SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)December 31, 1996
DEAN WITTER REALTY INCOME PARTNERSHIP III, L.P.
(Exact name of registrant as specified in its charter)
Delaware 0-18146 13-3293754
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
Two World Trade Center, New York, New York 10048
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 392-1054
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Pursuant to an agreement dated as of November 19, 1996, Technology
Park Associates (which is owned 35% by the Partnership and 65% by
Dean Witter Realty Income Partnership IV, L.P., an affiliated public
partnership) and DW/Technology Park II Associates, L.P. (which is
owned by affiliates of the General Partner) agreed to sell the
Technology Park Reston office park (the "Property") to Sprint
Communications Company L.P., which was the sole tenant at the
Property.
The negotiated sales price for the Property was $76,300,000.
$51,483,000 of the sales price was allocated to Technology Park
Associates and $24,817,000 was allocated to DW/Technology Park II
Associates, L.P., based on the relative square footage of the
buildings each owned at the Property.
The closing of the sale took place on December 31, 1996. The
purchase price was received in cash at closing. The Partnership
received approximately $17.7 million of such cash representing its
35% share of the cash received by Technology Park Associates, net of
closing costs.
<PAGE>
Item 7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
On a pro forma basis, if the sale of the Property had been
consummated on July 31, 1996, the Partnership's Balance
Sheet as of such date would have reflected an increase in
cash and cash equivalents of $17.7 million, a decrease in
investments in joint ventures of $17.0 million and an
increase in Partners' capital of $.7 million. For the
Statement of Operations, if the transaction were
consummated as of November 1, 1994, for the year ended
October 31, 1995, the Partnership's equity in losses of
joint ventures and net loss would have increased by $1.2
million, and the net loss per limited partnership unit
("Unit") of $6.24 would have increased by $1.96, to $8.20.
For the Statement of Operations, if the transaction were
consummated as of November 1, 1995, for the nine months
ended July 31, 1996, the Partnership's equity in earnings
of joint ventures would have decreased and net loss would
have increased by $.9 million and the net loss per Unit of
$11.58 would have increased by $1.48 to $13.06. The pro
forma adjustments to the Statement of Operations exclude
the Partnership's non-recurring gain on the sale.
(c) Exhibits
(2) Purchase and Sale Agreement dated as of
November 19, 1996 between Technology Park
Associates and DW/Technology Park II
Associates, L.P. as Seller and Sprint
Communications Company L.P. as Buyer.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
DEAN WITTER REALTY INCOME
PARTNERSHIP III, L.P.
By: Dean Witter Realty Income
Properties III, Inc.
Managing General Partner
By: /s/ E. Davisson Hardman, Jr.
E. Davisson Hardman, Jr.
President
Date: January 13, 1997
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this "Agreement"), dated
as of the 19th day of November, 1996, by and between TECHNOLOGY
PARK ASSOCIATES, a Virginia general partnership ("Seller 1"), and
DW/TECHNOLOGY PARK II ASSOCIATES, L.P., a Virginia limited
partnership ("Seller 2"), each having an office c/o Dean Witter Realty
Inc., Two World Trade Center, 64th Floor, New York, New York 10048
(collectively, the "Seller"), and SPRINT COMMUNICATIONS
COMPANY L.P., a Delaware limited partnership, having an office at
1200 Main Street, 12th Floor, Kansas City, Missouri 64105 (the
"Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the real property numbered
12490, 12502, 12524 and 12526 Sunrise Valley Drive, Reston, Virginia
consisting of four buildings commonly referred to as Technology Park;
WHEREAS, the Seller and the Purchaser have entered into
negotiations wherein the Purchaser expressed its intent to purchase the
Property (as defined herein) from the Seller and the Seller expressed its
intent to sell the Property to the Purchaser; and
WHEREAS, the Seller and the Purchaser now desire to enter into an
agreement whereby, subject to the terms and conditions contained herein,
the Seller shall sell the Property to the Purchaser and the Purchaser shall
purchase the Property from the Seller.
NOW, THEREFORE, in consideration of ten ($10.00) dollars and the
mutual covenants and agreements hereinafter set forth, and intending to
be legally bound hereby, it is hereby agreed as follows:
1. Sale of the Property.
The Seller agrees to sell and convey to the Purchaser, and the
Purchaser agrees to purchase from the Seller, at the price and upon the
terms and conditions set forth in this Agreement, all those certain plots,
pieces and parcels of land described in Schedule 1 hereto (the "Land")
listed thereon as owned by the Seller, together with (i) all buildings and
other improvements situated on the Land (collectively, the "Buildings"),
(ii) all easements, rights of way, reservations, privileges, appurtenances,
and other estates and rights of the Seller pertaining to the Land and the
Buildings, (iii) all right, title and interest of the Seller in and to all
fixtures, machinery, equipment, supplies and other articles of personal
property attached or appurtenant to the Land or the Buildings, or used in
connection therewith (collectively, the "Personal Property"), and (iv) all
right, title and interest of the Seller, if any, in and to the trade names of
the Buildings (the Land, together with all of the foregoing items listed in
clauses (i)-(iv) above being hereinafter sometimes referred to as the
"Property").
1.1. Excluded Property.
Specifically excluded from the Property and this sale are all
items of personal property not described in Section 1.
1.2. Closing Date.
The delivery of the Deed and the consummation of the
transactions contemplated by this Agreement (the "Closing") shall take
place at the offices of Bingham, Dana & Gould LLP, 150 Federal
Street, Boston, Massachusetts, at 10:00 A.M. on December 18, 1996
(the "Closing Date") or such earlier or later date as the Seller and
Purchaser may agree in writing.
1.3. Amendment of Sprint Lease.
The Property is subject to those four certain Lease Agreements,
each dated April 28, 1992 (collectively, the "Sprint Lease"), three of
which are by and between Seller 1 and Sprint Communications
Company L.P. (the "Prime Tenant") and relate to Tech Park I, III and
IV, and one of which is by and between Seller 2 and the Prime Tenant
and relates to Tech Park II. Simultaneously with the execution of this
Agreement, Seller and the Prime Tenant have entered into four
substantially similar amendments to the Sprint Lease with respect to
each of the Buildings (collectively, the "Sprint Lease Amendment")
and have caused the Sprint Lease Amendment to be deposited with the
Escrow Agent to be held pursuant to the terms of Section 15 hereof.
The Seller and the Prime Tenant have agreed that the Sprint Lease
Amendment shall be released from escrow by the Escrow Agent and
shall become effective if (i) the Closing does not occur and the Seller
terminates this Agreement by notice to the Purchaser pursuant to
Section 14.2 hereof, (ii) the Seller has not obtained the consents and
waivers from the holder of the Continuing Mortgage and the
assumption agreement from the Purchaser described in the second
paragraph of Section 8.1 hereof, (iii) the Purchaser has given a valid
Purchaser's Termination Notice which results in a termination of this
Agreement or (iv) the Closing does not occur and the Purchaser
terminates this Agreement by notice to the Seller pursuant to Section
14.1 or 14.3 hereof, provided that (a) in the event that the failure of
the Seller to obtain the consents, waivers and assumption agreement
described in (ii) above is due solely to the Seller's objection to the
form of the consents, waivers or assumption agreement offered by the
holder of the Continuing Mortgage, or (b) in the event of (iii) or (iv)
above, the Sprint Lease Amendment shall become effective only if the
Purchaser elects to make the Sprint Lease Amendment effective by
giving written notice thereof to the Seller contemporaneously with
notice of termination given pursuant to Section 14.1 or 14.3 hereof.
2. Purchase Price.
The purchase price to be paid by the Purchaser to the Seller for the
Property (the "Purchase Price") is Seventy-Six Million Three Hundred
Thousand Dollars ($76,300,000.00) payable as follows:
(a) Seven Hundred Fifty Thousand Dollars ($750,000.00)
(the "Downpayment") shall be paid within five (5) business days of the
execution and delivery of this Agreement, by delivery to First
American Title Insurance Company (the "Escrow Agent") of a
certified or bank check drawn on or by a bank which is a member of
the New York Clearing House Association (a "Clearing House Bank")
or by bank wire transfer of immediately available funds to the Escrow
Agent's account at the Approved Institution. The Downpayment shall
be held and disbursed by the Escrow Agent in accordance with the
terms of Section 15. At the Closing, the Deposit shall be credited
against the portion of the Purchase Price payable pursuant to Section
2(c);
(b) As consideration for the Purchaser's acceptance of title
to the Property subject to the existing deed of trust described on
Schedule 2 hereto (the "Continuing Mortgage"), Purchaser shall be
entitled to a credit at the Closing against the Purchase Price in an
amount equal to the aggregate unpaid principal balance of the
promissory note secured by the Continuing Mortgage on the Closing
Date. It shall be a condition to Purchaser's obligation to purchase the
Property that the Seller shall not have modified any provisions of the
Continuing Mortgage subsequent to the date hereof without the
Purchaser's prior consent, which consent shall not be unreasonably
withheld or delayed.
(c) The balance of the Purchase Price (i.e., the Purchase
Price minus the credits set forth in Sections 2(a) and (b) above) shall
be paid at the Closing by bank wire transfer of immediately available
funds to the Seller's account or to the account or accounts of such
other party or parties as may be designated by the Seller on or before
the Closing Date.
3. Apportionments
The following shall be apportioned between the Seller and the
Purchaser at the Closing as of 11:59 p.m. of the day preceding the
Closing Date (the "Adjustment Date"):
(a) fixed or base rents ("Rents") which have been prepaid,
Rents for the month in which the Closing occurs and additional rents
and other amounts paid by tenants applicable to periods which expire
after the Closing Date, which have been received by Seller;
(b) accrued and unpaid interest on the Continuing
Mortgage; and
(c) such other items as are customarily apportioned between
sellers and purchasers of real properties of a type similar to the
Property and located in Reston, Virginia.
