SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
August 23, 1995
(Date of Report; Date of Earliest Event Reported)
PRUDENTIAL REALTY TRUST
(Exact Name of Registrant as specified in its Charter)
Massachusetts 1-8965 22-6400284
(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.)
Prudential Plaza, Newark, New Jersey 07102
(Address of Principal Executive Offices) (Zip Code)
(201) 802-4302
(Registrant's telephone no., including area code)
<PAGE>
Item 1. Not Applicable.
Item 2. Acquisition or Disposition of Assets.
Disposition of Park 100 Portfolio.
In furtherance of resolutions adopted by the Board
on June 2, 1995 to effect the liquidation and termination of
the Trust, on August 23, 1995 the Trust completed the sale
of its Park 100 Portfolio of properties located in
Indianapolis, Indiana (the "Park 100 Portfolio") to Security
Capital Industrial Trust, a Maryland real estate investment
trust (the "Buyer") for a sales price of $38.8 million,
with net proceeds to the Trust of $37.3 million. The Park 100
Portfolio consists of 18 industrial buildings. The sales
price was determined by negotiation between the Trust and
the Buyer. The sale was completed pursuant to a Purchase
and Sale Agreement, dated June 7, 1995, between the Trust
and the Buyer, which Agreement was the subject of a current
report by the Trust on Form 8-K dated June 2, 1995 and filed
June 21, 1995.
The sale of the Park 100 Portfolio and the
expected sales of the Trust's Huntington Properties (as
defined below) and the Trust's Maple Plaza I and II
properties located in Parsippany, Morris County, New Jersey,
(the "Maple Plaza Properties"), at the sales price
received in the case of the Park 100 Portfolio, at the
agreed price in the case of the Huntington Properties and at
the bid price in the case of the Maple Plaza Properties,
could result in a distribution to holders of Income Shares
upon liquidation of over $5.00 per Income Share. There
would be no available distribution to holders of Capital
Shares. This assumes liquidation takes place in December
1995, and includes estimates for commissions and state and
local taxes related to the sales, and other expenses related
to the liquidation of the Trust.
Items 3 and 4. Not Applicable.
<PAGE>
Item 5. Other Events.
(a) Agreement of Purchase and Sale of Huntington
Business Campus I and II.
In furtherance of resolutions adopted by the Board
on June 2, 1995 to effect the liquidation and termination of
the Trust, the Trust entered into an Amended and Restated
Agreement of Purchase and Sale (the "Huntington Agreement"),
dated as of August 23, 1995, with Reckson Operating
Partnership, L.P., a Delaware limited partnership ("Buyer"),
for the sale of the Trust's Huntington Business Campus I &
II properties located in Melville, Long Island, New York
(the "Huntington Properties"). The sales price for the
Huntington Properties is $11,400,000 (subject to adjustment
as provided for in the Huntington Agreement), which is
payable in cash.
The closing of the sale of the Huntington
Properties (the "Closing") is to occur no later than the
earlier of (x) the third business day following receipt by
the Trust of a statement of tentative assessment or
statement of no tax due under Article 31-B of the New York
Tax Law and any rules and regulations promulgated thereunder
and (y) September 15, 1995, subject to extensions as
provided therein. Closing is contingent upon customary
conditions for transactions of this nature.
The Buyer has deposited $287,500 in cash as
earnest money ("Earnest Money") with an escrow agent. At
and upon the Closing, the escrow agent will pay the Earnest
Money, including interest thereon, if any, to Seller or to
the party entitled to receive the Earnest Money in
accordance with the terms of the Huntington Agreement.
If all of the conditions to Buyer's obligations to
purchase the Huntington Properties have been satisfied or
waived by Buyer and if Buyer fails to consummate the
transaction for any reason other than the Trust's default or
the exercise by Buyer of an express right of termination as
provided for in the Huntington Agreement, the Trust's sole
<PAGE>
remedy is to terminate the Huntington Agreement and to
retain the Earnest Money as liquidated damages. If the
Trust does not consummate the sale of the Huntington
Properties for any reason other than the default of Buyer or
the exercise by Buyer of a right of termination as provided
for in the Huntington Agreement, the Earnest Money will be
refunded to Buyer. If Buyer terminates the Huntington
Agreement due to certain circumstances set forth in the
Huntington Agreement, the Trust shall reimburse Buyer for
all out-of-pocket costs and expenses, including reasonable
attorneys' fees, incurred by Buyer up to a maximum
reimbursement amount of $50,000 in connection with the
preparation, negotiation and execution of the Huntington
Agreement and Buyer's due diligence review of the Huntington
Properties.
A copy of the Huntington Agreement is filed as
Exhibit 10 hereto, and is incorporated herein by reference.
The foregoing description of the Agreement is qualified in
its entirety by reference to the text of such document.
Item 6. Not Applicable.
Item 7. Financial Statements,
Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Pro Forma Balance Sheet as of June 30, 1995.
Pro Forma Statement of Changes in Net Assets as of
June 30, 1995.
<PAGE>
Prudential Realty Trust
Pro Forma Balance Sheet
As of June 30, 1995
(Unaudited)
The following unaudited Balance Sheet has been presented as if (i) the
Park 100 properties were sold on June 30, 1995; (ii) the Trust's loan
payable and related interest expense was paid off as of June 30, 1995;
and (iii) the Trust adopted the liquidation basis of accounting as of
June 30, 1995. The pro forma adjustments reflect the elimination of
the carrying amount of the Park 100 properties and related assets and
liabilities, the receipt of cash proceeds from the sale, the
elimination of the loan and interest payable, the effect of the
adoption of the liquidation basis of accounting on the Trust, and the
impact on Stockholders' Equity.
Pro Forma
Historical Adjustments Pro Forma
ASSETS
Real estate owned $69,523,975 (a) $(32,254,255) $39,502,996
(b) 2,233,276
Cash & cash equivalents 2,509,589 (c) 18,022,780 20,532,369
Accounts receivable 620,469 (d) 1,000,000 2,839,323
(a) (106,146)
(e) 1,325,000
Prepaid expenses 239,455 (b) (239,455) 0
Deferred rent receivable 2,523,701 (a) (162,695) 0
(b) (2,361,006)
Deferred financing costs 56,250 (b) (56,250) 0
TOTAL ASSETS $75,473,439 $(12,598,751) $62,874,688
LIABILITIES & STOCKHOLDERS' EQUITY
Accounts payable and
accrued expenses $ 2,506,295 (a) $ (72,598) $4,182,818
(e) 2,011,000
(c) (261,879)
Loans payable 18,062,123 (c) (18,062,123) 0
Due to advisor 250,312 250,312
Security deposits 405,046 (a) (197,466) 207,580
Other 97,651 (a) (96,246) 1,405
Total Liabilities $21,321,427 $(16,679,312) $4,642,115
<PAGE>
Prudential Realty Trust
Pro Forma Balance Sheet
As of June 30, 1995
(Unaudited)
LIABILITIES & STOCKHOLDERS' EQUITY continued
Pro Forma
Historical Adjustments Pro Forma
Income Shares $89,080,000 $89,080,000
Capital Shares 111,350 111,350
Additional paid
in capital 12,879,052 12,879,052
Distribution in excess
of net income (47,918,390) (a) $5,189,996 (43,837,829)
(b) (423,435)
(e) (686,000)
Total Shareholders'
Equity $54,152,012 $ 4,080,561 $58,232,573
TOTAL LIABILITIES &
SHAREHOLDERS' EQUITY $75,473,439 $(12,598,751) $62,874,688
(a) Sale of Park 100 properties and elimination of related asset and
liability accounts.
(b) Adjust properties and related assets to net realizable value under
the liquidation basis of accounting.
(c) Receipt of cash proceeds from the sale of Park 100 properties net of
repayment of loans and related interest payable.
(d) Amount due November 1, 1995 from sale of Park 100.
(e) Adjust amounts to provide for expected net loss of liquidating the
Trust until the expected date of disposition of Trust assets.
<PAGE>
Prudential Realty Trust
Pro Forma Statement of Changes in Net Assets
(in process of liquidation)
(Unaudited)
Because the Trust has adopted the liquidation basis of accounting, a
Statement of Operations is not provided herein. However, a Pro Forma
Statement of Changes in Net Assets is provided as follows:
Net assets at June 30, 1995 - Historical $54,152,012
Gain on Sale of Park 100 5,189,996
Adoption of Liquidation Basis of
Accounting (423,435)
Expected Trust Net loss to expected
date of disposition of Trust Assets (686,000)
Pro Forma Net assets in liquidation at June 30, 1995 $58,232,573
<PAGE>
(c) Exhibits Required by Item 601 of Regulation S-K.
Exhibit
No.
10 Amended and Restated Agreement of Purchase
and Sale, dated as of August 25, 1995,
between Prudential Realty Trust and Reckson
Operating Partnership, L.P.
Item 8. Not Applicable.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned
hereunto duly authorized.
Dated: September 7, 1995
PRUDENTIAL REALTY TRUST
By: /s/ James W. McCarthy
Name: James W. McCarthy
Title: Vice President,
Comptroller and Principal
Accounting Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
10 Amended and Restated Agreement of
Purchase and Sale dated as of
August 25, 1995, between Prudential
Realty Trust and Reckson Operating
Partnership, L.P.
<PAGE>
EXHIBIT 10
AMENDED AND RESTATED AGREEMENT OF PURCHASE AND SALE
[Huntington Business Campus I & II]
ARTICLE 1: PROPERTY/PURCHASE PRICE
1.1 Certain Basic Terms.
(a) Seller: PRUDENTIAL REALTY TRUST, a
Massachusetts business trust.
(b) Purchaser: RECKSON OPERATING PARTNERSHIP,
L.P., a Delaware limited
partnership.
(c) Date of this Agreement: The latest date of execution
by Seller or Purchaser, as
indicated on the signature
page.
(d) Purchase Price: $11,400,000.
(e) Earnest Money: $287,500, plus interest, if
any, thereon.
