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 11, 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)
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Item 1. Not Applicable.
Item 2. Acquisition or Disposition of Assets.
Disposition of Huntington Business Campus I & II.
In furtherance of resolutions adopted by the Board
on June 2, 1995 to effect the liquidation and termination of
the Trust, on September 27, 1995 the Trust completed the
sale of its Huntington Business Campus I & II properties
located in Melville, New York (the "Huntington Properties")
to Reckson Operating Partnership, L.P., a Delaware limited
partnership (the "Buyer") for a sales price of $11.4
million, with net proceeds to the Trust of $[ ] million.
The Huntington Properties consist of two office buildings.
The purchase price was determined by negotiation between the
Trust and the Buyer. The sale was completed pursuant to a
Purchase and Sale Agreement, dated August 23, 1995, between
the Trust and the Buyer, which Agreement was the subject of
a current report by the Trust on Form 8-K dated August 23,
1995 and filed September 7, 1995.
The sale of the Huntington Properties and the
Trust's former Park 100 properties located in Indianapolis,
Indiana (the "Park 100 Properties") and the expected sale of
the Trust's Maple Plaza I and II properties located in
Parsippany, Morris County, New Jersey (the "Maple Plaza
Properties"), at the purchase prices received in the case of
the Huntington Properties and the Park 100 Properties and at
the agreed 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.
Agreement of Purchase and Sale of Maple Plaza 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 Agreement of Purchase
and Sale (as amended, the "Maple Plaza Agreement"), dated
August 11, 1995 and amended on September 15, 1995 and
September 29, 1995, with Equitable Real Estate Investment
Management, Inc., a Delaware corporation, as investment
manager to the Trustees of the The United Mine Workers of
America 1974 Pension Trust, ("Buyer"), for the sale of the
Maple Plaza Properties. The purchase price for the Maple
Plaza Properties is $30,000,000 (subject to adjustment as
provided for in the Agreement), which is payable in cash.
The closing of the sale of the Maple Plaza
Properties (the "Closing") is to occur 10 business days
after the expiration of the time provided for due diligence
by the Buyer, subject to extension as provided therein.
Closing is contingent upon customary conditions for
transactions of this nature.
The Buyer has deposited $500,000 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 Maple Plaza Agreement.
If all of the conditions to Buyer's obligations to
purchase the Maple Plaza 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 Maple Plaza Agreement, the Trust's sole
remedy is to terminate the Maple Plaza Agreement and to
retain the Earnest Money as liquidated damages. If the
Trust does not consummate the sale of the Maple Plaza
Properties for any reason other than the default of Buyer or
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the exercise by Buyer of a right of termination as provided
for in the Maple Plaza Agreement, the Earnest Money will be
refunded to Buyer. If Buyer terminates the Maple Plaza
Agreement due to certain circumstances set forth in the
Maple Plaza 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 Maple Plaza
Agreement and Buyer's due diligence review of the Maple
Plaza Properties.
A copy of the Maple Plaza Agreement and each of
the amendments thereto is filed as Exhibit 10 hereto, and is
incorporated herein by reference. The foregoing description
of the Maple Plaza Agreement is qualified in its entirety by
reference to the text of such documents.
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.
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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 Huntington Business
Campus properties were sold on June 30, 1995; (iii) the Trust's loan
payable and related interest expense was paid off as of June 30, 1995, and
(iv) 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 and the Huntington Bsuiness Campus 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
Stockholers' Equity.
Pro Forma
Historical Adjustments Pro Forma
ASSETS
Real estate owned $69,523,975 (a) $(32,254,255) $29,131,311
(b) (13,107,924)
(c) 4,969,515
Cash & cash equivalents 2,509,589 (d) 18,022,780 31,552,211
(e) 11,019,842
Accounts receivable 620,469 (f) 1,000,000 3,186,638
(a) (106,146)
(b) (61,685)
(g) 1,674,000
(h) 60,000
Prepaid expenses 239,455 (b) (214,572) 0
(c) (24,883)
Deferred rent receivable 2,523,701 (a) (162,695) 0
(b) (318,299)
(c) (2,042,707)
Deferred financing costs 56,250 (c) (56,250) 0
TOTAL ASSETS $75,473,439 $(11,603,279) $63,870,160
<PAGE>
Prudential Realty Trust
Pro Forma Balance Sheet
As of June 30, 1995
(Unaudited)
LIABILITIES & STOCKHOLDERS' EQUITY
Pro Forma
Historical Adjustments Pro Forma
Accounts payable and
accrued expenses $ 2,506,295 (a) $(72,598) $ 3,988,318
(b) 85,500
(g) 1,731,000
(d) (261,879)
Loans payable 18,062,123 (d) (18,062,123) 0
Due to Advisor 250,312 250,312
Security Deposits 405,046 (a) (197,466) 0
(b) (69,175)
(c) (138,405)
Other 97,651 (a) (96,246) 1,405
TOTAL LIABILITIES 21,321,427 (17,081,392) 4,240,035
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 (42,440,277)
(b) (2,638,963)
(c) 2,984,080
(g) (57,000)
TOTAL SHAREHOLDERS'
EQUITY $54,152,012 $ 5,478,113 $59,630,125
TOTAL LIABILITIES &
SHAREHOLDERS' EQUITY $75,473,439 $(11,603,279) $63,870,160
(a) Sale of Park 100 properties and elimination of related asset and
liability accounts.