At the Closing, an adjustment to the Purchase Price shall be
made to reflect the apportionments herein.
3.1. Rent Arrearages.
If on the Closing Date the Prime Tenant is in arrears in the
payment of Rent or additional rent, real estate taxes, insurance
premiums with respect to insurance, if any, carried by the Seller
pursuant to the Sprint Lease, other operating expenses, maintenance
escalation charges or other charges of a similar nature for which the
Prime Tenant is responsible pursuant to the Sprint Lease, Purchaser
shall pay to Seller on the Closing Date, in addition to the Purchase
Price and in the manner specified in Section 2(c) hereof, the amount
attributable to such arrearages which are due to Seller as of the
Closing Date.
3.2. Continuing Mortgage.
If applicable, the amount of any reserves, escrows or accruals
held by the holder of any Continuing Mortgage for real estate taxes,
insurance premiums and other amounts, if any, including, without
limitation, any amounts held by the holder of the Continuing Mortgage
pursuant to the Remediation Escrow Agreement dated November 24,
1993 by and among Seller 2, The Lincoln National Life Insurance
Company and Commercial Settlements, Inc. (the "Remediation
Escrow Agreement"), shall be paid to the Seller by the Purchaser at
the Closing and the Seller shall assign to the Purchaser all of the
Seller's right, title and interest thereto.
3.3. Post-Closing Adjustments.
If any of the items subject to apportionment under the
foregoing provisions of this Section 3 cannot be apportioned at the
Closing because of the unavailability of the information necessary to
compute such apportionment, or if any errors or omissions in
computing apportionments at the Closing are discovered subsequent to
the Closing, then such item shall be reapportioned and such errors and
omissions corrected as soon as practicable after the Closing Date and
the proper party reimbursed, which obligation shall survive the
Closing for a period of one year after the Closing Date.
4. Due Diligence Period.
Notwithstanding anything to the contrary contained herein, the
Purchaser shall have until December 6, 1996 (the "Due Diligence
Period") to examine title to the Property, to inspect the physical and
financial condition of the Property and to review the Property Information.
4.1. Access to the Property.
During the Due Diligence Period, the Purchaser and the
Purchaser's Representatives shall have the right to enter upon the
Property for the sole purpose of inspecting the Property and making
surveys, soil borings, engineering tests and other investigations,
inspections and tests (collectively, "Investigations"), provided neither
the Purchaser nor the Purchaser's Representatives shall permit any
borings, drillings or samplings to be done on the Property without the
Seller's prior written consent. Any entry upon the Property and all
Investigations shall be at the sole risk and expense of the Purchaser
and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage to the Property
resulting from any such Investigations and replace, refill and
regrade any holes made in, or excavations of, any portion of
the Property used for such Investigations so that the Property
shall be in the same condition that existed prior to such
Investigations;
(b) fully comply with all Laws applicable to the
Investigations and all other activities undertaken in connection
therewith;
(c) take all actions and implement all protections
necessary to ensure that all actions taken in connection with the
Investigations, and the equipment, materials, and substances
generated, used or brought onto the Property pose no threat to
the safety or health of persons or the environment, and cause
no damage to the Property or other property of the Seller or
other persons;
(d) if the Closing fails to occur, furnish to the Seller
within thirty (30) days of the originally scheduled Closing
Date, at no cost or expense to the Seller, copies of any
surveys, soil test results, engineering, asbestos, environmental
and other studies and reports relating to the Investigations
which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the
Purchaser's expense, a policy of comprehensive general public
liability insurance with a combined single limit of not less than
$1,000,000 per occurrence for bodily injury and property
damage, automobile liability coverage including owned and
hired vehicles with a combined single limit of $1,000,000 per
occurrence for bodily injury and property damage, and an
excess umbrella liability policy for bodily injury and property
damage in the minimum amount of $3,000,000, insuring the
Purchaser and the Seller and certain of Seller's Affiliates listed
on Schedule 3, as additional insureds, against any injuries or
damages to persons or property that may result from or are
related to (i) the Purchaser's and/or the Purchaser's
Representatives' entry upon the Property, (ii) any
Investigations or other activities conducted thereon, and (iii)
any and all other activities undertaken by the Purchaser and/or
the Purchaser's Representatives in connection with the
Property, and deliver evidence of such insurance policy to the
Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates
and hold the Seller and the Seller's Affiliates harmless from
and against any and all claims, demands, causes of action,
losses, damages, liabilities, costs and expenses (including,
without limitation, attorneys' fees and disbursements), suffered
or incurred by the Seller or any of the Seller's Affiliates and
arising out of or in connection with (i) the Purchaser's and/or
the Purchaser's Representatives' entry upon the Property, (ii)
any Investigations or other activities conducted thereon by the
Purchaser or the Purchaser's Representatives, and (iii) any
liens or encumbrances filed or recorded against the Property as
a consequence of the Investigations.
The provisions of this Section 4.1 shall survive the termination
of this Agreement and the Closing.
4.2. Purchaser's Termination Notice.
Subject to the provisions of the last paragraph of this Section
4.2, the Purchaser shall have the right to elect to terminate this
Agreement by giving written notice (the "Purchaser's Termination
Notice") of such election to the Seller at any time prior to the
expiration of the Due Diligence Period if the Purchaser shall determine
(in the exercise of its reasonable discretion) that any of the following
conditions to termination are met as of the date of the Purchaser's
Termination Notice, in which event the provisions of Section 14.1
shall apply:
(a) The Purchaser shall have determined, based
upon a site assessment study conducted at Purchaser's sole
expense by Woodward-Clyde, Inc. or any other qualified
engineering firm proposed by Purchaser and approved by
Seller that there is oil, hazardous substances, hazardous
materials, hazardous or toxic waste, or friable and accessible
asbestos-containing materials present on the Property in any
amount which would require remediation under Applicable
Environmental Law and which is not the result of any past or
present actions of the Prime Tenant or any officer, director,
employee, trustee, shareholder, partner, principal, parent,
subsidiary or other affiliate of the Prime Tenant (collectively,
the "Prime Tenant's Affiliates") or any of their respective
agents, representatives, invitees, guests or contractors,
including, but not limited to, the original construction of the
Property, or which remediation is not the responsibility of the
Prime Tenant under the Sprint Lease.
(b) The Purchaser shall have determined, based
upon a legal opinion from its special counsel, that the
Buildings as presently constructed and used violate in a
material respect applicable federal or state law or governmental
regulation, or local ordinance, order or regulation, including
but not limited to laws, regulations or ordinances relating to
land use, zoning, building use and occupancy, subdivision
control, fire protection, public health and safety, wetlands
protection and protection of the environment and such violation
is not the result of past or present actions of the Prime Tenant,
any of the Prime Tenant's Affiliates or any of their respective
agents, representatives, invitees, guests or contractors,
including, but not limited to, the original construction of the
Property, or is not otherwise required to by remedied by the
Prime Tenant under the Sprint Lease.
If for any reason whatsoever the Seller shall not have received
the Purchaser's Termination Notice prior to the expiration of the Due
Diligence Period, the Purchaser shall be deemed to have irrevocably
waived the right of termination granted under this Section 4.2, and
such right of termination shall be of no further force or effect.
Purchaser's Termination Notice shall state with sufficient
particularity the conditions precedent to the Purchaser's obligation to
purchase the Property which have not been satisfied and the Seller
shall have the option, by giving written notice thereof to the Purchaser
within seven (7) days of the Seller's receipt of the Purchaser's
Termination Notice, to elect to use reasonable efforts to cause the
satisfaction of any such unsatisfied conditions precedent, the cost of
which shall not exceed $50,000 in the aggregate, in which event this
Agreement shall not terminate as a result of the Purchaser delivery of
the Purchaser's Termination Notice. Notwithstanding the foregoing,
it remains a condition precedent to Purchaser's obligation to close that
the matters set forth in the Purchaser's Termination Notice are
satisfied at Closing.
5. Title.
The Seller shall convey and the Purchaser shall accept title to the
Property subject to those matters set forth on Schedule 4 hereto
(collectively, the "Permitted Encumbrances"). The Seller shall deliver
to the Purchaser, at the Purchaser's expense, within five (5) days after the
execution of this Agreement a commitment for an owner's fee title
insurance policy with respect to the Property (the "Title Commitment")
from the Escrow Agent, together with true and complete copies of all
instruments giving rise to any defects or exceptions to title to the Property
not set forth in the title commitments listed in Item 17 on Schedule 4
hereto. The Seller has delivered to the Purchaser, at Purchaser's expense,
an as-built survey ("Survey") of the Land and Buildings dated November
12, 1996 and prepared by William H. Gordon Associates, Inc. in
accordance with the "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys" jointly established and adopted by ALTA
and ACSM in 1992.
5.1. Unacceptable Encumbrances.
If the Title Commitment indicates the existence of any liens,
encumbrances or other defects or exceptions in or to title to the
Property other than the Permitted Encumbrances and liens,
encumbrances or other defects directly or indirectly created, incurred,
assumed or suffered to exist by the Prime Tenant, any of the Prime
Tenant's Affiliates or any of their respective invitees, guests or
contractors (collectively, the "Unacceptable Encumbrances"), subject
to which the Purchaser is unwilling to accept title, and the Purchaser
gives the Seller notice of the same within ten (10) days after receipt
of the Title Commitment, the Seller shall undertake to eliminate the
same (or to arrange for title insurance insuring against enforcement of
such Unacceptable Encumbrances against, or collection of the same
out of, the Property) subject to Section 5.2. The Purchaser hereby
waives any right the Purchaser may have to advance as objections to
title or as grounds for the Purchaser's refusal to close this transaction
any Unacceptable Encumbrance which the Purchaser does not notify
the Seller of within such ten (10) day period unless (i) such
Unacceptable Encumbrance was first raised by the Escrow Agent
subsequent to the date of the Title Commitment or the Purchaser shall
otherwise first discover same or be advised of same subsequent to the
date of the Title Commitment or the Survey, respectively, and (ii) the
Purchaser shall notify the Seller of the same within five (5) days after
the Purchaser first becomes aware of such Unacceptable Encumbrance.
