September 1, 1999.
(3) Second Amendment to Purchase and Sale Agreement by and among Framingham
- 1881 Associates and Berkeley Investments, Inc., dated September 30,
1999.
(4) Bill of Sale by Framingham - 1881 Associates and Ber Tech 1881 LLC,
dated November 1, 1999.
(5) Quit Claim Deed by Framingham - 1881 Associates to Ber Tech 1881 LLC,
dated November 1, 1999.
(6) Assignment and Assumption of Leases and Security Deposits by and
between Framingham - 1881 Associates and Ber Tech 1881 LLC, dated
November 1, 1999.
(7) Assignment and Assumption of Contracts and Intangibles by and between
Framingham - 1881 Associates and Ber Tech 1881 LLC, dated November 1,
1999.
(8) Closing Statement - Framingham - 1881 Associates to Ber Tech 1881 LLC,
dated November 1, 1999.
<PAGE>
FORM 8-K
CURRENT REPORT
PAINEWEBBER EQUITY PARTNERS ONE LIMITED PARTNERSHIP
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PAINEWEBBER EQUITY PARTNERS
ONE LIMITED PARTNERSHIP
-----------------------
(Registrant)
By: First Equity Partners, Inc.
---------------------------
By: /s/ Walter V. Arnold
--------------------
Walter V. Arnold
Senior Vice President and
Chief Financial Officer
Date: November 8, 1999
<PAGE>
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
FRAMINGHAM - 1881 ASSOCIATES (SELLER)
AND
BERKELEY INVESTMENTS, INC. (BUYER)
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS 1
ARTICLE 2
PURCHASE AND SALE 1
ARTICLE 3
PURCHASE PRICE, DEPOSIT AND ADJUSTMENTS 2
ARTICLE 4
PRECLOSING OPERATION 4
ARTICLE 5
ACCESS, INSPECTION AND DILIGENCE 5
ARTICLE 6
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS 9
ARTICLE 7
CLOSING 12
ARTICLE 8
CASUALTY AND CONDEMNATION 14
ARTICLE 9
BROKERAGE COMMISSIONS 15
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES 15
ARTICLE 11
MISCELLANEOUS 16
ARTICLE 12
IRS FORM 1099-S DESIGNATION 21
<PAGE>
SCHEDULE A
Legal Description of Real Property A-1
SCHEDULE B
Description of Personal Property and Intangible Property B-1
SCHEDULE C
List of Escrow Provisions C-1
SCHEDULE D
Rent Roll D-1
SCHEDULE E
List of Contracts E-1
SCHEDULE F
Form of Bill of Sale F-1
SCHEDULE G
Form of Quitclaim Deed G-1
SCHEDULE H
Form of Assignment and Assumption of Leases and
Security Deposits H-1
SCHEDULE I
Form of Assignment and Assumption of Contracts and Intangibles I-1
SCHEDULE J
Non-Foreign Affidavit J-7
SCHEDULE K-1
Form of Tenant Estoppel Certificate for Mariner Health
Group, Inc. K-1
SCHEDULE K-2
Form of Tenant Estoppel Certificate for Furniture.com, Inc. K-2
SCHEDULE L L-1
1099 Designation Agreement L-1
<PAGE>
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this Agreement) is entered into as of
the 30th day of July, 1999 by and between Seller and Buyer, upon the following
terms and conditions:
ARTICLE 1
DEFINITIONS
References in this Agreement to the following terms shall have the
following meanings:
BUYER: Berkeley Investments, Inc., a Massachusetts corporation
- ------
SELLER: Framingham - 1881 Associates, a Massachusetts general
- ------ partnership
PROPERTY: The Real Property and Personal Property constituting the
- --------- property known as and numbered 1881 Worcester Road,
Framingham, Massachusetts
REAL PROPERTY: The land and the buildings, structures, improvements and
- ------------- fixtures (collectively, the Improvements) now located
thereon and the rights appurtenant thereto, all as more
particularly described in Schedule A attached hereto
PERSONAL PROPERTY: All personal and intangible property, owned by Seller,
- ----------------- including, without limitation, the personal and
intangible property described in Schedule B attached
hereto
PURCHASE PRICE: $7,950,000
- --------------
TITLE COMPANY: Stewart Title Guaranty Company
- -------------
ARTICLE 2
PURCHASE AND SALE
2.1 In consideration of the undertakings and mutual covenants of the
parties set forth in this Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Seller hereby agrees to sell and convey the Property to Buyer and
Buyer hereby agrees to buy and pay the Purchase Price for the Property on the
terms and conditions contained herein.
ARTICLE 3
PURCHASE PRICE, DEPOSIT AND ADJUSTMENTS
3.1 The Purchase Price shall be as specified in Article 1 above and shall
be paid on the Closing Date (as defined in Section 7.1 hereof) by wire transfer
of immediately available federal funds, subject to adjustment to reflect
application of the Escrowed Amount (as hereinafter defined) and such other
adjustments herein contained.
3.2 Buyer shall, concurrently with the execution of this Agreement,
deposit with the Title Company the sum of One Hundred Thousand Dollars
($100,000) (the Initial Deposit) to secure Buyer's obligations under this
Agreement. On or before the expiration of the Diligence Date (as defined in
Section 5.3 hereof), Buyer shall deposit with the Title Company an additional
One Hundred Fifty Thousand Dollars ($150,000) (the Additional Deposit). The
Initial Deposit, as the same may be increased by the Additional Deposit, shall
collectively be referred to herein as the Escrowed Amount. The Escrowed Amount
shall be held by the Title Company pursuant to the terms of this Agreement and
pursuant to the terms of the Escrow Provisions contained in Schedule C attached
hereto and made a part hereof.
3.3 All real estate taxes, assessments, special taxes, special assessments
and any other tax or assessment attributable to the Property through the Closing
Date shall be prorated and adjusted as of the Closing Date unless such items are
paid directly by tenants to the applicable taxing authority, in which case no
adjustment or proration shall be made for the items paid directly by the
tenants. If the tax statements for the fiscal year during which the Closing Date
occurs are not finally determined, then the tax figures for the immediately
prior fiscal year shall be used for the purposes of prorating taxes on the
Closing Date. Any tax refunds or proceeds (including interest thereon) on
account of a favorable determination resulting from a challenge, protest, appeal
or similar proceeding relating to taxes and assessments relating to the Property
(i) for all tax periods occurring prior to the applicable tax period in which
the Closing (as defined in Section 7.1 hereof) occurs shall be retained by and
paid exclusively to Seller and (ii) for the applicable tax period in which the
Closing occurs shall be prorated as of the Closing Date after reimbursement to
Seller and Buyer, as applicable, for all fees, costs and expenses (including
reasonable Attorney's and consultants fees) incurred by Seller or Buyer, as
applicable, in connection with such proceedings such that Seller shall retain
and be paid that portion of such tax refunds or proceeds as is applicable to the
portion of the applicable tax period prior to the Closing Date and Buyer shall
retain and be paid that portion of such tax refunds or proceeds as is applicable
to the portion of the applicable tax period from and after the Closing Date.
3.4 Prepaid amounts under any Contracts (as defined in Section 5.2 below)
which are assigned to Buyer at Closing shall be prorated and adjusted as of the
Closing Date.
3.5 Seller shall cause all meters for electricity, gas, water, sewer or
other utility usage at the Property to be read on the Closing Date, and Seller
shall pay all charges for such utilities which have accrued on or prior to the
Closing Date; provided, however, that if and to the extent such charges are paid
directly by tenants, no such reading or payment shall be required. If the
utility companies are unable or refuse to read meters for which payment by
Seller is required, all charges for such utilities to the extent unpaid shall be
prorated and adjusted as of the Closing Date based on the most recent bills
therefor. Seller shall provide notice to Buyer within five (5) days before the
Closing Date setting forth (i) whether utility meters will be read as of the
Closing Date and (ii) a copy of the most recent bill for any utility charges
which are to be prorated and adjusted as of the Closing Date. If the meters
cannot be read as of the Closing Date and, therefore, the most recent bill is
used to prorate and adjust as of the Closing Date, then to the extent that the
amount of such prior bill proves to be more or less than the actual charges for
the period in question, a further adjustment shall be made after the Closing
Date as soon as the actual charges for such utilities are available.
3.6 Collected rents for the then current period; security deposits which
have not been previously applied by Seller; prepaid rentals; collected or
prepaid common area maintenance charges; collected or prepaid promotional
charges; collected or prepaid service charges; collected or prepaid tax charges,
and all other collected or prepaid incidental expenses and charges paid by
tenants shall be apportioned and full value shall be adjusted as of the Closing
Date, and the net amount thereof, if in favor of Seller, shall be added to the
Purchase Price, or if in favor of Buyer, shall be deducted from the Purchase
Price. From and after Closing all security deposits credited to Buyer shall
thereafter be deemed transferred to Buyer and Buyer shall assume and be solely
responsible for the payments of security deposits (for which Buyer was credited
at Closing) to tenants in accordance with the Leases (as hereinafter defined)
and applicable law. Seller shall be entitled to retain and/or receive a credit
for any utility deposits and any deposits for third parties under any of the
Contracts (as hereinafter defined).
3.6.1 All rentals and other tenant charges payable in arrears and
uncollected and all other uncollected rents (including, but not limited
to, percentage rents, common area maintenance charges and real estate tax
charge annual adjustments thereto) for the current and prior rental
periods, less the reasonable expenses of collection thereof, shall be
apportioned (if and when collected by either party); provided, however,
that Buyer shall proceed in a commercially reasonable manner consistent
with Buyer's customary practice for tenants owing past due rent to it to
collect such uncollected rents from existing tenants listed on the Rent
Roll (as hereinafter defined). During the period after Closing, Buyer
shall deliver to Seller any and all rents accrued but uncollected as of
the Closing Date to the extent subsequently collected by Buyer, provided,
however that Buyer shall apply rents received after Closing (net of
collection fees or expenses) first, to payment of current rent then due,
second, to rents attributable to any period after Closing which were past
due on the date of receipt, and thereafter to delinquent rents as of
Closing. Buyer shall not settle or release (i) tenants from any
obligations for such uncollected rents or (ii) rights under any claims
listed in Section 3.6.2 below, in each case, without Seller's prior
written approval. Buyer shall provide Seller with written evidence of its
collection efforts, such evidence shall include, but not be limited to
providing copies of letters and invoices to tenants, copies of reports
regarding follow-up efforts and cash receipts and aged delinquency
reports. Buyer shall provide such written evidence of its collection
efforts within fifteen (15) days of demand therefor provided that Seller
may request such evidence no more than on a quarterly basis. Seller shall
agree not to commence suit against tenants listed on the Rent Roll for
obligations owed to it unless Buyer fails to fulfill its obligations under
this Section 3.6.1.