(b) Sale of Huntington Business Campus properties and elimination of
related asset and liability accounts.
(c) Adjust amounts to net realizable value under the liquidation basis
of accounting.
(d) Receipt of cash proceeds from sale of Park 100 properties net of
repayment of loans and related interest payable.
(e) Receipt of cash proceeds from sale of Huntington Business Campus.
(f) Amount due November 1, 1995 from sale of Park 100.
(g) Adjust amounts to provide for expected net income of liquidating the
Trust until the expected date of disposition of Trust assets.
(h) Earnest money due from sale of Huntington Business Campus.
<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
Loss on Sale of Huntington Business Campus (2,638,963)
Adoption of Liquidation Basis of Accounting 2,984,080
Expected Trust Net (loss) to expected date of
disposition of Trust Assets (57,000)
Pro Forma Net Assets in liquidation at June 30, 1995 $59,630,125
<PAGE>
(c) Exhibits Required by Item 601 of Regulation S-K.
Exhibit
No.
10 Agreement of Purchase and Sale, dated August 11, 1995
between Prudential Realty Trust and Equitable Real
Estate Investment Management, Inc., as amended.
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: October 13, 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
10. Agreement of Purchase and Sale, dated
August 11, 1995, between Prudential
Realty Trust and Equitable Real
Estate Investment Management, Inc., as amended.
<PAGE>
EXHIBIT 10
AGREEMENT OF PURCHASE AND SALE
[Maple Plaza I and II]
ARTICLE 1: PROPERTY/PURCHASE PRICE
1.1 Certain Basic Terms.
(a) Seller: PRUDENTIAL REALTY TRUST, a
Massachusetts business trust.
(b) Purchaser: EQUITABLE REAL ESTATE INVESTMENT
MANAGEMENT, INC., a Delaware
corporation, as investment manager
to the Trustees of The United Mine
Workers of America 1974 Pension
Trust (the "Mine Workers Trust").
(c) Date of this The latest date of execution
Agreement: by Seller or Purchaser, as
indicated on the signature page.
(d) Purchase Price: $31,500,000.
(e) Earnest Money: $500,000, including interest, if
any, thereon.
(f) Due Diligence
Period: The period ending August 31, or as
extended as provided herein.
(g) Closing Date: The later of 10 business days after
the Due Diligence Period and
September 29, 1995, subject to
extension as provided herein. All
extension periods for the Closing
provided herein shall run
concurrently, not consecutively.
(h) Title Company: The Chicago Title Insurance Company
1211 Avenue of the Americas
28th Floor
New York, New York 10036-8701
Attn: William Ciganek
Telephone: 212-789-6500
Facsimile: 212-789-6699
<PAGE>
(i) Escrow Agent: The Chicago Title Insurance
Company
1211 Avenue of the Americas
28th Floor
New York, New York 10036-8701
Attn: William Ciganek
Telephone: 212-789-6500
Facsimile: 212-789-6699
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") (The Property consists of two tax parcels, and it is
agreed that items described in the singular in this Agreement
shall refer to the plural, to the extent applicable.) 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 of the Improvements, including leases which may be made by
Seller after the date hereof and prior to Closing as permitted by
this Agreement.
(c) The "Tangible Personal Property," being all equipment,
machinery, furniture, furnishings, supplies and other tangible
personal property owned by Seller, now or hereafter located in
and used in connection with the operation, ownership or
management of the Real Property, including those items listed on
an inventory to be agreed upon by Seller and Purchaser during the
Due Diligence Period.
(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,
<PAGE>
including, without limitation: all trade names and trade marks
associated with the Real Property including Seller's rights and
interests in the name of Maple Plaza I and II 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 date hereof Purchaser shall
deposit 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 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
the date hereof and with all access and deliveries completed by
August 15, 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
(individually, "Rent Roll", collectively, the "Rent Rolls") (to
be delivered);
(b) Operating Statements. Operating statements of the
Property from January 1, 1992 ("Operating Statements") (to be
delivered), 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;
<PAGE>
(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 tenant
correspondence and commission agreements relating to the
Property. 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 24 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;
(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 and "as
built" 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; and
(k) Permits and Licenses. All permits, licenses and
approvals in Seller's possession with respect 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 continue to provide same
during the pendency of this Agreement.
<PAGE>
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, August
21, 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 assumptions and method of calculation
set forth therein (ii) the existence and magnitude of tenant
defaults or delinquencies; or (iii) material provisions in
any of the Leases or commission agreements.