The Seller, in its sole discretion, may adjourn the Closing one or more
times for up to sixty (60) days in the aggregate in order to eliminate
Unacceptable Encumbrances.
5.2. Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring any action or
proceeding, to make any payments or otherwise to incur any expense
in order to eliminate Unacceptable Encumbrances not waived by the
Purchaser or to arrange for title insurance insuring against
enforcement of such Unacceptable Encumbrances against, or collection
of the same out of, the Property; except that the Seller shall satisfy
Unacceptable Encumbrances which are mortgages, assessments,
judgments against the Seller or other liens (collectively, "Liens")
secured by or affecting the Property which can be satisfied by payment
of liquidated amounts not to exceed $25,000 in the aggregate for all
Liens. In the event that the Seller so satisfies a Lien, the Seller shall
be reimbursed by the Purchaser at Closing (or, if the Closing does not
occur, within thirty (30) days of notice from the Seller stating the cost
incurred by the Seller in satisfying the Lien) for the cost incurred by
the Seller in satisfying the Lien to the extent that the Seller would
otherwise be entitled to recover such amounts from the Prime Tenant
pursuant to the Sprint Lease. For the purposes of this Agreement, the
Seller's failure or refusal to bring any action or proceeding, to make
any payments or to otherwise incur any expense (except for the
Seller's obligation to satisfy Liens which can be satisfied by payment
of liquidated amounts not to exceed $25,000 in the aggregate as
aforesaid) in order to eliminate Unacceptable Encumbrances not
waived by the Purchaser or to arrange for such title insurance shall be
deemed an inability of the Seller to eliminate such Unacceptable
Encumbrances or to arrange for such title insurance and shall not be
a default by the Seller hereunder.
5.3. Options Upon Failure to Remove Unacceptable Liens.
If the Seller is unable or is not otherwise obligated (pursuant
to Section 5.2) to eliminate all Unacceptable Encumbrances not waived
by the Purchaser, or to arrange for title insurance reasonably
acceptable to the Purchaser insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the same out of,
the Property, and to convey title in accordance with the terms of this
Agreement on or before the Closing Date (whether or not the Closing
is adjourned as provided in Section 5.1), the Purchaser shall elect on
the Closing Date, as its sole remedy for such inability of the Seller,
either (i) to terminate this Agreement by notice given to the Seller
pursuant to Section 14.1, in which event the provisions of Section 14.1
shall apply, or (ii) to accept title subject to such Unacceptable
Encumbrances and receive no credit against, or reduction of, the
Purchase Price.
5.4. Use of Purchase Price.
If on the Closing Date there may be any Liens or other
encumbrances which the Seller must pay or discharge in order to
convey to the Purchaser such title as is herein provided to be
conveyed, the Seller may use any portion of the Purchase Price to
satisfy the same, provided:
(a) the Seller shall deliver to the Purchaser or the
Escrow Agent, at the Closing, instruments in recordable form
and sufficient to satisfy such Liens or other encumbrances of
record together with the cost of recording or filing said
instruments; or
(b) the Seller, having made arrangements with the
Escrow Agent, shall deposit with said company sufficient
moneys acceptable to said company to insure the obtaining and
the recording of such satisfactions.
5.5. Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller shall pay the "Grantor Tax" so-called
(the "Grantor Tax Payment") and the Purchaser shall pay all other
transfer, state, county and recording taxes (the "Transfer Tax
Payments") imposed pursuant to the Laws of the State of Virginia. At
the Closing, (i) the Purchaser shall pay the premium due the Escrow
Agent to obtain title insurance policies in the form contemplated by the
Title Commitment (as the same may be amended), and (ii) the
Purchaser shall pay the fees of the surveyor who prepared the Survey.
6. Representations and Warranties of Each Seller.
(i) Seller 1 represents and warrants to the Purchaser as follows:
(a) Seller 1 is a duly formed and validly existing general
partnership organized under the laws of the State of Virginia, and
Seller 1 is qualified under the laws of the State of Virginia to conduct
business therein.
(b) Seller 1 has the full, legal right, power and authority to
execute and deliver this Agreement and all documents now or
hereafter to be executed by Seller 1 pursuant to this Agreement
(collectively, the "Seller 1 Documents"), to consummate the
transaction contemplated hereby, and to perform its obligations
hereunder and under the Seller 1 Documents.
(c) This Agreement and the Seller 1 Documents do not and
will not contravene any provision of the general partnership agreement
of Seller 1, any judgment, order, decree, writ or injunction issued
against the Seller 1, or, to the best of Seller 1's knowledge, any
provision of any laws or governmental ordinances, rules, regulations,
orders or requirements (collectively, the "Laws") applicable to Seller
1. The consummation of the transactions contemplated hereby will not
result in a breach or constitute a default or event of default by Seller
1 under any agreement to which Seller 1 or any of its respective assets
are subject or bound and will not result in a violation of any Laws
applicable to Seller 1.
(d) Seller 1 has no knowledge of any leases, licenses or
other occupancy agreements affecting any portion of the Property
owned by Seller 1, other than the Sprint Lease.
(e) To Seller 1's actual knowledge, there are no threatened
or pending actions, suits, proceedings or investigations to which it is
a party before any court or other governmental authority with respect
to the Property owned by Seller 1, except as set forth on Schedule 5
hereto.
(ii) Seller 2 represents and warrants to the Purchaser as follows:
(a) Seller 2 is a duly formed and validly existing limited
partnership organized under the laws of the State of Virginia, and
Seller 2 is qualified under the laws of the State of Virginia to conduct
business therein.
(b) Seller 2 has the full, legal right, power and authority to
execute and deliver this Agreement and all documents now or
hereafter to be executed by Seller 2 pursuant to this Agreement
(collectively, the "Seller 2 Documents"), to consummate the
transaction contemplated hereby, and to perform its obligations
hereunder and under the Seller 2 Documents.
(c) This Agreement and the Seller 2 Documents do not and
will not contravene any provision of the limited partnership agreement
of Seller 2, any judgment, order, decree, writ or injunction issued
against Seller 2, or, to the best of Seller 2's knowledge, any Laws
applicable to Seller 2. The consummation of the transactions
contemplated hereby will not result in a breach or constitute a default
or event of default by Seller 2 under any agreement to which Seller 2
or any of its respective assets are subject or bound and will not result
in a violation of any Laws applicable to Seller 2, except that the
consent of the holder of the Continuing Mortgage, as required by the
terms and conditions of the Continuing Mortgage and the other loan
documents relating to such Continuing Mortgage, has not been
obtained as of the date of this Agreement. Purchaser and Seller
acknowledge that such consent is required in order to undertake and
complete the transactions contemplated by this Agreement.
(d) Seller 2 has no knowledge of any leases, licenses or
other occupancy agreements affecting any portion of the Property
owned by Seller 2, other than the Sprint Lease.
(e) To Seller 2's actual knowledge, there are no threatened
or pending actions, suits, proceedings or investigations to which it is
a party before any court or other governmental authority with respect
to the Property owned by Seller 2, except as set forth on Schedule 5
hereto.
6.1. Survival of Representations.
The representations and warranties of each Seller set forth in
this Agreement (i) shall be true, accurate and correct in all material
respects upon the execution of this Agreement and shall be deemed to
be repeated on and as of the Closing Date (except as they relate only
to an earlier date), and (ii) shall remain operative and shall survive the
Closing and the execution and delivery of the Deed for a period of one
year following the Closing Date and then shall expire, and no action
or claim based thereon shall be commenced after such period.
6.2. Discovery of Untrue Representation.
If at or prior to the Closing, (i) the Purchaser shall become
aware that any of the representations or warranties made herein by any
Seller is untrue, inaccurate or incorrect in any material respect,
provided that such untruth, inaccuracy or incorrectness is not a result
of the actions or omissions of the Purchaser, any officers, director,
employee, trustee, shareholder, partner, principal, parent, subsidiary
or other affiliate of the Purchaser (collectively, the "Purchaser's
Affiliates"), the Prime Tenant, any of the Prime Tenant's Affiliates,
or any of their respective agents, representatives, invitees, guests or
contractors, and shall give the Seller notice thereof at or prior to the
Closing, or (ii) the Seller shall notify the Purchaser that a
representation or warranty made herein by any Seller is untrue,
inaccurate or incorrect, provided that such untruth, inaccuracy or
incorrectness is not a result of the actions or omissions of the
Purchaser, any of the Purchaser's Affiliates, the Prime Tenant, any of
the Prime Tenant's Affiliates, or any of their respective agents,
representatives, invitees, guests or contractors, then the Seller may, in
its sole discretion, elect by notice to the Purchaser to adjourn the
Closing one or more times for up to sixty (60) days in the aggregate
in order to cure or correct such untrue, inaccurate or incorrect
representation or warranty. If any such representation or warranty is
not cured or corrected on or before the Closing Date (whether or not
the Closing is adjourned as provided above), then the Purchaser, as its
sole remedy for such inability of Seller, shall elect either (i) to waive
such misrepresentations or breaches of warranties and consummate the
transactions contemplated hereby without any reduction of or credit
against the Purchase Price, or (ii) to terminate this Agreement by
notice given to Seller pursuant to the provisions of Section 14.1. In
the event the Closing occurs, the Purchaser hereby expressly waives,
relinquishes and releases any right or remedy available to it at law, in
equity or under this Agreement to make a claim against the Seller for
damages that the Purchaser may incur, or to rescind this Agreement
and the transactions contemplated hereby, as the result of any of any
Seller's representations or warranties being untrue, inaccurate or
incorrect if the Purchaser knew that such representation or warranty
was untrue, inaccurate or incorrect at the time of the Closing and the
Purchaser nevertheless closes title hereunder.