(f) Due Diligence Period: The period ending August 21,
1995, or as extended as
provided herein.
(g) Closing Date: As agreed between Seller and
Purchaser but no later than
the earlier of (x) the third
(3rd) business day following
receipt by Seller of a
statement of tentative
assessment or statement of no
tax due under the Gains Tax
Law and (y) September 15,
1995, subject to extension as
provided herein. All
extension periods for the
Closing provided herein shall
run concurrently, not
consecutively.
(h) Title Company: Commonwealth Land Title
Insurance Company
655 Third Avenue, Floor 11
New York, New York 10017
Attn: William Deatley
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Telephone: 212-949-0100
Facsimile: 212-983-8430
or
Lawyers Title Insurance
Corporation
708 Third Avenue
New York, New York
Attn: Craig Fedder
Telephone: 212-557-9170
(i) Escrow Agent: Sullivan & Cromwell
250 Park Avenue, 15th Floor
New York, New York 10177
Attn: Ruddick C. Lawrence, Jr.
Telephone: 212-558-3138
Facsimile: 212-558-3792
1.2 Property. Subject to the terms and conditions of
this agreement ("Agreement"), Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller the
property ("Property") described as follows:
(a) The "Real Property," being the lands described in
Exhibit A attached hereto together with (i) all improvements
located thereon ("Improvements"), (ii) all and singular the
rights, benefits, privileges, easements, tenements,
hereditaments, and appurtenances thereon or in anywise
appertaining to such real property, and (iii) without
warranty all right, title, and interest of Seller in and to
all strips and gores and any land lying in the bed of any
street, road or alley, open or proposed, adjoining such real
property.
(b) The landlord's interest in the "Leases," being all
leases, licenses and occupancy agreements affecting the
Improvements and any security deposits made by any person or
entity in connection therewith, including leases which may
be made by Seller after July 7, 1995 (the "Initial Execution
Date") and prior to Closing as permitted by this Agreement.
Seller's interest in all uncollected insurance proceeds and
condemnation awards with respect to the Property.
(c) The "Tangible Personal Property," being all
equipment, machinery, fixtures, furniture, furnishings,
supplies and other tangible personal property owned by
Seller, and Seller's interest in any such property leased by
Seller, now or hereafter located in and used in connection
with the operation, ownership or management of the Real
Property.
<PAGE>
(d) Seller's interest in the "Intangible Personal
Property," being all intangible personal property related to
the Real Property, to the extent such property is
assignable, including, without limitation: all trade names
and trade marks associated with the Real Property including
Seller's rights and interests in the name of the Real
Property to the extent, if any, Seller has any such rights;
the plans and specifications and other architectural and
engineering drawings for the Improvements; warranties;
contract rights related to the construction, operation,
ownership, or management of the Real Property (but excluding
Seller's obligations thereunder except those expressly
assumed pursuant to this Agreement); governmental permits,
approvals and licenses (to the extent assignable); and
telephone exchange numbers (to the extent assignable).
1.3 Earnest Money. On the Initial Execution Date
Purchaser deposited the Earnest Money with the Escrow Agent.
The Escrow Agent shall pay the Earnest Money to Seller at
and upon the Closing, or otherwise, to the party entitled to
receive the Earnest Money in accordance with this Agreement.
The Earnest Money shall be held in an interest-bearing
account and disbursed by the Escrow Agent pursuant to that
Earnest Money Escrow Agreement which the parties have
executed simultaneously with this Agreement.
If all of the conditions to Purchaser's obligation to
purchase the Property have been satisfied or waived in
writing by Purchaser and if Purchaser should fail to
consummate this transaction for any reason other than
Seller's default or the exercise by Purchaser of an express
right of termination granted herein, Seller's sole remedy in
such event shall be to terminate this Agreement and to
retain the Earnest Money as liquidated damages, Seller
waiving all other rights or remedies in the event of such
default by Purchaser. The parties acknowledge that Seller's
actual damages in the event of a default by Purchaser under
this Agreement will be difficult to ascertain, and that such
liquidated damages represent the parties' best estimate of
such damages. Purchaser shall be entitled to all remedies
at law or in equity in the event of Seller's default,
including the remedy of specific performance. The Earnest
Money shall promptly be returned to Purchaser in the event
of a Seller default hereunder (but not as Purchaser's sole
remedy in such event) or if Purchaser elects to terminate
this Agreement pursuant to an express right herein granted
or failure of a condition. Purchaser must exercise any
right of termination as to all the Property and may not
terminate this Agreement as to only a portion of the
Property.
<PAGE>
In the event Seller should fail or be unable to
consummate the transactions contemplated hereunder for any
reason other than the default of Purchaser hereunder or the
transaction fails to close due to the exercise by Purchaser
of a right of termination hereunder, in addition to any
other remedies that may be available to Purchaser pursuant
to this Agreement, the Earnest Money shall be refunded to
Purchaser. If Purchaser terminates this Agreement pursuant
to Paragraph 5.2(d), in addition to any other reimbursement
right hereunder, Seller shall reimburse Purchaser upon
demand and presentment of paid invoices for all out of
pocket costs and expenses, including reasonable attorneys'
fees, incurred by Purchaser up to a maximum reimbursement
amount of $50,000 in connection with the preparation,
negotiation and execution of this Agreement, Purchaser's due
diligence review of the Property and otherwise in connection
with the transactions contemplated hereunder ("Due Diligence
Costs").
ARTICLE 2: INSPECTION
2.1 Seller's Delivery of Specified Documents.
Beginning on July 7, 1995 and with all access and deliveries
completed by July 14, 1995 or as otherwise provided herein
(with Purchaser having continuing access to the Property
Information to and through the Closing Date), Seller shall
deliver or provide access to Purchaser at the Property the
following with respect to the Property, to the extent not
heretofore delivered to Purchaser (collectively, the
"Property Information"):
(a) Rent Roll. A current rent roll and delinquency
report in the form attached hereto as Exhibit B ("Rent
Roll") and a billing and collection statement for June;
(b) Operating Statements. Operating statements of the
Property for the 36 months preceding May 30, 1995
("Operating Statements"), and, as they become available,
operating statements for each succeeding month;
(c) Tax Statements. Copies or a summary of ad valorem
tax statements relating to the Property for the current year
or other current tax period (if available) and for the 24
months preceding the Agreement;
(d) Leases. Copies of all Leases (including all
amendments and guarantees);
(e) Tenant Information. Information relative to
tenant payment history and leasing commissions and all
<PAGE>
tenant correspondence and commission agreements relating to
the Property. All such commission agreements shall be
delivered to Purchaser on or before July 14, 1995. Any such
information and correspondence in Seller's possession is
located in and will be made available to Purchaser at
Seller's property management office at the Property;
(f) Service Contracts. A list together with copies of
all management, service, supply, equipment rental, and other
contracts related to the operation of the Property ("Service
Contracts");
(g) Maintenance Records. All available maintenance
work orders for the 12 months preceding this Agreement;
(h) List of Capital Improvements. A list of all
capital improvements known to Seller and performed on the
Property within the 24 months preceding this Agreement,
including, without limitation, all roof and HVAC work;
(i) Environmental Documents. Any environmental
reports in Seller's possession related to the Property; any
written claims, notices, demands, suits or other
communication in Seller's possession relating to any alleged
violation of any federal, state or local law or regulation
relating to the environment, health or safety, or any
recognized environmental condition (as hereinafter defined)
with respect to the Property;
(j) Plans and Specifications. All construction plans
and specifications in Seller's possession relating to the
original development of the Property and any major capital
repairs or tenant improvements. Any such information in
Seller's possession is located in and will be made available
to Purchaser at Seller's property management office at the
Property;
(k) Zoning Materials. All certificates of occupancy,
and letters or other information with respect to zoning
compliance by the Property;
(l) List of Security Deposits. A list of all security
deposits held by Seller pursuant to the Leases; and
(m) Other Documents. Any other documents located in
Seller's possession relating to the Property.
Seller shall provide to Purchaser any documents
described above and coming into Seller's possession or
produced by Seller after the initial delivery above and to
<PAGE>
continue to provide same during the pendency of this
Agreement.
2.2 Due Diligence. Purchaser shall have through the
last day of the Due Diligence Period in which to examine,
inspect, and investigate the Property. Notwithstanding
anything to the contrary in this Agreement, Purchaser may
terminate this Agreement by giving notice of termination to
Seller on or before the applicable date and time indicated
for any of the following reasons:
(a) Net Operating Income and Leases. Purchaser may
terminate this Agreement on or before 5:00 p.m. EST,
July 17, 1995, if Purchaser has determined, acting in
good faith, that any of the following is not
satisfactory to Purchaser: (i) net operating income
for Leases in place for the periods indicated as set
forth in the "J.P. Morgan Descriptive Memorandum
("Memorandum"), including, without limitation, Exhibit
III-1: Consolidated Cash Flow Projections for 1995",
employing the method of calculation set forth therein
(ii) the existence and magnitude of tenant defaults or
delinquencies as of June 30, 1995 and the credit-
worthiness of the tenants; or (iii) material provisions
(including, without limitation, termination rights) in
any of the Leases, including those out for signature.
(b) Environmental Investigation. Purchaser may
terminate this Agreement on or before the expiration of
the Due Diligence Period if Purchaser concludes that
there is a recognized environmental condition affecting
the Property. For purposes of this subparagraph (a) a
"recognized environmental condition" is that defined by
the "American Society for Testing and Materials
Standard Practice for Environmental Site Assessments:
Phase I Site Assessment Process (E 1527-93)" (the "ASTM
Phase I Standard") as the presence or likely presence
of any hazardous substances or petroleum products on or
in the vicinity of the Property under conditions that
indicate an existing release or a past release or an
imminent threat of a release of any hazardous
substances or petroleum products into structures on the
Property or into the ground, groundwater or surface
water of the Property. The term "recognized
environmental condition" includes hazardous substances
or petroleum products even under conditions in
compliance with laws. The term "recognized
environmental condition" is not intended to include de
minimis conditions that generally do not (and with the
passage of time, will not) present a material risk of
harm to public health or the environment and that
<PAGE>
generally would not be (and with the passage of time,
would not become) the subject of an enforcement action
if brought to the attention of appropriate governmental
agencies. For purposes of this Agreement, "recognized
environmental conditions" also includes, without
limitation, the presence of asbestos, radon or
electromagnetic fields under circumstances that
represent a threat or potential threat to human health
or the environment. The definitions for hazardous
substances, petroleum products and asbestos set forth
in the ASTM Phase I Standard are incorporated by
reference.