(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) (i) exceed tolerances
permitted under applicable laws and (ii) 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 during the Due Diligence Period
Purchaser's environmental consultant concludes that further
investigation is required in order to determine whether
there is a recognized environmental condition (i.e., a Phase
II investigation is recommended), then the Due Diligence
Period shall be extended for a reasonable period agreed to
by the parties in order to enable Purchaser to conduct such
further investigation. Promptly after completion of
Purchaser's environmental review, Purchaser shall provide
written notice to Seller of any recognized environmental
conditions affecting the Property. If remediation of such
recognized environmental conditions is reasonably estimated
by Purchaser's environmental consultant not to exceed
$100,000, Seller shall remediate or cure such recognized
environmental condition, if the time required for such
remediation is reasonably estimated to be not more than 45
days, or, if the time required for such remediation is
reasonably estimated to exceed 45 days, credit Purchaser the
reasonably estimated cost of such remediation. If Seller
elects to cure, 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
<PAGE>
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 immediately necessary repairs and replacements to
the Property recommended by Purchaser's architectural and
engineering consultants exceeds $75,000, and Purchaser
requests Seller to grant it a credit against the Purchase
Price for such excess or a portion thereof, then Purchaser
and Seller shall negotiate in good faith as to whether such
repairs and replacements are immediately necessary and the
cost of such repairs and replacements that are determined to
be immediately necessary, and, if Purchaser and Seller are
unable to agree, prior to the expiration of the Due
Diligence Period, on the amount of the credit, then either
Purchaser or Seller may terminate this Agreement. The Term
"immediately necessary repairs and replacements" shall not
be limited to emergencies and shall not include any item
that constitutes a violation of applicable laws. Seller
shall cure or correct any violations of applicable laws,
provided that the reasonably estimated cost of curing such
violations does not, in the aggregate, exceed $500,000.
Purchaser may terminate this Agreement if it shall have
provided written notice to Seller of such violations and
Seller shall have failed to cure or correct such violations
within 90 days after Seller's receipt of such notice.
Following notice from Seller that a cure or correction has
been effected and completed, Purchaser shall have a period
of 30 days thereafter in which to determine whether such
violation has been cured or corrected, and the Closing Date
shall be delayed to the extent necessary to allow a full 90-
day period in which to effect such cure and a full 30-day
review period. If the reasonably estimated cost of curing
such violations exceeds $500,000, either party may terminate
this Agreement.
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.
<PAGE>
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 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 as
nearly as practicable 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. The obligations
of Purchaser under this paragraph shall survive any termination
of the Agreement.
2.4 Tenant Estoppels. Seller shall endeavor 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
B. 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 tenants under Leases covering (i) 16,000 square feet
or more in the aggregate and (ii) not less than 75 percent of the
remaining rentable floor area of the Property, in such form as
the tenant is required to provide under its Lease, the
information in all such estoppel certificates being consistent
<PAGE>
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
Purchaser will determine 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
will not be terminated. Seller shall terminate at Closing all
Service Contracts that are not so assumed. Seller shall
terminate at Closing, and Purchaser 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 date of this Agreement Purchaser shall cause 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) a
current survey of the Property ("Survey"), prepared by one or
more surveyors licensed in the State of New Jersey; 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 Due Diligence
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, tax liens,
construction liens, mechanic's and materialman's 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 date of this Agreement. Purchaser may terminate this
Agreement by notice to Seller before the end of the Due Diligence
Period if title to the Property (and matters affecting the
Property as disclosed by the Title Commitment and the Survey) and
<PAGE>
the endorsements and exclusions to the Title Policy are not
satisfactory to Purchaser, acting in good faith, including
confirmation that the Property is properly subdivided into two
parcels, and by notice to Seller after the expiration of the Due
Diligence Period if the Title Company revises the Title
Commitment after the expiration of the Due Diligence 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 Due Diligence Period if such additions, modifications
or deletions are not acceptable to Purchaser 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), (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 Commitment that
the Title Company has not agreed to insure over or remove from
the Title Commitment 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
<PAGE>
subleases without any option to purchase or acquire an interest
in the Property or any portion thereof. The Permitted Exceptions
shall apply only to the applicable portions of the Property as
indicated in the Title Commitment. 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.
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. During
the pendency of this Agreement, Seller will perform its
obligations under Leases and Service Contracts and other
agreements that may affect any of the Property.
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 except contracts or agreements entered into in the
ordinary course of business with respect to the Tangible Personal
Property or the Intangible Personal Property.
4.4 Leasing Arrangements. After the date 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 may withhold in its sole reasonable
discretion. 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.
<PAGE>
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
event the Property or a portion thereof is materially damaged or
destroyed, Purchaser may, at its option, by notice to Seller
given within 15 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 15-
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)
$1.0 million for insured damage and $500,000 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.