6.3. Limited Nature of Representations.
The Purchaser acknowledges that neither the Seller nor any of
the Seller's Affiliates, nor any of their agents or representatives has
made any representations or held out any inducements to the Purchaser
other than those specifically set forth in this Agreement. The
Purchaser acknowledges that the Seller, pursuant to the terms of this
Agreement, has afforded the Purchaser the opportunity for full and
complete investigations, examinations and inspections of the Property
and all Property Information. The Purchaser acknowledges and agrees
that (i) the Property Information delivered or made available to the
Purchaser and the Purchaser's Representatives by the Seller or the
Seller's Affiliates, or any of their agents or representatives may have
been prepared by third parties and may not be the work product of the
Seller and/or any of the Seller's Affiliates; (ii) neither the Seller nor
any of the Seller's Affiliates has made any independent investigation
or verification of, or has any knowledge of, the accuracy or
completeness of, the Property Information; (iii) the Purchaser is
relying solely on its own investigations, examinations and inspections
of the Property and those of the Purchaser's Representatives and is not
relying in any way on the Property Information furnished by the Seller
or any of the Seller's Affiliates, or any of their agents or
representatives; and (iv) the Seller expressly disclaims any
representations or warranties with respect to the accuracy or
completeness of the Property Information, and the Purchaser releases
the Seller and the Seller's Affiliates, and their agents and
representatives, from any and all liability with respect thereto. The
Purchaser or anyone claiming by, through or under the Purchaser,
hereby fully and irrevocably releases the Seller and the Seller's
Affiliates from any and all claims that it may now have or hereafter
acquire against any of the Seller or the Seller's Affiliates for any cost,
loss, liability, damage, expense, action or cause of action, whether
foreseen or unforeseen, arising from or related to the presence of
environmentally hazardous, toxic or dangerous substances, or any
other conditions (whether patent, latent or otherwise) affecting the
Property.
The provisions of this Section 6 shall survive the Closing.
7. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as follows:
(a) The Purchaser is a duly formed and validly existing
limited partnership organized under the laws of the State of Delaware,
and is qualified under the laws of the State of Virginia to conduct
business therein on the date hereof.
(b) The Purchaser has the full, legal right, power, authority
and financial ability to execute and deliver this Agreement and all
documents now or hereafter to be executed by it pursuant to this
Agreement (collectively, the "Purchaser's Documents"), to
consummate the transactions contemplated hereby, and to perform its
obligations hereunder and under the Purchaser's Documents.
(c) This Agreement and the Purchaser's Documents do not
and will not contravene any provision of the limited partnership
agreement of the Purchaser, any judgment, order, decree, writ or
injunction issued against the Purchaser, or any provision of any Laws
applicable to the Purchaser. The consummation of the transactions
contemplated hereby will not result in a breach or constitute a default
or event of default by the Purchaser under any agreement to which the
Purchaser or any of its assets are subject or bound and will not result
in a violation of any Laws applicable to the Purchaser.
(d) There are no pending actions, suits, proceedings or
investigations to which the Purchaser is a party before any court or
other governmental authority which may have an adverse impact on
the transactions contemplated hereby.
The representations and warranties of the Purchaser set forth in this
Section 7 and elsewhere in this Agreement shall be true, accurate and
correct in all material respects upon the execution of this Agreement and
shall be deemed to be repeated on and as of the Closing Date (except as
they relate only to an earlier date), and (ii) shall remain operative and
shall survive the Closing and the execution and delivery of the Deed for
a period of one year following the Closing Date and then shall expire, and
no action or claim based thereon shall be commenced after such period.
8. Conditions Precedent to Closing.
8.1. Conditions Precedent to the Purchaser's Obligations
to Perform.
The Purchaser's obligation under this Agreement to purchase
the Property is subject to the fulfillment of each of the following
conditions: (i) the representations and warranties of the Seller
contained herein shall be materially true, accurate and correct as of the
Closing Date except to the extent they relate only to an earlier date (in
which case they shall be true, accurate and correct as of such earlier
date), and except to the extent any such untruth, inaccuracy or
incorrectness is a result of the actions or omissions of the Purchaser,
any of the Purchaser's Affiliates, the Prime Tenant, any of the Prime
Tenant's Affiliates, or any of their respective agents, representatives,
invitees, guests or contractors; (ii) the Seller shall be ready, willing
and able to deliver title to the Property in accordance with the terms
and conditions of this Agreement; (iii) the Seller shall have delivered
all the documents and other items required pursuant to Section 9, and
shall have performed all other covenants, undertakings and obligations,
and complied with all conditions required by this Agreement to be
performed or complied with by the Seller at or prior to the Closing.
The Seller, using its reasonable efforts, shall have obtained
from the holder of the Continuing Mortgage, in writing, (i) the
consents of such holder to the sale contemplated by this Agreement
and the conveyance of the Property to the Purchaser and (ii) the
waiver of such holder's right to accelerate the indebtedness secured
by, or to change the provisions of, the Continuing Mortgage by reason
of such conveyance; provided, however, that the Purchaser shall not
be entitled to require the satisfaction of the preceding condition and
such condition shall be of no force and effect unless the Purchaser (a)
shall have promptly furnished the holder with such information as the
holder may reasonably require, (b) shall have used reasonable efforts
to provide necessary financial information of the Purchaser and the
Prime Tenant requested by the holder of the Continuing Mortgage, and
(c) shall have otherwise cooperated with such holder and with the
Seller in an effort to procure the foregoing consents and waivers.
Purchaser agrees to cooperate with Seller in its efforts to obtain such
consents and waivers and agrees that it will enter into an assumption
agreement with respect to the Continuing Mortgage, the Remediation
Escrow Agreement, the related loan documentation and the Seller's
obligations thereunder in form and substance satisfactory to such
holder in the exercise of the Purchaser's reasonable discretion, which
assumption agreement shall expressly hold harmless and indemnify the
Seller for all liability accruing after the Closing with respect to such
loan documentation and the Seller's obligations thereunder. Purchaser
agrees that, if requested by the holder of the Continuing Mortgage, it
will execute and deliver or cause to be executed and delivered to such
holder, as the case may be, a limited guaranty and environmental
indemnity agreement on the same terms and conditions as the Limited
Guaranty and the Environmental Indemnity Agreement dated
November 24, 1993 (the "Discover Documents") which Dean Witter,
Discover & Co. ("Discover") has delivered to such holder. Purchaser
agrees to bear, at its sole expense, all of the costs incurred by the
Purchaser or the Seller in connection with the procurement or
negotiation of any consents, waivers or assumptions contemplated by
this paragraph.
The Seller shall have delivered to the Purchaser, a certificate,
dated not earlier than the fifth (5th) day prior to the Closing Date,
executed and acknowledged by the holder of the Continuing Mortgage,
certifying with respect to the Continuing Mortgage (i) the<PAGE>
amount of the
unpaid principal balance secured thereby, (ii) the date to which interest
has been paid, (iii) the amount of the unpaid interest secured thereby, (iv)
the balance of the escrow established pursuant to the Remediation Escrow
Agreement, and (v) that, to the knowledge of the holder of the Continuing
Mortgage, the Seller is not in default under the Continuing Mortgage.
8.2. Conditions Precedent to the Seller's Obligations to
Perform.
The Seller's obligation under this Agreement to sell the
Property to the Purchaser is subject to the fulfillment of each of the
following conditions: (i) the representations and warranties of the
Purchaser contained herein shall be materially true, accurate and
correct as of the Closing Date; (ii) the Purchaser shall have delivered
the funds required hereunder and all the documents required to be
delivered or caused to be delivered by the Purchaser set forth in
Section 10 and shall have performed all other covenants, undertakings
and obligations, and complied with all conditions required by this
Agreement to be performed or complied with by the Purchaser at or
prior to the Closing; (iii) all consents and approvals of governmental
authorities and parties to agreements to which the Purchaser is a party
or by which the Purchaser's assets are bound that are required with
respect to the consummation of the transactions contemplated by this
Agreement shall have been obtained and copies thereof shall have been
delivered to the Seller at or prior to the Closing; and (iv) the Seller
shall have obtained the consents and waivers from the holder of the
Continuing Mortgage and the assumption agreement from the
Purchaser described in the second paragraph of Section 8.1 hereof in
form and substance satisfactory to the Seller at or prior to the Closing.
8.3. Remedies Upon Failure to Satisfy Conditions.
In the event that any condition contained in Section 8.1 or 8.2
is not satisfied, the party entitled to the satisfaction of such condition
as a condition to its obligation to close title shall have as its sole
remedy hereunder the right to elect to (i) waive such unsatisfied
condition whereupon title shall close as provided in this Agreement or
(ii) proceed as provided in Section 14 hereof.
9. Documents to be Delivered by the Seller at Closing.
At the Closing, the Seller shall execute, acknowledge and/or deliver,
as applicable, the following to the Purchaser or the Escrow Agent:
(a) A special warranty deed (the "Deed") conveying title to
the Property in the form of Exhibit A annexed hereto and made a part
hereof.
(b) The Assignment and Assumption of Leases and Security
Deposits in the form of Exhibit B annexed hereto and made a part
hereof assigning without warranty or representation all of the Seller's
right, title and interest, in and to the Sprint Lease (the "Lease
Assignment").