In the event that Purchaser's environmental assessor,
after diligent effort, starting promptly after the
Initial Execution Date, is unable to complete its Phase
I assessment prior to the expiration of the Due
Diligence Period, the Due Diligence Period shall be
extended for a single additional period of 15 days.
Promptly after completion of Purchaser's environmental
review, Purchaser shall provide written notice to
Seller of any recognized environmental conditions
affecting the Property. Seller shall have seven days
after receipt of such notice in which to elect, by
written notice to Purchaser, to remediate or cure any
recognized environmental condition so identified. If
Seller so elects, Seller shall have a period of 90 days
following the date of its notice to Purchaser (the
"Cure Period") in which to effect a remediation or
cure, and the Closing Date shall be delayed to the
extent necessary to allow a full 90-day Cure Period.
Following notice from Seller that a remediation or cure
has been effected and completed, Purchaser shall have a
period of 30 days thereafter in which to determine
whether the recognized environmental condition(s) have
been remediated or cured, and the Closing Date shall be
delayed to the extent necessary to allow a full 30-day
review period. A recognized environmental condition
shall be considered remediated or cured if it no longer
constitutes a recognized environmental condition and
requires no further investigation, remediation,
monitoring, maintenance or other action to prevent such
condition from becoming a recognized environmental
condition in the future.
(c) Repairs and Replacements. If the good faith
estimated cost of repairs and replacements to the
Property (including but not limited to repairs and
replacements required to bring the Property into
compliance with applicable laws) recommended by
Purchaser's architectural and engineering consultants
<PAGE>
("Necessary Repairs") does not exceed $115,000,
Purchaser shall not be entitled to any credit against
the Purchase Price and neither party shall have any
right to terminate this Agreement pursuant to this
subparagraph 2.2(c). If the good faith estimated cost
of Necessary Repairs exceeds $115,000, but is less than
$230,000, and if Purchaser requests Seller to grant it
a credit against the Purchase Price for such excess or
a portion thereof, and if Purchaser and Seller, after
negotiating in good faith, are unable to agree within
10 days on the amount of the credit, then, if Purchaser
initially requested a credit not exceeding $115,000,
Purchaser, but not Seller, may elect to terminate the
Agreement. If the good faith estimated cost of
Necessary Repairs exceeds $230,000, and if Purchaser
and Seller, after negotiating in good faith, are unable
to agree within 10 days on the amount of the credit,
then either Purchaser or Seller may terminate this
Agreement. In addition to its termination right set
forth in this subparagraph (c) above, Purchaser may
terminate this Agreement if its architectural and
engineering consultants or attorneys reasonably
determine that the Property or any portion thereof is
not in material compliance with all laws, including,
without limitation, laws regulating the use and
occupancy of the Property or any portion thereof, and
such noncompliance cannot be remedied by money;
provided, however, that Purchaser may not terminate
this Agreement unless it shall have provided written
notice to Seller of such noncompliance and Seller shall
have failed to cure or correct such noncompliance
within 90 days after Seller's receipt of such notice,
and the Closing Date shall be extended, if necessary,
to allow a full 90-day period in which to effect such
cure.
If this Agreement terminates pursuant to any provision
of this Paragraph 2.2, the Earnest Money shall be refunded
to Purchaser immediately upon request, and all further
rights and obligations of the parties under this Agreement
shall terminate, except pursuant to any provisions hereof
which expressly survive any such termination.
2.3 Access. Purchaser shall have reasonable access to
the Property for the purpose of conducting surveys,
architectural, engineering, geotechnical, and environmental
inspections and tests (including invasive testing such as
without limitation soil and groundwater testing), and any
other inspections, studies, or tests reasonably required by
Purchaser. Purchaser shall keep the Property free and clear
of any liens and will indemnify, defend, and hold Seller
<PAGE>
harmless from all claims and liabilities asserted against
Seller as a result of any such entry by Purchaser, its
agents, employees, or representatives. If any inspection or
test disturbs the Property, Purchaser will restore the
Property to the same condition as existed prior to any such
inspection or test. Purchaser and its agents, employees,
and representatives shall have a continuing right of
reasonable access to the Property during the pendency of
this Agreement with the right to examine and make copies of
all books and records and other materials relating to the
Property in Seller's or its property manager's possession
and the right to conduct a "walk-through" of the Property
prior to the Closing upon appropriate notice to tenants as
permitted under the Leases. In the course of its
investigations Purchaser may make inquiries to third parties
("Third Parties") including, without limitation, tenants,
lenders, contractors, property managers, parties to Service
Contracts, and municipal, local, and other government
officials and representatives, subject to Seller's consent
to each such inquiry, which consent shall not be
unreasonably withheld. Purchaser shall notify Seller of any
meetings it wishes to hold with Third Parties and shall
provide Seller with the opportunity to be present at such
meetings.
2.4 Tenant Estoppels. Seller shall use reasonable
efforts to secure and deliver to Purchaser, no later than 5
business days before the expiration of the Due Diligence
Period estoppel certificates from tenants under all Leases
in the form attached hereto as Exhibit D. Purchaser's
obligation to close the transaction contemplated under this
Agreement is subject to the condition that Purchaser shall
have received, as of Closing, estoppel certificates executed
by all tenants under the Leases in such form as the tenant
is required to provide under its Lease, the information in
all such estoppel certificates being consistent with the
information in the Memorandum, the results of Purchaser's
investigations pursuant to Paragraph 2.2(a), the Rent Rolls
and the representations of Seller in Paragraph 7.1.
2.5 Service Contracts. During the Due Diligence
Period the parties will endeavor to agree as to which
Service Contracts Purchaser will assume and which Service
Contracts will be terminated by Seller at Closing.
Purchaser will assume the obligations arising from and after
the Closing Date under those Service Contracts that were
entered into in the ordinary course of business and that are
not in default as of the Closing Date or which Seller and
Purchaser have agreed will be not terminated. Seller shall
terminate at Closing all Service Contracts that are not so
assumed. Seller shall terminate at Closing, and Purchaser
<PAGE>
shall not assume, any property management agreement
affecting the Property.
ARTICLE 3: TITLE AND SURVEY REVIEW
3.1 Delivery of Title Commitment and Survey. Promptly
after the Initial Execution Date Purchaser caused to be
prepared for the Property and delivered to Seller: (i) a
current, effective commitment for title insurance ("Title
Commitment") issued by the Title Company, in the amount of
the Purchase Price, with Purchaser as the proposed insured
and (ii) current survey of the Property ("Survey"), prepared
by one or more surveyors licensed in the State of New York;
and (iii) copies of Uniform Commercial Code searches in the
name of Seller and the Property ("UCC Searches").
3.2 Title Review and Cure. During the period ending
12 business days after receipt by Purchaser of the Title
Commitment, Survey and UCC Searches ("Title Review Period"),
Purchaser shall review title to the Property as disclosed by
the Title Commitment and the Survey. Seller, without any
obligation to incur any cost or expense except as provided
below, will cooperate with Purchaser in curing any
objections Purchaser may have to title to the Property.
Seller shall have no obligation to cure title objections
except mechanic's, materialman's and tax liens created by
Seller, its agents or contractors, contractual liens
voluntarily entered into by Seller and title defects that
would render title unmarketable, provided that Seller shall
not be obligated to spend more than $115,000 in the
aggregate to remove title defects that would render title
unmarketable, other than mechanic's, materialman's and tax
liens created by Seller, its agents or contractors and
contractual liens voluntarily entered into by Seller.
Seller agrees to remove any exceptions or encumbrances to
title which are created by Seller after the Initial
Execution Date. Purchaser may terminate this Agreement by
notice to Seller before the end of the Title Review Period
if title to the Property (and matters affecting the Property
as disclosed by the Title Commitment and the Survey) and the
endorsements and exclusions to the Title Policy are not
satisfactory to Purchaser, acting in good faith, and by
notice to Seller after expiration of the Title Review Period
if the Title Company revises any Title Commitment after the
expiration of the Title Review Period to add material
exceptions, or to modify exceptions in any material respect,
or to add to or modify in any material respect the
conditions to obtaining any endorsement requested by
Purchaser during the Title Review Period if such additions,
modifications or deletions are not acceptable to Purchaser
<PAGE>
and are not removed by the Closing Date. If this Agreement
is terminated pursuant to the preceding sentence, the
Earnest Money shall promptly be returned to Purchaser.
3.3 Delivery of Title Policy at Closing. At the
Closing, as a condition to Purchaser's obligation to close,
the Title Company shall deliver to Purchaser a 1992 ALTA
Owner's Policy of Title Insurance covering the Property
("Title Policy") issued by the Title Company, with
modifications or deletions of standard exceptions as
follows: (1) rights or claims of parties in possession not
shown by public records (limited to right of possession of
tenants under Leases as tenants only), (2) encroachments,
overlaps, boundary line disputes and matters that would be
disclosed by an accurate survey and inspection of the
premises (limited to those matters disclosed in the Survey),
(3) easements, or claims of easements, not shown by the
public records (deleted), (4) any lien, or right of lien,
for services, labor, or material heretofore or hereinafter
furnished, imposed by law, and not shown by the public
records (deleted), (5) taxes or special assessments that are
not shown as existing liens by the public records (limited
to taxes not yet due and payable), containing the
endorsements and modifications to the exclusions that during
the Title Review Period the Title Company agreed to issue,
dated the date and time of the recording of the Deed(s)
(defined below) in the amount of the Purchase Price,
insuring Purchaser as owner of good, marketable and
indefeasible fee simple title to the Property, subject only
to the Permitted Exceptions. The term "Permitted
Exceptions" with respect to the Property shall mean the
specific exceptions (exceptions that are not part of the
promulgated title insurance form) in the Title Commitments
that the Title Company has not agreed to insure over or
remove from such Title Commitments and that Seller is not
required to remove as provided above, real estate taxes not
yet due and payable, and tenants in possession as tenants
only under the Leases or subleases without any option to
purchase or acquire an interest, other than a leasehold
interest by a tenant pursuant to a space lease, the Property
or any portion thereof, none of which individually or in the
aggregate materially affects the value or marketability of
the Property. The Permitted Exceptions shall apply only to
the applicable portions of the Property as indicated in the
Title Commitments. Seller shall execute at Closing an
affidavit reasonably satisfactory to the Title Company so
that the Title Company can delete or modify the standard
printed exceptions as set forth above.