4.7 Condemnation. By notice to Seller given within 10 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
<PAGE>
the power of eminent domain, and if necessary the Closing Date
shall be extended to give Purchaser the full 10-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 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 $1.0 million (in aggregate for all
condemnation proceedings), whether or not the offer from the
condemning authority or actual award exceeds $1.0 million.
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 legal nonconformity.
If the proceeding is not material, then the provisions of clause
(ii) above shall apply.
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 date of this
Agreement 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) 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 and all or any
portion of the Property 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 provided that in no
event shall Purchaser be deemed to have waived any rights or
benefits under Paragraph 5.2(d). 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 bargain and sale deed with covenant against
grantor's acts in form provided for under the law of the State of
New Jersey 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,
<PAGE>
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 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 which an accurate survey made of the Real
Property at the time of Closing would show;
(b) Assignment of Leases, Service Contracts, and Personal
Property. An Assignment of Leases, Service Contracts, and
Personal Property in the form of Exhibit C 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 D 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 the Date of this Agreement, 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 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
<PAGE>
(i) ISRA Determination of Nonapplicability. An Industrial
Site Recovery Act Determination of Nonapplicability from the
State of New Jersey Department of Environmental Protection and
the application upon which it is based;
(j) Affidavit of Title. An Affidavit of Title in the form
customarily used in New Jersey; and
(k) 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.
5.4 Purchaser's Deliveries. On the Closing Date, Purchaser
shall deliver in escrow to Seller the following:
(a) Purchase Price. The Purchase Price, less the Earnest
Money, which shall be 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 Money to
Seller 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; and
(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.
5.5 Escrow Fees; Transfer Taxes and Recording Costs. The
Escrow Agent's escrow fee, if any, shall be divided equally
between and paid by Seller and Purchaser. All transfer taxes
shall be paid by Seller 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 Purchaser.
<PAGE>
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 the offices of
Purchaser's property manager 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.
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 on the day immediately
preceding the Closing Date for the Property:
(a) Taxes and Assessments. General 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.
(b) Collected Rent. All collected rent and other income
(and any applicable state or local tax on rent) under Leases,
including, without limitation, additional rent payments made by
tenants as reimbursement for any portion of the Taxes, 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,
<PAGE>
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) Seller's Operating Costs. Insurance, utilities, common
area maintenance and other operating costs and expenses (but
specifically excluding Taxes) (collectively, "Operating Costs")
incurred by Seller in connection with the ownership, operation,
maintenance and management of the Property, to the extent that
Seller is not currently collecting such amounts directly from
tenants under the Leases as additional rent.
(d) Reimbursed Operating Costs. Seller, as landlord under
the Leases, is currently collecting from tenants under the Leases
additional rent to cover increases in Operating Costs over a base
year. At Closing, Purchaser shall receive a credit or debit (any
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 in respect of such Operating Cost increases from
January 1, 1994, less the amount actually and properly paid by
Seller for such Operating Cost increases. Amounts actually and
properly paid by Seller for such Operating Cost increases shall
be calculated on the basis of amounts actually paid by Seller for
increases in Operating Costs over the respective base year
(determined separately for each lease) that are attributable to
the period commencing from January 1, 1994 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 and properly paid by Seller on account of
such Operating Cost increases through the Cut-Off Date (the
"Average Daily Amount"), 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. Operating Costs that are
not paid directly by tenants shall be prorated as provided in
subparagraph (c) above. In lieu of any post-Closing adjustment
for such Operating Cost increases, at Closing Purchaser shall
receive a credit for estimated disallowable expenses payable to
tenants after annual or other periodic Operating Cost adjustments
<PAGE>
scheduled to occur as of one or more dates following the Closing.
This credit will be determined by assuming that the Average Daily
Amount will be consistent for the remainder of 1995 and applying
the same percentage adjustment for disallowable expenses as was
used in the average of the reconciliation for Operating Cost
increases for the years 1993 and 1994 to the extent such
reconciliation has been completed.
(e) Leasing Commissions. On or before the Closing Date,
except as provided pursuant to Paragraph 4.4, Seller shall pay in
full all leasing commissions due to leasing or other agents for
the current remaining term of each Lease (including all exercised
renewal options) and provide Purchaser with receipts, cancelled
checks or other satisfactory evidence of such payment; 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.
6.2 Tenant Deposits. All tenant security deposits (and
interest thereon if required by law or contract to be 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.
6.3 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:
<PAGE>
(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 Jersey. 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 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
<PAGE>
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. There is no pending or, to Seller's knowledge,
threatened action, suit or proceeding with respect to Seller and
all or any portion of the Property before or by any court or
administrative agency, which if determined adversely, would have
the effect of 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 (including information relating to tenant payment
history), Rent Rolls and commission agreements, and all
amendments and guarantees thereto, that are delivered to
Purchaser pursuant to Paragraph 2.1 are true, correct and
complete copies, and, to Seller's knowledge, other than sub-
leases, no other Leases or possessory interests exist.