(c) The Assignment and Assumption of Licenses and
Warranties in the form of Exhibit C annexed hereto and made a part
hereof (the "License and Warranty Assignment") assigning without
warranty or representation all of the Seller's right, title and interest,
if any, in and to (i) all of the assignable licenses, permits, certificates,
approvals, authorizations and variances issued for or with respect to
the Property by any governmental authority (collectively, the
"Licenses"), and (ii) all of the assignable third- party warranties and
guarantees of any contractors, manufacturers, suppliers or installers,
including, without limitation, the roof warranty, if any, relating to the
Property (collectively, the "Warranties") to the extent, if at all, such
Warranties are in effect.
(d) The Assignment and Assumption of Intangible Property
in the form of Exhibit D annexed hereto and made part hereof
assigning without warranty or representation all of the Seller's right,
title and interest, if any, in and to all intangible property owned by the
Seller with respect to the operation of the Property including, without
limitation, the trade name "Technology Park" (the "Intangible
Property Assignment") (the Lease Assignment, the License and
Warranty Assignment and the Intangible Property Assignment are
herein referred to collectively as the "A & A Agreements").
(f) A bill of sale in the form of Exhibit E annexed hereto
and made a part hereof (the "Bill of Sale") conveying, transferring
and selling to the Purchaser without warranty or representation all
right, title and interest of the Seller in and to all Personal Property.
(g) Copies of the each Seller's partnership agreement and
partnership certificate (if applicable) and, if required by law or its
partnership agreement, copies of partnership resolutions and/or
consents of the partners authorizing the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, all certified as true and
correct by the managing general partner of each Seller, or in the
absence thereof, then by all of each Seller's general partners.
(i) To the extent in the Seller's possession and not already
located at the Property, keys to all entrance doors to, and equipment
and utility rooms located in, the Property.
(j) To the extent in the Seller's possession and not already
located at the Property, all Licenses.
(k) To the extent in the Seller's possession, executed
counterparts of all warranties in connection with the Property which
are in effect on the Closing Date and which are assigned by the Seller.
(l) To the extent in the Seller's possession and not located
at the Building, plans and specifications of the Buildings.
(m) A "FIRPTA" affidavit sworn to by the Seller in the
form of Exhibit F annexed hereto and made a part hereof. The
Purchaser acknowledges and agrees that upon the Seller's delivery of
such affidavit, the Purchaser shall not withhold any portion of the
Purchase Price pursuant to Section 1445 of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder.
(n) A notice to the holder of the Continuing Mortgage
advising the holder of the sale of the Property to the Purchaser and
directing that future bills and other correspondence should thereafter
be sent to the Purchaser or as the Purchaser may direct.
(o) An assignment of the Seller's right, title and interest in
and to all reserves, escrows or accruals held by the holder of the
Continuing Mortgage for real estate taxes, insurance premiums and
other amounts, if any, to the extent the same have been apportioned
pursuant to Section 3 of this Agreement.
(p) The Grantor Tax Payment.
(q) All other documents the Seller is required to deliver
pursuant to the provisions of this Agreement.
10. Documents to be Delivered by the Purchaser at Closing.
At the Closing, the Purchaser shall execute, acknowledge and/or
deliver or cause to be delivered, as applicable, the following to the Seller:
(a) The cash portion of the Purchase Price payable at the
Closing pursuant to Section 2, subject to apportionments, credits and
adjustments as provided in this Agreement.
(b) The Bill of Sale.
(c) If the Purchaser is a corporation, (i) copies of the
certificate of incorporation and by- laws of the Purchaser and of the
resolutions of the board of directors of the Purchaser authorizing the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement
certified as true and correct by the Secretary or Assistant Secretary of
the Purchaser; (ii) a good standing certificate issued by the state of
incorporation of the Purchaser, dated within thirty (30) days of the
Closing Date; (iii) a good standing certificate issued by the State of
Virginia, dated within thirty (30) days of the Closing Date; and (iv)
an incumbency certificate executed by the Secretary or Assistant
Secretary of the Purchaser with respect to those officers of the
Purchaser executing any documents or instruments in connection with
the transactions contemplated herein.
(d) If the Purchaser is a partnership, (i) copies of the
Purchaser's partnership agreement and partnership certificate (if
applicable) and, if required by law or its partnership agreement, copies
of partnership resolutions and/or consents of the partners authorizing
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, all
certified as true and correct by the managing general partner of the
Purchaser, or in the absence thereof, then by all of the Purchaser's
general partners, or (ii) an opinion of Polsinelli, White, Vardeman &
Shalton, outside counsel to the Purchaser, in the form of Exhibit H
hereto, as to the due execution and authorization of this Agreement
and the other documents contemplated by this Agreement by the
Purchaser and the consummation and performance of the transactions
contemplated by this Agreement.
(e) If the Purchaser is a limited liability company, copies
of the Purchaser's operating agreement and, if required by law or its
operating agreement, copies of resolutions of the manager authorizing
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, all
certified as true and correct by the manager of the Purchaser.
(f) An indemnity agreement from the Prime Tenant to
Discover in the form of Exhibit G indemnifying Discover from and
against any loss or damage it may sustain under the Discover
Documents.
(g) The A & A Agreements.
(h) The Transfer Tax Payments.
(i) All other documents the Purchaser is required to deliver
pursuant to the provisions of this Agreement.
11. Operation of the Property prior to the Closing Date.
Between the date hereof and the Closing Date, the Seller shall have the
right to continue to operate and maintain the Property.
11.1. New Leases.
Except as hereinafter provided in Section 11.2 and t.he Sprint
Lease Amendment, the Seller shall not modify, extend, renew or
cancel the Sprint Lease or enter into any proposed lease of all or any
portion of the Property without the Purchaser's consent.
11.2. Termination of Existing Leases.
Notwithstanding anything to the contrary contained in this
Agreement, the Seller reserves the right, but is not obligated, to
institute summary proceedings against any tenant or terminate the
Sprint Lease or any portion thereof as a result of a default by any
tenant thereunder prior to the Closing Date. The Seller makes no
representations and assumes no responsibility with respect to the
continued occupancy of the Property or any part thereof by any tenant.
The removal of the Prime Tenant whether by summary proceedings or
otherwise prior to the Closing Date shall not give rise to any claim
hereunder on the part of the Purchaser. Further, the Purchaser agrees
that it shall not be grounds for the Purchaser's refusal to close this
transaction that the Prime Tenant is a holdover tenant or in default
under the Sprint Lease pursuant to any economic or non- economic
terms of the Sprint Lease on the Closing Date and the Purchaser shall
accept title subject to such holding over or default without credit
against, or reduction of, the Purchase Price.
12. Broker.
The Purchaser and the Seller represent and warrant to each other that
Edward S. Gordon Company Incorporated (the "Broker") is the sole
broker with whom they have dealt in connection with the Property and the
transactions described herein. The Seller shall be liable for, and shall
indemnify the Purchaser against, all brokerage commissions or other
compensation due to the Broker arising out of the transaction contemplated
in this Agreement, which compensation shall be paid subject and pursuant
to a separate agreement between the Seller and the Broker. Each party
hereto agrees to indemnify, defend and hold the other harmless from and
against any and all claims, causes of action, losses, costs, expenses,
damages or liabilities, including reasonable attorneys' fees and
disbursements, which the other may sustain, incur or be exposed to, by
reason of any claim or claims by any broker, finder or other person,
except (in the case of the Purchaser as indemnitor hereunder) the Broker,
for fees, commissions or other compensation arising out of the
transactions contemplated in this Agreement if such claim or claims are
based in whole or in part on dealings or agreements with the indemnifying
party. The obligations and representations and warranties contained in
this Section 12 shall survive the termination of this Agreement and the
Closing.
13. Casualty; Condemnation.
13.1. Damage or Destruction.
If a "material" part (as hereinafter defined) of the Property is
damaged or destroyed by fire or other casualty, the Seller shall notify
the Purchaser of such fact and the Purchaser shall have the option to
terminate this Agreement upon notice to the Seller given not later than
ten (10) days after receipt of the Seller's notice; provided, however,
that the Purchaser's election shall be ineffective if within ten (10) days
after the Seller's receipt of the Purchaser's election notice, the Seller
shall elect by notice to the Purchaser to repair such damage or
destruction and shall thereafter complete such repair within the number
of days specified in Section 15 of the Sprint Lease for completion of
such repairs after the then scheduled Closing Date at the time of the
Purchaser's election. If the Seller makes such election to repair, the
Seller shall have the right to adjourn the Closing Date one or more
times for up to the number of days specified in Section 15 of the
Sprint Lease for completion of such repairs in order to complete such
repairs and shall have the right to retain all insurance proceeds which
the Seller may be entitled to receive as a result of such damage or
destruction. If (i) the Purchaser does not elect to terminate this
Agreement as to the damaged Property, (ii) the Purchaser elects to
terminate this Agreement as to the damaged Property but such election
is ineffective because the Seller elects to repair such damage and
completes such repair within such time period provided above, or
(iii) there is damage to or destruction of an "immaterial" part
("immaterial" is herein deemed to be any damage or destruction which
is not "material", as such term is hereinafter defined) of the Property,
the Purchaser shall close title as provided in this Agreement and, at
the Closing, the Seller shall, unless the Seller has repaired such
damage or destruction prior to the Closing, (x) pay over to the
Purchaser the proceeds of any insurance collected by the Seller, plus
the amount of the deductible on such insurance, less the amount of all
costs incurred by the Seller in connection with the repair of such
damage or destruction, and (y) assign and transfer to the Purchaser all
right, title and interest of the Seller in and to any uncollected
insurance proceeds which the Seller may be entitled to receive from
such damage or destruction. A "material" part of the Property shall
be deemed to have been damaged or destroyed if such damage or
destruction gives the Prime Tenant the right to terminate the Sprint
Lease, provided, however, that any damage or destruction (i) solely to
Tech Park IV (the gymnasium) or (ii) which is due to the negligence,
willful misconduct or intentional act of the Purchaser, Purchaser's
Affiliates, Prime Tenant, Prime Tenant's Affiliates, or any of their
respective agents, representatives, invitees, guests or contractors shall
be deemed an "immaterial" part of the Property.