3.6.2 Seller shall retain all rights to all refunds, receivables,
past due rent and claims, including, but not limited to, termination fees
or damages from all former tenants or occupants of the Property which are
not listed on the Rent Roll, causes of action and rights of reimbursement
from third parties, bonds, accounts receivable and any other claims for
payments Seller may have to the extent arising or relating to the period
prior to the Closing.
3.6.3 In the event, on the Closing Date, the precise figures
necessary for any of the foregoing adjustments are not capable of
determination, then, at Buyer's option, those adjustments shall be made
either (i) on the basis of good faith estimates of Seller and Buyer using
currently available information, and final adjustments shall be made
promptly after precise figures are determined or available or (ii) when
all information for all final adjustments are determined or available.
3.7 At the Closing, Seller shall pay the amount due for (a) state and
county transfer tax (or any tax substituted therefor) imposed in connection with
the consummation of the transaction contemplated hereby (the Transfer Tax); (b)
recording charges for documents to clear title, evidence Seller's authority or
enable Seller to convey; and (c) Seller's Attorney's fees.
3.8 At the Closing, Buyer shall pay for (a) any local tax or mortgage tax
other than the Transfer Tax; (b) charges to record the deed, and evidence of
Buyer's existence or authority; (c) survey charges; (d) Buyer's Attorney's fees
and all costs related to Buyer's due diligence; (e) the cost of the standard
owners title insurance policy referred to in Article 6, below; and (f) costs as
to additional title insurance coverages or endorsements, including the cost of a
new lenders title policy.
3.9 The provisions of this Article 3 shall survive the Closing.
ARTICLE 4
PRECLOSING OPERATION
4.1 A rent roll prepared by Seller's property manager (the Rent Roll)
containing a list of all current occupants of the Property is attached hereto as
Schedule D. The leases listed on the Rent Roll (copies of which have been
previously delivered to Buyer), together with leases entered into pursuant to
this Article 4 are collectively referred to herein as the Leases.
4.2 Seller shall not, after the date hereof; (i) enter into any new Leases
or materially amend or terminate any existing Leases, (ii) enter into or modify
any service contracts, operating agreements, or reciprocal easement agreements,
(iii) alter the zoning classification of the Property or (iv) materially alter
any Improvements, without the written consent of Buyer in any such instance,
which consent shall not be unreasonably withheld or delayed. If Buyer does not
notify Seller in writing of its denial of consent within five (5) business days
after written request therefor from Seller, Buyer shall be deemed to have
consented to such requested action. In the event Buyer denies its consent, Buyer
shall specify its reasons for denial in its written notice thereof. In the event
Seller's requested action with respect to a Lease is consented to or deemed
consented to by Buyer, Buyer shall pay for tenant improvements and leasing
commissions as disclosed on Seller's request for consent.
4.3 At all times prior to Closing, Seller shall continue (a) to conduct
business with respect to the Property in the same manner in which said business
has been heretofore conducted and (b) to insure the Property substantially as
currently insured.
4.4 Buyer shall, by written notice to Seller, on or before the Diligence
Date, identify any Contracts (as defined in Section 5.2 below) which it elects
to have assigned to it and therefore will assume. Buyer shall be deemed to have
elected not to assume any Contracts which are not identified as to be assigned
and assumed. Seller shall terminate any Contracts at Closing which are not
identified by Buyer as specified in this section as to be assigned and assumed
at Closing.
ARTICLE 5
ACCESS, INSPECTION AND DILIGENCE
5.1 Seller agrees that Buyer and its authorized agents or representatives
shall be entitled to enter upon the Real Property and the Improvements during
normal business hours after two (2) days advance oral notice to Seller (in each
case subject to the rights of tenants under the Leases) to make such reasonable
investigations, studies, and tests as Buyer deems necessary or advisable, and
notwithstanding the foregoing, further agrees to use its commercially reasonable
efforts to gain Buyer and its authorized agents or representatives entry upon
the Real Property and the Improvements upon twenty-four (24) hours advance oral
notice; provided, however, that Buyer shall not be permitted to conduct physical
testing or conduct interviews with tenants without Seller's prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed. Seller shall use its commercially reasonable efforts to make its
personnel available for such inspections or interviews upon twenty-four (24)
hours prior oral notice. Seller's prior written approval for physical
inspections may be conditioned on receipt of a detailed description of the
proposed physical inspection, a list of the contractors who will be performing
the physical inspection, evidence of insurance satisfactory to Seller, and such
other information as Seller reasonably requires in connection with such proposed
inspection. Buyer may not interview tenants unless a duly authorized
representative of Seller accompanies Buyer. Seller also agrees to make available
to Buyer during normal business hours upon advance written notice to Seller all
books, records, plans, building specifications, contracts, agreements or other
instruments or documents contained in Seller's files relating to the
construction, operation and maintenance of the Property and the files of the
current manager of the Property that relate to the Property.
5.2 Seller shall provide Buyer, promptly after Seller's execution of this
Agreement, with copies of all (i) Leases, (ii) all maintenance, service, supply,
equipment rental, management and leasing contracts affecting the Property listed
on the attached Schedule E (collectively, the Contracts) which it has in its
files and shall instruct its property manager to make such Leases and Contracts
available to Buyer for inspection, and (iii) such other information and reports
affecting the Property to the extent in Seller's possession or control including
financial statements for the current operating year and for the immediately
preceding two (2) year period, capital improvement schedules, occupancy
histories, appraisals, environmental reports, structural reports, tax bills,
insurance certificates and certificates of occupancy.
Buyer acknowledges and agrees that any and all information, documents,
surveys, studies and reports provided to Buyer are provided for informational
purposes only and do not constitute representations and warranties of Seller of
any kind.
5.3 Buyer shall promptly commence and actively pursue its due diligence on
the Property, including, but not limited to the following items:
(a) Review of title and survey matters;
(b) Review of Contracts and information materials;
(c) Obtain and review engineering reports on structural condition
of the mechanical systems;
(d) Obtain and review environmental reports on oil, hazardous
waste, and asbestos;
(e) Review of applicable zoning and other land use controls, and
other permits, licenses, permissions, approvals and consents;
(f) Conduct tenant interviews, subject to Section 5.1 above; and
(g) Review of all Leases affecting the Property.
Buyer shall complete its due diligence including, but not limited to the
foregoing, no later than thirty (30) days after the date of this Agreement (the
Diligence Date). In the event that Buyer's due diligence shall reveal any
matters which are not acceptable to Buyer in Buyer's sole and absolute
discretion, Buyer may elect, by written notice to Seller, received by Seller on
or before the Diligence Date, not to proceed with this purchase, in which event
this Agreement shall terminate, the Escrowed Amount shall be returned to Buyer
and this Agreement shall be null and void without recourse to either party
hereto (except to the extent such recourse arises in connection with a provision
of this Agreement which is intended to survive termination). In the event Buyer
does not terminate this Agreement on or before the Diligence Date, the Escrowed
Amount shall become nonrefundable subject to the other terms and provisions of
this Agreement.
Buyer acknowledges that as of the Closing it will have had an opportunity
to conduct diligence on the Property and is acquiring the Property in its
current condition based on its diligence. Buyer further acknowledges that
neither Seller nor its employees, agents or representatives have made any
representation or warranty as to the condition of the Property or the presence
or absence of any hazardous materials on, in, under or within the Property or a
portion thereof which survive the Closing hereunder except as expressly provided
in this Agreement. BUYER ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS TO BE
CONVEYED BY SELLER TO BUYER AS IS, WITH ALL FAULTS, AND SUBSTANTIALLY IN ITS
CURRENT CONDITION. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPRESSLY CONTAINED IN THIS AGREEMENT, NEITHER SELLER NOR ANY AGENT, EMPLOYEE OR
OTHER REPRESENTATIVE OF SELLER (OR PURPORTED AGENT, EMPLOYEE OR OTHER
REPRESENTATIVE OF SELLER) HAS MADE ANY GUARANTEE, REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED (AND SELLER SHALL NOT HAVE ANY LIABILITY WHATSOEVER) AS TO
THE VALUE, USES, HABITABILITY, CONDITION, DESIGN, OPERATION, FINANCIAL CONDITION
OR PROSPECTS, OR FITNESS FOR PURPOSE OR USE OF THE PROPERTY (OR ANY PART
THEREOF) OR THE INFORMATIONAL MATERIALS PROVIDED TO BUYER IN CONNECTION WITH
THIS TRANSACTION BUT NOT PREPARED BY SELLER, OR ANY OTHER GUARANTEE,
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY
PORTION OF THE PROPERTY (OR ANY PART THEREOF) OR THE INFORMATIONAL MATERIALS
SUPPLIED TO BUYER. FURTHER, SELLER SHALL HAVE NO LIABILITY FOR ANY LATENT,
HIDDEN, OR PATENT DEFECT AS TO THE PROPERTY OR THE FAILURE OF THE PROPERTY, OR
ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS AND REGULATIONS EXCEPT AS
EXPRESSLY CONTAINED IN THIS AGREEMENT. IN PARTICULAR, BUYER ACKNOWLEDGES AND
AGREES THAT THE INFORMATION MATERIALS PROVIDED UNDER THIS AGREEMENT (AND ANY
OTHER INFORMATION BUYER MAY HAVE OBTAINED REGARDING IN ANY WAY ANY OF THE
PROPERTY, INCLUDING WITHOUT LIMITATION, ITS OPERATIONS OR ITS FINANCIAL HISTORY
OR PROSPECTS FROM SELLER OR ITS AGENTS, EMPLOYEES OR OTHER REPRESENTATIVES BUT
NOT INCLUDING INFORMATION PREPARED BY SELLER) IS DELIVERED TO BUYER AS A
COURTESY, WITHOUT REPRESENTATION OR WARRANTY AS TO ITS ACCURACY OR COMPLETENESS
(EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT), AND NOT AS AN INDUCEMENT TO
ACQUIRE THE PROPERTY; THAT NOTHING CONTAINED IN SUCH DELIVERIES SHALL CONSTITUTE
OR BE DEEMED TO BE A GUARANTEE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
IN ANY REGARD AS TO ANY OF THE PROPERTY (EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT); AND THAT BUYER IS RELYING ONLY UPON THE PROVISIONS OF THIS AGREEMENT
AND ITS OWN INDEPENDENT ASSESSMENT OF THE PROPERTY AND ITS PROSPECTS IN
DETERMINING WHETHER TO ACQUIRE THE PROPERTY. The provisions of this paragraph
shall survive the Closing.
5.4 Return of Documents. If this Agreement is terminated for any reason
whatsoever, Buyer shall promptly deliver to Seller all documents, plans,
surveys, contracts, Leases and the like delivered to Buyer or Buyer's agents,
representatives or designees by Seller or Seller's agents, representatives or
employees pursuant to this Agreement. In addition, if this Agreement is
terminated for any reason whatsoever other than Seller's default, at Seller's
request, Buyer shall either (a) deliver promptly to Seller copies of all
materials prepared by third parties with respect to the Property obtained in
connection with Buyer's diligence (the Third Party Materials), together with
receipted invoices for all costs reasonably incurred by Buyer and directly
related to the preparation of the Third Party Materials, in which event Seller
shall reimburse Buyer one-half (1/2) of such costs, or (b) promptly destroy all
copies of the Third Party Materials. If this Agreement is terminated due to
Seller's default, Buyer shall promptly destroy all copies of the Third Party
Materials. The return of the Escrowed Amount to Buyer under this Agreement shall
be contingent upon Buyer's fulfillment of the obligations under this Section
5.4.
5.5 Confidentiality. Each party hereto agrees to maintain in confidence,
and not to discuss with or to disclose to any person or entity who is not a
party to this Agreement, any material term of this Agreement or any aspect of
the transactions contemplated hereby, except as provided in this Section. Seller
may publicly disclose the existence of this Agreement provided that the identity
of Buyer is not disclosed. Each party hereto may discuss with and disclose to
its directors, officers and employees, accountants, attorneys, existing or
prospective lenders, investment bankers, underwriters, rating agencies,
partners, consultants and other advisors to the extent such parties reasonably
need to know such information and are bound by a confidentiality obligation
identical in all material respects to the one created by this Section.
Additionally, each party may discuss and disclose such matters to the extent
necessary to comply with any requirements of the Securities and Exchange
Commission or in order to comply with any securities law or interpretation
thereof. This provision shall survive termination of this Agreement but shall
terminate upon Closing. Buyer and Seller do not contemplate issuing a press
release until after the Diligence Date. Any press release to be made regarding
any matter which is the subject of the confidentiality obligation created in
this Section shall be subject to the reasonable approval of Buyer and Seller,
respectively both as to timing and content.
5.6 Indemnity. If any inspection or test disturbs any of the Property,
Buyer will restore the Property to substantially the same condition as existed
prior to any such inspection or test. Buyer shall keep the Property free and
clear of any liens and will indemnify, defend, and hold Seller harmless from all
losses, costs and damages including reasonable Attorney's fees incurred by
Seller as a result of such entry or investigation by or on behalf of Buyer other
than loss, cost or damage which is discovered (and not caused) by such
investigation as a result of pre-existing conditions. This indemnity obligation
of Buyer shall survive the termination of this Agreement for any reason.
5.7 Buyer's Release of Seller. SELLER AND ITS PROPERTY MANAGER ARE HEREBY
RELEASED FROM ALL RESPONSIBILITY AND LIABILITY REGARDING THE CONDITION
(INCLUDING THE PRESENCE IN THE SOIL, AIR, STRUCTURES AND SURFACE AND SUBSURFACE
WATERS, OF MATERIALS OR SUBSTANCES THAT HAVE BEEN OR MAY BE IN THE FUTURE
DETERMINED TO BE TOXIC, HAZARDOUS, UNDESIRABLE OR SUBJECT TO REGULATION AND THAT
MAY NEED TO BE SPECIALLY TREATED, HANDLED AND/OR REMOVED FROM THE PROPERTY UNDER
CURRENT OR FUTURE FEDERAL, STATE AND LOCAL LAWS, REGULATIONS OR GUIDELINES),
VALUATION, SALABILITY OR UTILITY OF THE PROPERTY, OR ITS SUITABILITY FOR ANY
PURPOSE WHATSOEVER. BUYER ACKNOWLEDGES THAT ANY INFORMATION OF ANY TYPE WHICH
BUYER HAS RECEIVED OR MAY RECEIVE FROM SELLER, ITS PROPERTY MANAGER OR THEIR
RESPECTIVE AGENTS, INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL REPORTS AND
SURVEYS, IS FURNISHED ON THE EXPRESS CONDITION THAT BUYER SHALL MAKE AN
INDEPENDENT VERIFICATION OF THE ACCURACY OF SUCH INFORMATION, ALL SUCH
INFORMATION BEING FURNISHED WITHOUT ANY WARRANTY WHATSOEVER.
5.8 Subordination Nondisturbance Agreements. Seller agrees to cooperate
with Buyer to obtain on or before the Closing subordination nondisturbance
agreements from each of the tenants under the Leases in form reasonably
satisfactory to Buyer's lender (the SNDAs), provided that Seller shall incur no
costs, expenses or liabilities in connection therewith and provided further that
in no event shall Buyer's receipt of such SNDAs be a condition precedent to
Closing or delay the Closing in any manner.
ARTICLE 6
TITLE, SURVEY, CONDITIONS AND REPRESENTATIONS
6.1 Promptly following the execution of this Agreement Seller shall
provide Buyer with
(a) an ALTA as-built survey of the Real Property (the Survey); and
(b) a commitment for a standard ALTA Owners Policy of Title
Insurance (the Title Commitment).
If (i) any matter disclosed on the Survey; or (ii) matters listed as
exceptions in the Title Commitment are not each satisfactory to Buyer, it shall,
on or prior to the Diligence Date, provide Seller with written notice of such
objections and if Seller is unable or unwilling to cure such objections, prior
to the Diligence Date, Buyer may terminate this Agreement as provided in Section
5.3 above or waive such objection and proceed to Closing. To enable Seller to
convey, Seller may, at the Closing use the Purchase Price or any portion thereof
to clear title. Those exceptions or title deficiencies that appear on the Title
Commitment and are not objected to by Buyer shall be the Permitted Encumbrances.
6.2 On the Closing Date, Seller shall convey by Quitclaim Deed to Buyer,
title to all of the Real Property and the Improvements free and clear of all
liens, encumbrances, conditions, easements, assessments, restrictions and other
conditions, except for the following:
(a) The lien, if any, for real estate taxes not yet due and
payable;
(b) All matters listed on the Title Commitment and as would be
disclosed on a current Survey and not objected to pursuant to
Section 6.1 above;
(c) All Leases disclosed to Buyer;
(d) All zoning, building and other laws applicable to the Property;
and
(e) All matters which arise after the effective date of the Title
Commitment which are agreed upon or consented to by Buyer in
writing.
6.3 At the Closing, Seller shall assign the Leases and Contracts which are
not to be terminated and intangible property, if any, to Buyer and Buyer shall
assume Seller's obligations thereunder from and after the Closing Date and
Seller shall convey the Personal Property to Buyer by bill of sale in
substantially the form attached hereto as Schedule F.
6.4 Representations and Warranties
6.4.1 Seller hereby represents and warrants to Buyer as of the date
of this Agreement as follows:
(a) Organization and Power. Seller is a general partnership validly
existing under the laws of the Commonwealth of Massachusetts with all
necessary legal power to enter into and perform its obligations hereunder
and under any document or instrument required hereunder to be executed and
delivered on behalf of Seller;
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Seller are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Seller and (assuming valid execution and delivery by Buyer)
is a legal, valid and binding obligation of Seller enforceable against it
in accordance with its terms; and
(c) Third Party Notices. Except as set forth in the report entitled
Report on Phase I Environmental Site Assessment, 1881 Worcester Road,
Framingham, Massachusetts (File No. 12081-041) dated June 1999 and
prepared by Haley & Aldrich, Inc. for Framingham-1881 Associates (the
Haley & Aldrich Report), Seller has not received any written notice from a
government agency or other third party that the location, construction,
occupancy, operation, use or any other aspect of the Property (including
any improvements and equipment forming any part thereof) violate any
applicable law, statute, ordinance, rule, regulation, order or
determination of any governmental authority or any board of fire
underwriters (or similar body), or any restrictive covenant or deed
restriction or zoning ordinance or classification affecting the Property,
including, without limitation, all applicable building codes, flood
disaster laws, and health and environmental laws and regulations
(hereinafter sometime collectively called Applicable Laws). Except as set
forth in the Haley & Aldrich Report, Seller has not received any written
notice from a governmental agency that the Property and Seller are
currently subject to any existing pending or threatened investigation or
inquiry by any governmental authority or to any remedial obligations under
any Applicable Laws pertaining to health or the environment.
(d) Bankruptcy. No petition in bankruptcy, whether voluntary or
involuntary, and no actions or proceedings to make an assignment for the
benefit of creditors, or any other action involving debtors and creditors
rights have been filed or are pending under the laws of the United States
of America or any State thereof, or threatened against Seller, nor is
Seller aware of any such actions or proceedings against any tenant of the
Property.
(e) Litigation. Except as set forth in the Haley & Aldrich Report,
there is no suit or administrative proceeding pending or, threatened in
writing against Seller or the Property before or by any federal or state
court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign.
(f) Condemnation. There are no pending or contemplated condemnation
proceedings affecting the Property, or any part thereof, nor is Seller
aware of any such contemplated proceedings.
(g) Contracts. No written notice of default or breach by Seller in
the terms of any Contract has been received by Seller and Seller has
performed, and at Closing will have performed, all obligations which it
has under said Contracts.
(h) Leases. There are no leases or occupancy agreements affecting
the Property other than the Leases.
6.4.2 It is expressly understood and agreed that the representations
and warranties contained in Section 6.4.1 are hereby qualified to Seller's
actual knowledge without further inquiry. Each representation or warranty
contained in Section 6.4.1 is subject to being updated by Seller in writing on
or before the Diligence Date and shall be deemed to have been amended and
updated by any information delivered to or made available to Buyer and any other
information obtained by Buyer in connection with its diligence (including but
not limited to tenant estoppel certificates). For purposes of Section 6.4.1,
actual knowledge of Seller without further inquiry shall mean the actual
awareness of Rock M. D'Errico, provided that such individual shall have no
obligation to make further inquiry of any persons other than reasonable inquiry
of its property manager. With the exception of the representations and
warranties set forth in Subsections 6.4.1(g) and (h) above which shall survive
the Closing for no more than thirty (30) days, no representations or warranties
made hereunder shall survive Closing.
6.4.3 Buyer hereby represents and warrants to Seller as of the date
of this Agreement as follows:
(a) Organization and Power. Buyer is a corporation organized,
existing and in good standing under the laws of the State of Massachusetts
and has the requisite power and authority to enter into and perform the
terms of this Agreement; and
(b) Authorization and Execution. The execution and delivery of this
Agreement and the consummation of the transaction contemplated hereby have
been duly authorized by all necessary parties and no other proceedings on
the part of Buyer are necessary in order to permit it to consummate the
transaction contemplated hereby. This Agreement has been duly executed and
delivered by Buyer and (assuming valid execution and delivery by Seller)
is a legal, valid and binding obligation of Buyer enforceable against it
in accordance with its terms.
6.5 The obligations of Buyer to consummate the transaction contemplated by
this Agreement are subject to the representations and warranties made by Seller
in this Agreement being true and correct in all material respects on and as of
the Closing Date with the same force and effect as though such representations
and warranties had been made as of the Closing Date.
6.6 The obligations of Seller to consummate the transaction contemplated
by this Agreement are subject to the representations and warranties made by
Buyer in this Agreement being true and correct in all material respects on and
as of the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing Date.
ARTICLE 7
CLOSING
7.1 The consummation of the purchase and sale contemplated in this
Agreement (the Closing) shall occur at the offices of Bingham Dana LLP, 150
Federal Street, Boston, Massachusetts 02110-1726, on the date that is twenty-one
(21) days after the Diligence Date (the Closing Date). It is agreed that time is
of the essence in this Agreement.
7.2 On the Closing Date Seller shall deliver or cause to be delivered each
of the following items to Buyer:
(a) A duly executed and acknowledged Quitclaim Deed conveying the
Real Property and the Improvements to Buyer in the form attached hereto as
Schedule G;
(b) Duly executed quitclaim bill of sale conveying the Personal
Property to Buyer in the form attached hereto as Schedule F;
(c) Duly executed assignment and assumption of Leases (the
Assignment of Leases) in the form attached hereto as Schedule H;
(d) Duly executed assignment and assumption of Contracts, and
intangible property (the Assignment of Contracts) in the form attached
hereto as Schedule I, together with originals of any Contracts being
assumed by Buyer;
(e) Transfer tax statements (or similar affidavits or forms), if
required of the Seller by local law to effect transfer or recordation of
the Quitclaim Deed;
(f) Certificate or certificates of non-foreign status from Seller in
the form attached hereto as Schedule J;
(g) Customary affidavits and indemnities sufficient for the Title
Company to delete any exceptions for mechanics or materialmen's liens from
Buyer's title policy and such other affidavits relating to such title
policy as the Title Company may reasonably request;
(h) Counterpart original of the closing statement setting forth the
Purchase Price, the closing adjustments and the application of the
Purchase Price as adjusted (the Closing Statement);
(i) Original tenant estoppel certificates, in substantially the
forms attached hereto as Schedule K-1 and Schedule K-2, not disclosing any
defaults under the Leases or information materially inconsistent with that
set forth on Schedule K-1 and Schedule K-2;
(j) All business and accounting records pertaining to the operation
of the Property in Seller's possession;
(k) All original Leases and tenant correspondence in each case, if
in Seller's possession;
(l) Keys to all locks which manager or Seller has in its possession;
(m) Notice letters from Seller to tenants of the sale of the
Property and assignment of the Leases; and
(n) All documents customarily and reasonably required by Title
Company confirming Seller's authority to sell the Property.
(o) Possession of the Property, (i) free of all tenants or
occupants, subject only to the tenants under the Leases, which Leases
shall be in full force and effect, (ii) not in violation of any applicable
law or regulation of any governmental authority or of any encumbrance
constituting a Permitted Exception, and (iii) in substantially the same
condition and repair as they were in as of the Diligence Date.
7.3 On the Closing Date Buyer shall deliver or cause to be delivered at
its expense each of the following to Seller:
(a) Purchase Price for the Property, as such Purchase Price may have
been further adjusted pursuant to the provisions of this Agreement and
credited for any portion of the Escrowed Amount paid to Seller, in the
manner provided for in Article 3;
(b) Duly executed Assignment of Leases;
(c) Duly executed Assignment of Contracts;
(d) Counterpart original of the Closing Statement; and
(e) Such other instruments as Seller may reasonably request to
effectuate the transaction contemplated by this Agreement.
ARTICLE 8
CASUALTY AND CONDEMNATION
8.1 If the Improvements are materially damaged by fire or any other
casualty and are not substantially restored to the condition immediately prior
to such casualty before the Closing Date, Buyer shall have the following
elections:
(a) to purchase the Property in its then condition and pay the
Purchase Price, in which event Seller shall pay over or assign to Buyer as
the case may be, on the Closing Date, all amounts recovered or recoverable
by Seller on account of any insurance as a result of such casualty plus
the amount of any applicable deductible, less any amounts reasonably
expended by Seller for partial restoration; or
(b) if any portion of the Improvements shall have been substantially
destroyed, to terminate this Agreement by giving notice of termination to
Seller on or before that date which is thirty (30) days after the
occurrence of the fire or other casualty or on the Closing Date, whichever
occurs first, in which event the Title Company shall return the Escrowed
Amount to Buyer, this Agreement shall terminate and neither Seller nor
Buyer shall have any recourse against the other (except to the extent such
recourse arises in connection with a provision of this Agreement which is
intended to survive termination). For purposes of this subparagraph (b),
substantially destroyed shall mean damage, for which the cost of
restoration shall, in Seller's reasonable judgment, be greater than Two
Hundred Fifty Thousand Dollars ($250,000).
8.2 If any portion of or interest in the Property shall be taken or is in
the process of being taken by exercise of the power of eminent domain or if any
governmental authority notifies Seller prior to the Closing Date of its intent
to take or acquire any portion of or interest in the Property (each an Eminent
Domain Taking), Seller shall give notice promptly to Buyer of such event and
Buyer shall have the option to terminate this Agreement by providing notice to
Seller to such effect on or before the date which is five (5) business days from
Seller's notice to Buyer of such Eminent Domain Taking or on the Closing Date,
whichever occurs first, in which event the Title Company shall return the
Escrowed Amount to Buyer, this Agreement shall terminate, and neither Seller nor
Buyer shall have any recourse against the other. If Buyer does not timely notify
Seller of its election to terminate this Agreement, Buyer shall purchase the
Property and pay the Purchase Price, and Seller shall pay over or assign to
Buyer on delivery of the deed all awards recovered or recoverable by Seller on
account of such Eminent Domain Taking, less any amounts reasonably expended by
Seller in obtaining such award.
ARTICLE 9
BROKERAGE COMMISSIONS
Seller represents and warrants to Buyer that Seller has not used or
employed any broker or brokers in connection with the negotiation, execution or
consummation of the transaction contemplated by this Agreement other than Boston
Real Estate Partners (Seller's Agent). Seller will indemnify, defend and hold
Buyer harmless from and against any claims of Seller's Agent for any commission,
finders fee, or other compensation in connection with the transactions
contemplated by this Agreement. Seller agrees to pay Seller's Agent its
commission in accordance with a separate agreement between Seller and Seller's
Agent.
Buyer represents and warrants to Seller that Buyer has not used or
employed any broker or brokers in connection with the negotiation, execution or
consummation of the transaction contemplated by this Agreement.
Buyer and Seller each hereby agree to indemnify, defend and hold the other
harmless from and against any claims, losses, damages, costs, or expenses
(including, but not limited to, reasonable attorneys fees) of any kind or
character which arise as a result of breach of the foregoing representation and
warranty. This Section 9 shall survive the Closing or earlier termination of the
Agreement.
ARTICLE 10
DEFAULT, TERMINATION AND REMEDIES
10.1 In the event that Seller shall have failed in any material respect
adverse to Buyer on the Closing Date to have performed any of the covenants and
agreements contained in this Agreement which are to be performed by Seller on or
before the Closing Date, Buyer shall have the following remedies, (i) the right
to take any and all legal actions necessary to compel Seller's specific
performance hereunder (it being acknowledged that damages at law would be an
inadequate remedy), and to consummate the transaction contemplated by this
Agreement in accordance with the provisions of this Agreement (such conveyance
shall be deemed to satisfy and waive any other remedy) or (ii) the right to
terminate this Agreement and receive the Escrowed Amount.
10.2 In the event that Buyer shall have failed in any material respect
adverse to Seller on the Closing Date to have performed any of the covenants and
agreements contained in this Agreement which are to be performed by Buyer on or
before the Closing Date, or if Buyer defaults in its obligation to close
hereunder, Seller shall be entitled to receive the Escrowed Amount as liquidated
damages, in lieu of all other remedies available to Seller at law or in equity
for such default, and Buyer shall direct the Title Company to release the
Escrowed Amount to Seller. Seller and Buyer agree that the damages resulting to
Seller as a result of such default by Buyer as of the date of this Agreement are
difficult or impossible to ascertain and the liquidated damages set forth in the
preceding sentence constitute Buyer's and Seller's reasonable estimate of such
damages.
ARTICLE 11
MISCELLANEOUS
11.1 Buyer may only assign or transfer its rights under this Agreement to
an entity owned, or controlled by Buyer or which owns or controls Buyer or to an
entity in which Buyer holds a membership or other ownership interest, provided
Buyer notifies Seller at least ten (10) days prior to Closing of any such
assignment or transfer and provided further that such assignment or transfer
will not delay the Closing or adversely affect the timing of any closing
delivery already in process. The covenants and agreements contained in this
Agreement shall extend to and be obligatory upon the permitted successors and
assigns of the respective parties to this Agreement.
11.2 Except as otherwise specifically provided herein, any notice required
or permitted to be delivered under this Agreement shall be in writing and shall
be deemed given if (i) delivered by hand during regular business hours, (ii)
sent by United States Postal Service, registered or certified mail, postage
prepaid, return receipt requested, (iii) sent by a reputable overnight express
mail service that provides tracing and proof of receipt or refusal of items
mailed, or (iv) sent by telecopier or facsimile transmission with confirmation
copy by notice methods (i), (ii) or (iii) above addressed to Seller or Buyer, as
the case may be, at the address or addresses set forth below or such other
addresses as the parties may designate in a notice similarly sent. Any notice
given by a party to Title Company shall be simultaneously given to the other
party. Any notice given by a party to the other party relating to its
entitlement to the Escrowed Amount shall be simultaneously given to the Title
Company.
(1) If to Buyer:
Berkeley Investments, Inc.
121 High Street
Boston, Massachusetts 02110
Attention: Robert King
Telecopy: (617) 439-0088
Facsimile:(617) 439-4449
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
Attention: Richard A. Toelke, Esq.
Telecopy: (617) 951-8830
Telefax: (617) 951-8736
(2) If to Seller:
Framingham - 1881 Associates
c/o PaineWebber Properties, Incorporated
265 Franklin Street, 15th Floor
Boston, Massachusetts 02110
Attention: Rock M. D'Errico, Vice President
Telecopy: (617) 478-4725
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Andrew C. Sucoff, Esq.
Telecopy: (617) 277-8591
(3) If to the Title Company:
Stewart Title Guaranty Company
99 Summer Street, Fourth Floor
Boston, Massachusetts 02110
Attention: Marie L. Franco
Telecopy: (617) 737-8370
11.3 Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words of a singular number shall be
held to include the plural and vice versa, unless the context requires
otherwise.
11.4 The captions used in connection with the Articles of this Agreement
are for convenience only and shall not be deemed to extend, limit or otherwise
define or construe the meaning of the language of this Agreement.
11.5 Nothing in this Agreement, express or implied, is intended to confer
upon any person, other than the parties hereto and their respective successors
and assigns, any rights or remedies under or by reason of this Agreement.
11.6 This Agreement may be amended only by a written instrument executed
by Seller and Buyer (or Buyer's assignee or transferee).
11.7 This Agreement embodies the entire agreement between Seller and Buyer
with respect to the transaction contemplated in this Agreement, and there have
been and are no covenants, agreements, representations, warranties or
restrictions between Seller and Buyer with regard thereto other than those set
forth or provided for in this Agreement.
11.8 This Agreement shall be construed under and in accordance with the
laws of the Commonwealth of Massachusetts.
11.9 This Agreement may be executed in two (2) or more counterparts, each
of which shall be an original but such counterparts together shall constitute
one and the same instrument notwithstanding that both Buyer and Seller are not
signatory to the same counterpart.
11.10 The Title Company has executed this Agreement only for the purpose
of agreeing to perform the duties assigned to it under this Agreement. Prior to
the Diligence Date, Title Company is hereby authorized and directed to release
the Escrowed Amount to Buyer promptly upon Buyer's written request, without
joinder by Seller and not withstanding any objection interposed by Seller. This
Agreement shall terminate upon any such request from Buyer pursuant to Section
5.3 above. From and after the Diligence Date the Title Company shall, upon
receiving a copy of a notice given by a party in accordance with this Agreement
claiming entitlement to all or a portion of the Escrowed Amount, give a notice
to the other party that such claim of entitlement has been made. If the Escrowed
Amount is in the form of a letter of credit and the expiry thereof has not been
extended, Title Company shall cause the letter of credit to be drawn upon and
hold the proceeds as the Escrowed Amount. The Title Company shall not cause or
permit any portion of the Escrowed Amount to be disbursed until the expiration
of five (5) days of giving such notice whereupon, if the party to whom such
notice was given has not given the Title Company notice of its objection to a
disbursement in accordance with the claim of entitlement, the Title Company
shall cause a disbursement of the Escrowed Amount as requested. If such party
timely objects, however, the Title Company shall retain the Escrowed Amount and
not disburse any portion of the same unless directed by the mutual written
direction of the parties. The Title Company shall at all times disburse the
Escrowed Amount as required in a mutual written direction of the parties.
11.11 In the event of any disagreement between the parties, the Title
Company shall retain all deposits pending instructions mutually agreed to by
Seller and Buyer. In the event there is no mutual agreement by Seller and Buyer
for disbursements, the Title Company shall hold said deposits pending a court
order to disburse. The Title Company may conclusively rely on the authenticity,
validity and effectiveness of any writing delivered to it, and Title Company
shall not be obligated to make any investigation or determination, except as
provided in the case of disputes as to the truth and accuracy of any information
contained therein. Buyer and Seller agree to defend, indemnify and hold Title
Company harmless from any liabilities, suits, claims, or expenses arising from
or out of or in connection with Title Company's acts or failure to act
hereunder, unless caused or created as a result of Title Company's gross
negligence, and Title Company shall be entitled to reimbursement by Buyer and/or
Seller for all reasonable costs and expenses incurred in the performance of its
duties hereunder including, without limitation, all out-of-pocket expenses and
reasonable attorney's fees of counsel retained by Title Company. Any such costs
and expenses not paid by the parties after billing and supporting documentation
by Title Company may be paid by Title Company out of the Escrowed Amount. If
there is a settlement by Buyer and Seller prior to a court order, Buyer and
Seller will share equally in the expenses incurred by the Title Company.
Otherwise, the non-prevailing party shall assume full responsibility for the
Title Company's expenses. Title Company is not required to advance or expend or
risk its own funds or otherwise incur personal liability in performance of its
duties hereunder and it may require advancement of funds by the parties.
11.12 Time is expressly declared to be of the essence of this Agreement.
11.13 The obligations of Seller hereunder shall be binding only on the
Property and neither Buyer nor anyone claiming by, through or under Buyer shall
be entitled to obtain any judgment extending liability beyond the Property or
creating personal liability on the part of the officers, directors,
shareholders, or agents of Seller or any of their successors. The obligations of
Buyer hereunder shall be binding only on the assets of Buyer and neither Seller
nor anyone claiming by, through or under Seller shall be entitled to obtain any
judgment creating personal liability on the part of the partners, officers,
shareholders, or agents of Buyer or any of their successors or any affiliated
entities.
11.14 As used herein, the term business day shall mean any day other than
on Saturday, Sunday, or federal holiday.
11.15 Property Conveyed AS IS.
(a) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IT IS
UNDERSTOOD AND AGREED THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER AND ITS
PROPERTY MANAGER HAVE NOT MADE AND ARE NOT NOW MAKING, AND THEY SPECIFICALLY
DISCLAIM, ANY OTHER WARRANTIES, REPRESENTATIONS OR GUARANTIES OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH
RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES,
REPRESENTATIONS OR GUARANTIES AS TO (I) MATTERS OF TITLE (OTHER THAN SELLER'S
WARRANTY OF TITLE SET FORTH IN THE DEED (HEREINAFTER DEFINED) TO BE DELIVERED AT
CLOSING), (II) ENVIRONMENTAL MATTERS RELATING TO THE PROPERTY OR ANY PORTION
THEREOF, (III) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE,
SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS
REGARDING THE WITHDRAWAL OF WATER, AND EARTHQUAKE FAULTS AND THE RESULTING
DAMAGE OF PAST AND/OR FUTURE EARTHQUAKES, (IV) WHETHER, AND TO THE EXTENT TO
WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR
UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL
FLOOD HAZARD, (V) DRAINAGE, (VI) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF
INSTABILITY, PAST SOLID REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL, OR
SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDERSHORING, (VII)
ZONING TO WHICH THE PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT, (VIII) THE
AVAILABILITY OF ANY UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF INCLUDING,
WITHOUT LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC, (IX) USAGES OF ADJOINING
PROPERTY, (X) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (XI) THE VALUE,
COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN,
QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR
PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING
OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF, OR ANY INCOME, EXPENSES,
CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO
THE PROPERTY OR ANY PART THEREOF, (XII) THE PRESENCE OF HAZARDOUS SUBSTANCES IN
OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY, (XIII) THE CONDITION OR USE OF
THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR
FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING,
FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR LAWS, (XIV) THE EXISTENCE OR
NON-EXISTENCE OF UNDERGROUND STORAGE TANKS, (XV) ANY OTHER MATTER AFFECTING THE
STABILITY OR INTEGRITY OF THE REAL PROPERTY, (XVI) THE POTENTIAL FOR FURTHER
DEVELOPMENT OF THE PROPERTY, (XVII) THE EXISTENCE OF VESTED LAND USE, ZONING OR
BUILDING ENTITLEMENTS AFFECTING THE PROPERTY, (XVIII) THE MERCHANTABILITY OF THE
PROPERTY OR FITNESS OF THAT PROPERTY FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING
THAT BUYER HAS NOT RELIED ON SELLER'S OR ITS PROPERTY MANAGERS SKILL OR JUDGMENT
TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT SELLER
MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE), OR (XIX)
TAX CONSEQUENCES.
(b) BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER
DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ITS PROPERTY
MANAGER OR ANY OF THEIR RESPECTIVE AGENTS, EXPECT AS EXPRESSLY SET FORTH HEREIN,
AND ACKNOWLEDGES THAT NO OTHER SUCH REPRESENTATIONS HAVE BEEN MADE. BUYER
REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF
REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
BUYER'S CONSULTANTS IN PURCHASING THE PROPERTY. BUYER WILL CONDUCT SUCH
INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY,
INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS
THEREOF, AND SHALL RELY UPON SAME. UPON CLOSING, BUYER SHALL ASSUME THE RISK
THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND
INVESTIGATIONS. BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL
SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY AS IS, WHERE IS,
WITH ALL FAULTS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL
AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE
PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. THE TERMS AND
CONDITIONS OF THIS SECTION 11.15(b) SHALL EXPRESSLY SURVIVE THE CLOSING, NOT
MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND SHALL BE INCORPORATED
INTO THE DEED. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY
FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON,
UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. BUYER
ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE AS IS NATURE OF THIS SALE AND
ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED
WITH THE PROPERTY. BUYER HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET
FORTH IN THIS AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS THE SIGNIFICANCE AND
EFFECT THEREOF.
ARTICLE 12
IRS FORM 1099-S DESIGNATION
12.1 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 (1) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Schedule L at or prior to
the Closing to designate the Title Company (the Designee) 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; (2) to provide the
Designee with the information necessary to complete Form 1099-S; (3) that the
Designee shall not be liable for the actions taken under this Agreement, 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 Designee; and (4) that the
Designee shall be indemnified by the parties for any costs or expenses incurred
as a result of the actions taken hereunder, except as they may be the result of
gross negligence or willful misconduct on the part of the Designee. The Designee
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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first set forth above.
SELLER:
FRAMINGHAM - 1881 ASSOCIATES,
Massachusetts general partnership
By: PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership, its
General Partner
By: FIRST EQUITY PARTNERS, INC., its General
Partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER: BERKELEY INVESTMENTS, INC.
By: /s/ John Fenton
---------------
Nme: John Fenton
Title: Senior Vice President
STEWART TITLE GUARANTY COMPANY:
By /s/ Marie L. Franco
-------------------
Name: Marie L. Franco
Title:
<PAGE>
SCHEDULE A
Legal Description of Real Property
The land, together with the buildings and improvements thereon, in the
Framingham Industrial Park, Framingham, Middlesex County, Massachusetts, bounded
and described as follows:
NORTHWESTERLY by land of The Penn Central Company, six hundred three and
09/100 (603.09) feet;
WESTERLY by land of The Penn Central Company, eight and 25/100 (8.25)
feet;
NORTHWESTERLY by land of said The Penn Central Company, fifty-two and
28/100 (52.28) feet;
NORTHEASTERLY by land of Paramount Development Associates, Inc. two
hundred thirty and 36/100 (230.36) feet;
SOUTHEASTERLY by land of said Paramount Development Associates, Inc., one
hundred fifty-eight and 26/100 (158.26) feet;
SOUTHWESTERLY by Worcester Road (Route 9), four hundred ninety and 80/100
(490.80) feet;
SOUTHWESTERLY by said Worcester Road (Route 9), two hundred one and
46/100 (201.46) feet.
Containing 142,101 square feet or 3.262 acres of land all as more fully shown as
Lot #27 on plan entitled Plan of Land in Framingham, Mass. Owned by: Paramount
Development Associates, Inc., dated Nov. 3, 1970. Survey by: MacCarthy
Engineering Service, Inc. recorded in Book 11936, Page 108.
<PAGE>
SCHEDULE B
Description of Personal Property and Intangible Property
All of the Seller's right, title and interest, if any, in and to all
personal property owned by Seller located at the Real Property, including all
furniture, carpeting, appliances, equipment, machinery, inventories, supplies,
signs and other tangible personal property of every kind and nature, if any,
owned by Seller and installed, located at and used in connection with the
ownership, occupation and operation of the Real Property, but specifically
excluding (i) any items of personal property owned by tenants at or on the Real
Property, and (ii) any items of personal property owned by third parties and
leased to Seller.
<PAGE>
REINSTATEMENT AND FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Reinstatement and First Amendment to Purchase and Sale Agreement (the
First Amendment) is entered into as of this 1st day of September 1999 by and
among Framingham-1881 Associates, a Massachusetts general partnership (Seller)
and Berkeley Investments, Inc., a Massachusetts corporation (Buyer), for the
purpose of amending that certain Purchase and Sale Agreement dated as of July
30, 1999 (the Agreement) between Seller and Buyer with respect to the Property
described therein known as and numbered 1881 Worcester Road, Framingham,
Massachusetts. Capitalized terms used in this First Amendment, if not otherwise
defined, shall have the same meaning as in the Agreement.
WHEREAS, Buyer has terminated the Agreement by written notice to Seller
dated August 31, 1999;
WHEREAS, Buyer has completed its due diligence on the Property;
WHEREAS, Seller and Buyer desire to reinstate and amend the Agreement as
set forth below:
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, Seller and Buyer hereby agree as follows:
1. Reinstatement. Buyer and Seller hereby reinstate the Agreement subject
to the modifications herein contained.
2. Purchase Price. The definition of Purchase Price contained in Article
1 of the Agreement is hereby deleted and $7,850,000.00 is substituted
therefor.
3. Due Diligence. Buyer hereby acknowledges that it has completed its due
diligence on the Property (including, but not limited to title and
survey matters) and hereby waives any right to terminate the Agreement
pursuant to Section 5.3 or 6.1 thereof.
4. Closing Date. The Closing shall take place on or before October 1,
1999. Notwithstanding the foregoing to the contrary, if on or before
October 1, 1999, Buyer deposits with the Title Company an additional
One Hundred Thousand Dollars ($100,000) to be added to the Escrowed
Amount and held in accordance with the terms of the Agreement, the
Closing Date shall be extended to a date no later than October 15,
1999. Time is of the essence.
5. Boston Edison Easement. Seller agrees to deliver to the Title Company
at Closing a letter confirming that Rock M. D'Errico has neither
received nor is aware of any written notice of violation from Boston
Edison with respect to the 100 wide easement recorded with the
Middlesex South Registry of Deeds in Book 1530, Page 280.
6. Contracts. Seller acknowledges its receipt of written notice by Buyer
requesting the termination of all existing Contracts listed on
Schedule E of the Agreement.
7. Acceptance and Additional Deposit. Sellers submission of this First
Amendment constitutes an offer to Buyer. If Buyer fails to (i) return
an executed First Amendment to Seller by 6:00 p.m. eastern time on
September 1, 1999, and (ii) deliver immediately available funds in an
amount equal to the Initial Deposit and the Additional Deposit to the
Title Company, together with an executed reinstatement of the Escrow
Agreement in the form attached hereto, by 12:00 p.m. eastern time on
September 2, 1999, this offer shall be automatically revoked, the
Agreement shall remain terminated and the parties shall have no
further obligations except for those provisions in the Agreement which
survive termination.
8. Agreement. The Agreement, as reinstated and modified herein, remains
in full force and effect and is hereby ratified and confirmed in all
respects. Seller and Buyer each agrees that this First Amendment may
be executed in counterparts, each of which will constitute an
original. Seller and Buyer each agree to permit the use of telecopier
signatures in order to expedite execution of this First Amendment.
[Remainder of Page Intentionally Left Blank]
<PAGE>
Executed as a sealed instrument as of the date set forth above.
SELLER:
FRAMINGHAM - 1881 ASSOCIATES,
a Massachusetts general partnership
By: PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership, its
General Partner
By: FIRST EQUITY PARTNERS, INC., its General
Partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
BERKELEY INVESTMENTS, INC., a Massachusetts
corporation
By: /s/ Young Park
--------------
Name: Young Park
Title: President and Treasurer
<PAGE>
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Second Amendment to Purchase and Sale Agreement (the Second
Amendment) is entered into as of this 30th day of September, 1999 by and between
Framingham-1881 Associates, a Massachusetts general partnership (Seller) and
Berkeley Investments, Inc., a Massachusetts corporation (Buyer), for the purpose
of amending that certain Purchase and Sale Agreement dated as of July 30, 1999
(the Purchase Agreement), as amended by Reinstatement and First Amendment to
Purchase and Sale Agreement dated as of September 1, 1999 (the Reinstatement;
the Purchase Agreement, as amended by the Reinstatement shall hereinafter be
referred to as the Agreement) between Seller and Buyer with respect to the
Property described therein known as and numbered 1881 Worcester Road,
Framingham, Massachusetts. Capitalized terms used in this Second Amendment, if
not otherwise defined, shall have the same meanings as in the Agreement.
WHEREAS, Buyer desires to extend the Closing Date to October 15, 1999
pursuant to Paragraph 4 of the Reinstatement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, Seller and Buyer hereby agree as follows:
1. Closing Date. Upon the Title Company's receipt of One Hundred Thousand
Dollars ($100,000) to be added to the Escrowed Amount and held in
accordance with the terms of the Agreement pursuant to Paragraph 4 of
the Reinstatement (the Extension Consideration), the Closing shall
take place on or before October 15, 1999.
2. Closing Date Extension. Notwithstanding the foregoing to the contrary,
if on or before October 15, 1999, Buyer (a) deposits with the Title
Company an additional One Hundred Thousand Dollars ($100,000) to be
added to the Escrowed Amount and held in accordance with the terms of
the Agreement (the Additional Extension Consideration) and (b)
delivers to Seller a copy of a signed financing commitment with
respect to the Property issued by an institutional lender, together
with a letter from Buyer certifying that Buyer is not then aware of
any facts or circumstances which would delay the closing under such
financing commitment beyond October 29, 1999, the Closing Date shall
be extended to a date no later than November 1, 1999. Time is of the
essence.
3. Tenant Estoppel Certificates. Buyer hereby acknowledges its receipt
and acceptance of the executed copies of the tenant estoppel
certificates referred to in Section 7.2(i) of the Agreement, in full
satisfaction of Sellers obligations under said Section 7.2(i), subject
to (a) the tenant estoppel certificates being dated on or around
September 30, 1999 and (b) a fully-executed copy of the Furniture.com
lease being attached to the estoppel certificate therefor. The
originally-executed tenant estoppel certificates shall be delivered to
Buyer at Closing.
4. Acceptance. Sellers submission of this Second Amendment constitutes an
offer to Buyer. If Buyer fails (i) to return an executed Second
Amendment by 5:00 p.m. eastern time on October 1, 1999, and (ii) to
deliver immediately available funds to the Title Company in an amount
equal to the Extension Consideration by 5:00 p.m. eastern time on
October 1, 1999, this offer shall be automatically revoked and the
Closing Date shall remain October 1, 1999, time being of the essence.
5. Agreement. The Agreement, as modified herein, remains in full force
and effect and is hereby ratified and confirmed in all respects.
Seller and Buyer each agrees that this Second Amendment may be
executed in counterparts, each of which will constitute an original.
Seller and Buyer each agree to permit the use of telecopier signatures
in order to expedite execution of this Second Amendment.
<PAGE>
Executed as a sealed instrument as of the date set forth above.
SELLER:
FRAMINGHAM - 1881 ASSOCIATES,
a Massachusetts general partnership
By: PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership, its
General Partner
By: FIRST EQUITY PARTNERS, INC., its General
Partner
By: /s/ Rock M. D'Errico
--------------------
Name: Rock M. D'Errico
Title: Vice President
BUYER:
BERKELEY INVESTMENTS, INC., a Massachusetts
corporation
By: /s/ Young Park
--------------
Name: Young Park
Title: President and Treasurer
<PAGE>
BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Framingham - 1881 Associates, a Massachusetts general
partnership (Seller), with a place of business at c/o PaineWebber Properties,
Incorporated, 265 Franklin Street, Floor Fifteen, Boston, Massachusetts 02110
hereby grants, bargains, conveys, sets over, transfers, assigns and delivers
unto Ber Tech 1881 LLC, a Delaware limited liability company, its successors and
assigns (Purchaser), with a place of business in c/o Berkeley Investments, Inc.,
121 High Street, Boston, Massachusetts 02110, all of Sellers right, title and
interest in and to all personal property (the Personalty) of every kind and
nature now or hereafter installed, located, attached or used in connection with
the operation of the parcel of land, with the buildings and improvements thereof
erected, situate, lying and being in the Town of Framingham, Middlesex County,
Massachusetts, now known and numbered as 1881 Worcester Road, and more
particularly bounded and described as set forth on the attached Schedule 1
(collectively, the Premises), to have and to hold the same unto Purchaser, its
successors and assigns forever, subject to the Permitted Exceptions set forth in
Schedule 2 attached hereto and made a part hereof and the rights, if any, of
tenants of the Premises in and to any of said Personalty.
EXECUTED as a sealed instrument as of the 1st day of November, 1999.
SELLER:
FRAMINGHAM - 1881 ASSOCIATES,
a Massachusetts general partnership
By: PAINEWEBBER EQUITY PARTNERS ONE
LIMITED PARTNERSHIP, a Virginia
limited partnership, its General Partner
By: FIRST EQUITY PARTNERS, INC.,
its General Partner
By: /s/ Peter F. Sullivan
---------------------
Peter F. Sullivan
Vice President
<PAGE>
Schedule 1
Legal Description of the Premises
The land, together with the buildings and improvements thereon, in the
Framingham Industrial Park, Framingham, Middlesex County, Massachusetts, bounded
and described as follows:
NORTHWESTERLY by land of The Penn Central Company, six hundred three and
09/100 (603.09) feet;
WESTERLY by land of The Penn Central Company, eight and 25/100 (8.25)
feet;
NORTHWESTERLY by land of said The Penn Central Company, fifty-two and
28/100 (52.28) feet;
NORTHEASTERLY by land of Paramount Development Associates, Inc. two hundred
thirty and 36/100 (230.36) feet;
SOUTHEASTERLY by land of said Paramount Development Associates, Inc., one
hundred fifty-eight and 26/100 (158.26) feet;
SOUTHWESTERLY by Worcester Road (Route 9), four hundred ninety and 80/100
(490.80) feet;
SOUTHWESTERLY by said Worcester Road (Route 9), two hundred one and
46/100 (201.46) feet.
Containing 142,101 square feet or 3.262 acres of land all as more fully shown as
Lot #27 on plan entitled Plan of Land in Framingham, Mass. Owned by: Paramount
Development Associates, Inc., dated Nov. 3, 1970. Survey by: MacCarthy
Engineering Service, Inc. recorded in Book 11936, Page 108.
<PAGE>
Schedule 2
Permitted Exceptions
1. Terms and provisions of Easement Agreement dated November 22, 1983 by and
between Boston Edison Company and Frass Associates and recorded with the
Middlesex South Registry of Deeds in Book 15360, Page 280.
2. Easements set forth in grant to New England Telephone and Telegraph
Company dated July 10, 1984 and recorded with said Deeds in Book 15687,
Page 193.
3. Restrictions imposed in Deed from Paramount Development Associates, Inc.
to the Bekins Company dated December 23, 1970 and recorded with said Deeds
in Book 11936, Page 108.
4. One hundred (100) foot transmission line easement belonging to Boston
Edison Company by virtue of a Taking dated February 3, 1956 and recorded
with said Deeds in Book 8675, Page 70, as affected by confirmatory grant
dated May 29, 1957 recorded with said Deeds in Book 8962, Page 219 and
Agreement dated November 15, 1961 and recorded with said Deeds in Book
9965, Page 355.
<PAGE>
QUITCLAIM DEED
Property Address: 1881 Worcester Road, Framingham, MA
FRAMINGHAM-1881 ASSOCIATES (formerly known as Frass Associates), a Massachusetts
general partnership having its usual place of business in c/o PaineWebber
Properties, Incorporated, 265 Franklin Street, 15th Floor, Boston, Massachusetts
02110 for consideration paid, and in full consideration of Seven Million Eight
Hundred Fifty Thousand and 00/100 ($7,850,000) grants to BER TECH 1881 LLC, a
Delaware limited liability company, with a principal place of business in c/o
Berkeley Investments, Inc., 121 High Street, Boston, Massachusetts 02110 with
QUITCLAIM COVENANTS the land, together with all buildings and improvements
thereon, known and numbered as 1881 Worcester Road in the Framingham Industrial
Park, Framingham, Middlesex County, Massachusetts, bounded and described as
follows:
NORTHWESTERLY by land of The Penn Central Company, six hundred three and
09/100 (603.09) feet;
WESTERLY by land of The Penn Central Company, eight and 25/100
(8.25) feet;
NORTHWESTERLY by land of said The Penn Central Company, fifty-two and
28/100 (52.28) feet;
NORTHEASTERLY by land of Paramount Development Associates, Inc., two
hundred thirty and 36/100 (230.36) feet;
SOUTHEASTERLY by land of said Paramount Development Associates, Inc., one
hundred fifty-eight and 26/100 (158.26) feet;
SOUTHWESTERLY by Worcester Road (Route 9), four hundred ninety and 80/100
(490.80) feet;
SOUTHWESTERLY by said Worcester Road (Route 9), two hundred one and
46/100 (201.46) feet.
Containing approximately 142,101 square feet or 3.262 acres of land all as more
fully shown as Lot #27 on plan entitled Plan of Land in Framingham, Mass. Owned
by: Paramount Development Associates, Inc. Scale l = 40 Nov. 3, 1970. Survey by:
MacCarthy Engineering Service, Inc. Natick & Marlborough, Mass. recorded in Book
11936, Page 108.
<PAGE>
EXECUTED as a sealed instrument as of the 1st day of November, 1999.
SELLER:
FRAMINGHAM - 1881 ASSOCIATES (f/k/a Frass
Associates), a Massachusetts general partnership
By: PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership, its
General Partner
By: FIRST EQUITY PARTNERS, INC.,
its General Partner
By: /s/ Peter F. Sullivan
---------------------
Peter F. Sullivan
Vice President
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. __________________, 1999
Then before me personally appeared the above-named Peter F. Sullivan, Vice
President of First Equity Partners, Inc., the general partner of PaineWebber
Equity Partners One Limited Partnership, a Virginia limited partnership, the
general partner of Framingham - 1881 Associates, a Massachusetts general
partnership, who acknowledged the foregoing document to be his free act and deed
as Vice President of First Equity Partners, Inc. and the free act and deed of
First Equity Partners, Inc., before me.
--------------------------------
Notary Public
My commission expires:
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
This Assignment and Assumption of Leases (the Assignment) is made on this
1st day of November, 1999 by and between Framingham - 1881 Associates, a
Massachusetts general partnership (Assignor), with a place of business at c/o
PaineWebber Properties, Incorporated, 265 Franklin Street, 15th Floor, Boston,
Massachusetts 02110 and Ber Tech 1881 LLC, a Delaware limited liability company
(Assignee), with an address at c/o Berkeley Investments, Inc., 121 High Street,
Boston, Massachusetts 02110.
WITNESSETH THAT:
WHEREAS, Assignor is the lessor under those certain leases (Leases) listed
on Schedule 1 hereto, by and between Assignor, as landlord, and those tenants
listed on Schedule 1 hereto, as lessees, covering certain land (Land) located in
the Town of Framingham, Middlesex County, Massachusetts, which Land is more
particularly described in Schedule 2, attached hereto and made a part hereof,
and the improvements (Improvements) erected on the Land.
WHEREAS, said Land and Improvements have been conveyed this day by
Assignor to Assignee.
WHEREAS, Assignee desires to acquire from Assignor and assume, and
Assignor desires to transfer and assign to Assignee, the Leases.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Assignor and
Assignee, the parties hereto agree as follows:
1. Assignor hereby unconditionally ASSIGNS, TRANSFERS, SETS OVER AND
DELIVERS unto Assignee all of the landlords interest under the Leases and the
leasehold estates created thereby, including any and all security deposits, and
all of the rights, benefits and privileges of the landlord thereunder, but
subject to all terms, conditions, reservations and limitations set forth in the
Leases. Assignor shall indemnify, defend and hold Assignee harmless from and
against any loss, cost or expense including, but not limited to, reasonable
attorneys fees and court costs, resulting from any failure of Assignor to
perform and fulfill any and all of the landlords obligations under the Leases
arising or to be performed prior to the date of the Assignment.
2. Assignee hereby accepts the foregoing assignment from Assignor of the
Leases and hereby assumes and agrees to abide by all of the obligations of the
landlord under the Leases arising and to be performed from and after the date of
the Assignment. Assignee shall indemnify, defend and hold Assignor harmless from
and against any loss, cost or expense including, but not limited to, reasonable
attorneys fees and court costs, resulting from any failure of Assignee to
perform and fulfill any and all of the landlords obligations under the Leases
arising or to be performed on or after the date of the Assignment.
<PAGE>
IN WITNESS WHEREOF, this Assignment is executed on the date first set forth
above.
ASSIGNEE:
BER TECH 1881 LLC, a Delaware limited liability
company
By: Berkeley Investments, Inc., its Managing Member
By: /s/ Young Park
--------------
Name: Young Park
Title: President and Treasurer
ASSIGNOR:
FRAMINGHAM - 1881 ASSOCIATES,
a Massachusetts general partnership
By: PAINEWEBBER EQUITY PARTNERS ONE
LIMITED PARTNERSHIP, a Virginia
limited partnership, its General Partner
By: FIRST EQUITY PARTNERS, INC.,
its General Partner
By: /s/ Peter F. Sullivan
---------------------
Peter F. Sullivan
Vice President
<PAGE>
Schedule 1
List of Leases
Building Lease by and between Framingham-1881 Associates, as Landlord, and
Mariner Health Group, Inc., as Tenant, dated August 26, 1997
Building Lease by and between Framingham-1881 Associates, as Landlord, and
Furniture.com, Inc., as Tenant, dated March 16, 1999
<PAGE>
Schedule 2
Legal Description
The land, together with the buildings and improvements thereon, in the
Framingham Industrial Park, Framingham, Middlesex County, Massachusetts, bounded
and described as follows:
NORTHWESTERLY by land of The Penn Central Company, six hundred three and
09/100 (603.09) feet;
WESTERLY by land of The Penn Central Company, eight and 25/100 (8.25)
feet;
NORTHWESTERLY by land of said The Penn Central Company, fifty-two and
28/100 (52.28) feet;
NORTHEASTERLY by land of Paramount Development Associates, Inc. two hundred
thirty and 36/100 (230.36) feet;
SOUTHEASTERLY by land of said Paramount Development Associates, Inc., one
hundred fifty-eight and 26/100 (158.26) feet;
SOUTHWESTERLY by Worcester Road (Route 9), four hundred ninety and 80/100
(490.80) feet;
SOUTHWESTERLY by said Worcester Road (Route 9), two hundred one and
46/100 (201.46) feet.
Containing 142,101 square feet or 3.262 acres of land all as more fully shown as
Lot #27 on plan entitled Plan of Land in Framingham, Mass. Owned by: Paramount
Development Associates, Inc., dated Nov. 3, 1970. Survey by: MacCarthy
Engineering Service, Inc. recorded in Book 11936, Page 108.
<PAGE>
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES
This Assignment and Assumption of Contracts and Intangibles (the
Assignment) is made as of November 1, 1999 by and between Framingham - 1881
Associates, a Massachusetts general partnership (Assignor), with a place of
business at c/o PaineWebber Properties, Incorporated, 265 Franklin Street, 15th
Floor, Boston, Massachusetts 02110 and Ber Tech 1881 LLC (Assignee), a Delaware
limited liability company with an address at c/o Berkeley Investments, Inc., 121
High Street, Boston, Massachusetts 02110.
WITNESSETH THAT:
WHEREAS, Assignor is the owner of the real estate described in Exhibit A
attached hereto and made a part hereof, and the improvements located thereon
(hereinafter referred to collectively as the Property);
WHEREAS, Assignor possesses right, title and interest in, to and under
certain contracts and other intangibles obtained or entered into by Assignor
with respect to the operation of the Property, including, without limitation,
service, operating and construction contracts, granted or used in connection
with the ownership, operation, management, maintenance or otherwise with respect
to the Property as listed in Exhibit B attached hereto (the Contracts);
WHEREAS, said Property has been conveyed this day by Assignor to Assignee;
WHEREAS, Assignee desires to acquire from Assignor and assume, and
Assignor desires to transfer and assign to Assignee, the Contracts;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Assignor and
Assignee, the parties hereto agree as follows:
1. Assignment. Assignor hereby unconditionally ASSIGNS, TRANSFERS, SETS
OVER AND DELIVERS unto Assignee all of Assignors right, title and interest in,
to and under the Contracts, and all of the rights, interests, benefits and
privileges of Assignor thereunder, but subject to all terms, conditions,
obligations, liabilities, reservations and limitations set forth in the
Contracts. Assignor shall indemnify, defend and hold Assignee harmless from and
against any loss, cost or expense including, but not limited to, reasonable
attorneys fees and court costs, resulting from any failure of Assignor to
perform and fulfill any and all of Assignors obligations as owner of the
Property under the Contracts arising or to be performed prior to the date of the
Assignment.
2. Acceptance. Assignee hereby accepts the foregoing assignment from
Assignor of the Contracts and hereby assumes and agrees to abide by all of the
obligations of Assignor under the Contracts arising and to be performed from and
after the date of the Assignment. Assignee shall indemnify, defend and hold
Assignor harmless from and against any loss, cost or expense including, but not
limited to, reasonable attorneys fees and court costs, resulting from any
failure of Assignee to perform and fulfill any and all of the owners obligations
under the Contracts arising or to be performed on or after the date of this
Agreement.
3. Amendments. This Agreement shall not be altered, amended, changed,
waived, terminated or otherwise modified in any respect or particular unless the
same shall be in writing and signed by or on behalf of the party to be charged
therewith.
4. Governing Law; Waiver of Trial By Jury. This Agreement shall be
interpreted and enforced in accordance with the laws of the Commonwealth of
Massachusetts. Each of Assignor and Assignee agree to submit to jurisdiction in
the Commonwealth of Massachusetts with respect to any dispute under or arising
out of this Agreement and agree that any such dispute shall be brought either in
the courts of the Commonwealth of Massachusetts or in the applicable federal
district court located in Massachusetts. If any provisions 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. Assignor and Assignee hereby each
waive trial by jury in any action, proceeding or counterclaim brought by either
against the other, on or in respect of any matter whatsoever arising out of or
in any way connected with this Agreement or the relationship of Assignor and
Assignee.
5. Successors and Assigns. 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.
6. Waivers. No failure or delay of either party in the exercise of any
right given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit shall constitute a waiver of any other or further
right or condition nor shall any single or partial exercise of any right
preclude other or further exercise thereof or any other right. The waiver of any
breach hereunder shall not be deemed to be a waiver of any other or any
subsequent breach hereof.
7. Exhibits. Each of the Exhibits referred to herein is attached hereto,
made a part hereof and is incorporated in this Agreement by this reference as
though fully set forth herein.
8. Section Headings. The section 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.
9. Recording and Binding Effect. This Agreement shall not be recorded or
registered by or for the benefit of Assignee and any recordation or registration
by or for the benefit of Assignee hereof shall be void and shall constitute a
default by Assignee hereunder.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which taken together shall constitute but one and the same
instrument. All signatures need not appear on any single counterpart.
<PAGE>
IN WITNESS WHEREOF, this Assignment is executed on the date first set
forth above.
ASSIGNEE:
BER TECH 1881 LLC
By: Berkeley Investments, Inc., its Managing Member
By: /s/ Young Park
--------------
Name: Young Park
Title: President and Treasurer
ASSIGNOR:
FRAMINGHAM - 1881 ASSOCIATES,
a Massachusetts general partnership
By: PAINEWEBBER EQUITY PARTNERS ONE LIMITED
PARTNERSHIP, a Virginia limited partnership,
its General Partner
By: FIRST EQUITY PARTNERS, INC.,
its General Partner
By: /s/ Peter F. Sullivan
---------------------
Peter F. Sullivan
Vice President
<PAGE>
Framingham -- 1881 Associates (Seller) to
Ber Tech 1881 LLC (Buyer)
Property: 1881 Worcester Road, Framingham, MA
Settlement Statement
as of November 1, 1999
Purchase Price $7,850,000.00
Less: Deposit 450,000.00
----
Security Deposit 150,000.00 (600,000.00)
----------
Plus: Title Insurance (1) 8,994.25
Real Estate Taxes (2) 17,322.20 26,316.45
---------- -------------
AMOUNT PAID BY BUYER $7,276,316.45
Purchase Price 7,850,000.00
Less: Security Deposit 150,000.00
---- Deed Stamps 35,796.00
Broker Fees 274,450.00
Recording Fees (Deed) 25.00
Tenant Allowance 295,083.00 (755,354.00)
----------
Plus: Real Estate Taxes 17,322.20 17,322.20
---- -------------
NET SALES PROCEEDS TO SELLER $7,111,968.20 (3)
=============
- -----------------
1 See Exhibit A
2 Real Estate Taxes of $26,125.28 for 2nd quarter FY 2000 were paid by Seller
prior to Closing. Buyer owes Seller for the period beginning November 1,
1999 and ending December 31, 1999.
$26,125.28 x 61 days = $17,322.20 ($283.97 per diem)
92 days
3 Includes $450,000 held by Title Company as Escrowed Amount
<PAGE>
FUNDS DISBURSED:
1. Wire total net sales proceeds to Seller: $7,111,968.20
a. Wire to Seller pursuant to Exhibit B
2. Deed stamps: $35,796.00
3. Recording Fees/Title Insurance: $9,019.25
4. Broker Fees (check to Boston Real
Estate Partners - to be picked up by Broker) $274,450.00
5. Send Tenant Allowance to Furniture.com:
a. Send a check to Furniture.com pursuant to
Exhibit C $295,083.00
TOTAL FUNDS DISBURSED: $7,726,316.45
SELLER: BUYER:
FRAMINGHAM - 1881 ASSOCIATES BER TECH 1881 LLC
By: PaineWebber Equity One Limited By: Berkeley Investments, Inc.,
Limited Partnership, its General its Managing Member
Partner
By: First Equity Partners, Inc., its By: /s/ Young Park
General Partner --------------
Name: Young Park
Title: President and Treasurer
By: /s/ Peter F. Sullivan
---------------------
Peter F. Sullivan
Vice President