(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. To Seller's
knowledge, Seller has received no written notice and is not
otherwise aware that any Property or the use thereof violates any
governmental law or regulation or any covenants or restrictions
encumbering such Property.
(j) Seller is not a "party in interest" (a "Party in
Interest") or a "disqualified person" (a "Disqualified Person")
<PAGE>
with respect to the Mine Workers Trust under Section 3(14) of the
Employer Retirement Income Security Act of 1974, as amended or
under Section 4975 of the Internal Revenue Code of 1986, as
amended.
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 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.
(c) The Mine Workers Trust is not a Party in Interest or a
Disqualified Person with respect to Seller.
7.3 Survival of Representations and Warranties. The
representations and warranties set forth in this Article 7 are
made as of the date of this Agreement 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
<PAGE>
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.
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,
to SJP Properties Company ("SJP"), to an Affiliate of SJP or to a
corporation formed by Purchaser or SJP for the purpose of taking
title to the Property (an "Approved Assignee"). 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 SJP or (b) an entity at least a
majority of whose economic interest is owned by Purchaser or SJP;
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.
<PAGE>
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 Jersey.
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, 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,
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 date hereof 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. Nothing in this Paragraph 9.9 shall
preclude any party from (a) discussing the substance or any
relevant details of such transactions with any of its attorneys,
accountants, professional consultants, lenders, partners,
investors, or any prospective lender, partner or investor, as the
case may be; (b) making such disclosures as required by
applicable federal, state and local law, rule and regulation,
<PAGE>
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; or (c) disclosing to brokers, tenants and
prospective tenants after Closing that the Property has been sold
to Purchaser for the purposes of leasing or marketing the
Property. 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.
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 07102-4077
Telephone: 201/802-5412
Facsimile: 201/802-7040
<PAGE>
If to Purchaser: Equitable Real Estate Investment
Management, Inc.
Attn: Paul A. Mucci
101 Park Avenue
New York, New York 10178
Telephone: 212-972-2600
Facsimile: 212-557-6720
With a copy to: Kelley Drye & Warren
Attn: Robert D. Bickford, Jr.
101 Park Avenue
New York, New York
Telephone: 212-808-7638
Facsimile: 212-808-7897
With a copy to: SJP Properties Company
Attn: Steven J. Pozycki
One Upper Pond Road
Parsippany, New Jersey 07054
Telephone: 201-299-9117
Facsimile: 201-299-9621
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 providing receipt of delivery, in
which case it shall be deemed delivered one business day after
deposit with such courier, (c) sent by telefax, with simultaneous
delivery by the means permitted by clauses (a), (b) or (d) of
this sentence, in which case notice shall be deemed delivered
upon confirmation of 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 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
<PAGE>
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 5 p.m. EST.
9.13 Procedure for Indemnity. The following provisions
govern actions for indemnity under this Agreement. Promptly
after receipt by an indemnitee of notice of any claim, such
indemnitee will, if a claim in respect thereof is to be made
against the indemnitor, deliver to the indemnitor written notice
thereof and the indemnitor shall have the right to assume the
defense thereof with counsel mutually satisfactory to the parties
(it being agreed, for these purposes, that Sullivan & Cromwell,
Goodwin, Procter & Hoar and Kelley Drye & Warren are mutually
satisfactory); provided, however, that an indemnitee may at its
expense participate in the defense, and that an indemnitee shall
have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnitor, if the counsel retained by
the indemnitor would be inappropriate due to actual or potential
differing interests between such indemnitee and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnitor within a reasonable time
of notice of any such claim shall relieve such indemnitor of any
liability to the indemnitee under this indemnity only if and to
the extent that such failure is prejudicial to its ability to
defend such action, and the omission so to deliver written notice
to the indemnitor will not relieve it of any liability that it
may have to any indemnitee other than under this indemnity. The
indemnitor shall have the right to settle any action, without the
consent of the indemnitee, which is or may be subject to a claim
for indemnification hereunder so long as such settlement involves
a full release of the indemnitee and any of its applicable
subsidiaries and affiliates and does not involve more than the
payment of money (any other terms of settlement shall be subject
to the indemnitee's reasonable approval). If an indemnitee
settles a claim without the prior written consent of the
indemnitor, then the indemnitor shall be released from liability
with respect to such claim unless the indemnitor has unreasonably
withheld such consent.
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
<PAGE>
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.
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.
9.17 Reciprocal Indemnities. Seller agrees to indemnify
Purchaser and hold Purchaser harmless from any loss, liability,
damage, cost or expense (including, without limitation, court
costs and reasonable attorney's fees) paid or incurred by
Purchaser by reason of any claim to any broker's, finder's, or
other fee in connection with the transaction contemplated by this
Agreement by any party claiming by, through or under Seller.
Purchaser represents that it has dealt only with J.P. Morgan &
Co. Incorporated in connection with the transaction contemplated
by this Agreement and agrees to indemnify Seller and hold Seller
harmless from any loss, liability, damage, cost or expense
(including, without limitation, court costs and reasonable
attorney's fees) paid or incurred by Seller by reason of any
claim to any broker's, finder's, or other fee in connection with
the transaction contemplated by this Agreement by any party
claiming by, through or under Buyer. Seller agrees to pay any
fees of J.P. Morgan & Co. Incorporated incurred in connection
with the transaction contemplated by this Agreement.
<PAGE>
9.18 Closing Date Extension. In the event that this
Agreement is assigned to an Approved Assignee, such Approved
Assignee may extend the Closing Date to the later of November 13,
1995 or the Closing Date as otherwise extended hereby, by
delivering an additional $500,000 in Earnest Money to the Escrow
Agent by or before September 22, 1995. In the event that this
Agreement is assigned to an Approved Assignee and the Closing
Date is not so extended, this Agreement shall terminate on
September 22, 1995.
<PAGE>
SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
PRUDENTIAL REALTY TRUST
AND
EQUITABLE REAL ESTATE INVESTMENT MANAGEMENT, INC.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year written below.
PRUDENTIAL REALTY TRUST
By:
Jeffrey L. Danker
President
Dated:
"Seller"
EQUITABLE REAL ESTATE INVESTMENT
MANAGEMENT, INC., as investment
manager for the Trustees of The
United Mine Workers Of America 1974
Pension Trust
By:
Paul A. Mucci,
Senior Vice President
Dated:
"Purchaser"
<PAGE>
AGREEMENT OF PURCHASE AND SALE
FOR MAPLE PLAZA I AND II
EXHIBITS
A - Legal Description of Real Property
B - Form of Tenant Estoppel
C - Assignment of Leases, Service Contracts and Personal
Property
D - Notice to Tenants
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
<PAGE>
EXHIBIT B
FORM OF TENANT ESTOPPEL
_________________, 1995
[Purchaser's Name & Address]
Re: Lease between Prudential Realty Trust, as Landlord,
and __________________, as Tenant, dated
______________,
for a portion of premises commonly known as
______________________________ (the "Property")
Dear Sir or Madam:
The undersigned tenant (the "Tenant") of Prudential
Realty Trust (the "Landlord") at the Property hereby acknowledges
that the Landlord has entered into an agreement to sell the
Property to ________________________ (the "Purchaser"). The
Tenant also certifies as follows:
(a) The undersigned is the present tenant under that
certain lease (as amended, as hereinbelow described, the "Lease")
dated __________________, by and between the Landlord (or the
Landlord's predecessor in title), as the Landlord and the Tenant,
as amended by the following documents (if "none", state so
below):
whereby the Tenant leased certain space (hereinafter referred to
as the "Premises") situated on the Property. Unless otherwise
defined, all capitalized terms used herein shall have the
meanings ascribed to them in the Lease.
(b) The Lease, as of the date hereof, is in full force
and effect, binding and enforceable against the Tenant in
accordance with its terms, and, except as specifically set forth
<PAGE>
in paragraph 1 above, there are no other agreements, whether oral
or written, or understandings of any nature between the Landlord
and the Tenant which modify or amend the Lease in any respect
whatsoever. The Lease constitutes the complete agreement between
the Landlord and the Tenant with respect to the use of occupancy
of the Premises, and the Tenant acknowledges that it has no right
to use the Premises other than pursuant to the Lease.
(c) The Premises consists of ____________ rentable
square feet.
(d) The Landlord has fully performed all obligations
relating to construction of the Premises, the Property and the
leasehold improvements as described in the Lease. No additional
improvements to the Premises or the Property are required
pursuant to the terms of the Lease or any other agreement with
the Landlord. No payments are required to be made by the
Landlord to the Tenant pursuant to the terms of the Lease, and
the Landlord has performed all other items of an inducement
nature required to be performed by the Landlord. The Tenant has
unconditionally accepted and is in actual physical possession of
the Premises, is operating its business from the Premises in
accordance with any restrictions set forth in the Lease, and
there are no remaining conditions to the Tenant's obligations
under the Lease.
(e) The Lease term commenced on _________________, and
shall expire (unless sooner terminated or extended as provided in
the lease) on _______________; and that the Lease contains no
renewal, expansion, cancellation or purchase options that have
not lapsed or been waived, except as set forth hereinbelow (if
"none", state so below):
(f) The Tenant has no claim of default, offset,
setoff, abatement, reduction, defense or counterclaim to the
payment of minimum rent, additional rent or any other charges
payable to the Tenant pursuant to the Lease or with respect to
the Tenant's other obligations under the terms of the Lease and
the Tenant has no defenses to enforcement of the Lease in
accordance with its terms.