13.2. Condemnation.
If, prior to the Closing Date, all or any "significant" portion
(as hereinafter defined) of the Property is taken by eminent domain or
condemnation (or is the subject of a pending taking which has not been
consummated), the Seller shall notify the Purchaser of such fact and
the Purchaser shall have the option to terminate this Agreement upon
notice to the Seller given not later than ten (10) days after receipt of
the Seller's notice. If the Purchaser does not elect to terminate this
Agreement, or if an "insignificant" portion ("insignificant" is herein
deemed to be any taking which is not "significant", as such term is
herein defined) of the Property is taken by eminent domain or
condemnation, at the Closing the Seller shall assign and turnover, and
the Purchaser shall be entitled to receive and keep, all awards or other
proceeds for such taking by eminent domain or condemnation. A
"significant" portion of the Property shall be deemed to have been
taken if such taking gives the Prime Tenant the right to terminate the
Sprint Lease, provided, however, that any taking affecting solely Tech
Park IV (the gymnasium) be deemed an "insignificant" portion of the
Property.
13.3. Termination.
If the Purchaser effectively terminates this Agreement pursuant
to Section 13.1 or 13.2, this Agreement shall be terminated and the
rights of the parties shall be the same as if notice of termination were
given pursuant to Section 14.1.
<PAGE>
14. Remedies.
14.1. Seller's Inability to Perform.
If the Closing fails to occur by reason of the Seller's inability
to perform its obligations under this Agreement, then the Purchaser,
as its only remedies for such inability of the Seller, may terminate this
Agreement by notice to the Seller and may also exercise its election
set forth in Section 1.3(iii) or (iv) hereof to make the Sprint Lease
Amendment effective. If the Purchaser elects to terminate this
Agreement, then this Agreement shall be terminated and neither party
shall have any further rights, obligations or liabilities hereunder,
except as otherwise expressly provided herein (collectively, the
"Surviving Obligations"), and except that the Purchaser shall be
entitled to a return of the Deposit provided the Purchaser is not
otherwise in default hereunder. Except as set forth in this Section
14.1, the Purchaser hereby expressly waives, relinquishes and releases
any other right or remedy available to it at law, in equity or otherwise
by reason of the Seller's inability to perform its obligations hereunder.
Notwithstanding anything to the contrary herein, if the Seller's
inability to perform its obligations under this Agreement is a result of
any action of, or failure to act by, the Purchaser, any of the
Purchaser's Affiliates, the Prime Tenant, any of the Prime Tenant's
Affiliates, or any of their respective agents, representatives, invitees,
guests or contractors, the Purchaser shall not be relieved of its
obligations under this Agreement and Purchaser shall not be entitled
to any right or remedy provided in this Section 14.1 or elsewhere in
this Agreement.
14.2. Purchaser's Failure to Perform.
In the event of a default hereunder by the Purchaser or if the
Closing fails to occur by reason of the Purchaser's failure or refusal
to perform its obligations hereunder, then the Seller may terminate this
Agreement by notice to the Purchaser, declare the Sprint Lease
Amendment immediately effective and demand that the Escrow Agent
release the Sprint Lease Amendment from escrow in accordance with
Section 15 hereof. If the Seller elects to terminate this Agreement,
then this Agreement shall be terminated and the Seller may retain the
Deposit as liquidated damages for all loss, damage and expenses
suffered by the Seller, it being agreed that the Seller's damages are
impossible to ascertain, and neither party shall have any further rights,
obligations or liabilities hereunder, except for the Surviving
Obligations and the right of the Seller to declare the Sprint Lease
Agreement immediately effective and demand that the Escrow Agent
release the Sprint Lease Amendment from escrow in accordance with
Section 15 hereof. Nothing contained herein shall limit or restrict the
Seller's ability to pursue any rights or remedies it may have against
the Purchaser with respect to the Surviving Obligations. Except as set
forth in this Section 14.2 and the Surviving Obligations, the Seller
hereby expressly waives, relinquishes and releases any other right or
remedy available to them at law, in equity or otherwise by reason of
the Purchaser's default hereunder or the Purchaser's failure or refusal
to perform its obligations hereunder. Notwithstanding anything to the
contrary herein, if the Purchaser's default or the Purchaser's failure
or refusal to perform its obligations under this Agreement is a result
of any action of, or failure to act by, the Seller, any of the Seller's
Affiliates, or any of their respective agents, representatives, invitees,
guests or contractors, the Seller shall not be relieved of its obligations
under this Agreement and the Seller shall not be entitled to any right
or remedy provided in this Section 14.2 or elsewhere in this
Agreement.
14.3. Seller's Failure to Perform.
If the Closing fails to occur by reason of the Seller's failure or
refusal to perform its obligations hereunder, then the Purchaser, as its
only remedies hereunder, may (i) terminate this Agreement by notice
to the Seller and may also exercise its election set forth in Section
1.3(iii) or (iv) hereof to make the Sprint Lease Amendment effective
or (ii) seek specific performance from the Seller. As a condition
precedent to the Purchaser exercising any right it may have to bring
an action for specific performance as the result of the Seller's failure
or refusal to perform their obligations hereunder, the Purchaser must
commence such an action within ninety (90) days after the occurrence
of such default. The Purchaser agrees that its failure to timely
commence such an action for specific performance within such ninety
(90) day period shall be deemed a waiver by it of its right to
commence such an action. Notwithstanding anything to the contrary
herein, if the Seller's failure or refusal to perform its obligations under
this Agreement is a result of any action of, or failure to act by, the
Purchaser, any of the Purchaser's Affiliates, the Prime Tenant, any of
the Prime Tenant's Affiliates, or any of their respective agents,
representatives, invitees, guests or contractors, the Purchaser shall not
be relieved of its obligations under this Agreement and Purchaser shall
not be entitled to any right or remedy provided in this Section 14.3 or
elsewhere in this Agreement.
15. Escrow.
The Escrow Agent shall hold the Downpayment and all interest
accrued thereon, if any (collectively, the "Deposit") and the Sprint Lease
Amendment in escrow and shall dispose of the Deposit and the Sprint
Lease Amendment only in accordance with the provisions of this Section
15. Simultaneously with their execution and delivery of this Agreement,
the Purchaser and the Seller shall furnish the Escrow Agent with four sets
of fully executed originals of each Sprint Lease Amendment as well as
their true Federal Taxpayer Identification Numbers so that the Escrow
Agent may file appropriate income tax information returns with respect to
any interest in the Deposit or other income from the Approved
Investment. The party ultimately entitled to the economic benefit of any
accrued interest in the Deposit shall be the party responsible for the
payment of any tax due thereon.
15.1. Demand for Deposit.
The Escrow Agent shall deliver the Deposit to the Seller or the
Purchaser, as the case may be, as follows:
(a) to the Seller, upon completion of the Closing; or
(b) to the Seller, after receipt of the Seller's demand
in which the Seller certifies either that (i) the Purchaser has
defaulted under this Agreement, or (ii) this Agreement has
been otherwise terminated or canceled, and the Seller is
thereby entitled to receive the Deposit; but the Escrow Agent
shall not honor the Seller's demand until more than ten (10)
days after the Escrow Agent has given a copy of the Seller's
demand to the Purchaser in accordance with Section 15.3, nor
thereafter (other than in accordance with the provisions of
Section 15.3(i)) if the Escrow Agent receives a Notice of
Objection from the Purchaser within such ten (10) day period;
or
(c) to the Purchaser, after receipt of the Purchaser's
demand in which the Purchaser certifies either that (i) the
Seller has defaulted under this Agreement, or (ii) this
Agreement has been otherwise terminated or canceled, and the
Purchaser is thereby entitled to receive the Deposit; but the
Escrow Agent shall not honor the Purchaser's demand until
more than ten (10) days after the Escrow Agent has given a
copy of the Purchaser's demand to the Seller in accordance
with Section 15.3, nor thereafter (other than in accordance with
the provisions of Section 15.3(i)) if the Escrow Agent receives
a Notice of Objection from the Seller within such ten (10) day
period.
Upon delivery of the Deposit in accordance with this Agreement, the
Escrow Agent shall be relieved of all liability hereunder with respect
to the Deposit. The Escrow Agent shall deliver the Deposit, at the
election of the party entitled to receive the same, by (i) a good,
unendorsed certified check of the Escrow Agent payable to the order
of such party, (ii) an unendorsed official bank or cashier's check
payable to the order of such party, or (iii) a bank wire transfer of
immediately available funds to an account designated by such party.