<PAGE>
3.4 Title and Survey Costs. The cost of the Survey,
including any necessary revisions, the UCC Searches and the
premium for the Title Policy shall be paid by Purchaser.
ARTICLE 4: OPERATIONS AND RISK OF LOSS
4.1 Performance under Leases and Service Contracts and
Operation and Maintenance of the Property. During the
pendency of this Agreement, Seller will perform its material
obligations under Leases and Service Contracts and other
agreements that may affect the Property and operate and
maintain the Property to the same standards under which
Seller has operated and maintained the Property to date,
including, without limitation, the maintenance of casualty
insurance coverage. During the pendency of this Agreement,
Seller shall not withdraw any challenge to taxes paid or
payable with respect to the Property without the prior
consent of Purchaser.
4.2 New Contracts. During the pendency of this
Agreement, Seller will not enter into any contract that will
be an obligation affecting any of the Property subsequent to
the Closing except contracts entered into in the ordinary
course of business that are terminable without cause on 30-
days notice.
4.3 Listings and Other Offers. During the pendency of
this Agreement, Seller will not enter into any contracts or
agreements (whether binding or not) regarding any
disposition of any of the Property.
4.4 Commission Arrangements. During the pendency of
this Agreement, Seller will not amend, terminate or enter
into any Lease without Purchaser's prior written consent in
each instance, which consent Purchaser shall not
unreasonably delay or withhold. At the Closing, Purchaser
shall agree to assume the payment for commissions and tenant
improvements in connection with any Lease consented to by
Purchaser pursuant to this Paragraph 4.4, provided the
amount of the commission and tenant improvements was
disclosed to Purchaser by Seller in obtaining such consent.
4.5 Removal and Replacement of Tangible Personal
Property. Seller will not remove any Tangible Personal
Property except as may be required for necessary repair or
replacement, and replacement shall be of equal quality and
quantity as existed as of the time of its removal.
4.6 Damage. Risk of loss for the Property up to and
including the Closing Date shall be borne by Seller. In the
<PAGE>
event the Property or a portion thereof is materially
damaged or destroyed, Purchaser may, at its option, by
notice to Seller given within 10 business days after
Purchaser is notified by Seller of such damage or
destruction (and if necessary the Closing Date shall be
extended to give Purchaser the full 10-business-day period
to make such election): (i) terminate this Agreement, in
which case the Earnest Money shall be immediately returned
to Purchaser or (ii) proceed under this Agreement, receive
any insurance proceeds (including any rent loss insurance
applicable to any period on and after the Closing Date) due
Seller as a result of such damage or destruction and assume
responsibility for such repair, and Purchaser shall receive
a credit at Closing for the reasonable cost to complete the
repair of any uninsured damage or for any deductible or
coinsured amount under said insurance policies. "Materially
damaged" means damage reasonably exceeding (in the aggregate
for all property damaged) $500,000 for insured damage and
$250,000 for uninsured damage. If Purchaser elects (ii)
above, Seller will cooperate with Purchaser after the
Closing to assist Purchaser in obtaining the insurance
proceeds from Seller's insurers. Purchaser may extend the
Closing Date up to 90 days in order to obtain a written
settlement agreement and assignment of insurance proceeds
with Seller's insurer. If the Property is not materially
damaged, then Purchaser shall not have the right to
terminate this Agreement as to such Property, but Seller
shall, at its cost, repair the damage before the Closing in
a manner reasonably satisfactory to Purchaser or, if repairs
cannot be completed before the Closing, credit Purchaser at
Closing for the reasonable cost to complete the repair. The
Closing Date may be extended up to 90 days in order to
permit Seller to complete any repair or restoration. It
shall be a condition of Closing that Purchaser shall have
received assurances, to its reasonable satisfaction, that
there are no unresolved issues between any tenant and Seller
as landlord relating to fire, water, smoke or other
consequential damages with respect to the fire that occurred
on the portion of the Property leased to Union Transport.
4.7 Condemnation. By notice to Seller given within 10
business days after Purchaser receives notice of material
proceedings in eminent domain that are contemplated,
threatened or instituted against the Property or any portion
thereof by any body having the power of eminent domain (if
necessary, the Closing Date shall be extended to give
Purchaser the full 10-business-day period to make such
election), Purchaser may: (i) terminate this Agreement in
which case the Earnest Money shall be immediately returned
to Purchaser; or (ii) proceed under this Agreement in which
event Seller shall, at the Closing, assign to Purchaser its
<PAGE>
entire right, title and interest in and to any condemnation
award, and Purchaser shall have the sole right during the
pendency of this Agreement to negotiate and otherwise deal
with the condemning authority in respect of such matter. A
proceeding is material only if the damage to the owner of
the area taken is reasonably expected to exceed $500,000 (in
aggregate for all condemnation proceedings), whether or not
the offer from the condemning authority or actual award
exceeds $500,000. Damage includes the land actually taken
and any diminution in the value of the remaining property as
a result of such taking, including, without limitation, loss
in value due to a portion of any remainder of the property
constituting a legally nonconforming use or loss in value
due to a limitation on access to the Property.
4.8 Uniform Vendor and Purchaser Risk Act. The
provisions of this Article 4 shall be construed as express
provisions in lieu of the provisions of the Uniform Vendor
and Purchaser Risk Act, as adopted in the State of New York
(Section 5-1311 of the New York General Obligations Law), which
the parties agree shall be inapplicable to the transactions
contemplated hereby.
ARTICLE 5: CLOSING
5.1 Closing. The consummation of the transaction
contemplated herein ("Closing") shall occur on the Closing
Date at Seller's or its attorney's office in New York City,
New York.
5.2 Conditions to the Parties' Obligations to Close.
In addition to all other conditions set forth herein, the
obligation of Seller, on the one hand, and Purchaser, on the
other hand, to consummate the transactions contemplated
hereunder shall be contingent upon the following:
(a) The other party's representations and warranties
contained herein shall be true and correct as of the Initial
Execution Date and the Closing Date. For purposes of this
clause (a), a representation shall be false if the factual
matter that is the subject of the representation is false
notwithstanding any lack of knowledge or notice to the party
making the representation;
(b) As of the Closing Date, the other party shall have
performed its obligations hereunder and all deliveries to be
made at Closing have been tendered;
<PAGE>
(c) The consummation of the transaction would not
violate, or subject a party to liability under, the Employee
Retirement Income Security Act of 1974, as amended;
(d) There shall exist no pending order or decree
issued by any court or administrative agency restraining or
prohibiting the consummation of the transactions
contemplated hereby. Seller, at its election, may suspend
Purchaser's right to terminate this Agreement pursuant to
this subparagraph (d) above for up to 90 days if it attempts
in good faith by appropriate proceedings to lift or remove
such order or decree to enable the Closing to occur within
such 90 day period;
(e) There shall exist no pending or threatened action,
suit or proceeding with respect to the other party before or
by any court or administrative agency, which, if determined
adversely, would (i) prevent the consummation of the
transactions contemplated hereby, (ii) cause any of the
transactions to be rescinded following consummation, or
(iii) adversely affect the right of Purchaser to own,
operate, encumber or transfer the Property or any portion
thereof.
So long as a party is not in default hereunder, if any
condition to such party's obligation to proceed with the
Closing hereunder has not been satisfied as of the Closing
Date, such party may, in its sole discretion, terminate this
Agreement by delivering written notice to the other party on
or before the Closing Date, or elect to close,
notwithstanding the non-satisfaction of such condition, in
which event such party shall be deemed to have waived any
such condition. Nothing in the foregoing shall relieve a
party from any liability it would otherwise have if the
failure of a party to satisfy a condition also constitutes a
default by such party hereunder.
5.3 Seller's Deliveries. On the Closing Date, Seller
shall deliver to Purchaser the following with respect to the
Property:
(a) Deed. A special warranty deed (warranting title
against any party claiming by, through or under Seller) in
form provided for under the law of the State of New York or
otherwise in conformity with the custom in such jurisdiction
and mutually satisfactory to the parties, executed and
acknowledged by Seller, conveying to Purchaser good,
indefeasible and marketable fee simple title to the Real
Property, subject only to the Permitted Exceptions
applicable to the Real Property (the "Deed"). In addition
to the Permitted Exceptions, the Deed shall be expressly
<PAGE>
subject to: (i) all zoning and building laws, ordinances,
maps, resolutions and regulations of all governmental
authorities having jurisdiction which affect the Property
and use and improvement thereof; and (ii) any state of facts
shown in the Survey;
(b) Assignment of Leases, Service Contracts, and
Personal Property. An Assignment of Leases, Service
Contracts, and Personal Property in the form of Exhibit E
attached hereto, executed and acknowledged by Seller,
vesting in Purchaser good title to the property described
therein free of any claims except for the Permitted
Exceptions to the extent applicable;
(c) Notice to Tenants. A notice to each tenant in the
form of Exhibit F attached hereto.
(d) State Law Disclosures. Such disclosures and
reports, required by applicable state and local law in
connection with the conveyance of real property;
(e) FIRPTA. A Foreign Investment in Real Property Tax
Act affidavit executed by Seller;
(f) Tenant Estoppels. Estoppel certificates
satisfying the conditions in Paragraph 2.4, dated (or
recertified and updated as of a date) not earlier than July
25, 1995, and in no event earlier than 90 days before the
Closing Date if the Closing Date is extended as provided
herein;
(g) Authority. Evidence of existence, organization,
and authority of Seller and the authority of the person
executing documents on behalf of Seller, including, without
limitation, the resolutions of Seller authorizing this
transactions contemplated herein, reasonably satisfactory to
Purchaser and the Title Company;
(h) Opinion. An opinion of Seller's counsel, Goodwin,
Procter & Hoar, in form and substance reasonably acceptable
to Purchaser and its counsel, which shall address the
existence, organization and authority of Seller and the
authority of the person executing documents on behalf of
Seller and the compliance by Seller with its governing
documents;
(i) Updated Rent Roll. An updated Rent Roll, showing
all arrearages and prepayments;
(j) Licenses, Permits and Approvals. All licenses,
permits and approvals relating to the Property;
<PAGE>
(k) Leases. Each original Lease in Seller's
possession;
(l) Plans and Specifications. All plans and
specifications with respect to the Property in Seller's
possession
(m) Service Contracts. All service contracts with
respect to the Property to be assumed by Purchaser;
(n) Title Affidavit. To the Title Company, a title
affidavit as required pursuant to Paragraph 3.3;
(o) List of Security Deposits. An updated list of all
security deposits, including interest earned thereon, held
by Seller pursuant to the Leases, to the extent there are
any changes to the list provided to Purchaser pursuant to
subparagraph 2.1(l);
(p) Gains Tax Assessment. The statement of tentative
assessment under the Gains Tax Law, as required pursuant to
Paragraph 9.18;
(q) Broker's Indemnity. An indemnity from Sutton &
Edwards Inc. to Purchaser, stating, in substance, that
Sutton & Edwards Inc. will indemnify Purchaser for any
liability for brokerage fees of any broker claiming through
or under Seller;
(r) Assignment of Tax Certiorari Claims. An
assignment of Seller's tax certiorari claims, in accordance
with Paragraph 5.09, including an indemnity from the
assignee thereunder, indemnifying Purchaser for liability
for amounts recovered from such claims and payable to
tenants under Leases; and
(s) Additional Documents. Any additional documents
that Purchaser, the Escrow Agent or the Title Company may
reasonably require for the proper consummation of the
transaction contemplated by this Agreement, including
appropriate transfer tax returns.
5.4 Purchaser's Deliveries. On the Closing Date,
Purchaser shall deliver to Seller the following:
(a) Purchase Price. The Purchase Price, less the
Earnest Money that is applied to the Purchase Price, plus or
minus applicable prorations, in immediate, same-day federal
funds wired for credit into an account designated by Seller
and instructions to the Escrow Agent to deliver the Earnest
<PAGE>
Money that is applied to the Purchase Price in immediate,
same-day federal funds wired for credit into such account;
(b) Assignment of Leases, Service Contracts and
Personal Property. Execution by Purchaser of the Assignment
of Leases, Service Contracts and Personal Property;
(c) State Law Disclosures. Such disclosures and
reports required by applicable state and local law in
connection with the conveyance of real property;
(d) Additional Documents. Any additional documents
that Seller, the Escrow Agent or the Title Company may
reasonably require for the proper consummation of the
transaction contemplated by this Agreement, including
appropriate transfer tax returns.
5.5 Transfer Taxes and Recording Costs. All transfer
taxes and all costs of recording the Deeds and other
conveyance documents (excluding the cost of recording any
documents required to clear title) shall be paid by Seller.
5.6 Title Policy. The Escrow Agent shall deliver to
Purchaser the Title Policy pursuant to Paragraph 3.3.
5.7 Possession. Seller shall deliver to Purchaser
possession of the Property subject only to the Permitted
Exceptions applicable to such Property.
5.8 Delivery of Books and Records. Immediately after
the Closing, Seller shall package for delivery to Purchaser
the original Leases, and, to the extent available, copies or
originals of all books and records of account, contracts,
copies of correspondence with tenants and suppliers,
receipts for deposits, unpaid bills and other papers or
documents which pertain to the Property together with all
advertising materials, booklets, keys and other items, if
any, used in the operation of the Property acquired by
Purchaser, and the original "as-built" plans and
specifications and all other available plans and
specifications. Purchaser shall arrange for actual delivery
at its expense of the documents to its offices.
5.9 Tax Certiorari Claims. Seller shall assign its
rights with respect to tax certiorari claims with respect to
the Property for any period prior to the Closing Date to
Purchaser. Purchaser agrees to perform, execute and
deliver, on or after the Closing, any further deliveries and
assurances as may be reasonably necessary to ensure the
recovery by the tenants of all amounts to which they are
entitled by virtue of such tax certiorari claims. Seller
<PAGE>
shall not enter into any settlement with respect to such tax
certiorari claims unless either (i) Seller has received
Purchaser's prior written approval of such settlement or
(ii) such settlement is based upon an appraised value for
the Property of $250,000 or less for each of the 92-93, 93-
94 and 94-95 tax years.
ARTICLE 6: PRORATIONS
6.1 Prorations. The items in subparagraphs (a)
through (c) of this Paragraph 6.1 shall be prorated between
Seller and Purchaser as of the close of business of the day
immediately preceding the Closing Date for the Property:
(a) Taxes and Assessments and Water and Sewer Charges.
All real estate taxes and assessments imposed by
governmental authority ("Taxes") and any assessments by
private covenant constituting a lien or charge on the
Property for the then-current calendar year or other current
tax period. Water and sewer charges shall be apportioned
based upon meter readings taken not more than two days prior
to the Closing Date.
(b) Collected Rent. All collected rent and other
income (and any applicable state or local tax on rent) under
Leases, but excluding payments for Operating Costs. Seller
shall be charged with any rentals collected by Seller before
Closing but applicable to any period of time after Closing.
Uncollected rent and other income shall not be prorated. If
Purchaser collects delinquencies after Closing, Purchaser
shall apply such rent to the obligations owing Purchaser for
its period of ownership, remitting the balance, if any, to
Seller. Purchaser shall bill and attempt to collect such
delinquent rent in the ordinary course of business, but
shall not be obligated to engage a collection agency or take
legal action to collect any delinquencies. Seller shall not
have the right to seek collection of any rents delinquent
for any period prior to the Closing.
(c) Operating Costs. Seller, as landlord under the
Leases, is currently collecting from tenants under the
Leases additional rent to cover Taxes, insurance, utilities
(to the extent not paid directly by tenants), common area
maintenance and other operating costs and expenses
(collectively, "Operating Costs") incurred by Seller in
connection with the ownership, operation, maintenance and
management of the Property. At Closing, Purchaser shall
receive a credit or debit (the debit being calculated only
with respect to tenants who are then current under their
Leases) equal to the amount of the payments made by tenants
<PAGE>
in respect of Operating Costs for the period for which such
Operating Costs were collected less the amount actually and
properly paid by Seller during this same period of time for
Operating Cost items. Amounts actually and properly paid by
Seller during such period shall be calculated on the basis
of amounts actually paid by Seller through the 23rd day of
the month that immediately precedes the Closing Date (the
"Cut-Off Date"), and shall be estimated for the period from
the Cut-Off Date to the Closing Date by adding an amount
equal to the product of (i) the average daily amount paid by
Seller, being (a) the amounts actually paid by Seller
through the Cut-Off Date, divided by (b) the number of days
in 1995 through the Cut-Off Date, and (ii) the number of
days from the Cut-Off Date to the Closing Date. Payments in
arrears made by tenants on the basis of actual costs for the
period preceding the Cut-Off Date and from the Cut-Off Date
to the Closing Date shall be calculated and estimated in the
same manner. Operating Costs that are not paid by tenants
either directly or reimbursed under the Leases shall be
prorated. In lieu of any post-Closing adjustment for
Operating Costs, at Closing Purchaser shall receive a credit
for estimated disallowable expenses payable to tenants after
annual or other periodic Operating Cost adjustment following
the Closing. This credit will be determined by assuming
that Operating Costs for the first six months of 1995 will
be consistent for the remainder of 1995 and applying the
same percentage adjustment for disallowable expenses as was
used in the reconciliation for 1994 Operating Costs.
6.2 Leasing Commissions. On or before the Closing
Date, except as provided pursuant to Paragraph 4.4 and the
leasing commissions payable pursuant to the Leases with
Opti-Ray and AT&T due and payable after the Closing Date,
Seller shall pay in full all leasing commissions due to
leasing or other agents for the current remaining term of
each Lease; provided, however, that if any leasing agent
will not accept such payment, then Purchaser shall assume
the obligation to pay such leasing commissions and shall be
entitled to a credit against the Purchase Price at Closing
in an amount equal to the then-unpaid leasing commissions
and Purchaser shall assume, in writing, the commission
agreements, if any, and the obligation to pay any leasing
commissions due thereunder after the Closing Date, including
any obligation for the payment of a leasing commission due
as a result of the renewal of any Lease or the expansion of
lease space occupied by any tenant pursuant to an express
provision set forth in any such Lease or a commission
agreement covering such Lease.
6.3 Tenant Deposits. All tenant security deposits
(and interest thereon if required by law or contract to be
<PAGE>
earned thereon) shall be transferred or credited to
Purchaser at Closing. At Closing Purchaser shall assume
Seller's obligations related to tenant security deposits but
only to the extent they are properly credited or transferred
to Purchaser.
6.4 Utility Deposits. Seller shall receive a credit
for the amount of deposits, if any, with utility companies
that are transferable and that are assigned to Purchaser at
the Closing.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations and Warranties. As a
material inducement to Purchaser to execute this Agreement
and consummate this transaction, Seller represents and
warrants to Purchaser that:
(a) Organization and Authority. Seller has been duly
organized and is validly existing as a Massachusetts
business trust, and Seller is in good standing and is
qualified to do business in the State of New York. Seller
has the full right, authority and power to own its
properties and to conduct its business.
(b) Authorization. Seller has the requisite power to
enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance by
Seller of this Agreement and all of the documents to be
delivered by Seller at the Closing and the consummation of
the transactions contemplated hereby have been duly
authorized and approved by its Board of Trustees and no
further action on the part of Seller is necessary to
authorize the execution, delivery and performance by Seller
of this Agreement. This Agreement and all of the documents
to be delivered by Seller at the Closing do and will
constitute valid and binding agreements of Seller
enforceable in accordance with their terms, except to the
extent that their enforceability may be limited by
applicable bankruptcy, insolvency, moratorium,
reorganization or other laws affecting the enforcement of
creditors' rights generally or by general equitable
principles.
(c) No Contravention. Neither the execution and
delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor compliance with the
terms, conditions or provisions of this Agreement will be a
violation of any of the terms, conditions or provisions of
Seller's Declaration of Trust or Bylaws or of any material
<PAGE>
agreement or instrument to which Seller is a party or by
which Seller or any of its material properties may be bound,
or constitute a default or create a right of termination or
acceleration thereunder, or result in the creation or
imposition of any security interest, mortgage, lien, charge
or encumbrance of any nature whatsoever upon Seller or any
of its properties or assets.
(d) Consents. No consent, approval, authorization,
order, registration, filing or qualification of or with any
(a) governmental authority, (b) stock exchange on which the
securities of Seller are traded or (c) other person (whether
acting in any individual, fiduciary or other capacity) is
required to be made or obtained by Seller for the execution,
delivery and performance by Seller of this Agreement and the
consummation of the transactions contemplated hereby,
including, without limitation, any approval of any class of
security holders of Seller.
(e) Conflicts and Pending Actions or Proceedings.
There is no agreement to which Seller is a party or, to
Seller's knowledge, binding on Seller which is in conflict
with this Agreement. No court, tribunal or agency shall
have issued an order, enjoining, restraining or prohibiting
this Agreement or the complete consummation of the
transactions contemplated hereby.
(f) Leases and Rent Roll. The documents constituting
the Leases that are delivered to Purchaser pursuant to
Paragraph 2.1 are true, correct and complete copies of the
Leases and all amendments and guarantees.
(g) Service Contracts. The list of Service Contracts
is true, correct, and complete in all material respects.
Neither Seller nor, to Seller's knowledge, any other party
is in default under any Service Contract.
(h) Operating Statements. The Operating Statements
show all material items of income and expense (operating and
capital) incurred in connection with Seller's ownership,
operation, and management of the Property for the periods
indicated and are true, correct, and complete in all
material respects.
(i) Notice of Violations or Defects. Seller has
received no written notice that the Property or the use
thereof violates any governmental law or regulation,
insurance requirement or any covenant or restriction
encumbering such Property.
<PAGE>
(j) Ownership. Seller is the sole holder of
marketable fee title to the Property.
(k) Options. Seller has not entered into any contract
for the sale of the Property, nor are there any rights of
first refusals or options to purchase the Property or any
portion thereof.
(l) Hazardous Materials. To the actual knowledge of
Seller's asset manager, Richard Flohr, there are no
Hazardous Materials (hereinafter defined) on the Property,
except those in compliance with all applicable federal,
state and local laws, ordinances, rules and regulations.
The terms "Hazardous Materials" as used in this Agreement
shall include, without limitation, gasoline, petroleum
products, asbestos containing-materials other than roofing
felt, explosives, radioactive materials, polychlorinated
biphenyls or related or similar materials, or any other
substance or material defined as a hazardous or toxic
substance or material by any federal, state or local law,
ordinance, rule, or regulation.
(m) Tax Increases. Seller has received no notice of
any planned or proposed tax increase or assessment affecting
the Property and has no knowledge that any portion of the
Property is subject to or affected by any special
assessments or that any such assessment has been proposed.
(n) Condemnation. There is no pending condemnation
proceeding with regard to all or part of the Property and
Seller has no knowledge of any such proceeding contemplated
or threatened by any governmental or quasi-governmental
authority.
(o) Rent Commissions. Other than as provided in the
Leases and the commission agreements provided pursuant to
Paragraph 2.1, no commission or other compensation is now or
will hereafter become payable to any broker or other agent
under any written or oral agreement or understanding with
such broker or agent in relation to any of the Leases or
under any renewal thereof.
(p) Insurance Notices. Seller has not received any
written notice from any insurance company that has issued a
policy with respect to the Property requiring performance of
any structural or other major repairs or alterations to the
Property, which has not been complied with.
(q) Employees. Seller employs no employees in
connection with the management, operation or maintenance of
the Property.
<PAGE>
7.2 Purchaser's Representations and Warranties. As a
material inducement to Seller to execute this Agreement and
consummate this transaction, Purchaser represents and
warrants to Seller that:
(a) Organization and Authority. Purchaser has been
duly organized and is validly existing as a limited
partnership, in good standing in the State of Delaware, and
as of the Closing Date either Purchaser or its Affiliate to
which the Property will be conveyed will be qualified to do
business in the State of New York. Purchaser has the full
right and authority and has obtained any and all consents
required therefor to enter into this Agreement and to
consummate or cause to be consummated the sale. This
Agreement and all of the documents to be delivered by
Purchaser at the Closing have been and will be authorized
and properly executed and will constitute the valid and
binding obligations of Purchaser, enforceable in accordance
with their terms.
(b) Conflicts and Pending Action. There is no
agreement to which Purchaser is a party or to Purchaser's
knowledge binding on Purchaser which is in conflict with
this Agreement. There is no action or proceeding pending or
to Purchaser's knowledge, threatened, against Purchaser or
which challenges or impairs Purchaser's ability to execute
or perform its obligations under this Agreement.
7.3 Survival of Representations and Warranties. The
representations and warranties set forth in this Article 7
are made as of the Initial Execution Date and are remade as
of the Closing Date and shall not survive the Closing.
7.4 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN
THIS AGREEMENT OR IN ANY DOCUMENT EXECUTED PURSUANT TO OR IN
CONNECTION WITH THIS AGREEMENT, THIS SALE AND CONVEYANCE IS
MADE, AND PURCHASER AGREES TO ACCEPT POSSESSION OF THE
PROPERTY, ON AN AS-IS BASIS WITH NO RIGHT OF SET-OFF OR
REDUCTION IN PURCHASE PRICE AND SELLER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, AS TO MERCHANTABILITY, SUITABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY, THE STATE OF
REPAIR OF THE PROPERTY, OR WITH RESPECT TO SOIL CONDITIONS
OR THE PRESENCE OR RELEASE OF HAZARDOUS MATERIALS. THIS
DISCLAIMER DOES NOT EFFECT AN ASSUMPTION OF ANY LIABILITY BY
PURCHASER AND IT SHALL NOT BE CONSTRUED TO WAIVE ANY RIGHTS
OF CONTRIBUTION OR INDEMNITY OR OTHERWISE AFFECT THE
LIABILITIES OF THE PARTIES TO EACH OTHER OR TO THIRD PARTIES
UNDER ENVIRONMENTAL LAWS.
<PAGE>
ARTICLE 8: [Intentionally Omitted]
ARTICLE 9: MISCELLANEOUS
9.1 Parties Bound. Neither party may assign this
Agreement without the prior written consent of the other,
and any such prohibited assignment shall be void; provided
that Purchaser may assign this Agreement without Seller's
consent to an Affiliate. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of
the respective legal representatives, successors, assigns,
heirs, and devisees of the parties. For the purposes of
this Paragraph 9.1, the term "Affiliate" means (a) an entity
that directly or indirectly controls, is controlled by or is
under common control with Purchaser or (b) an entity at
least a majority of whose economic interest is owned by
Purchaser; and the term "control" means the power to direct
the management of such entity through voting rights,
ownership or contractual obligations. No assignment shall
relieve the assignor from any liability hereunder.
9.2 Headings. The article and paragraph headings of
this Agreement are for convenience only and in no way limit
or enlarge the scope or meaning of the language hereof.
9.3 Invalidity and Waiver. If any portion of this
Agreement is held invalid or inoperative, then so far as is
reasonable and possible the remainder of this Agreement
shall be deemed valid and operative, and effect shall be
given to the intent manifested by the portion held invalid
or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement
shall be deemed not to be a waiver of such party's right to
enforce against the other party the same or any other such
term or provision.
9.4 Governing Law. This Agreement shall in all
respects be governed, construed, applied and enforced in
accordance with the laws of the State of New York.
9.5 Survival. The following provisions of this
Agreement shall survive the Closing and shall not be deemed
to be merged into or waived by the instruments of Closing:
1.3, 2.3, 4.6 (with respect to Seller's agreement to
cooperate to assist in collecting insurance), 5.8, 5.09,
6.1(b), 7.4 and Article 9.
9.6 No Third Party Beneficiary. This Agreement is not
intended to give or confer any benefits, rights, privileges,
<PAGE>
claims, actions or remedies to any person or entity as a
third party beneficiary, decree, or otherwise.
9.7 Entirety and Amendments. This Agreement embodies
the entire agreement between the parties and supersedes all
prior agreements and understandings relating to the
Property. This Agreement may be amended or supplemented
only by an instrument in writing executed by the party
against whom enforcement is sought.
9.8 Time. Time is of the essence in the performance
of this Agreement.
9.9 Confidentiality. Between the Initial Execution
Date and for a period ending 1 year after the Closing Date,
neither Seller nor Purchaser will release or cause or permit
to be released any press notices, or publicity (oral or
written) or advertising promotion relating to, or otherwise
announce or disclose or cause or permit to be announced or
disclosed, in any manner whatsoever, the terms, conditions
or substance of this Agreement or press release relating
thereto without first obtaining the written consent of the
other party, which consent shall not be unreasonably
withheld or delayed. Nothing in this Paragraph 9.9 shall
preclude any party from (a) providing information with
respect to or discussing the substance or any relevant
details of such transactions with any of its attorneys,
accountants, professional consultants, lenders, research
analysts, partners, investors, or any prospective lender,
partner or investor, as the case may be; or (b) making such
disclosures as required by applicable federal, state and
local law, rule and regulation, court order or rule or
regulation of the New York Stock Exchange, including without
limitation, governmental regulatory, disclosure, tax and
reporting requirements, but each party shall consult with
the other party, acting in good faith, as to the contents of
any such disclosure described in this clause (b) prior to
dissemination. In addition to any other remedies available
to a party, each party shall have the right to seek
equitable relief, including without limitation injunctive
relief or specific performance, against the other party in
order to enforce the provisions of this Paragraph 9.9.
9.10 Attorneys' Fees. Should either party employ
attorneys to enforce any of the provisions hereof, the party
losing in any final judgment agrees to pay the prevailing
party all reasonable costs, charges and expenses, including
reasonable attorneys' fees, expended or incurred in
connection therewith.
<PAGE>
9.11 Notices. All notices required or permitted
hereunder shall be in writing and shall be served on the
parties at the following address:
If to Seller: Prudential Realty Trust
c/o The Prudential Insurance
Company of America
Attn: Richard Flohr
751 Broad Street
Newark, New Jersey 07102-3777
Telephone: 201/802-8178
Facsimile: 201/824-4955
With a copy to: The Prudential Insurance Company of
America
Attn: Donna Dellechiaie
Associate Regional Counsel
Law Department
Newark Realty Group Office
Gateway III - 14th Floor
Newark, New Jersey 07102
Telephone: 201/802-5412
Facsimile: 201/802-7040
If to Purchaser: Reckson Operating Partnership, L.P.
Attn: Scott Rechler
225 Broad Hollow Road
Mellville, New York 11747
Telephone: 516/694-6900
Facsimile: 516/756-1764
With a copy to: Brown & Wood
Attn: David J. Weinberger
One World Trade Center
New York, New York 10048-0557
Telephone: 212/839-5521
Facsimile: 212/839-5599
Any such notices shall be either (a) sent by certified
mail, return receipt requested, in which case notice shall
be deemed delivered three business days after deposit,
postage prepaid in the U.S. Mail, (b) sent by overnight
delivery using a nationally recognized overnight courier, in
which case it shall be deemed delivered one business day
after deposit with such courier, (c) sent by telefax, in
which case notice shall be deemed delivered upon
transmission of such notice, or (d) sent by personal
delivery. The above addresses may be changed by written
notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual
receipt of such notice. Copies of notices are for
<PAGE>
informational purposes only, and a failure to give or
receive copies of any notice shall not be deemed a failure
to give notice.
9.12 Calculation of Time Periods. Unless otherwise
specified, in computing any period of time described herein,
the day of the act or event after which the designated
period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday or legal holiday, in
which event the period shall run until the end of the next
day which is neither a Saturday, Sunday, or legal holiday.
The last day of any period of time described herein shall be
deemed to end at 6 p.m. EST.
9.13 Information and Audit Cooperation. At Purchaser's
request, at any time before the Closing, Seller agrees to
provide to Purchaser's designated independent auditor access
to the books and records of the Property and all related
information regarding the period for which Purchaser is
required to have such Property audited under the regulations
of the Securities and Exchange Commission, and a
representation letter regarding the books and records of the
Property in substantially the form of Exhibit G attached
hereto in connection with the normal course of auditing such
Property in accordance with generally accepted auditing
standards. The representation letter may be signed by the
manager of the Property. Purchaser agrees to indemnify and
hold harmless Seller from any claim, damage, loss, or
liability to which Seller is at any time subjected by person
who is not a party to this agreement as a result of its
compliance with this Paragraph 9.15.
9.14 Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall
be deemed to be an original, and all of such counterparts
shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by
telephone facsimile counterparts of the signature pages.
9.15 Further Assurances. In addition to the acts and
deeds recited herein and contemplated to be performed,
executed and/or delivered by Seller to Purchaser at Closing,
Seller agrees to perform, execute and deliver, but without
any obligation to incur any additional liability or expense,
on or after the Closing any further deliveries and
assurances as may be reasonably necessary to consummate the
transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to
Purchaser.
<PAGE>
9.16 Exculpation Provision. Prudential Realty Trust is
a voluntary association established under the laws of the
Commonwealth of Massachusetts by a Declaration of Trust
dated June 19, 1985, which together with all amendments
thereto, is on file with the Secretary of State of the
Commonwealth of Massachusetts. The obligations of the
Prudential Realty Trust are not personally binding upon, nor
shall resort be made to the private property of any of the
trustees, shareholders, officers, employees or agents of
Prudential Realty Trust, but the property of Prudential
Realty Trust shall be bound.
9.18 Transfer Gains Tax. Seller will prepare and
deliver to Purchaser the transferee questionnaires required
of Purchaser to comply with Article 31-B of the New York Tax
Law and any rules and regulations promulgated thereunder
(the "Gains Tax Law") in connection with the sale of the
Property. Purchaser shall execute, acknowledge and deliver
to Seller, within 5 days after receipt from Seller, such
transferee questionnaires. Seller shall, in a timely
fashion, execute and acknowledge the transferor
questionnaires required of Seller to comply with the Gains
Tax Law and shall take all necessary and appropriate steps
to obtain statements of tentative assessment under the Gains
Tax Law and shall deliver the same to Purchaser at Closing.
Seller shall pay the tax imposed under the Gains Tax Law
upon the sale of the Property. Seller and Purchaser shall
each complete and/or maintain any additional questionnaires,
affidavits, documents and information (collectively
"materials") as may be required to comply with the Gains Tax
Law, including such materials as may be required in
connection with any claim for refund. Each party shall
fulfill its obligations under this Section 9.18 in a
diligent and timely manner having due regard for the Closing
Date. Any additional materials required of Purchaser that
must be submitted to the applicable authority shall,
instead, be delivered by Purchaser to Seller and Seller
shall submit the same to the applicable authority, together
with any materials required of Seller in accordance with
this Paragraph.
<PAGE>
SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
PRUDENTIAL REALTY TRUST
AND
RECKSON OPERATING PARTNERSHIP, L.P.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year written below.
PRUDENTIAL REALTY TRUST
By: /s/ Joseph M. Selzer
Joseph M. Selzer,
Vice President
Dated: August 25, 1995
"Seller"
RECKSON OPERATING PARTNERSHIP,
L.P.
By: Reckson Associates Realty
Corp.
By: /s/ Scott Rechler
Scott Rechler,
Executive Vice
President
Dated: August 23, 1995
"Purchaser"
<PAGE>
AGREEMENT OF PURCHASE AND SALE
FOR HUNTINGTON BUSINESS CAMPUS I & II
EXHIBITS
A - Legal Description of Real Property
B - Form of Rent Roll
C - [Intentionally Omitted]
D - Form of Tenant Estoppel
E - Assignment of Leases, Service Contracts and Personal
Property
F - Notice to Tenants
G - Audit Letter
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
1660 Walt Whitman Road, Melville, New York and 520
Broadhollow Road, Melville, New York, also known as:
PARCEL 1
ALL THAT CERTAIN PLOT, PIECE, OR PARCEL OF LAND, SITUATE,
LYING, AND BEING IN THE TOWN OF HUNTINGTON, COUNTY OF
SUFFOLK AND STATE OF NEW YORK BEING MORE PARTICULARLY
BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT AN INTERIOR POINT AT THE SOUTH EAST CORNER OF
THE HEREIN DESCRIBED PREMISES ON THE WESTERLY SIDE OF LAND
NOW OR FORMERLY OF LONG ISLAND LIGHTING COMPANY WHERE THE
SAME IS INTERSECTED BY THE NORTHERLY SIDE OF LAND NOW OR
FORMERLY OF MERILLON PROPERTIES NV INC. SAID POINT OR PLACE
OF BEGINNING BEING ALSO DISTANT 1200.67 FEET NORTHERLY AS
MEASURED ALONG THE WESTERLY SIDE OF LAND NOW OR FORMERLY OF
LONG ISLAND LIGHTING COMPANY FROM ITS INTERSECTION WITH THE
NORTHERLY SIDE OF BAYLIS AVENUE; RUNNING THENCE FROM SAID
POINT OR PLACE OF BEGINNING ALONG LAND NOW OR FORMERLY OF
MERILLON PROPERTIES NV INC. NORTH 84 DEGREES, 13 MINUTES, 48
SECONDS WEST 566.63 FEET; THENCE NORTH 5 DEGREES, 46
MINUTES, 12 SECONDS EAST 470.58 FEET TO LAND NOW OR FORMERLY
OF GBL 66 BUILDING CORP; RUNNING THENCE ALONG SAID LAST
MENTIONED LAND AND ALONG LAND NOW OR FORMERLY OF PRUDENTIAL
INSURANCE COMPANY. THE FOLLOWING TWO (2) COURSES AND
DISTANCES:
(1) SOUTH 81 DEGREES, 38 MINUTES, 20 SECONDS EAST 634.81
FEET; AND
(2) SOUTH 78 DEGREES, 51 MINUTES, 10 SECONDS EAST 129.83
FEET TO LAND NOW OR FORMERLY OF LONG ISLAND LIGHTING
COMPANY; THENCE ALONG SAID LAST MENTIONED LAND SOUTH 30
DEGREES, 22 MINUTES, 32 SECONDS WEST 472.63 FEET TO LAND NOW
OR FORMERLY OF MERILLON PROPERTIES NV INC. AT THE POINT OR
PLACE OF BEGINNING.
FOR INFORMATION ONLY: DISTRICT 0400 SECTION 268.00 BLOCK
01.00 LOT 002.002 AND 002.001.
PARCEL 2
ALL THAT CERTAIN PLOT, PIECE, OR PARCEL OF LAND, SITUATE,
LYING, AND BEING IN THE TOWN OF HUNTINGTON, COUNTY OF
<PAGE>
SUFFOLK AND STATE OF NEW YORK BEING MORE PARTICULARLY
BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE EASTERLY SIDE OF WALT WHITMAN
ROAD (AMITYVILLE HUNTINGTON ROAD) AT THE SOUTH WEST CORNER
OF THE HEREIN DESCRIBED PREMISES WHERE THE SAME IS
INTERSECTED BY THE NORTHERLY SIDE OF LAND NOW OR FORMERLY OF
FRELAN ASSOCIATES SAID POINT OR PLACE OF BEGINNING BEING
ALSO DISTANT 517.53 FEET NORTHERLY AS MEASURED ALONG THE
EASTERLY SIDE OF WALT WHITMAN ROAD (AMITYVILLE HUNTINGTON
ROAD) FROM THE CORNER FORMED BY THE INTERSECTION OF THE
NORTHERLY SIDE OF BAYLIS AVENUE WITH THE EASTERLY SIDE OF
WALT WHITMAN ROAD (AMITYVILLE HUNTINGTON ROAD); RUNNING
THENCE FROM SAID POINT OR PLACE OF BEGINNING ALONG THE
EASTERLY SIDE OF WALT WHITMAN ROAD (AMITYVILLE HUNTINGTON
ROAD) THE FOLLOWING THREE (3) COURSES AND DISTANCES:
(1) NORTH 37 DEGREES, 37 MINUTES, 38 SECONDS EAST 281.18
FEET:
(2) NORTH 26 DEGREES, 21 MINUTES, 30 SECONDS EAST 258.02
FEET; AND
(3) NORTH 20 DEGREES, 42 MINUTES, 00 SECONDS EAST 16.20
FEET TO LAND NOW OR FORMERLY OF GBL 66 BUILDING CORPORATION;
THENCE ALONG SAID LAST MENTIONED LAND SOUTH 81 DEGREES, 38
MINUTES, 20 SECONDS EAST 483.28 FEET; THENCE SOUTH 5
DEGREES, 46 MINUTES, 12 SECONDS WEST 470.58 FEET TO LAND NOW
OR FORMERLY OF MERILLON PROPERTIES NV INC.; THENCE ALONG
SAID LAST MENTIONED LAND AND ALONG LAND NOW OR FORMERLY OF
FRELEN ASSOCIATES THE FOLLOWING TWO (2) COURSES AND
DISTANCES:
(1) NORTH 84 DEGREES, 13 MINUTES, 48 SECONDS WEST 113.23
FEET; AND
(2) NORTH 84 DEGREES, 33 MINUTES, 58 SECONDS WEST 612.89
FEET TO THE EASTERLY SIDE OF WALT WHITMAN ROAD (AMITYVILLE
HUNTINGTON ROAD) AT THE POINT OR PLACE OF BEGINNING.
FOR INFORMATION ONLY: DISTRICT 0400 SECTION 268.00 BLOCK
01.00 LOT 002.002 AND 002.001.
EXHIBIT B
FORM OF RENT ROLL
Hungtington Business Campus
Rent Roll as of
Tenant
Square
Feet
Lease
Commencement
Date
Lease
Expiration
Date
Date of
Lease
Amendments
$ Current
Annual
Base Rent
$ Monthly/
Annual
Escalations/
Recoveries
$ Security
Deposit
Arrearages
Subsequent
Brokerage
Commissions
($'s and Date)
<PAGE>
EXHIBIT D
FORM OF TENANT ESTOPPEL
_______________________ , 19______
Prudential Realty Trust
751 Broad Street
Newark, New Jersey 07102-3777
Reckson Operating Partnership, L.P.
225 Broad Hollow Road
Melville, New York 11747
Dear Sirs:
As the present owner and holder of the Tenant's
interest under the Lease described in Exhibit A attached
hereto (the "Lease"), the undersigned hereby represents to
you that as of the date hereof (i) the Lease has not been
modified or amended, except as specifically set forth in
Exhibit A, (ii) the Lease is in full force and effect and
the term thereof commenced on _______________, 19_____
pursuant to the provisions thereof, (iii) the premises
demised under the Lease have been completed and the
undersigned has taken possession of the same on a rent-
paying basis, (iv) neither the undersigned nor the Landlord
under the Lease is in default under any of the terms,
covenants or provisions of the Lease and the undersigned
knows of no event which, but for the passage of time or the
giving of notice, or both, would constitute an event of
default under the Lease by the undersigned or the Landlord
thereunder, (v) neither the undersigned nor the Landlord
under the Lease has commenced any action or given or
received any notice for the purpose of terminating the
Lease, (vi) all rents, additional rents and other sums due
and payable under the Lease have been paid in full and no
rents, additional rents or other sums payable under the
Lease have been paid for more than one (1) month in advance
of the due dates thereof, (vii) there are no offsets or
defenses to the payment of the rents, additional rents, or
other sums payable under the Lease and the undersigned is
not entitled to any concessions, and (viii) the undersigned
has no option or right of first refusal to purchase the
premises demised under the Lease or any portion thereof.
Very truly yours,
<PAGE>
EXHIBIT A
(Description of the Lease)
Lease dated ___________________,19____ entered into between
____________________________________________________________
_______________________________________________, as
Landlord, and _____________________________________, as
Tenant.
<PAGE>
EXHIBIT E
ASSIGNMENT OF LEASES, SERVICE CONTRACTS AND PERSONAL
PROPERTY
This instrument is executed and delivered pursuant to
that certain Agreement of Purchase and Sale ("Agreement")
dated ________________ between Prudential Realty Trust, a
Massachusetts business trust ("Seller") and
___________________________, a _______________________
("Purchaser") covering the real property described in
Exhibit A attached hereto ("Real Property").
1. Assignment and Assumption. For good and valuable
consideration Seller hereby assigns, transfers, sets over
and conveys to Purchaser, and Purchaser hereby accepts:
(a) Leases. All of the landlord's right, title and
interest in and to the tenant leases ("Leases") covering the
Real Property as set forth on the Rent Roll attached hereto
as Exhibit B, and Purchaser hereby assumes all of the
landlord's obligations under the Leases arising from and
after the Closing Date (as defined in the Agreement) but as
to the landlord's obligations with regard to security
deposits and other deposits only to the extent the security
deposits and other deposits have been transferred or
credited to Purchaser;
(b) Tangible Personalty. All of the furniture,
fixtures, equipment, interior appliances, machines,
apparatus, supplies and personal property of every nature
and description and all replacements thereof now owned by
Seller (including any interest in such property that is
leased by Seller) and located in or on the property except
any such personal property belonging to tenants under the
Leases;
(c) Intangible Personalty. All the right, title and
interest of Seller in and to any and all of the intangible
personal property related to the Real Property to the extent
such property is assignable, including, without limitation,
all trade names and trademarks associated with the Real
Property including Seller's interest in the name of the Real
Property to the extent, if any, Seller has any such rights
to trademarks, the plans and specifications and other
architectural and engineering drawings for the Real Property
and improvements located on the Real Property; warranties;
contract rights related to the construction, operation,
ownership or management of the Real Property (but excluding
Seller's obligations under contracts except those expressly
assumed in this instrument); governmental permits, approvals
and licenses to the extent assignable; and telephone
exchange numbers (if assignable); and
<PAGE>
(d) Service Contracts. The service contracts
described in Exhibit C attached hereto, and Purchaser hereby
assumes the obligations of Seller under such service
contracts arising from and after the Closing Date.
2. Warranty. Seller warrants and defends title to
the above-described property unto Purchaser, its successors
and assigns, against any person or entity claiming, or to
claim, the same or any part thereof by, through or under
Seller, but not otherwise, subject only to the Permitted
Exceptions as defined in the Agreement.
SELLER:
By:
Name:
Title:
PURCHASER:
By:
Name:
Title:
[ACKNOWLEDGEMENT]
<PAGE>
EXHIBIT F
(LETTERHEAD)
NOTICE TO TENANTS
[Date]
[Name]
[Address]
[City/State/ZIP]
Re: Property Address
City, State
Dear [Tenant]:
Please be advised that the premises of which you are a
tenant at the above referenced property, and the landlord's
interest in your lease, were purchased on [Date], by
________________________, a __________________________. Any
security deposits were transferred to
__________________________. All payments, rent and
otherwise, should be made payable to:
and directed to:
[Company Name]
[Address]
[City, State, ZIP]
Any notices, required to be sent pursuant to your
lease, and any inquiries or concerns should be sent and/or
directed to: (with copy to)
Attention:
Very truly yours,
[Seller's Name]
By:
By:
<PAGE>
EXHIBIT G
AUDIT LETTER
__________________________
__________________________
__________________________
Dear Sirs:
We are writing at your request to confirm our
understanding that your audit of the statement of operating
income for the year ended ______________, 199_, was made for
the purpose of expressing an opinion as to whether the
statement of operating income presents fairly, in all
material respects, the results of operations of [Name of
Project] in conformity with generally accepted accounting
principles. These representations are made exclusively to
[Auditor] and not to the buyer of the Project or any other
third party and only relate to the period in the above year
during which the undersigned was the owner of the subject
Project. In connection with your ______________, 199_ audit
we confirm, to the best of our knowledge and belief without
any duty of inquiry or investigation, with respect to our
daily operations, the following representations made during
your audit:
1. We have made available to you all financial records and
related data concerning this Project, which are in our
possession.
2. We are not aware of any:
a. Irregularities involving any member of management
that could have a materially adverse effect on the
statement of operating income.
b. Notices of violations of laws or regulations, the
effects of which should be considered for
disclosure in the financial statements or as a
basis for recording a loss contingency.
c. Material events that have occurred subsequent to
_____________, 19__ to the subject Project during
which the undersigned was the owner of the subject
Project that would require adjustment to the books
and records of the subject Project and/or
disclosure to the statement of operating income.
3. To the best of our knowledge, we [the owner of the
Project, if the property manager is signing] have
complied with all material aspects of contractual
<PAGE>
agreements relating to the subject Project (e.g.,
management contracts) that would have a material effect
on the statement of operating income in the event of
noncompliance.
[ ]
By:
Name:
Title:
<PAGE>