<PAGE>
(g) The Tenant is paying all rent, taxes and other
charges in accordance with the provisions of the Lease and the
Tenant is not in default in making any such payments in
accordance with the provisions of the Lease. All rental has been
paid to and including the period ending __________________, 1995;
and no rent under the Lease has been paid more than thirty (30)
days in advance of its due date, except for any security deposit
paid to the Landlord (as set forth below). The Tenant
acknowledges that the current minimum rental, effective as of the
date hereof, is payable in twelve (12) equal monthly installments
of $___________________ per month on the first day of each and
every month, payable in advance. The Tenant further acknowledges
that all additional rent (charges for taxes, insurance,
maintenance, common areas, etc.) are payable pursuant to the
terms of the Lease and that Tenant is currently paying
$_______________ per month as estimated additional rent, subject
to a year-end adjustment as provided in the Lease.
(h) The Tenant has been granted no options, rebates,
abatements, waivers, concessions or free rent except as set forth
in Lease and the Tenant has been granted no option or other right
to purchase the Property or Premises or any portion thereof.
(i) The Tenant is not in default in the performance or
observance of any of its obligations and no event has occurred
and no condition exists that, with the giving of notice of the
passage of time, or both, would constitute a default under any of
the terms or provisions of the Lease.
(j) The Landlord is not in default in the performance
or observance of any of its obligations and no event has occurred
and no condition exists that, with the giving of notice or the
passage of time, or both, would constitute a default under any of
the terms or provisions of the Lease.
(k) The amount of the security deposit deposited by
the Tenant under the Lease is $________________; said security
deposit has not been refunded or forfeited, in whole or in part.
(l) The Tenant has not transferred, assigned or
sublet, or agreed to transfer, assign, or sublet, its interest in
the Lease or any part thereof, nor has the Tenant allowed any
mechanic's lien or any other encumbrance of any kind to be placed
on or against the Premises that is presently not satisfied.
<PAGE>
(m) The Tenant has received no notice of violation of
any federal, state, county or municipal laws, regulations,
ordinances, orders or directive relating to the use or condition
of the Property or the Premises, including, but not limited to,
all environmental laws of all governmental or quasi-governmental
authorities, agencies or entities having jurisdiction over the
Premises or the Property and the Americans With Disabilities Act,
as amended from time to time and all regulations promulgated with
respect thereto.
(n) The Tenant acknowledges that the Purchaser shall
rely on the statements contained herein in acquiring title to the
Property, and that the Purchaser may rely upon the truth and
accuracy of such statements.
IN WITNESS WHEREOF, the undersigned has caused this
statement to be duly executed as of the _____ day of
__________________, 19___.
TENANT:
By:
Name:
Title:
<PAGE>
EXHIBIT C
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
without expense to Seller, 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
<PAGE>
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
(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 D
(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]
[Contact]
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>
AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
[Maple Plaza I and II]
THIS AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this
"Amendment") is entered into as of the 15th day of September, 1995, by
and between PRUDENTIAL REALTY TRUST, a Massachusetts business trust
("Seller") and EQUITABLE REAL ESTATE INVESTMENT MANAGEMENT, INC., a
Delaware corporation, as investment manager to the Trustees of The
United Mine Workers of America 1974 Pension Trust ("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller and Purchaser have entered into that certain
Agreement of Purchase and Sale, dated August 11, 1995 (as amended to
date, the "Agreement"), pursuant to the terms and conditions of which
Seller has agreed to sell to Purchaser and Purchaser has agreed to
purchase from Seller, the Property (as defined in the Agreement); and
WHEREAS, Seller and Purchaser desire to amend the Agreement
in the manner set forth below;
NOW, THEREFORE, in consideration of the foregoing premises
and in consideration of other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, Seller
and Purchaser agree as follows:
(a) Amendments. (a) The Purchase Price as set forth in
Section 1.1(d) of the Agreement is hereby reduced from $31,350,000 to
$30,000,000.
(b) The date set forth in Section 1.1(f) of the Agreement
is hereby changed from "September 15" to "September 29."
(c) Section 2.1(a) of the Agreement is hereby amended to
read as follows: "(a) Rent Roll. By September 29, a current rent
roll and delinquency report (individually, "Rent Roll", collectively,
the "Rent Rolls"), which will correspond with the "J.P. Morgan
Descriptive Memorandum", including, without limitation, "Exhibit III-
1: Consolidated Cash Flow Projections for 1995," as modified by those
changes the parties mutually agreed upon in calculating a reduction to
the Purchase Price;".
<PAGE>
(d) Section 2.2(c) of the Agreement is hereby amended by
reducing the dollar amount "$75,000" to the dollar amount "$25,000" in
the third line of such Section.
(e) Section 4.4 of the Agreement is hereby amended by (i)
replacing the words "agree to assume the payment for" with the words
"(i) reimburse Seller for any payment made by Seller for commissions
or tenant improvements and (ii) agree to assume any obligation for the
future payment of "on the fourth line and (ii) adding the words "each
case in" before the word "connection" on the fifth line.
(e) Section 5.3 of the Agreement is hereby amended as
follows:
(i) by deleting the word "and" at the end of Section
5.3(j);
(ii) by redesignating Section 5.3(k) Additional
Documents to be Section 5.3(l) Additional
Documents; and
(iii) by adding a new Section 5.3(k) which reads "(k)
Broker Release. A release from Cushman &
Wakefield of New Jersey, Inc. ("Cushman") in form
reasonably acceptable to Purchaser, relieving
Purchaser from any liability with respect to the
exclusive brokerage agreements between Seller and
Cushman, governing the marketing and leasing of
the Property, dated February 1, 1983 and August
1989, as amended (collectively, the "Exclusive
Agreement") with respect to commissions to Cushman
on account of transactions in which Cushman has
not acted as the direct broker for the tenant
(i.e., override commissions) or on account of
tenants with whom Cushman may have negotiated
prior to Closing, if no lease was signed prior to
closing."
(f) Section 6.1(e) of the Agreement is hereby amended
by adding the following sentences to the end of such section:
<PAGE>
"Seller shall cause the Exclusive Agreement to be
terminated with respect to the Property as of the
Closing Date. Notwithstanding any provision of
this Agreement to the contrary, it is agreed that
Purchaser shall not assume any obligations under
the Exclusive Agreement for the payment of any
commissions to Cushman on account of transactions
in which Cushman has not acted as the direct
broker for the tenant (i.e., override commissions)
or on account of tenants with whom Cushman may
have negotiated prior to Closing, if no lease was
signed prior to closing."
(b) Other Terms Not Affected. Except as expressly amended
and modified hereby, all provisions of the Agreement shall remain in
full force and effect and are not otherwise amended or modified.
(c) Governing Law. This Amendment shall in all respects be
governed, construed, applied and enforced in accordance with the laws
of the State of New Jersey.
(d) Execution in Counterparts. This Amendment 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
Amendment. To facilitate execution of this Amendment, the parties may
execute and exchange by telephone facsimile counterparts of the
signature pages.
<PAGE>
SIGNATURE PAGE TO
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
PRUDENTIAL REALTY TRUST
AND
EQUITABLE REAL ESTATE INVESTMENT MANAGEMENT, INC.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the 15th day of September, 1995.
PRUDENTIAL REALTY TRUST
By:
Joseph M. Selzer,
Vice President
"Seller"
EQUITABLE REAL ESTATE INVESTMENT
MANAGEMENT, INC., as investment manager
for the Trustees of The United Mine
Workers Of America 1974 Pension Trust
By:
Name:
Title:
"Purchaser"
<PAGE>
SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
[Maple Plaza I and II]
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
(this "Amendment") is entered into as of the 29th day of September,
1995, by and between PRUDENTIAL REALTY TRUST, a Massachusetts business
trust ("Seller") and EQUITABLE REAL ESTATE INVESTMENT MANAGEMENT,
INC., a Delaware corporation, as investment manager to the Trustees of
The United Mine Workers of America 1974 Pension Trust ("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller and Purchaser have entered into that certain
Agreement of Purchase and Sale, dated August 11, 1995, as amended by
the Amendment to Agreement of Purchase and sale, dated as of September
15, 1995 (as amended to date, the "Agreement"), pursuant to the terms
and conditions of which Seller has agreed to sell to Purchaser and
Purchaser has agreed to purchase from Seller, the Property (as defined
in the Agreement); and
WHEREAS, Seller and Purchaser desire to further amend the
Agreement in the manner set forth below;
NOW, THEREFORE, in consideration of the foregoing premises
and in consideration of other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, Seller
and Purchaser agree as follows:
(e) Amendments. The date set forth in Section 1.1(f) of
the Agreement is hereby changed from "September 29" to "October 3."
(f) Other Terms Not Affected. Except as expressly amended
and modified hereby, all provisions of the Agreement shall remain in
full force and effect and are not otherwise amended or modified.
(g) Governing Law. This Amendment shall in all respects be
governed, construed, applied and enforced in accordance with the laws
of the State of New Jersey.
<PAGE>
(h) Execution in Counterparts. This Amendment 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
Amendment. To facilitate execution of this Amendment, the parties may
execute and exchange by telephone facsimile counterparts of the
signature pages.
<PAGE>
SIGNATURE PAGE TO
SECOND AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
PRUDENTIAL REALTY TRUST
AND
EQUITABLE REAL ESTATE INVESTMENT MANAGEMENT, INC.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the 29th day of September, 1995.
PRUDENTIAL REALTY TRUST
By:
Joseph M. Selzer,
Vice President
"Seller"
EQUITABLE REAL ESTATE INVESTMENT
MANAGEMENT, INC., as investment manager
for the Trustees of The United Mine
Workers Of America 1974 Pension Trust
By:
Name:
Title:
"Purchaser"