15.2. Demand for Sprint Lease Amendment.
The Escrow Agent shall deliver the original copies of the Sprint
Lease Amendment to the Seller or the Purchaser, as the case may be,
as follows:
(a) upon completion of the Closing, the Seller's
counterpart signature pages shall be delivered to the Seller and
the Purchaser's counterpart signature pages shall be delivered
to the Purchaser; or
(b) to each of the Seller and the Purchaser, after
receipt of the Seller's demand in which the Seller certifies that
the Closing has not occurred and either (i) the Seller has
terminated this Agreement by notice to the Purchaser pursuant
to Section 14.2 hereof or (ii) the Seller has not obtained the
consents and waivers from the holder of the Continuing
Mortgage and the assumption agreement from the Purchaser
described in the second paragraph of Section 8.1 hereof at or
prior to the Closing (unless such failure to obtain such
consents, waivers and assumption agreement is due solely to
the Seller's objection to the form of the consents, waivers or
assumption agreement offered by the holder of the Continuing
Mortgage), but the Escrow Agent shall not honor the Seller's
demand until more than ten (10) days after the Escrow Agent
has given a copy of the Seller's demand to the Purchaser in
accordance with Section 15.3, nor thereafter (other than in
accordance with the provisions of Section 15.3(i)) if the
Escrow Agent receives a Notice of Objection from the
Purchaser within such ten (10) day period; or
(c) to each of the Seller and the Purchaser, after
receipt of the Purchaser's demand in which the Purchaser
certifies that (i) the Closing has not occurred and (x) the
Purchaser has terminated this Agreement (aa) by notice to the
Seller pursuant to Section 14.1 or 14.3 hereof or (bb) as a
result of a valid Purchaser's Termination Notice having been
delivered by the Purchaser to the Seller in accordance with
Section 4.2 hereof, or (y) the Seller has not obtained the
consents and waivers from the holder of the Continuing
Mortgage and the assumption agreement from the Purchaser
described in the second paragraph of Section 8.1 hereof at or
prior to the Closing due solely to the Seller's objection to the
form of the consents, waivers or assumption agreement offered
by the holder of the Continuing Mortgage, and (ii) that the
Purchaser has elected to make the Sprint Lease Amendment
effective by giving written notice thereof to the Seller
contemporaneously with the Purchaser's termination notice to
the Seller, but the Escrow Agent shall not honor the
Purchaser's demand until more than ten (10) days after the
Escrow Agent has given a copy of the Purchaser's demand to
the Seller in accordance with Section 15.3, nor thereafter
(other than in accordance with the provisions of Section
15.3(i)) if the Escrow Agent receives a Notice of Objection
from the Seller within such ten (10) day period; or
(d) the Seller's counterpart signature pages shall be
delivered to the Seller and the Purchaser's counterpart
signature pages shall be delivered to the Purchaser, after
receipt of the Purchaser's demand in which the Purchaser
certifies that (i) the Closing has not occurred and (x) the
Purchaser has terminated this Agreement (aa) by notice to the
Seller pursuant to Section 14.1 or 14.3 hereof or (bb) as a
result of a valid Purchaser's Termination Notice having been
delivered by the Purchaser to the Seller in accordance with
Section 4.2 hereof, or (y) the Seller has not obtained the
consents and waivers from the holder of the Continuing
Mortgage and the assumption agreement from the Purchaser
described in the second paragraph of Section 8.1 hereof at or
prior to the Closing due solely to the Seller's objection to the
form of the consents, waivers or assumption agreement offered
by the holder of the Continuing Mortgage, and (ii) the
Purchaser has not elected to make the Sprint Lease Amendment
effective, but the Escrow Agent shall not honor the Purchaser's
demand until more than ten (10) days after the Escrow Agent
has given a copy of the Purchaser's demand to the Seller in
accordance with Section 15.3, nor thereafter (other than in
accordance with the provisions of Section 15.3(i)) if the
Escrow Agent receives a Notice of Objection from the Seller
within such ten (10) day period.
Upon delivery of the Sprint Lease Amendment in accordance with this
Agreement, the Escrow Agent shall be relieved of all liability
hereunder with respect to the Sprint Lease Amendment.
15.3. Notice of Objection.
Upon receipt of a written demand from the Seller or the
Purchaser under Section 15.1(b) or (c) or 15.2(b), (c) or (d) the
Escrow Agent shall send a copy of such demand to the other party.
Within ten (10) days after the date of receiving same, the other party
may object to delivery of the Deposit or the Sprint Lease Amendment,
as applicable, to the party making such demand by giving a notice of
objection (a "Notice of Objection") to the Escrow Agent. If such
Notice of Objection is not given within such ten day period then the
right to object to delivery of the Deposit or the Sprint Lease
Amendment, as applicable, shall be deemed waived. After receiving
a Notice of Objection, Escrow Agent shall send a copy of such Notice
of Objection to the party who made the demand; and thereafter, in its
sole and absolute discretion, the Escrow Agent may elect either (i) to
continue to hold the Deposit or the Sprint Lease Amendment, as
applicable, until the Escrow Agent receives a written agreement of the
Purchaser and the Seller directing the disbursement of the Deposit or
the Sprint Lease Amendment, as applicable, in which event the
Escrow Agent shall disburse the Deposit or the Sprint Lease
Amendment, as applicable, in accordance with such agreement; and/or
(ii) to take any and all actions as the Escrow Agent deems necessary
or desirable, in its sole and absolute discretion, to discharge and
terminate its duties under this Agreement, including, without
limitation, depositing the Deposit and/or the Sprint Lease Amendment
into any court of competent jurisdiction and bringing any action of
interpleader or any other proceeding; and/or (iii) in the event of any
litigation between the Seller and the Purchaser, to deposit the Deposit
and/or the Sprint Lease Amendment with the clerk of the court in
which such litigation is pending.
15.4. Actions after Notice of Objection.
If the Escrow Agent is uncertain for any reason whatsoever as
to its duties or rights hereunder (and whether or not the Escrow Agent
has received any written demand under Section 15.1(b) or (c) or
15.2(b), (c) or (d), or Notice of Objection under Section 15.3),
notwithstanding anything to the contrary herein, the Escrow Agent
may hold and apply the Deposit or the Sprint Lease Amendment, as
applicable, pursuant to Section 15.3 and may decline to take any other
action whatsoever. In the event the Deposit and/or the Sprint Lease
Amendment are deposited in a court by the Escrow Agent pursuant to
Section 15.3(ii) or (iii), the Escrow Agent shall be entitled to rely
upon the decision of such court with respect to the Deposit and the
Sprint Lease Amendment. In the event of any dispute whatsoever
among the parties with respect to disposition of the Deposit and/or the
Sprint Lease Amendment, the Purchaser and the Seller shall pay the
attorney's fees and costs incurred by the Escrow Agent (which said
parties shall share equally, but for which said parties shall be jointly
and severally liable) for any litigation in which the Escrow Agent is
named as, or becomes, a party.
15.5. Investment of Deposit.
Notwithstanding anything to the contrary in this Agreement,
within one (1) business day after receipt of the Downpayment, the
Escrow Agent shall place the Downpayment in an Approved
Investment. The interest, if any, which accrues on such Approved
Investment shall be deemed part of the Deposit; and the Escrow Agent
shall dispose of such interest as and with the Downpayment pursuant
to this Agreement. The Escrow Agent may not commingle the
Deposit with any other funds held by Escrow Agent. The Escrow
Agent may convert the Deposit from the Approved Investment into
cash or a non-interest-bearing demand account at an Approved
Institution as follows:
(a) at any time within seven (7) days prior to the
Closing Date; or
(b) if the Closing Date is accelerated or extended,
at any time within seven (7) days prior to the accelerated or
extended Closing Date; provided, however, that the Seller and
the Purchaser shall give the Escrow Agent timely notice of any
such acceleration or extension and that the Escrow Agent may
hold the Deposit in cash or a non-interest-bearing deposit
account if the Seller and the Purchaser do not give the Escrow
Agent timely notice of any such adjournment.
As used herein, the term "Approved Investment" means (i) any
interest-bearing demand account or money market fund in Citibank,
N.A. or any other institution selected by the Purchaser and approved
by the Seller (collectively, an "Approved Institution"), or (ii) any
other investment approved by both the Seller and the Purchaser. The
rate of interest or yield need not be the maximum available and
deposits, withdrawals, purchases, reinvestment of any matured
investment and sales shall be made in the sole discretion of the Escrow
Agent, which shall have no liability whatsoever therefor. Discounts
earned shall be deemed interest for the purpose hereof.
15.6. Duties of Escrow Agent.
The Escrow Agent shall have no duties or responsibilities
except those set forth herein. The Seller and the Purchaser
acknowledge that the Escrow Agent is serving without compensation,
solely as an accommodation to the parties hereto, and except for the
Escrow Agent's own willful default, misconduct or gross negligence,
the Escrow Agent shall have no liability of any kind whatsoever
arising out of or in connection with its activity as Escrow Agent. The
Seller and the Purchaser jointly and severally agree to and do hereby
indemnify and hold harmless the Escrow Agent from all loss, cost,
claim, damage, liability, and expense (including, without limitation,
reasonable attorney's fees and disbursements paid to retained
attorneys) which may be incurred by reason of its acting as the Escrow
Agent provided the same is not the result of the Escrow Agent's
willful default, misconduct or gross negligence. The Escrow Agent
may charge against the Deposit any amounts owed to it under the
foregoing indemnity or may withhold the delivery of the Deposit as
security for any unliquidated claim, or both. Any amendment of this
Agreement which could alter or otherwise affect the Escrow Agent's
obligations hereunder will not be effective against or binding upon the
Escrow Agent without the Escrow Agent's prior consent, which
consent may be withheld in the Escrow Agent's sole and absolute
discretion.
The provisions of this Section 15 shall survive the termination of this
Agreement and the Closing.
16. Notices.
All notices, elections, consents, approvals, demands, objections,
requests or other communications which the Seller, the Purchaser or
Escrow Agent may be required or desire to give pursuant to, under or by
virtue of this Agreement must be in writing and (i) delivered by hand, (ii)
sent by express mail or courier (for next business day delivery), or (iii)
sent by certified or registered mail, return receipt requested with proper
first-class postage prepaid, addressed as follows:
If to the Seller:
Technology Park Associates
DW/Technology Park II Associates, L.P.
c/o Dean Witter Realty Inc.
Two World Trade Center, 64th Floor
New York, NY 10048
Attention: E. Davisson Hardman, Jr.
with a copy to:
Vincent M. Sacchetti, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, Massachusetts 02110
If to the Purchaser:
Sprint Communications Company L.P.
1200 Main Street, 12th Floor
Kansas City, Missouri 64105
Attention: Corporate Real Estate Department
with copies to:
Law Department - Sprint
8140 Ward Parkway
Kansas City, Missouri 64114
Attention: Real Estate Attorney, General Business Group
and
Lonnie J. Shalton, Esq.
Polsinelli, White, Vardeman & Shalton
Suite 1000 Plaza Steppes
700 West 47th Street
Kansas City, Missouri 64112-1802
If to Escrow Agent:
First American Title Insurance Company
One Financial Center, 16th Floor
Boston, Massachusetts 02111
Attention: Joseph Sarno, Esq.
The Seller, the Purchaser or Escrow Agent may designate another
addressee or change its address for notices and other communications
hereunder by a notice given to the other parties in the manner provided in
this Section 16. A notice or other communication sent in compliance with
the provisions of this Section 16 shall be deemed given and received (i) if
by hand, at the time of the delivery thereof to the receiving party at the
address of such party set forth above (or to such other address as such
party has designated as provided above), (ii) if sent by express mail or
overnight courier, on the date it is delivered to the other party, or (iii) if
sent by registered or certified mail, on the fifth business day following the
day such mailing is made.
17. Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing, all Property
Information shall be kept strictly confidential and shall not, without the
prior consent of the Seller, be disclosed by the Purchaser or the
Purchaser's Representatives, in any manner whatsoever, in whole or in
part, and will not be used by the Purchaser or the Purchaser's
Representatives, directly or indirectly, for any purpose other than
evaluating the Property. Moreover, the Purchaser agrees that, prior to the
Closing, the Property Information will be transmitted only to the
Purchaser's Representatives (i) who need to know the Property
Information for the purpose of evaluating the Property, and who are
informed by the Purchaser of the confidential nature of the Property
Information and (ii) who agree to be bound by the terms of this Section
17 and Section 6.3. The provisions of this Section 17 shall in no event
apply to Property Information which is a matter of public record and shall
not prevent the Purchaser from complying with Laws, including, without
limitation, governmental regulatory, disclosure, tax and reporting
requirements.
17.1. Press Releases.
The Purchaser and Seller, for the benefit of each other, hereby
agree that between the date hereof and the Closing Date, they will not
release or cause or permit to be released any press notices, publicity
(oral or written) or advertising promotion relating to, or otherwise
announce or disclose or cause or permit to be announced or disclosed,
in any manner whatsoever, the terms, conditions or substance of this
Agreement or the transactions contemplated herein, without first
obtaining the written consent of the other party hereto. It is understood
that the foregoing shall not preclude either party from discussing the
substance or any relevant details of the transactions contemplated in
this Agreement with any of its attorneys, accountants, professional
consultants or potential lenders, as the case may be, or prevent either
party hereto from complying with Laws, including, without limitation,
governmental regulatory, disclosure, tax and reporting requirements.
17.2. Return of Property Information.
In the event this Agreement is terminated, the Purchaser and
the Purchaser's Representatives shall promptly deliver to the Seller all
originals and copies of the Property Information in the possession of
the Purchaser and the Purchaser's Representatives.
17.3. Property Information Defined.
As used in this Agreement, the term "Property Information"
shall mean (i) all information and documents in any way relating to the
Property, the operation thereof or the sale thereof (including, without
limitation, Leases and Licenses) furnished to, or otherwise made
available for review by, the Purchaser or its directors, officers,
employees, affiliates, partners, brokers, agents or other
representatives, including, without limitation, attorneys, accountants,
contractors, consultants, engineers and financial advisors (collectively,
the "Purchaser's Representatives"), by the Seller or any of the
Seller's Affiliates, or their agents or representatives, including,
without limitation, their contractors, engineers, attorneys, accountants,
consultants, brokers or advisors, and (ii) all engineering or
environmental analyses, compilations, data, studies, reports or other
information or documents obtained by the Purchaser or the Purchaser's
Representatives which pertain to the Investigations.
17.4. Remedies.
In addition to any other remedies available to the Seller, the
Seller shall have the right to seek equitable relief, including, without
limitation, injunctive relief or specific performance, against the
Purchaser or the Purchaser's Representatives in order to enforce the
provisions of this Section 17 and 6.3.
The provisions of this Section 17 shall survive the termination of this
Agreement and the Closing.
18. Access to Records.
For a period of three (3) years subsequent to the Closing Date, the
Seller, the Seller's Affiliates and their employees, agents and
representatives shall be entitled to access during business hours to all
documents, books and records given to the Purchaser by the Seller at the
Closing for tax and audit purposes, regulatory compliance, and
cooperation with governmental investigations, upon reasonable prior notice
to the Purchaser, and shall have the right, at their sole cost and expense,
to make copies of such documents, books and records.
19. Assignments.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and to their respective heirs, executors, administrators,
successors and permitted assigns. This Agreement may not be assigned
by the Purchaser without the prior written consent of the Seller and any
assignment or attempted assignment by the Purchaser without such prior
written consent shall constitute a default by the Purchaser hereunder and
shall be null and void; provided, however, that the Purchaser may at the
Closing assign this Agreement to an entity wholly owned by Sprint
Corporation but such assignment shall not release the Purchaser named
herein from its obligations under this Agreement, including the obligation
of the Purchaser named herein to be a party to all documents pertaining
to the assumption of the Continuing Mortgage and to join in as a party
with the Purchaser's permitted assignee and execute originals of Exhibits
B, C and D hereto.
20. Entire Agreement, Amendments.
All prior statements, understandings, representations and agreements
between the parties, oral or written, are superseded by and merged in this
Agreement, which alone fully and completely expresses the agreement
between them in connection with this transaction and which is entered into
after full investigation, neither party relying upon any statement,
understanding, representation or agreement made by the other not
embodied in this Agreement. This Agreement shall be given a fair and
reasonable construction in accordance with the intentions of the parties
hereto, and without regard to or aid of canons requiring construction
against the Seller or the party drafting this Agreement. This Agreement
shall not be altered, amended, changed, waived, terminated or otherwise
modified in any respect or particular, and no consent or approval required
pursuant to this Agreement shall be effective, unless the same shall be in
writing and signed by or on behalf of the party to be charged.
21. Merger.
Except as otherwise expressly provided herein, the Purchaser's
acceptance of the Deed shall be deemed a discharge of all of the
obligations of the Seller hereunder and all of the Seller's covenants and
agreements herein shall merge in the documents and agreements executed
at the Closing and shall not survive the Closing.
22. Limited Recourse.
The Purchaser agrees that it does not have and will not have any
claims or causes of action against any disclosed or undisclosed officer,
director, employee, trustee, shareholder, partner, principal, parent,
subsidiary or other affiliate of the Seller, including, without limitation,
Dean Witter Realty Inc. and the parent and affiliates of Dean Witter
Realty Inc. (collectively, the "Seller's Affiliates"), arising out of or in
connection with this Agreement or the transactions contemplated hereby.
The Purchaser agrees to look solely to Seller 1 and Seller 2 and their
respective assets directly attributable to the Building for the satisfaction of
the Seller's liability or obligation arising under this Agreement or the
transactions contemplated hereby, or for the performance of any of the
covenants, warranties or other agreements of the Seller contained herein,
and further agrees not to sue or otherwise seek to enforce any personal
obligation against any of the Seller's Affiliates with respect to any matters
arising out of or in connection with this Agreement or the transactions
contemplated hereby. The Purchaser acknowledges that any covenants,
agreements, representations or warranties set forth in this Agreement are
being made by each of Seller 1 and Seller 2 individually, not jointly, and
that in no event will the Purchaser have recourse against Seller 1 for any
breach of this Agreement by Seller 2 or against Seller 2 for any breach of
this Agreement by Seller 1. The total liability of the Seller hereunder
shall in no event exceed $100,000.00.
23. Attorneys' Fees.
In the event that at any time Seller or Purchaser shall institute any
action or proceeding against the other relating to this Agreement or any
default hereunder, then and in that event the prevailing party in such
action or proceeding shall be entitled to recover from the other party its
reasonable attorneys' fees which shall be deemed to have accrued on the
commencement of such action or proceeding and shall be payable whether
or not such action is prosecuted to judgment.
24. Miscellaneous.
Neither this Agreement nor any memorandum thereof shall be
recorded and any attempted recordation hereof shall be void and shall
constitute a default. This Agreement may be executed in one or more
counterparts, each of which so executed and delivered shall be deemed an
original, but all of which taken together shall constitute but one and the
same instrument. Each of the Exhibits and Schedules referred to herein
and attached hereto is incorporated herein by this reference. The caption
headings in this Agreement are for convenience only and are not intended
to be a part of this Agreement and shall not be construed to modify,
explain or alter any of the terms, covenants or conditions herein
contained. If any provision of this Agreement shall be unenforceable or
invalid, the same shall not affect the remaining provisions of this
Agreement and to this end the provisions of this Agreement are intended
to be and shall be severable. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Virginia without
reference to principles of conflicts of laws.
25. Time of the Essence.
Time is of the essence with respect to this Agreement, including but not
limited to the occurrence of the Closing as of the originally scheduled
date.
26. Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
SELLER:
TECHNOLOGY PARK
ASSOCIATES
By: DEAN WITTER REALTY INCOME
PARTNERSHIP III, L.P.,
a Delaware limited partnership
By: Dean Witter Realty Income
Properties III Inc., Managing
General Partner
By:
Name: E. Davisson Hardman
Title: President
By: DEAN WITTER REALTY INCOME
PARTNERSHIP IV, L.P.,
a Delaware limited partnership
By: Dean Witter Realty Fourth Income
Properties Inc., Managing General
Partner
By:
Name: E. Davisson Hardman
Title: President
DW/TECHNOLOGY PARK II ASSOCIATES, L.P.
By: DW Tech Park II Inc., a Delaware
corporation, General Partner
By:
Name: E. Davisson Hardman
Title: President
<PAGE>
PURCHASER:
SPRINT COMMUNICATIONS COMPANY L.P.
By:
Its:
By:
Name:
Title:
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Name:
Title:
