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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported)May 23, 2000
DEAN WITTER REALTY INCOME PARTNERSHIP
IV, L.P. (Exact name of registrant as
specified in its charter)
Delaware 0-18147
13-
3378315
(State or other jurisdiction Commission
(I.R.S. Employer of incorporation)
File Number) Identification
No.)
Two World Trade Center, New York, New York
10048 (Address of principal executive offices)
(Zip Code)
Registrant's telephone number, including area
code(212) 392-1054
(Former name or former address, if
changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Pursuant to a Purchase and Sale Agreement dated as
of April
4, 2000, as amended (the "Agreement"), Taxter Park
Associates ("TPA") sold the land and buildings which
comprise Taxter Corporate Park (the "Property") on
May 23, 2000 to a subsidiary of Mack-Cali Realty
Corporation (the "Purchaser"), an unaffiliated party, for
a negotiated sale price of $42.725 million. In
connection with the sale, TPA acquired from DW Taxter
Special Corp., an affiliate, and conveyed to the
Purchaser certain interests in the Property,
including interests that the affiliate had acquired
from KLM Royal Dutch Airlines, for $6.75 million, in
February 1999. Of the $42.725 million, TPA will remit
$6.75 million of the sale proceeds to the affiliate in
connection with the transaction.
TPA is owned 40.6% by Dean Witter Realty Income
Partnership IV, L.P. (the "Partnership"), 44.6% by
Dean Witter Realty Income Partnership III, L.P.,
an affiliated public partnership, and 14.8% by
Dean Witter Realty Income Partnership II, L.P., an
affiliated public partnership.
The purchase price was paid in cash at closing. At
closing, the Partnership received approximately
$13.5 million representing its 40.6% share of the cash
received by TPA, net of its share of TPA's closing
costs, the amount of the obligation owed to the
affiliate and other deductions.
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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 March 31, 2000, the Partnership's
Balance Sheet as of such date would have reflected an
increase in cash and cash equivalents from $1.9 million
to $15.4 million, the elimination of the $8.6 million
investment in joint venture and the $0.1 million
other assets, an increase in accounts payable and
accrued liabilities from $0.1 million to $0.2 million
and an increase in partner's capital from $10.5 million
to $15.2 million.
For the Income Statement for the quarter ended March
31, 2000, if the Property was sold on January 1,
2000, the equity in earnings of joint venture of
approximately $112,000 would have been eliminated and
the Partnership would have incurred net income of
approximately $10,000($0.03 per limited partnership
unit).
For the Income Statement for the year ended December
31, 1999, if the Property was sold on January 1, 1999,
the equity in earnings of joint venture would have
decreased from $470,000 to $147,000 and net income would
have decreased from approximately $363,000 ($1.10 per
limited partnership unit) to $40,000 ($0.15 per limited
partnership unit).
The pro forma adjustments to the Income Statements
exclude the Partnership's share of the non-recurring gain
on the sale of the Property.
(c) Exhibits
(1) Purchase and Sale Agreement Dated as of April
4, 2000
between Taxter Park Associates as Seller, DW Taxter
Special Corp. as Sublandlord and Mack-Cali Realty
Acquisition Corporation as Purchaser.
(2) First Amendment to Purchase and Sale Agreement as of
May
3, 2000 between Taxter Park Associates as Seller,
DW Taxter Special Corp. as Sublandlord and Mack-
Cali Realty Acquisition Corp. as Purchaser.
(3) Second Amendment to Purchase and Sale Agreement as
of
May 11, 2000 between Taxter Park Associates as
Seller, DW Taxter Special Corp. as Sublandlord
and Mack-Cali Realty Acquisition Corp. as
Purchaser.
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(4) Third Amendment to Purchase and Sale Agreement as of
May
17, 2000 between Taxter Park Associates as
Seller, DW Taxter Special Corp. as Sublandlord
and Mack-Cali Realty Acquisition Corp. as
Purchaser.
(5) Fourth Amendment to Purchase and Sale
Agreement as of May 23, 2000 between Taxter
Park Associates as Seller, DW Taxter Special
Corp. as Sublandlord and Mack-Cali Taxter
Associates L.L.P. as Purchaser.
(6) Termination, Assignment and Recognition
Agreement as of May 23, 2000 between Taxter
Park Associates, DW Taxter Special Corp.,
Mack-Cali Realty Acquisition Corp. and KLM
Royal Dutch Airlines.
(7) Termination Agreement as of May 23, 2000
between Taxter Park Associates and DW Taxter
Special Corp.
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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 IV, L.P.
By:Dean Witter Realty
Fourth Income
Properties, Inc.
Managing General
Partner
Date: June 6, 2000 By: /c/
Charles M.
Charrow
Charles M. Charrow
Controller
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PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this
"Agreement"), dated as of the 4th day of
April, 2000, by and between TAXTER PARK
ASSOCIATES, a New York general partnership,
having an office
c/o Dean Witter Realty Inc., Two World Trade
Center, 64th Floor, New York, New York 10048,
(the "Seller"), DW TAXTER SPECIAL CORP., a
Delaware corporation having an office c/o Dean
Witter Realty Inc., Two World Trade Center, 64th
Floor, New York, New York 10048 (the
"Sublandlord") and MACK-CALI REALTY
ACQUISITION CORPORATION, a Delaware
corporation, having an office at 11 Commerce
Drive, Cranford, New Jersey 07016 (the
"Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the
real property known and numbered as 555 and 565
Taxter Road, Elmsford, New York consisting of
two (2) six (6) story office buildings commonly
referred to as Taxter Corporate Park; and
WHEREAS, the Seller, as successor in
interest to Dean Witter Realty, Inc., is a
party to that certain Agreement Granting
Lease, dated as of October 23, 1987
(the "Overlease") among Dean Witter Realty Inc.,
KLM Royal Dutch Airlines, a Netherlands
Corporation ("KLM"), and URBCO, Inc., pursuant to
which KLM was granted a leasehold interest in a
portion of the Buildings (the "Leased
Premises") more particularly described in the
Overlease; and
WHEREAS, Sublandlord and KLM entered into
that certain sublease dated February 5, 1999
(the "KLM Lease") pursuant to which KLM agreed
to lease from Sublandlord and Sublandlord agreed
to lease to KLM a certain portion of the
Leased Premises located at the Property; and
WHEREAS, Sublandlord acquired the tenant's
interest in the Overlease from KLM pursuant to
a certain Assignment and Assumption of Lease
dated as of February 8, 1999; and
WHEREAS, the Seller and the Purchaser have
entered into negotiations wherein the Purchaser
expressed its intent to purchase the Property
from the Seller and the Seller expressed
its intent to sell the Property to the
Purchaser; and
WHEREAS, the Seller and the Purchaser now
desire to enter into an agreement whereby,
subject to the terms and conditions contained
herein, the Seller shall sell the Property
to the Purchaser and the Purchaser shall
purchase the Property from the Seller; and
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WHEREAS, in connection with the sale of the
Property to the Purchaser, Seller and
Sublandlord wish to terminate the Overlease; and
WHEREAS, in connection with the sale of the
Property to Purchaser, Seller wishes to
acquire from Sublandlord and Sublandlord
wishes to convey to Seller its interest under the
KLM Lease; and
WHEREAS, subsequent to the termination of
the Overlease, the KLM Lease shall be a direct
lease by and between Seller and KLM; and
WHEREAS, subsequent to the execution and
delivery of the A & A Agreements (as
hereinafter defined) at Closing (as hereinafter
defined) Seller, KLM and Purchaser wish to
acknowledge and agree that the KLM Lease shall
be a direct
lease by and between Purchaser, as landlord,
and KLM, as tenant;
NOW, THEREFORE, in consideration of ten
($10.00) dollars and the mutual covenants and
agreements hereinafter set forth, and intending
to be legally bound hereby, it is hereby agreed
by the parties hereto as follows:
1. Sale of the Property.
The Seller agrees to sell and convey to the
Purchaser, and the Purchaser agrees to
purchase from the Seller, at the price and
upon the terms and conditions set forth in this
Agreement, all those certain plots, pieces and
parcels of land described in Schedule 1 hereto
(the "Land"), together with (i) all buildings
and other improvements (including, without
limitation the two (2) office buildings situated
on the Land) (collectively, the
"Buildings"), (ii) all
easements, rights of way, reservations, privileges,
appurtenances, and other estates and rights of
the Seller pertaining to the Land and the
Buildings, (iii) all right, title and
interest of the Seller in and to all fixtures,
machinery, equipment, supplies and other articles
of personal property attached or appurtenant
to the Land 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 (and all personal property of tenants
under the Leases) and the items
described in Schedule 2 annexed hereto
and made a part hereof.
1.2. Closing Date.
The delivery of the Deed and the
consummation of the transactions
contemplated by this Agreement (the
"Closing") shall take place at the offices
of Bingham Dana LLP, 399 Park Avenue, New
York, New York 100224689, at 10:00 A.M. on
May 2, 2000 or the date which is ten (10)
days after the end of the Due Diligence
Period unless such day is not a day on which
the office of the Clerk of the County of
Westchester, Division of Land Records
(the "Recorders Office") of Westchester
County, New York is open for business,
in which case, the Closing shall take
place on the next day on which such
Recorder's Office
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is open or such earlier or later date
as the Seller and Purchaser may agree in
writing (the "Closing Date").
Notwithstanding the foregoing sentence,
Purchaser shall have one (1) option to
extend the Closing Date for ten (10) days,
provided Purchaser delivers to Seller
written notice of its intent to exercise
such option no later than May 2, 2000
or the date which is ten (10) days after
the end of the Due Diligence Period.
2. Purchase Price.
The purchase price to be paid by the
Purchaser to the Seller for the Property (the
"Purchase Price") is Forty-Three Million and No/100 Dollars
($43,000,000) payable as
follows:
(a) Eight Hundred Fifty Thousand
and No/100
Dollars ($850,000) (the "Downpayment")
shall be payable simultaneously with the
execution and delivery of this Agreement,
by delivery to Commonwealth Land Title
Insurance Company (the "Escrow Agent") of
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a certified or bank check drawn on or by a
bank which is a member of the New York
Clearing House Association (a "Clearing
House Bank") or by wire transfer of
immediately available funds to the
Escrow Agent's account as set forth in
the Escrow Agreement. The
Downpayment shall be held and disbursed by
the Escrow Agent in accordance with the
terms of Section 15 and the Escrow
Agreement. At the Closing, the Deposit
shall be delivered to the Seller and
such amount shall be credited against
the portion of the Purchase Price
payable pursuant to Section 2(b);
(b) Upon the Closing, the balance of
the Purchase
Price (i.e., the Purchase Price minus the
credit set forth in Section 2(a)
above), plus or minus the
apportionments set forth in Section 3, shall
be paid by bank wire transfer of
immediately available funds to the Seller's
account or to the account or accounts of
such other party or parties as may be
designated by the Seller in writing to
Purchaser at least two (2) business day
prior to the Closing Date.
3. Apportionments
The following shall be apportioned between
the Seller and the Purchaser at the Closing as
of 11:59 p.m. of the day preceding the
Closing Date (the "Adjustment Date"):
(a) fixed or base rents ("Rents")
which have been
prepaid, security deposits referred to in
Section 8(e), Rents collected for the
month in which the Closing occurs and
Additional Rents and other amounts paid by
tenants applicable to periods which expire
after the Closing Date, which have been
received by Seller;
(b) real estate taxes, special
assessments (but
only any installment relating to the period
in which the Adjustment Date occurs), water
charges, sewer rents and charges and vault
charges, if any, on the basis of the
fiscal years (or applicable billing period
if other than a fiscal year), respectively,
for which same have been assessed;
(c) value of prepaid fuel belonging
to the Seller
stored on and used for the Property, at
the Seller's cost, including any taxes, on
the basis of a statement from the Seller's
suppliers;
(d) charges and payments under
Contracts that are
being assigned to the Purchaser pursuant to
the terms of this Agreement and listed on
Schedule 3 hereto or permitted renewals
or replacements thereof;
(e) any prepaid items,
including, without
limitation, fees for licenses which are
transferred to
the Purchaser at the Closing and annual permit and
inspection fees;
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(f) utilities, to the extent required by Section
3.4;
(g) deposits with telephone and other utility
companies, and any other persons or entities who supply
goods or services in connection with the Property if
same are assigned to the Purchaser at the Closing;
(h) personal property taxes, if any, on the basis
of the fiscal year for which assessed;
(i) all other revenues from the operation of the
Property other than Rents and Additional Rents
(including, without limitation, parking charges, tenant
direct electrical reimbursements, HVAC overtime charges,
and telephone booth and vending machine revenues);
(j) New Lease Expenses as provided in Section
10.1.2; and
(k) outstanding tenant improvement obligations in
connection with those Leases listed on Schedule 12
hereto, whereby any tenant improvement obligations
remaining at Closing shall be a credit to Purchaser
against the Purchase Price at Closing;
(l) such other items as are customarily
apportioned between sellers and purchasers of real
properties of a type similar to the Property and located
in Westchester County, New York.
3.1. Taxes.
If the amount of real estate taxes, special
assessments or other taxes for the Property for the
fiscal year during which the Closing occurs is not
finally determined at the Adjustment Date, such taxes
shall be apportioned on the basis of the full amount of
the assessment for such period (or the assessment for
the prior tax period if the assessment for the current
tax period is not then known) and the rate for the
immediately prior tax year, and shall be reapportioned
as soon as the new tax rate and valuation, if any, has
been finally determined. If any taxes which have been
apportioned shall subsequently be reduced by abatement,
the amount of such abatement, less the cost of obtaining
the same and after deduction of sums payable to tenants
under Leases or expired or terminated Leases, shall be
equitably apportioned between the parties hereto.
3.2. Rents.
3.2.1. Arrearages.
If on the Closing Date any tenant is in
arrears in the payment of Rent or has not paid the
Rent payable by it for the month in which the
Closing occurs (whether or not it is in arrears for
such month on the Closing Date), any Rents received
by the Purchaser or the Seller from such tenant
after the Closing shall be applied to amounts due
and payable by such tenant during the following
periods in the following order of priority:
(i) first, to the month in which the Closing
occurred, (ii) second, to
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the current month, and (iii) third, to the months
in which any arrearages exist, paying off the most
recent arrears first. If Rents or any portion
thereof received by the Seller or the Purchaser
after the Closing are due and payable to the other
party by reason of this allocation, the appropriate
sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in
connection with the collection thereof, shall be
promptly paid to the other party (to the extent not
collected from or reimbursed by tenants). At
Closing, Seller shall deliver to Purchaser a
schedule of any Rents in arrears as of the Closing
Date.
3.2.2. Additional Rents.
If any tenants are required to pay percentage
rent, escalation charges for real estate taxes,
parking charges, operating expenses and maintenance
escalation charges, cost-of-living increases,
utility, sewer or water charges or other charges,
however characterized ("Additional Rents") and any
Additional Rents are collected by the Purchaser
from a tenant after the Closing Date, then the
Purchaser shall promptly apply such sums received
from such tenant during the following periods in
the following order of priority: (i) first, to the
month in which the Closing occurred, (ii) second,
to the current month, and (iii) third, to the
months in which any arrearages exist, paying off
the most recent arrears first. If Additional Rents
or any portion thereof received by the Seller or
the Purchaser after the Closing are due and payable
to the other party by reason of this allocation,
the appropriate sum, less a proportionate share of
any reasonable attorneys' fees and costs and
expenses expended in connection with the collection
thereof, shall be promptly paid to the other party
(to the extent not collected from or reimbursed by
tenants). At the Closing, Seller shall deliver to
Purchaser a list of Additional Rent billed to
tenants for the calendar year in which the Closing
occurs (both on a monthly basis and in the
aggregate), the basis for which the monthly amounts
are being billed and the amounts incurred by Seller
on account of the components of Additional Rent for
such calendar year. Upon the reconciliation by
Purchaser of the Additional Rents billed to
Tenants, and the amounts actually incurred for such
calendar year, Seller and Purchaser shall be liable
for overpayments of Additional Rents, and shall be
entitled to payments from Tenants, as the case may
be, on a pro-rata
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basis based upon each party's period of
ownership during such calendar year. To the extent
Seller is liable for an overpayment, it shall make
such overpayment to Purchaser within thirty (30)
days after request, for further distribution by
Purchaser to the tenants, as applicable.
3.2.3. Collection After the Closing.
After the Closing, the Seller shall continue
to have the right, in its own name, to demand
payment of and to collect Rent and Additional Rent
arrearages owed to the Seller by any tenant, which
right shall include, without limitation, the right
to continue or commence legal actions or
proceedings against any tenant; provided, however,
Seller shall be limited to a contract action for
recover of monies only, and under no circumstances
shall Seller be permitted to bring an action for
eviction, ouster or removal of any tenant the
Purchaser agrees to cooperate with the Seller for
all reasonable respects and at no
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cost or expense to Purchaser, in connection with
such efforts by the Seller to collect such Rents
and Additional Rents and to take all steps, whether
before or after the Closing Date, as may be
reasonably necessary to carry out the intention of
the foregoing, including, without limitation, the
delivery to the Seller, upon demand, of any
relevant books and records (including any Rent or
Additional Rent statements, receipted bills and
copies of tenant checks used in payment of such
Rent or Additional Rent), the execution of any and
all consents or other documents, and the
undertaking of any act reasonably necessary for the
collection of such Rents and Additional Rents by
the Seller. If for any fiscal period which
includes the Adjustment Date tenants are paying
Additional Rent based upon estimates prepared by
the Seller, such Additional Rents shall be
reapportioned when the actual expenses for the
fiscal period are known.
3.3. Water.
If there is a water meter on the Property, the
Seller shall furnish a reading to a date not more than
thirty (30) days prior to the Closing Date, and the
unfixed water charges and sewer rent, if any, based
thereon for the intervening time shall be apportioned on
the basis of such last reading.
3.4. Utilities.
The Seller will use all commercially reasonable
efforts to obtain final cut-off readings of fuel,
telephone, electricity, and gas to be made as of the
Adjustment Date. The Seller shall pay the bills based
on such readings promptly after the same are rendered.
If arrangements cannot be made for any such cut-off
reading, the parties shall apportion the charges for
such services on the basis of the bill therefor for the
most recent billing period prior to the Adjustment Date,
and when final bills are rendered for the period which
includes the Adjustment Date the Seller and Purchaser
shall promptly readjust the apportionments in accordance
with such final bills.
3.5. Post-Closing Adjustments.
The items set forth in this Section 3 shall be
apportioned at the Closing by payment of the net amount
of such apportionments to the Seller in the manner set
forth herein for the
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payment of the Purchase Price if the net apportionment
is in favor of the Seller or by a credit against the
Purchase Price if the net apportionment is in favor of
the Purchaser. However, if any of the items subject to
apportionment under the foregoing provisions of this
Section 3 cannot be apportioned at the Closing because
of the unavailability of the information necessary to
compute such apportionment, or if any errors or
omissions in computing apportionments at the Closing are
discovered subsequent to the Closing, then such item
shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date
and the proper party reimbursed, which obligation shall
survive the Closing for a period of one year after the
Closing Date. Notwithstanding any of the foregoing
provisions of this Section 3.5 to the contrary, the
Purchaser and the Seller agree that the one year
limitation set forth in this Section 3.5 shall not apply
to the parties' obligations under Sections 3.1 and 3.2
and that such obligations shall survive the Closing for
the period of the statute of limitations in connection
with such claims.
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3.6. Tax Certiorari.
Seller hereby acknowledges that tax proceedings are
currently pending for a reduction in the assessed
valuation of the Property for fiscal tax years 1997,
1998, 1999 and 2000. Seller hereby covenants that it
shall not, in connection with the proceedings referenced
in the prior sentence, take any action which would have
any affect on the assessed value of the Property for the
fiscal tax years 2000 and later without the prior
written consent of Purchaser, such consent not to be
unreasonably withheld or delayed.
4. Due Diligence Period.
Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a Thirty (30) day period
commencing on the date hereof (the "Due Diligence Period") to
examine title to the Property, to inspect the physical and
financial condition of the Property and to review the
Property Information (including, without limitation,
environmental reports). Neither the Purchaser nor the
Purchaser's Representatives shall contact (i) any
governmental authority or any of the Seller's vendors,
employees, consultants or contractors prior to the Closing
without first notifying the Seller, or (ii) any of Seller's
tenants, without (a) obtaining the Seller's prior written
consent in each instance, which consent shall not be
reasonably withheld, conditioned or delayed and (b) arranging
and scheduling each such meeting with Seller's tenants with
Seller or Seller's on-site Property manager.
4.1. Access to the Property.
During the Due Diligence Period, the Purchaser and
the Purchaser's Representatives shall have the right to
enter upon the Property for the sole purpose of
inspecting the Property and making surveys, soil
borings, engineering tests and other investigations,
inspections and tests (collectively, "Investigations"),
provided (i) the Purchaser shall give the Seller not
less than two (2) business days' prior written notice
before each entry, (ii) the first such notice shall
include sufficient information to permit the Seller to
review the scope of the proposed Investigations, and
(iii) neither the Purchaser nor the Purchaser's
Representatives shall permit any borings, drillings or
invasive samplings to be done on the Property without
the Seller's prior written consent, not to be
unreasonably withheld, conditioned or delayed. Any
entry upon the Property and all Investigations shall be
during the Seller's normal business hours and at the
sole risk and expense of the Purchaser and the
Purchaser's Representatives, and Purchaser shall use all
commercially reasonable efforts so as to minimize
interference with the day-to-day operation of the
Property. The Purchaser shall:
(a) promptly repair any damage to the
Property resulting from any such Investigations,
refill and regrade any holes made in, or
excavations of, any portion of the Property used
for such Investigations so that the Property shall
be in substantially the same condition as that
which existed prior to such Investigations;
(b) fully comply with all Laws applicable to
the Investigations and all other activities
undertaken in connection therewith;
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(c) permit the Seller to have a
representative present during all Investigations
undertaken hereunder;
(d) take all commercially reasonable actions
and implement all commercially reasonable
protections necessary to ensure that all actions
taken in connection with the Investigations, and
the equipment, materials, and substances generated,
used or brought onto the Property pose no threat to
the safety or health of persons or the environment,
and cause no damage to the Property or other
property of the Seller or other persons;
(e) only in the event this Agreement is
terminated, if requested by the Seller in writing,
furnish to the Seller, at Seller's sole cost and
expense, copies of all surveys, soil test results,
engineering, asbestos, environmental and other
studies and reports relating to the Investigations
which the Purchaser shall obtain with respect to
the Property;
(f) maintain or cause to be maintained, at
the Purchaser's expense, a policy of comprehensive
general public liability insurance with a combined
single limit of not less than $1,000,000 per
occurrence for bodily injury and property damage,
automobile liability coverage including owned and
hired vehicles with a combined single limit of
$1,000,000 per occurrence for bodily injury and
property damage, and an excess umbrella liability
policy for bodily injury and property damage in the
minimum amount of $3,000,000, insuring the
Purchaser and the Seller and certain of Seller's
Affiliates listed on Schedule 4, as additional
insureds, against any injuries or damages to
persons or property that may result from or are
related to (i) the Purchaser's and/or the
Purchaser's Representatives' entry upon the
Property, (ii) any Investigations or other
activities conducted thereon by Purchaser or
Purchaser's Representatives, and (iii) any and all
other activities undertaken by the Purchaser and/or
the Purchaser's Representatives in connection with
the Property, and deliver evidence of such
insurance policy to the Seller at the earlier of
ten (10) days after the date of this Agreement or
the first entry on the Property;
(g) indemnify the Seller and the Seller's
Affiliates and hold the Seller and the Seller's
Affiliates harmless from and against any and all
claims, demands, causes of action, losses, damages,
liabilities, costs and expenses (including without
limitation reasonable attorneys' fees and
disbursements), suffered or incurred by the Seller
or any of the Seller's Affiliates to the extent
arising out of or in connection with (i) any
negligent or reckless
<PAGE>
acts or omissions of the Purchaser and/or
Purchaser's Representatives during (A) the
Purchaser and/or the Purchaser's Representatives'
entry upon the Property or (B) any Investigations
or other activities conducted thereon by the
Purchaser or the Purchaser's Representatives, and
(ii) any liens or encumbrances filed or recorded
against the Property as a consequence of the
Investigations or any other activities conducted
thereon by the Purchaser or the Purchaser's
Representatives. Notwithstanding the foregoing, in
no event shall Purchaser indemnify Seller for any
pre-existing conditions or findings, including,
without limitation, any violation of Applicable
Environmental Law or the existence of any Hazardous
Substance discovered during the course of
Purchaser's due diligence activities; and
(h) not, at any time, contact or communicate
with any tenant of the Property for any reason
whatsoever without the prior written approval of
the Seller, not to be unreasonably withheld,
conditioned or delayed, which communications,
whether by telephone, in writing or in person,
Seller or its designee shall have the right to be
present at or otherwise participate in.
The provisions of this Section 4.1 shall survive
the termination of this Agreement and the Closing.
4.2. Purchaser's Termination Notice.
Subject to the provisions of the last paragraph of
this Section 4.2, the Purchaser shall have the right to
elect to terminate this Agreement by giving written
notice (the "Purchaser's Termination Notice") of such
election to the Seller at any time prior to 5:00 p.m. on
the last day of the Due Diligence Period if the
Purchaser shall determine (in the exercise of its sole
and exclusive discretion) that Purchaser does not wish
to purchase the Property.
If for any reason whatsoever the Seller shall not
have received the Purchaser's Termination Notice prior
to the expiration of the Due Diligence Period, the
Purchaser shall be deemed to have irrevocably waived the
right of termination granted under this Section 4.2, and
such right of termination shall be of no further force
or effect.
4.3. Estoppel Certificates.
Promptly after execution and delivery of this
Agreement, the Seller agrees to use all commercially
reasonable efforts to obtain an Estoppel Certificate
from each tenant under a Lease (as hereinafter defined
and with the exception of the Overlease) dated no
earlier than thirty (30) days prior to Closing, but in
no event shall it be deemed to be an obligation of the
Seller under this Agreement to obtain executed Estoppel
Certificates except for Estoppel Certificates from (i)
all tenants who lease space in excess of 10% of the net
rentable area of
<PAGE>
each of the Buildings, (ii) one-half of all other
tenants at the Buildings, and (iii) the following
tenants: (x) Nationwide Insurance; (y) Paging Network
and (z) American Home Assurance. The Estoppel
Certificates shall be in the form annexed hereto as
Exhibit G and made a part hereof; provided, however, if
any tenant is required or permitted under its Lease to
make different statements in a certificate of such
nature than are set forth in Exhibit G and Seller first
requests that such tenant sign an Estoppel Certificate
in the form of Exhibit G and such tenant declines, the
Seller may modify the Estoppel Certificate for such
tenant to set forth only the statements required under
such tenant's Lease to be made by such tenant in such a
certificate. If any tenant who is required to deliver
an Estoppel Certificate pursuant to this Section 4.3
fails to deliver an Estoppel Certificate in the form
required by this Agreement, Seller shall have the right
to substitute in lieu thereof an estoppel certificate
substantially in such form executed by Seller and such
estoppel certificate shall be treated for all purposes
as an Estoppel Certificate from such failing tenant. In
the event that after the Closing the Seller obtains and
delivers to the Purchaser an Estoppel Certificate from
any tenant in the form required by this Section 4.3 for
which the Seller has substituted an estoppel certificate
executed by it at the Closing, then such Seller estoppel
shall be of no further force and effect and the Seller
shall thereafter have no liability under such Seller
estoppel certificate.
5. Title.
The Seller shall convey and the Purchaser shall accept
title to the Property subject only to those matters set forth
on Schedule 5 hereto (collectively the "Permitted
Encumbrances"). The Purchaser has ordered at the Purchaser's
expense, a commitment for an owner's fee title insurance
policy with respect to the Property (the "Title Commitment")
from Commonwealth Land Title Insurance Company (the "Title
Company"), together with true and complete copies of all
instruments giving rise to any defects or exceptions to title
to the Property. Purchaser shall instruct the Title Company
to send to Seller's counsel a copy of the Title Commitment
and all related title exception documents to Seller upon
receipt of same. The Seller has delivered to the Purchaser,
an as-built survey which may, at Purchaser's option and
expense be updated, ("Survey") of the Land and Buildings and
prepared in accordance with the "Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys" jointly
established and adopted by ALTA and ACSM in 1992.
<PAGE>
5.1. Unacceptable Encumbrances.
If the Title Commitment or the Survey indicate the
existence of any liens or encumbrances (collectively,
"Liens") or other defects or exceptions in or to title
to the Property other than the Permitted Encumbrances
(collectively, the "Unacceptable Encumbrances") subject
to which the Purchaser is unwilling to accept title and
the Purchaser gives the Seller notice of the same within
ten (10) business days after receipt of the Title
Commitment and the Survey, the Seller shall undertake to
eliminate the same (or to arrange for title insurance
insuring against enforcement of such Unacceptable
Encumbrances against, or collection of the same out of,
the Property) subject to Section 5.2. The Purchaser
hereby waives any right the Purchaser may have to
advance as objections to title or as grounds for the
Purchaser's refusal to close this transaction any
Unacceptable Encumbrance which the Purchaser does not
notify the Seller of within such ten (10) business day
period unless (i) such Unacceptable Encumbrance was
first raised by the Title Company subsequent to the date
of the Title Commitment and the Survey, respectively,
and (ii) the Purchaser shall notify the Seller of the
same within ten (10) business days after the Title
Company first notifies Purchaser of such Unacceptable
Encumbrance. The Seller, in its sole discretion, may
adjourn the Closing one or more times for up to sixty
(60) days in the aggregate in order to eliminate
Unacceptable Encumbrances.
5.2. Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to bring any
action or proceeding, to make any payments or otherwise
to incur any expense in order to eliminate Unacceptable
Encumbrances not waived by the Purchaser or to arrange
for title insurance insuring against enforcement of such
Unacceptable Encumbrances against, or collection of the
same out of, the Property; except that the Seller, at
its sole cost and expense, shall satisfy and cure
Unacceptable Encumbrances which are (i) mortgages, UCC-1
financing statements and past due real estate taxes and
assessments secured by or affecting the Property, and
(ii) judgments against the Seller or other Liens secured
by or affecting the Property which judgments and other
Liens can be satisfied by payment of liquidated amounts
not to exceed $100,000 in the aggregate for all such
judgments and other Liens. The Seller may eliminate any
such Unacceptable Encumbrance by the payment of amounts
necessary to cause the removal thereof of record, by
bonding over such Unacceptable Encumbrance in a manner
reasonably satisfactory to the Purchaser or by arranging
for title insurance reasonably satisfactory to the
Purchaser insuring against enforcement of such
Unacceptable Encumbrance against, or collection of the
same out of, the Property.
<PAGE>
5.3 Options Upon Failure to Remove Unacceptable Liens.
If the Seller is unable or is not otherwise
obligated (pursuant to Section 5.2) to eliminate all
Unacceptable Encumbrances not waived by the Purchaser,
or to bond over in a manner reasonably satisfactory to
the Purchaser any Unacceptable Encumbrances not waived
by the Purchaser, or to arrange for title insurance
reasonably acceptable to the Purchaser insuring against
enforcement of such Unacceptable Encumbrances against,
or collection of the same out of, the Property, and to
convey title in accordance with the terms of this
Agreement on or before the Closing Date (whether or not
the Closing is adjourned as provided in Section 5.1),
the Purchaser shall elect on the Closing Date, as its
sole remedy for such inability of the Seller, either (i)
to terminate this Agreement by notice given to the
Seller pursuant to Section 14.1, in which event the
provisions of Section 14.1 shall apply, or (ii) to
accept title subject to such Unacceptable Encumbrances
and receive no credit against, or reduction of, the
Purchase Price.
5.3. Use of Purchase Price.
If on the Closing Date there may be any Liens or
other encumbrances which the Seller must pay or
discharge in order to convey to the Purchaser such title
as is herein provided to be conveyed, the Seller may use
any portion of the Purchase Price to satisfy the same,
provided:
(a) the Seller shall deliver to the Purchaser
or the Title Company, at the Closing, instruments
in recordable form and sufficient to satisfy such
Liens (plus penalties and interest, if any) or
other encumbrances of record together with the cost
of recording or filing said instruments; or
(b) the Seller, having made arrangements with
the Title Company, shall deposit with said company
sufficient moneys (plus penalties and interest, if
any) acceptable to said company to insure the
obtaining and the recording of such satisfactions.
5.4. Franchise Taxes.
Any franchise or corporate tax open, levied or
imposed against the Seller or other owners in the chain
of title that may be a Lien on the Closing Date shall
not be an objection to title if the Title Company omits
same from the title policy issued pursuant to the Title
Commitment or excepts same but insures the Purchaser
against collection thereof out of the Property.
5.5. Transfer Taxes; Title Insurance Premiums.
At the Closing, the Seller shall pay all transfer
and recording taxes (the "Transfer Tax Payments")
imposed pursuant to the Laws of the State of New York or
any other governmental authority in respect of the
transactions contemplated by this Agreement by delivery
to the Title Company of sufficient funds to pay such
taxes together with any return (the "Transfer Tax
Returns") required thereby which shall be duly executed,
and
<PAGE>
acknowledged where necessary by the Seller and the
Purchaser to the extent required by applicable law. At
the Closing, the premiums due the Title Company to
obtain title insurance policies in the form contemplated
by the Title Commitment (as the same may be amended
pursuant to this Agreement), the cost of obtaining the
survey and other Closing-related expenses shall be paid
in the manner set forth on Schedule 6 hereto. The
provisions of this Section 5.6 shall survive for six
months following the Closing Date.
5.6. Bulk Sales.
The Closing shall be consummated without compliance
with bulk sales laws. If by reason of any applicable
bulk sales law, any claims are asserted by creditors of
Seller related to periods prior to the Closing, such
claims shall be the responsibility of Seller, and Seller
shall jointly and severally indemnify, defend and hold
harmless Purchaser (and their respective directors,
officers, employees, affiliates, successors and assigns)
from and against all losses or liabilities, if any,
based upon, arising out of or otherwise in respect of
the failure to comply with such bulk sales laws.
6. Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser as
follows:
(a) The Seller is a duly formed and validly
existing general partnership organized under the laws of
the State of New York and is qualified under the laws of
the State of New York to conduct business therein.
(b) The Seller has the full, legal right, power
and authority to execute and deliver this Agreement and
all documents now or hereafter to be executed by the
Seller pursuant to this Agreement (collectively, the
"Seller's Documents"), to consummate the transaction
contemplated hereby, and to perform its obligations
hereunder and under the Seller's Documents.
<PAGE>
(c) This Agreement and the Seller's Documents do
not and will not contravene any provision of the
partnership agreement of the Seller, any other
agreements, documents or instruments to which the Seller
is a party or may be bound, any judgment, order, decree,
writ or injunction issued against the Seller, or, to the
Seller's actual knowledge, any provision of any laws or
governmental ordinances, rules, regulations, orders or
requirements (collectively, the "Laws") applicable to
the Seller. The consummation of the transactions
contemplated hereby will not result in a breach or
constitute a default or event of default by the Seller
under any agreement to which the Seller or any of its
assets are subject or bound and will not result in a
violation of any Laws applicable to the Seller.
(d) There are no leases, subleases, tenancies,
licenses or other use or occupancy agreements affecting
any portion of the Property on the date hereof, or any
amendments or modifications thereof, except for those
items listed in Schedule 7 annexed hereto and made a
part hereof (collectively, the "Leases"). The copies of
the Leases furnished by the Seller to the Purchaser are
true and complete. To the Seller's actual knowledge,
the Leases are in full force and effect, without any
material default by the Seller and/or tenants
thereunder. To the Seller's actual knowledge, except as
listed on Schedule 7, the Seller has not given or
received any notice of default which remains uncured or
unsatisfied, with respect to any of the Leases. As of
the Closing Date, all of the leasing commissions in
connection with the Leases have been paid or satisfied.
(e) To the Seller's actual knowledge, there are no
pending actions, suits, labor disputes, litigation
proceedings or investigations to which the Seller is a
party before any court or other governmental authority
with respect to the Property or Seller except as set
forth on Schedule 8 hereto.
(f) Except as disclosed on Schedule 9 hereto,
since the date the Seller acquired legal and beneficial
title to the Property (i) to Seller's actual knowledge,
neither Seller nor any third party has engaged in the
generation, use, manufacture, refinement, production,
transferring, treatment, storage or disposal of any
Hazardous Substance (as hereinafter defined) on the
Property in violation of Applicable Environmental Law
(as hereinafter defined), the cost of correction or
remediation of which would have a material adverse
effect upon the value of the Property, and (ii) to
Seller's actual knowledge, neither Seller nor any third
party has received any written notice from any
governmental authority having jurisdiction over the
Property, nor does Seller have any knowledge, of any
violation of Applicable Environmental Law or any Permit
with respect to the Property which requires corrective
action, the cost of which would have a material adverse
effect upon the value of the Property. Disclosure of
any matter on Schedule 9 hereto shall not constitute any
admission by Seller that such matter was material or a
violation of Applicable Environmental Law. As used in
this Agreement, the term "Hazardous Substance" shall
mean any substance, chemical or waste that is currently
listed, defined or referred to as hazardous, toxic or
dangerous or as a pollutant or contaminant under
Applicable Environmental Law. As used in this
Agreement, the term "Applicable Environmental Law" shall
mean the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C.
9601 et seq.; the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. 6901, et seq.; the Water
Pollution Control Act, 33 U.S.C. 1251 et seq.; the
Clean Air Act, 42 U.S.C. 7401 et seq.; and the Toxic
Substances Control Act, 15 U.S.C. 2601 et seq.; as
the foregoing have been amended from time to time to the
date of this Agreement; and any similar federal, state
and local laws, ordinances, regulations, orders,
directives or requirements implementing such statutes in
effect on the date hereof imposing liability or
establishing standards of conduct for environmental
protection or in any way related to Hazardous
Substances.
<PAGE>
(g) There are no service contracts, union
contracts, employment agreements or other agreements
affecting the Property or the operation thereof, except
the Contracts as defined in Section 8(c) below. All of
the Contracts are and will on the Closing Date be
unmodified and to Seller's actual knowledge in full
force and effect without any default or claim of default
by any of the parties thereto, except those Purchaser
elects not to assume. To Seller's actual knowledge all
sums presently due and payable by Seller under the
Contracts have been fully paid and all sums which become
due and payable between the date hereof and the Closing
Date shall be fully paid by Seller on the Closing Date
or, with respect to work being performed to implement
tenant improvements, any lien that could result
therefrom will have been insured against by the Title
Company. Provided that Purchaser delivers to Seller
written notice of those Contracts Purchaser shall assume
at Closing, Seller hereby covenants and agrees to
terminate as of the Closing Date those Contracts not
being assumed by Purchaser.
<PAGE>
(h) The Licenses include all certificates,
licenses, permits and authorizations, including those
relating to any environmental matters, necessary to
operate and occupy the Buildings and are listed on
Schedule 11. Seller has not received any notice that
any of the Permits and Licenses are subject to, or in
jeopardy of, revocation or non-renewal. Seller is
current in the payment of any fees required to be paid
for the permits and licenses. All permits and licenses
are in full force and effect.
(i) Seller has received no written notice and has
no knowledge of (i) any pending or contemplated
annexation or condemnation proceedings, or private
purchase in lieu thereof, affecting or which may affect
the Property, or any part thereof, (ii) any proposed or
pending proceeding to change or redefine the zoning
classification of all or any part of the Property, (iii)
any proposed or pending special assessments affecting
the Property or any portion thereof and (iv) any
proposed change(s) in any road or grades with respect to
the roads providing a means of ingress or egress to the
Property. Seller agrees to furnish Purchaser with a
copy of any such notice received within two (2) days
after receipt.
(j) To Seller's actual knowledge, Seller has
provided Purchaser with (x) all reports, including
without limitation, the Environmental Documents, in
Seller's possession or under its control related to the
physical condition of the Property, and (y) all books,
records, tenant data, leasing material and forms,
current rent rolls, files, statements, tax returns,
market studies, plans, specifications, reports, tests
and other materials of any kind owned by or in the
possession or control of Seller which are or may be used
by Seller in the use and operation of the Property or
Personal Property (collectively, and together with the
Promotional Materials, the "Books and Records").
"Environmental Documents" shall mean all Phase I
environmental reports in connection with the Property in
the possession of Seller.
(k) Seller has no knowledge of any violations, or
of any notices, suits, investigations or judgments
relating to any violations (including, without
limitation, Environmental Laws), or any laws, ordinances
or regulations affecting the Property, or any violations
or conditions that may give rise thereto.
(l) To the Seller's knowledge, there are no tenant
improvement obligations affecting the Property on the
date hereof, except for those items listed in Schedule
12 annexed hereto and made a part hereof.
6.1. Survival of Representations.
The representations and warranties of the Seller
set forth in this Section 6 (i) shall be true,
<PAGE>
accurate and correct in all material respects upon the
execution of this Agreement and shall be deemed to be
repeated on and as of the Closing Date (except as they
relate only to an earlier date), and (ii) shall remain
operative and shall survive the Closing and the
execution and delivery of the Deed for a period of six
(6) months following the Closing Date and then shall
expire, and no action or claim based thereon shall be
commenced after such period.
6.2. Discovery of Untrue Representation.
If at or prior to the Closing, (i) the Purchaser
shall become aware that any of the representations or
warranties made herein by the Seller is untrue,
inaccurate or incorrect in any material respect and
shall give the Seller notice thereof at or prior to the
Closing, or (ii) the Seller shall notify the Purchaser
that a representation or warranty made herein by the
Seller is untrue, inaccurate or incorrect, then the
Seller may, in its sole discretion, elect by notice to
the Purchaser to adjourn the Closing one or more times
for up to sixty (60) days in the aggregate in order to
cure or correct such untrue, inaccurate or incorrect
representation or warranty. If any such representation
or warranty is not cured or corrected by the Seller on
or before the Closing Date (whether or not the Closing
is adjourned as provided above), then the Purchaser, as
its sole remedy for such inability of Seller, shall
elect either (i) to waive such misrepresentations or
breaches of warranties and consummate the transactions
contemplated hereby without any reduction of or credit
against the Purchase Price, or (ii) to terminate this
Agreement by notice given to Seller pursuant to the
provisions of Section 14.1. In the event the Closing
occurs, the Purchaser hereby expressly waives,
relinquishes and releases any right or remedy available
to it at law, in equity or under this Agreement to make
a claim against the Seller for damages that the
Purchaser may incur, or to rescind this Agreement and
the transactions contemplated hereby, as the result of
any of the Seller's representations or warranties being
untrue, inaccurate or incorrect if the Purchaser knew
that such representation or warranty was untrue,
inaccurate or incorrect at the time of the Closing and
the Purchaser nevertheless closes title hereunder.
6.3. Limited Nature of Representations.
The Purchaser acknowledges that neither the Seller
nor any of the Seller's Affiliates, nor any of their
agents or representatives, nor Broker has made any
representations or held out any inducements to the
Purchaser other than those specifically set forth in
this Section 6 and Section 11. The Purchaser
acknowledges that the Seller, pursuant to the terms of
this Agreement, has afforded the Purchaser the
opportunity for full and complete investigations,
examinations and inspections of the Property and all
Property Information. The Purchaser acknowledges and
agrees that (i) the Property Information delivered or
made available to the
<PAGE>
Purchaser and the Purchaser's Representatives by
the Seller or the Seller's Affiliates, or any of their
agents or representatives may have been prepared by
third parties and may not be the work product of the
Seller and/or any of the Seller's Affiliates; (ii)
Seller has advised that neither the Seller nor any of
the Seller's Affiliates has made any independent
investigation or verification of, or has any knowledge
of, the accuracy or completeness of, the Property
Information (except that Seller represents that it has
provided Purchaser with true, accurate and complete
copies of the Property Information in its possession or
control); (iii) except as otherwise set forth herein,
the Purchaser is relying solely on its own
investigations, examinations and inspections of the
Property and those of the Purchaser's Representatives
and is not relying in any way on the Property
Information furnished by the Seller or any of the
Seller's Affiliates, or any of their agents or
representatives; and (iv) the Seller expressly disclaims
any representations or warranties with respect to the
accuracy or completeness of the Property Information
(except that Seller represents that it has provided
Purchaser with true, accurate and complete copies of the
Property Information in its possession or control), and,
except as otherwise set forth herein, the Purchaser
releases the Seller and the Seller's Affiliates, and
their agents and representatives, from any and all
liability with respect thereto. The Purchaser or anyone
claiming by, through or under the Purchaser, hereby
fully and irrevocably releases the Seller and the
Seller's Affiliates from any and all claims that it may
now have or hereafter acquire against any of the Seller
or the Seller's Affiliates for any cost, loss,
liability, damage, expense, action or cause of action,
whether foreseen or unforeseen, arising from or related
to the presence of environmentally hazardous, toxic or
dangerous substances, or any other conditions (whether
patent, latent or otherwise) affecting the Property,
except for claims against the Seller based upon any
obligations and liabilities of the Seller expressly
provided in this Agreement.
The provisions of this Section 6 shall survive the
Closing.
7. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Seller as
follows:
(a) The Purchaser is a duly formed and validly
existing corporation organized under the laws of the
State of Delaware, and is qualified under the laws of
the State of New York to conduct business therein on the
date hereof.
<PAGE>
(b) The Purchaser has the full, legal right,
power, authority and financial ability to execute and
deliver this Agreement and all documents now or
hereafter to be executed by it pursuant to this
Agreement (collectively, the "Purchaser's Documents"),
to consummate the transactions contemplated hereby, and
to perform its obligations hereunder and under the
Purchaser's Documents.
(c) This Agreement and the Purchaser's Documents
do not and will not contravene any provision of the By
Laws of the Purchaser, any judgment, order, decree, writ
or injunction issued against the Purchaser, or any
provision of any Laws applicable to the Purchaser. The
consummation of the transactions contemplated hereby
will not result in a breach or constitute a default or
event of default by the Purchaser under any agreement to
which the Purchaser or any of its assets are subject or
bound and will not result in a violation of any Laws
applicable to the Purchaser.
(d) There are no pending actions, suits,
proceedings or investigations to which the Purchaser is
a party before any court or other governmental authority
which may have an adverse impact on the transactions
contemplated hereby.
The representations and warranties of the Purchaser set
forth in this Section 7 and elsewhere in this Agreement shall
be true, accurate and correct in all material respects upon
the execution of this Agreement, shall be deemed to be
repeated on and as of the Closing Date (except as they relate
only to an earlier date) and shall survive the Closing for a
period of six (6) months.
8. Documents to be Delivered by the Seller at Closing.
At the Closing, the Seller shall execute, acknowledge
and/or deliver, as applicable, the following to the
Purchaser:
(a) A bargain and sale deed with covenants against
grantor's acts (the "Deed") conveying title to the
Property in the form of Exhibit A annexed hereto and
made a part hereof.
(b) The Assignment and Assumption of Leases and
Security Deposits in the form of Exhibit B annexed
hereto and made a part hereof assigning without warranty
or representation, except as set forth in this
Agreement, all of the Seller's right, title and
interest, if any, in and to the Leases in effect on the
Closing Date, all guarantees thereof and the security
deposits thereunder, if any (the "Lease Assignment").
(c) The Assignment and Assumption of Contracts and Licenses
in the form of Exhibit C annexed hereto and made a part
hereof (the "Contract and LicenseAssignment") assigning
without warranty or representation, except as set forth in
this Agreement, all of the Seller's right, title and
interest, if any, in and to (i) all of the assignable
licenses, permits, certificates, approvals, authorizations
and variances issued for or with respect to the Property by
any governmental authority (collectively, the "Licenses"),
and (ii) all assignable purchase orders, equipment leases,
advertising agreements, franchise agreements, license
agreements, leasing and brokerage agreements and other
service contracts relating to the operation of the Property
(collectively, the "Contracts") which Purchaser has elected,
by written notice to Seller delivered at least five (5) days
prior to the Closing, to assume.
(d) The Assignment and Assumption of Intangible
Property in the form of Exhibit D annexed hereto and
made part hereof assigning without warranty or
representation all of the Seller's right, title and
interest, if any, in and to all intangible property
owned by the Seller with respect to the operation of the
Property listed on Schedule 10 annexed hereto and made a
part hereof, including, without limitation, the trade
name "Taxter Corporate Park" (the "Intangible Property
Assignment") (the Lease Assignment, the Contract and
License Assignment and the Intangible Property
Assignment are herein referred to collectively as the "A
& A Agreements").
<PAGE>
(e) Original executed counterparts of all Leases
and New Leases, if any, and any amendments, guarantees
and other documents relating thereto, together with a
schedule of all tenant security deposits thereunder and
the accrued interest on such security deposits payable
to tenants which are in the possession of or received by
the Seller and certified copies of such Leases where
Seller, using all commercially reasonable efforts is
unable to deliver originals of same.
(f) A bill of sale in the form of Exhibit E
annexed hereto and made a part hereof (the "Bill of
Sale") conveying, transferring and selling to the
Purchaser without warranty or representation all right,
title and interest of the Seller in and to all Personal
Property. The Purchaser shall indemnify the Seller for
any sales tax which may be owed or claimed to be owed in
connection with the conveyance of the Personal Property.
Notwithstanding the foregoing, the Seller and Purchaser
hereby agree that no portion of the Purchase Price is
being allocated to the Personal Property.
<PAGE>
(g) Notices to the tenants of the Property in the
form of Exhibit F annexed hereto and made a part hereof
advising the tenants of the sale of the Property to the
Purchaser and directing that rents and other payments
thereafter be sent to the Purchaser or as the Purchaser
may direct.
(h) A certificate of each of the general partners
of the Seller that the Seller and each of the general
partners have taken all necessary partnership action to
authorize the execution, delivery and performance of
this Agreement, the consummation of the transaction
contemplated hereby and the documents to be delivered
hereunder.
(i) Executed originals of all Estoppel
Certificates required by Section 4.3 and any other
Estoppel Certificates, received by the Seller from
tenants prior to the Closing Date and not previously
delivered to the Purchaser.
(j) Keys to all entrance doors to, and equipment
and utility rooms located in, the Property; provided,
however, if the keys are located in the Property
manager's office on the Property, the keys may be
delivered to Purchaser's Representative at such office.
(k) All other original documents or instruments
referred to herein, including without limitation those
Contracts being assigned to Seller, and all original
Licenses and Books and Records, and certified copies of
same where Seller, using its best efforts, is unable to
deliver originals.
(l) To the extent in the Seller's possession or
control and not located at the Buildings, plans and
specifications of the Buildings.
(m) The Transfer Tax Returns, if any.
(n) A "FIRPTA" affidavit sworn to by the Seller in
the form of Exhibit H annexed hereto and made a part
hereof. The Purchaser acknowledges and agrees that upon
the Seller's delivery of such affidavit, the Purchaser
shall not withhold any portion of the Purchase Price
pursuant to Section 1445 of the Internal Revenue Code of
1986, as amended, and the regulations promulgated
thereunder.
(o) The Termination, Assignment and Recognition
Agreement in the form of Exhibit L attached hereto and
made a part hereof (the "Termination, Assignment and
Recognition Agreement") pursuant to which (i) the
Overlease shall be terminated; (ii) Sublandlord's
interest under the KLM Lease shall be assigned to
Seller; and (iii) Seller and
<PAGE>
KLM shall recognize and agree that subsequent to
the termination of the Overlease, the KLM Lease shall be
a direct lease by and between Seller as landlord and KLM
as tenant or, if Purchaser shall have waived Seller's
obligation to deliver the Termination, Assignment and
Recognition Agreement, an assignment of the Overlease
and of all Sublandlord's rights under the KLM Lease.
(p) An affidavit, and such other document or
instruments required by the Title Company, executed by
Seller to the Title Company (i) indemnifying it against
any work done or supplies delivered to the Property
which might be grounds for a materialman's or mechanic's
lien under or pursuant to New York Law, in form
sufficient to enable the Title Company to affirmatively
insure Purchaser against any such lien, and (ii)
certifying that the signatures on the Deed are
sufficient to bind Seller and convey the Property to
Purchaser, together with good standing certificates
issued by the State of Delaware and qualification to do
business certificates issued by the State of New York.
(q) A list of security deposits and all non-cash
security deposits (including letters of credit)
delivered by tenants under the Leases, together with
other instruments of assignment, transfer or consent as
may be necessary to permit Purchaser to realize upon
same.
(r) A certificate indicating that the
representations and warranties of Seller made in this
Agreement are true and correct as of the Closing Date,
or if there have been any changes, a description
thereof.
(s) All proper instruments as shall be reasonably
required for the conveyance to Purchaser of all right,
title and interest, if any, of Seller in or to any award
or payment made, or to be made, (i) for any taking in
condemnation, eminent domain or agreement in lieu
thereof of land affecting all or any portion of the
Property, (ii) for damage to the Property or any part
thereof by reason of change of grade or closing of any
street, road, highway or avenue adjacent to or abutting
the Property, (iii) for any taking in condemnation or
eminent domain of any part of the Property and (iv) as a
result of any casualty to the Property.
(t) A statement setting forth the Purchase Price
with all adjustments and prorations shown thereon.
(u) A computer diskette containing this Agreement
in either WordPerfect or Microsoft Word format.
(v) All other documents the Seller is required to
deliver pursuant to the provisions of this Agreement or
which may be reasonably requested by the Title Company.
<PAGE>
(w) A schedule of any Rents in arrears as of the
Closing Date.
9. Documents to be Delivered by the Purchaser at
Closing.
At the Closing, the Purchaser shall execute, acknowledge
and/or deliver, as applicable, the following to the Seller:
(a) The cash portion of the Purchase Price payable
at the Closing pursuant to Section 2, subject to
apportionments, credits and adjustments as provided in
this Agreement.
(b) The Bill of Sale.
(c) The Sales Tax Return, if required, together
with a good, unendorsed certified or official bank check
drawn on or by a Clearing House Bank payable to the
order of the appropriate collection officer in the
amount of the sales tax due thereon.
(d) If the Purchaser is a corporation, (i) copies
of the certificate of incorporation and by-laws of the
Purchaser and of the resolutions of the board of
directors of the Purchaser authorizing the execution,
delivery and performance of this Agreement and the
consummation of the transactions contemplated by this
Agreement certified as true and correct by the Secretary
or Assistant Secretary of the Purchaser; (ii) a good
standing certificate issued by the state of
incorporation of the Purchaser, dated within thirty (30)
days of the Closing Date; (iii) a qualification to do
business certificate issued by the State of New York,
dated within thirty (30) days of the Closing Date; and
(iv) an incumbency certificate executed by the Secretary
or Assistant Secretary of the Purchaser with respect to
those officers of the Purchaser executing any documents
or instruments in connection with the transactions
contemplated herein.
(e) If the Purchaser is a partnership, (i) copies
of the Purchaser's partnership agreement and partnership
certificate (if applicable) and, if required by law or
its partnership agreement, copies of partnership
resolutions and/or consents of the partners authorizing
the execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated by this Agreement, all certified as true
and correct by the managing general partner of the
Purchaser, or in the absence thereof, then by all of the
Purchaser's general partners; (ii) a legal existence
certificate issued by the state of organization of the
Purchaser, dated within thirty (30) days of the Closing
Date; and (iii) a qualification to do business
certificate issued by the State of New York, dated
within thirty (30) days of the Closing Date.
(f) If the Purchaser is a limited liability
company, (i) copies of the Purchaser's operating
agreement and, if required by law or its
<PAGE>
operating agreement, copies of resolutions of the
manager authorizing the execution, delivery and
performance of this Agreement and the consummation of
the transactions contemplated by this Agreement, all
certified as true and correct by the manager of the
Purchaser; (ii) a good standing certificate issued by
the state of organization of the Purchaser, dated within
thirty (30) days of the Closing Date; and (iii) a
qualification to do business certificate issued by the
State of New York, dated within thirty (30) days of the
Closing Date.
(g) The A & A Agreements.
(h) The Transfer Tax Returns;
(i) The Termination, Assignment and Recognition
Agreement; and
(j) All other documents the Purchaser is required
to deliver pursuant to the provisions of this Agreement.
10. Operation of the Property prior to the Closing Date.
Between the date hereof and the Closing Date, the Seller
shall have the right to continue to operate and maintain the
Property; provided, however, Seller shall continue to operate
and maintain the Property in the ordinary course of business
and use commercially reasonably efforts to reasonably
preserve for Purchaser the relationships of Seller and
Seller's tenants, suppliers, managers, employees and others
having on-going relationships with the Property.
10.1. New Leases.
Except as hereinafter provided in this Section
10.1, the Seller may modify, extend, renew, cancel or
permit the expiration of any Lease or enter into any
proposed Lease of all or any portion of the Property
without the Purchaser's consent; provided, however, that
such Lease is on Seller's standard form with such
changes as Seller deems appropriate in the exercise of
its reasonable discretion. After the execution and
delivery of this Agreement, the Seller shall not modify,
extend, renew or cancel (subject to Section 10.2) any
Lease or enter into any proposed Lease of all or any
portion of the Property without the Purchaser's prior
consent in each instance, which consent shall not be
unreasonably withheld and shall be given or denied, with
the reasons for any such denial, within seven (7) days
after receipt by the Purchaser of the Seller's notice,
which notice shall set forth all the details of the
transaction sufficient for Purchaser to make its
decision, including,
<PAGE>
without limitation, (i) the terms, plus any
options, (ii) the Rents and Additional Rents, (iii) the
scope and cost of tenant improvements, (iv) brokerage
commissions, (v) the space being let, and (vi) a
detailed summary of all New Lease Expenses, requesting
the Purchaser's consent to the proposed action relating
to such existing or proposed Lease. If the Purchaser
fails to reply to the Seller's request for consent in a
notice given within such period or if the Purchaser
expressly denies its consent but fails to provide the
Seller with the reasons for such denial, the Purchaser's
consent shall be deemed to have been granted.
10.1.1. New Lease Expenses.
If after the date of this Agreement, the
Seller, pursuant to Section 10.1, enters into any
Leases or any extension, renewal, expansion or
modification of any Leases (where such extension,
renewal, expansion or modification is not provided
for in such Lease), or if tenant exercises any
extension, renewal, expansion or modification of
any Leases (each, a "New Lease"), the Seller shall
keep accurate records of all expenses
(collectively, "New Lease Expenses") incurred in
connection with each New Lease, including, without
limitation, the following: (i) brokerage
commissions and fees relating to such leasing
transaction, (ii) expenses incurred for repairs,
improvements, equipment, painting, decorating,
partitioning and other items to satisfy the
tenant's requirements with regard to such leasing
transaction, (iii) reimbursements to the tenant
for the cost of any of the items described in the
preceding clause (ii), (iv) legal fees for services
in connection with the preparation of documents and
other services rendered in connection with the
effectuation of the leasing transaction, (v) rent
concessions relating to the demised space provided
the tenant has the right to take possession of such
demised space during the period of such rent
concessions, and (vi) expenses incurred for the
purpose of satisfying or terminating the
obligations of a tenant under a New Lease to the
landlord under another lease (whether or not such
other lease covers space in the Property).
10.1.2. Allocation of New Lease Expenses.
The New Lease Expenses for each New Lease
allocable to and payable by the Seller shall be
determined by multiplying the amount of such New
Lease Expenses by a fraction, the numerator of
which shall be the number of days contained in that
portion, if any, of the term of such New Lease
commencing on the date on which the tenant
thereunder shall have commenced to pay fixed rent
("Rent Commencement Date") and expiring on the date
immediately preceding the Closing Date, and the
denominator of which shall be the total number of
days contained in the period commencing on the Rent
Commencement Date and expiring on the date of the
scheduled expiration of the term of such New Lease,
without provision for any optional extensions or
renewals, and the
<PAGE>
remaining balance of the New Lease Expenses
for each New Lease shall be allocable to and
payable by the Purchaser by addition to the
Purchase Price. At the Closing, the Purchaser
shall reimburse the Seller for all New Lease
Expenses theretofore paid by the Seller, if any, in
excess of the portion of the New Lease Expenses
allocated to the Seller pursuant to the provisions
of the preceding sentence. For purposes of this
Section 10.1.2, the Rent Commencement Date under a
renewal, extension, expansion or modification of a
Lease shall be deemed to be (i) in the case of a
renewal or extension (whether effective prior to or
after the Closing, or in the form of an option
exercisable in the future), the first date during
such renewal or extension period after the
originally scheduled expiration of the term of such
Lease on which the tenant under such Lease which is
renewed, extended, expanded on or modified after
the date hereof commences to pay fixed rent, (ii)
in the case of an expansion (whether effective
prior to or after the Closing, or in the form of an
option exercisable in the future), the date on
which the tenant under such Lease commences to pay
fixed rent for the additional space, and (iii) in
the case of a modification not also involving a
renewal, extension or expansion of such Lease, the
effective date of such modification agreement. The
provisions of this Section 10.1.2 shall survive the
Closing.
<PAGE>
10.2. Termination of Existing Leases.
Notwithstanding anything to the contrary contained
in this Agreement, the Seller reserves the right, but is
not obligated, to institute summary proceedings against
any tenant or terminate any Lease as a result of a
default by the tenant thereunder prior to the Closing
Date with the prior written consent of Purchaser, such
consent not to be unreasonably withheld or delayed;
provided, however, that such consent will not be
required with respect to leases with Resource Mortgage
and AAT Communications. The Seller makes no
representations and assumes no responsibility with
respect to (i) the continued occupancy of the Property
or any part thereof by any tenant and (ii) the
fulfillment by any tenant of its obligations under any
Lease. The removal of a tenant whether by summary
proceedings or otherwise prior to the Closing Date shall
not give rise to any claim on the part of the Purchaser,
provided Seller has obtained Purchaser's prior written
consent (as provided in the first sentence of this
Section 10.2) for such summary proceedings or otherwise,
and provided further that no such consent from Purchaser
shall be required with respect to leases with Resource
Mortgage and AAT Communications. Further, the Purchaser
agrees that it shall not be grounds for the Purchaser's
refusal to close this transaction that any tenant is a
holdover tenant or in default under its Lease pursuant
to any economic or non-economic terms of its Lease on
the Closing Date and the Purchaser shall accept title
subject to such holding over or default without credit
against, or reduction of, the Purchase Price. The terms
of this Section 10.2 are not applicable to the
Overlease, which Purchaser recognizes shall be
terminated at Closing pursuant to the Termination,
Assignment and Recognition Agreement.
10.3. Contracts.
Except as hereinafter provided in this Section
10.3, the Seller may cancel, modify, extend, renew or
permit the expiration of Contracts or enter into any new
Contract without the Purchaser's prior consent but only
after giving Purchaser prior notice of such
cancellation, modification, extension or renewal. Any
new Contracts entered into between the date of this
Agreement and the expiration of the Due Diligence Period
will be terminable at or prior to the Closing without
charge or penalty to Purchaser. After the expiration of
the Due Diligence Period, the Seller shall not modify,
extend, renew or cancel (except as a result of a default
by the other party thereunder or if the Purchaser has
given notice pursuant to Section 6(g) that a Contract is
not to be assumed) any Contracts, or enter into any new
Contract without the Purchaser's prior consent in each
instance, which consent shall not be unreasonably
withheld or delayed, and if withheld, the Purchaser
shall
<PAGE>
promptly give the Seller a notice stating the
reasons therefor. If the Purchaser fails to reply within
five (5) days to the Seller's request for consent in a
notice given pursuant to this Section 10.3 or if the
Purchaser expressly denies its consent but fails to
provide the Seller with the reasons for such denial, the
Purchaser's consent shall be deemed to have been
granted.
10.4. Operation and Maintenance of Property.
The Seller covenants and agrees that between the
date hereof and the Closing Date the Seller shall
perform or observe the following:
(a) Seller shall not:
(i) Enter into any agreement requiring
Seller to do work for any tenant after the
Closing Date without first obtaining the prior
written consent of Purchaser;
(ii) Apply any Security Deposits with
respect to any tenant in occupancy on the
Closing Date;
(iii) Remove any Personal Property
located in or on the Property, except as may
be required for repair and replacement. All
replacements shall be free and clear of liens
and encumbrances and shall be of quality at
least equal to the replaced items and shall be
deemed included in this sale, without cost or
expense to Purchaser; or
(iv) Cause or permit the Property, or any
interest therein, to be alienated, mortgaged,
licensed, encumbered or otherwise be
transferred.
(b) Up to and including the Closing Date,
Seller agrees to maintain and keep such hazard,
liability and casualty insurance policies in full
force and effect in such amounts and covering such
risks sufficiently to protect the Property and to
protect, to a reasonable and prudent extent, the
owner of the Property, in such amounts as are
required so as not to be deemed a co-insurer, and
for actual replacement cost, against any loss,
damage, claim or liability.
(c) Seller shall cancel, at its sole cost and
expense, those Contracts which Purchaser elects not
to assume.
(d) Seller shall permit Purchaser and its
authorized representatives to inspect the Books and
Records of its operations at all reasonable times.
All Books and Records not conveyed to Purchaser
hereunder shall be maintained for Purchaser's
inspection at Seller's address as set forth above.
(e) Seller shall promptly notify the
Purchaser of, and shall also promptly deliver to
the Purchaser, a certified true and complete copy
of any Notice the Seller may receive, on or before
the Closing Date, from any Governmental Authority,
concerning a violation of Applicable Environmental
Laws or discharge of Hazardous Substances.
<PAGE>
10.4.1. Broker.
The Purchaser and the Seller represent and warrant to
each other that Insignia/ESG, Inc. (the "Broker") is the sole
broker with whom they have dealt in connection with the
Property and the transactions described herein. The Seller
shall be liable for, and shall indemnify the Purchaser
against, all brokerage commissions or other compensation due
to the Broker arising out of the transaction contemplated in
this Agreement, which compensation shall be paid subject and
pursuant to a separate agreement between the Seller and the
Broker. Each party hereto agrees to indemnify, defend and
hold the other harmless from and against any and all claims,
causes of action, losses, costs, expenses, damages or
liabilities, including reasonable attorneys' fees and
disbursements, which the other may sustain, incur or be
exposed to, by reason of any claim or claims by any broker,
finder or other person, except (in the case of the Purchaser
as indemnitor hereunder) the Broker, for fees, commissions or
other compensation arising out of the transactions
contemplated in this Agreement if such claim or claims are
based in whole or in part on dealings or agreements with the
indemnifying party. The obligations and representations and
warranties contained in this Section 11 shall survive the
termination of this Agreement and the Closing.
<PAGE>
11. Casualty; Condemnation.
11.1. Damage or Destruction.
If a "material" part (as hereinafter defined) of
the Property is damaged or destroyed by fire or other
casualty, the Seller shall notify the Purchaser of such
fact and the Purchaser shall have the option to
terminate this Agreement upon notice to the Seller given
not later than ten (10) days after receipt of the
Seller's notice. If (i) the Purchaser does not elect to
terminate this Agreement as to the damaged Property, or
(ii) there is damage to or destruction of an
"immaterial" part ("immaterial" is herein deemed to be
any damage or destruction which is not "material", as
such term is hereinafter defined) of the Property, the
Purchaser shall close title as provided in this
Agreement and, at the Closing, the Seller shall, unless
the Seller has repaired such damage or destruction prior
to the Closing, (x) pay over to the Purchaser the
proceeds of any insurance collected by the Seller plus
any deductible less the amount of all costs incurred by
the Seller in connection with the repair of such damage
or destruction, and (y) assign and transfer to the
Purchaser all right, title and interest of the Seller in
and to any uncollected insurance proceeds which the
Seller may be entitled to receive from such damage or
destruction. A "material" part of the Property shall be
deemed to have been damaged or destroyed if the cost of
repair or replacement shall exceed $500,000.
11.2. Condemnation.
If, prior to the Closing Date, all or any
"significant" portion (as hereinafter defined) of the
Property is taken by eminent domain or condemnation (or
is the subject of a pending taking which has not been
consummated), the Seller shall promptly notify the
Purchaser of such fact and the Purchaser shall have the
option to terminate this Agreement upon notice to the
Seller given not later than ten (10) days after receipt
of the Seller's notice. If the Purchaser does not elect
to terminate this Agreement, or if an "insignificant"
portion ("insignificant" is herein deemed to be any
taking which is not "significant", as such term is
herein defined) of the Property is taken by eminent
domain or condemnation, at the Closing the Seller shall
assign and turnover, and the Purchaser shall be entitled
to receive and keep, all awards or other proceeds for
such taking by eminent domain or condemnation. A
"significant" portion of the Property means (i) any
portion of the Buildings, (ii) any portion of the
parking areas, or (iii) any legally required driveway on
the Land.
11.3. Termination.
If the Purchaser effectively terminates this
Agreement pursuant to Section 12.1 or 12.2, this
Agreement shall be terminated and the rights of the
parties shall be the same as if notice of termination
were given pursuant to Section 14.1. The provisions of
this Section 12 are intended to supercede and replace
any inconsistent or conflicting provisions set forth in
Section 5-1311 of the General Obligations Law of the
State of New York.
12. Conditions Precedent to Closing.
<PAGE>
12.1. Conditions Precedent to the Purchaser's Obligations to
Perform.
The Purchaser's obligation under this Agreement to
purchase the Property is subject to the fulfillment of
each of the following conditions: (i) the
representations and warranties of the Seller contained
herein shall be materially true, accurate and correct as
of the Closing Date; (ii) the Seller shall be ready,
willing and able to deliver title to the Property in
accordance with the terms and conditions of this
Agreement; (iii) Seller, KLM and Sublandlord shall have
executed and delivered the Termination, Assignment and
Recognition Agreement and (iv) the Seller shall have
delivered all the documents and other items required
pursuant to Section 8, and shall have performed all
other covenants, undertakings and obligations, and
complied with all conditions required by this Agreement
to be performed or complied with by the Seller at or
prior to the Closing.
12.2. Conditions Precedent to the Seller's Obligations to
Perform.
The Seller's obligation under this Agreement to
sell the Property to the Purchaser is subject to the
fulfillment of each of the following conditions: (i) the
representations and warranties of the Purchaser
contained herein shall be materially true, accurate and
correct as of the Closing Date; (ii) the Purchaser shall
have delivered the funds required hereunder and all the
documents to be executed by the Purchaser set forth in
Section 9 and shall have performed all other covenants,
undertakings and obligations, and complied with all
conditions required by this Agreement to be performed or
complied with by the Purchaser at or prior to the
Closing; (iii) all consents and approvals of
governmental authorities and parties to agreements to
which the Purchaser is a party or by which the
Purchaser's assets are bound that are required with
respect to the consummation of the transactions
contemplated by this Agreement shall have been obtained
and copies thereof shall have been delivered to the
Seller at or prior to the Closing; and (iv) KLM and
Sublandlord shall have executed and delivered the
Termination, Assignment and Recognition Agreement or
Purchaser shall have waived the requirement that that
Seller deliver the Termination, Assignment and
Recognition Agreement at the Closing. Seller agrees to
use commercially reasonable efforts to obtain the
Termination, Assignment and Recognition Agreement.
12.3. Remedies Upon Failure to Satisfy Conditions.
In the event that any condition contained in
Sections 13.1 or 13.2 is not satisfied, the party
entitled to the satisfaction of such condition as a
condition to its obligation to close title shall have as
its sole remedy hereunder the right to elect to (i)
waive such unsatisfied condition whereupon title shall
close as provided in this Agreement or (ii) proceed as
provided in Section 14 hereof.
<PAGE>
13. Remedies.
13.1. Seller's Inability to Perform.
If the Closing fails to occur by reason of the
Seller's inability to perform its obligations under this
Agreement which has not been waived pursuant to Section
13.3, then the Purchaser, as its sole remedy for such
inability of the Seller, may terminate this Agreement by
notice to the Seller. If the Purchaser elects to
terminate this Agreement, then this Agreement shall be
terminated and neither party shall have any further
rights, obligations or liabilities hereunder other than
those obligations, rights and liabilities which by the
terms of this Agreement expressly survive the
termination of this Agreement (the "Surviving
Obligations"), and except that the Purchaser shall be
entitled to a return of the Deposit provided the
Purchaser is not otherwise in default hereunder. Except
as set forth in this Section 14.1, the Purchaser hereby
expressly waives, relinquishes and releases any other
right or remedy available to it at law, in equity or
otherwise by reason of the Seller's inability to perform
its obligations hereunder. Notwithstanding anything to
the contrary herein, if the Seller's inability to
perform its obligations under this Agreement is a result
of any action of, or failure to act by, the Purchaser or
any of the Purchaser's Representatives, the Purchaser
shall not be relieved of its obligations under this
Agreement and Purchaser shall not be entitled to any
right or remedy provided in this Section 14.1 or
elsewhere in this Agreement.
13.2. Purchaser's Failure to Perform.
In the event of a default hereunder by the
Purchaser or if the Closing fails to occur by reason of
the Purchaser's failure or refusal to perform its
obligations hereunder, then the Seller may terminate
this Agreement by notice to the Purchaser. If the
Seller elects to terminate this Agreement, then this
Agreement shall be terminated and the Seller may retain
the Deposit as liquidated damages for all loss, damage
and expenses suffered by the Seller, it being agreed
that the Seller's damages are impossible to ascertain,
and neither party shall have any further rights,
obligations or liabilities hereunder, except for the
Surviving Obligations. Nothing contained herein shall
limit or restrict the Seller's ability to pursue any
rights or remedies it may have against the Purchaser
with respect to the Surviving Obligations. Except as
set forth in this Section 14.2 and the Surviving
Obligations, the Seller hereby expressly waives,
relinquishes and releases any other right or remedy
available to them at law, in equity or otherwise by
reason of the Purchaser's default hereunder or the
Purchaser's failure or refusal to perform its
obligations hereunder. Notwithstanding anything to the
contrary herein, if the Purchaser's default or the
Purchaser's failure or refusal to perform its
obligations under this Agreement is a result of any
action of, or failure to act by, the Seller or any of
the Seller's Affiliates, the Seller shall not be
relieved of its obligations under this Agreement and the
Seller shall not be entitled to any right or remedy
provided in this Section 14.2 or elsewhere in this
Agreement.
<PAGE>
13.3. Seller's Failure to Perform.
If the Closing fails to occur by reason of the
Seller's failure or refusal to perform its obligations
hereunder or due to the willful breach of any
representation or warranty set forth herein which has
not been waived by the Purchaser, then the Purchaser, as
its sole remedy hereunder, may (i) terminate this
Agreement by notice to the Seller or (ii) seek specific
performance from the Seller. As a condition precedent
to the Purchaser exercising any right it may have to
bring an action for specific performance as the result
of the Seller's failure or refusal to perform their
obligations hereunder, the Purchaser must commence such
an action within ninety (90) days after the occurrence
of such default. The Purchaser agrees that its failure
to timely commence such an action for specific
performance within such ninety (90) day period shall be
deemed a waiver by it of its right to commence such an
action. Notwithstanding anything to the contrary
herein, if the Seller's failure or refusal to perform
its obligations under this Agreement is a result of any
action of, or failure to act by, the Purchaser or any of
the Purchaser's Representatives, the Purchaser shall not
be relieved of its obligations under this Agreement and
Purchaser shall not be entitled to any right or remedy
provided in this Section 14.3 or elsewhere in this
Agreement. Notwithstanding the above provisions, in the
event Seller voluntarily transfers or conveys the
Property to a third-party purchaser during the pendency
of this Agreement and prior to Closing, Purchaser may
bring a claim against Seller for money damages, provided
that such damages shall not, in any event exceed One
Million Dollars ($1,000,000.00).
<PAGE>
14. Escrow.
The Escrow Agent shall hold the Downpayment and all
interest accrued thereon, if any (collectively, the
"Deposit") in escrow and shall dispose of the Deposit only in
accordance with the provisions of that certain Escrow
Agreement of even date herewith by and among the Escrow
Agent, the Purchaser and the Seller relating to the Property
(the "Escrow Agreement") in the form of Exhibit I hereto.
Simultaneously with their execution and delivery of this
Agreement, the Purchaser and the Seller shall furnish the
Escrow Agent with their true Federal Taxpayer Identification
Numbers so that the Escrow Agent may file appropriate income
tax information returns with respect to any interest earned
on or credited to the Deposit. The party entitled to the
economic benefit of the Deposit shall be the party
responsible for the payment of any tax due on the interest on
the Downpayment.
The provisions of the Escrow Agreement shall survive the
termination of this Agreement and the Closing.
15. Notices.
All notices, elections, consents, approvals, demands,
objections, requests or other communications which the Seller
or the Purchaser may be required or desire to give pursuant
to, under or by virtue of this Agreement must be in writing
and (i) delivered by hand to the addresses set forth below,
or (ii) (a) sent by express mail or courier (for next
business day delivery), or (b) sent by certified or
registered mail, return receipt requested with proper postage
prepaid, addressed as follows:
If to the Seller:
Taxter Park Associates
c/o Dean Witter Realty Inc.
Two World Trade Center
64th Floor
New York, NY 10048
Attention: Robert B. Austin
with copies to:
Vincent M. Sacchetti, Esq.
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
<PAGE>
If to the Purchaser:
Mack-Cali Realty Acquisition Corporation
11 Commerce Drive
Cranford, NJ 07016
Attention: Roger W. Thomas, Esq.
with a copy to:
Mack-Cali Realty Acquisition Corporation
11 Commerce Drive
Cranford, NJ 07016
Attention: Mitchell Hersh
with a copy to:
Pryor Cashman Sherman & Flynn, LLP
410 Park Avenue
New York, NY 10022
Attention: Andrew S. Levine, Esq.
The Seller or the Purchaser may designate another
addressee or change its address for notices and other
communications hereunder by a notice given to the other
parties in the manner provided in this Section 16. A notice
or other communication sent in compliance with the provisions
of this Section 16 shall be deemed given and received (i) if
by hand, at the time of the delivery thereof to the receiving
party at the address of such party set forth above (or to
such other address as such party has designated as provided
above), (ii) if sent by express mail or overnight courier, on
the date it is delivered to the other party, or (iii) if sent
by registered or certified mail, on the third business day
following the day such mailing is made.
16. Property Information and Confidentiality.
The Purchaser agrees that, prior to the Closing, all
Property Information shall be kept strictly confidential and
shall not, without the prior consent of the Seller, be
disclosed by the Purchaser or the Purchaser's
Representatives, in any manner whatsoever, in whole or in
part, and will not be used by the Purchaser or the
Purchaser's Representatives, directly or indirectly, for any
purpose other than evaluating the Property. Moreover, the
Purchaser agrees that, prior to the Closing, the Property
Information will be transmitted only to the Purchaser's
Representatives who need to know the Property Information for
the purpose of evaluating the Property, and who are informed
by the Purchaser of the confidential nature of the Property
Information. Purchaser shall be liable for any breach of
either or both of this Section 17 or Section 6.3 by Purchaser
or Purchaser's Representatives. The provisions of this
Section 17 shall in no event apply to Property Information
which is a matter of public record and shall not prevent the
Purchaser from complying with Laws, including, without
limitation, governmental regulatory, disclosure, tax and
reporting requirements.
16.1. Press Releases.
The Purchaser and Seller, for the benefit of each
other, hereby agree that between the date hereof and the
Closing Date, they will not release or cause or permit
to be released any press notices,
<PAGE>
publicity (oral or written) or advertising
promotion relating to, or otherwise announce or disclose
or cause or permit to be announced or disclosed, in any
manner whatsoever, the terms, conditions or substance of
this Agreement or the transactions contemplated herein,
without first obtaining the written consent of the other
party hereto. It is understood that the foregoing shall
not preclude either party from discussing the substance
or any relevant details of the transactions contemplated
in this Agreement with any of its attorneys,
accountants, professional consultants or potential
lenders, as the case may be, or prevent either party
hereto from complying with Laws, including, without
limitation, governmental regulatory, disclosure, tax and
reporting requirements.
16.2. Return of Property Information.
In the event this Agreement is terminated, the
Purchaser shall promptly deliver to the Seller a letter
signed by Purchaser certifying that all commercially
reasonable efforts have been made by Purchaser in
connection with the return to Seller of all originals
and copies of the Property Information delivered to or
made by Purchaser or Purchaser's Representatives,
together with all originals and copies of the Property
Information then in the possession of Purchaser after
having made such commercially reasonable efforts.
Notwithstanding anything contained herein to the
contrary, in no event shall the Purchaser be entitled to
receive a return of the Downpayment or the accrued
interest thereon, if any, if and when otherwise entitled
thereto pursuant to this Agreement until such time as
the Purchaser shall have performed the obligations
contained in the preceding sentence.
16.3. Property Information Defined.
As used in this Agreement, the term "Property
Information" shall mean (i) all information and
documents in any way relating to the Property, the
operation thereof or the sale thereof (including,
without limitation, Leases, Contracts and Licenses and
Environmental Documents) furnished by the Seller or any
of the Seller's Affiliates, or their agents or
representatives, including, without limitation, their
contractors, engineers, attorneys, accountants,
consultants, brokers or advisors, to, or otherwise made
available for review by, the Purchaser or its directors,
officers, employees, affiliates, partners, brokers,
agents or other representatives, including, without
limitation, attorneys, accountants, contractors,
consultants, engineers (including, without limitation,
environmental engineers) and financial advisors
(collectively, the "Purchaser's Representatives"), and
(ii) all analyses, compilations, data, studies, reports
or other information or documents prepared or obtained
by the Purchaser or the Purchaser's Representatives
containing or based, in whole or in part, on the
information or documents described in the preceding
clause (i), or the Investigations, or otherwise
reflecting their review or investigation of the
Property.
16.4. Remedies.
In addition to any other remedies available to the
Seller, the Seller shall have the right to seek
equitable relief, including, without limitation,
injunctive relief or specific performance, against the
Purchaser or the Purchaser's Representatives in order to
enforce the provisions of this Section 17 and 6.3.
Purchaser shall have the right to seek equitable relief,
in the form of injunctive relief, in order to enforce
the provisions of Section 17.1.
The provisions of this Section 17 shall survive the
termination of this Agreement and the Closing.
17. Access to Records.
For a period of seven (7) years subsequent to the
Closing Date at no cost and expense to Purchaser, the Seller,
the Seller's Affiliates and their employees, agents and
representatives shall be entitled to access during business
hours to all documents, books and records given to the
Purchaser by the Seller at the Closing for tax and audit
purposes, regulatory
<PAGE>
compliance, and cooperation with governmental investigations
upon reasonable prior notice to the Purchaser, and shall have
the right, at their sole cost and expense, to make copies of
such documents, books and records.
18. Assignments.
This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and to their respective
heirs, executors, administrators, successors and permitted
assigns. This Agreement may not be assigned by the Purchaser
except to an affiliate of Purchaser (any such entity, a
"Permitted Assignee"). Any other assignment or attempted
assignment by Purchaser shall constitute a default by
Purchaser hereunder and shall be deemed null and void and of
no force and effect. No assignment of this Agreement shall
relieve Purchaser from its obligations under this Agreement.
For purposes of this Section 19, "affiliate" shall mean any
other person or entity that directly, or indirectly through
one or more intermediaries, controls, is controlled by or is
under common control with the specified person or entity. As
used in this definition, "control", "controlled by" and
"under common control with" shall mean the power, directly or
indirectly, to direct or cause the direction of management or
policies of such person (whether through ownership of
securities or other partnership or ownership interests, by
contract or otherwise); provided, however, that in any event,
any person which owns directly, indirectly or beneficially
fifty-one percent (51%) or more of the securities having
voting power for the election of directors or other governing
body of a corporation or fifty-one percent (51%) or more of
the general partnership interests or fifty-one percent (51%)
or more of the managing membership interests or other
ownership interests of any other person will be deemed to
control such person.
19. Entire Agreement, Amendments.
All prior statements, understandings, representations
and agreements between the parties, oral or written, are
superseded by and merged in this Agreement, which alone fully
and completely expresses the agreement between them in
connection with this transaction and which is entered into
after full investigation, neither party relying upon any
statement, understanding, representation or agreement made by
the other not embodied in this Agreement. This Agreement
shall be given a fair and reasonable construction in
accordance with the intentions of the parties hereto, and
without regard to or aid of canons requiring construction
against the Seller or the party drafting this Agreement.
This Agreement shall not be altered, amended, changed,
waived, terminated or otherwise modified in any respect or
particular, and no consent or approval required pursuant to
this Agreement shall be effective, unless the same shall be
in writing and signed by or on behalf of the party to be
charged.
20. Merger.
Except as otherwise expressly provided herein, the
Purchaser's acceptance of the Deed shall be deemed a
discharge of all of the obligations of the Seller hereunder
and all of the Seller's representations, warranties,
covenants and agreements herein shall merge in the documents
and agreements executed at the Closing and shall not survive
the Closing.
21. Limited Recourse.
The Purchaser agrees that it does not have and will not
have any claims or causes of action against any disclosed or
undisclosed officer, director, employee, trustee,
shareholder, partner, principal, parent, subsidiary or other
affiliate of the Seller, including, without limitation, Dean
Witter Realty Inc. and the parent and affiliates of Dean
Witter Realty Inc. (collectively, the "Seller's Affiliates"),
arising out of or in connection with this
<PAGE>
Agreement or the transactions contemplated hereby. The
Purchaser agrees to look solely to the Seller and the
Seller's assets directly attributable to the Buildings for
the satisfaction of the Seller's liability or obligation
arising under this Agreement or the transactions contemplated
hereby, or for the performance of any of the covenants,
warranties or other agreements of the Seller contained
herein, and further agrees not to sue or otherwise seek to
enforce any personal obligation against any of the Seller's
Affiliates with respect to any matters arising out of or in
connection with this Agreement or the transactions
contemplated hereby. The total liability of the Seller
hereunder shall in no event exceed an amount equal to One
Million and 00/100 Dollars ($1,000,000.00). Seller agrees
that it does not have and will not have any claims or causes
of action against any disclosed or undisclosed officer,
director, employee, trustee, shareholder, partner, principal,
parent, subsidiary or other affiliate of the Purchaser
(collectively, the "Purchaser's Affiliates"), arising out of
or in connection with this Agreement or the transactions
contemplated hereby. The Seller agrees to look solely to the
Purchaser and the Purchaser's assets for the satisfaction of
the Purchaser's liability or obligation arising under this
Agreement or the transactions contemplated hereby, or for the
performance of any of the covenants, warranties or other
agreements of the Purchaser contained herein, and further
agrees not to sue or otherwise seek to enforce any personal
obligation against any of the Purchaser's Affiliates with
respect to any matters arising out of or in connection with
this Agreement or the transactions contemplated hereby.
22. Miscellaneous.
Neither this Agreement nor any memorandum thereof shall
be recorded and any attempted recordation hereof shall be
void and shall constitute a default. Each of the Exhibits
and Schedules referred to herein and attached hereto is
incorporated herein by this reference. The caption headings
in this Agreement are for convenience only and are not
intended to be a part of this Agreement and shall not be
construed to modify, explain or alter any of the terms,
covenants or conditions herein contained. If any provision
of this Agreement shall be unenforceable or invalid, the same
shall not affect the remaining provisions of this Agreement
and to this end the provisions of this Agreement are intended
to be and shall be severable. This Agreement shall be
interpreted and enforced in accordance with the laws of the
State of New York without reference to principles of
conflicts of laws.
23. Time of the Essence.
Time is of the essence with respect to this Agreement,
including but not limited to the occurrence of the Closing as
of the originally scheduled date.
24. IRS Form 1099-S Designation.
In order to comply with information reporting
requirements of Section 6045(e) of the Internal Revenue Code
of 1986, as amended, and the Treasury Regulations thereunder,
the parties agree (i) to execute an IRS Form 1099-S
Designation Agreement in the form attached hereto as Exhibit
K at or prior to the Closing to designate the Title Company
as the party who shall be responsible for reporting the
contemplated sale of the Property to the Internal Revenue
Service (the "IRS") on IRS Form 1099-S; (ii) to provide the
Title Company with the information necessary to complete Form
<PAGE>
1099-S; (iii) that the Title Company shall not be liable for
the actions taken under this Section 25, or for the
consequences of those actions, except as they may be the
result of gross negligence or willful misconduct on the part
of the Title Company; and (iv) that the Title Company shall
be indemnified by the parties for any costs or expenses
incurred as a result of the actions taken under this Section
25, except as they may be the result of gross negligence or
willful misconduct on the part of the Title Company. The
Title Company shall provide all parties to this transaction
with copies of the IRS Forms 1099-S filed with the IRS and
with any other documents used to complete IRS Form 1099-S. 25.
Attorney's Fees.
In any event that at any time Seller or Purchaser shall
institute any action or proceeding against the other relating
to this Agreement or any default hereunder, then and in that
event the prevailing party in such action or proceeding shall
be entitled to recover from the other party its reasonable
attorneys' fees which shall be deemed to have accrued on the
commencement of such action or proceeding and shall be
payable whether or not such action is prosecuted to judgment.
The provisions of this Section 26 shall survive Closing.
26. Counterparts.
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such
counterparts shall together constitute but one and the same
instrument.
27. Tax Free Exchange.
Purchaser may consummate the purchase of the Property as
part of a so called like kind exchange (the "Exchange")
pursuant to 1031 of the Internal Revenue Code of 1986, as
amended (the "Code"), provided that: (i) the Closing shall
not be delayed or affected by reason of the Exchange nor
shall the consummation or accomplishment of the Exchange be a
condition precedent or condition subsequent to Purchaser's
obligations under this Agreement; (ii) Purchaser shall effect
the Exchange through an assignment of this Agreement, or its
rights under this Agreement, to a qualified intermediary;
(iii) Seller shall not be required to take an assignment of
the purchase agreement for the relinquished property or be
required to acquire or hold title to any real property for
purposes of consummating the Exchange; and (iv) Purchaser
shall pay any additional costs that would not otherwise have
been incurred by Purchaser or Seller had Purchaser not
consummated its purchase through the Exchange. Seller shall
not by this agreement or acquiescence to the Exchange (1)
have its rights under this Agreement affected or diminished
in any manner or (2) be responsible for compliance with or be
deemed to have warranted to Purchaser that the Exchange in
fact complies with 1031 of the Code.
28. Termination of Overlease and Assignment of KLM Lease.
At Closing, Seller, KLM, Sublandlord and Purchaser shall
execute a Termination, Assignment and
<PAGE>
Recognition Agreement pursuant to which (i) Sublandlord and
Seller shall agree to terminate the Overlease; (ii)
Sublandlord shall assign without warranty or representation
all of its interest in under the KLM Lease to Seller; and
(iii) KLM, Seller, Sublandlord and Purchaser recognize and
agree (a) that after termination of the Overlease, the KLM
Lease shall be a direct lease by and between Seller and KLM;
and (b) after execution and delivery of the A&A Agreements at
Closing, the KLM Lease shall be a direct lease between
Purchaser and KLM.
29. Further Assurances/Partnership.
On or prior to the Date of Closing, each party to this
Agreement shall, from time to time, execute, acknowledge and
deliver such further instruments, and perform such additional
acts, as the other party may reasonably request in order to
effectuate the Closing contemplated by this Agreement.
Nothing contained in this Agreement shall be deemed to create
any rights or obligations of partnership, joint venture or
similar association between Seller and Purchaser.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the day and year first
above written.
SELLER:
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty
Income Properties II, Inc.
managing general
partner
By: /s/ Robert
B. Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty Income
Partnership III, L.P.,
general partner
By: Dean Witter Realty
Income Properties III, Inc.
managing general
partner
By: /s/ Robert
B. Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty
Income Partnership IV,
L.P.
general partner <PAGE>
By: Dean Witter Realty
Fourth Income Properties,
Inc.
managing general partner
By: /s/ Robert
B. Austin
Name: Robert B.
Austin
Title: Vice
President
PURCHASER:
MACK-CALI REALTY
ACQUISITION CORPORATION
By: /s/ Roger W. Thomas
Name: Roger W. Thomas
Title: Executive Vice President & General Counsel
<PAGE>
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement
(this "Amendment") is entered into as of May 3, 2000 by and
between Taxter Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Realty Acquisition
Corporation ("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller entered into a
Purchase and Sale Agreement dated as of April 4, 2000 (the
"Agreement"), with respect to certain property known and
numbered as 555 and 565 Taxter Road, Elmsford, New York and
more particularly described in the Agreement (the
"Property").
B. The Agreement currently provides that the Due
Diligence Period expires May 4, 2000.
C. Purchaser and Seller wish to amend the Agreement
to extend the Due Diligence Period to May 11, 2000.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Purchaser, Sublandlord and Seller hereby agree to amend the
Agreement as follows:
1. Defined Terms. All capitalized terms used herein
and not otherwise defined shall have the meaning ascribed to
such terms in the Agreement.
2. Due Diligence Period. The first sentence in
Section 4 of the Agreement shall be deleted in its entirety
and the following sentence shall be inserted in place
thereof:
"Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a thirty-seven (37) day
period, commencing on April 4, 2000 and expiring on May 11,
2000 (the "Due Diligence Period") to examine title to the
Property, to inspect the physical and financial condition of
the Property and to review the Property Information
(including, without limitation, environmental reports)."
The parties acknowledge and agree that, notwithstanding
anything to the contrary contained in the Agreement,
Purchaser shall have the right to deliver a Purchaser's
Termination Notice on or prior to 5:00 p.m. E.S.T. on May
11, 2000 pursuant to Section 4.2 of the Agreement. After
5:00 p.m. E.S.T. on May 11, 2000, Purchaser shall have no
further right to deliver a Purchaser's Termination Notice
pursuant to the provisions of Section 4.2 of the Agreement.
<PAGE>
3. Ratification. Purchaser, Sublandlord and Seller
each hereby ratify and confirm that all of the terms and
conditions of the Agreement, as modified by this Amendment,
remain in full force and effect and constitute the valid and
binding obligation of each party.
4. Counterparts. This Amendment may be executed in
one or more counterparts, each of which is an original, but
all of which shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has been fully
executed by the parties hereto as an instrument under seal
as of the date first above written.
SELLER:
TAXTER PARK ASSOCIATES
By: Dean Witter Realty Income
Partnership II, L.P.,
general partner
By: Dean Witter Realty
Income Properties II, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty Income
Partnership III, L.P.,
general partner
By: Dean Witter Realty
Income Properties III, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
By: Dean Witter Realty
Income Partnership IV, L.P.
general partner
By: Dean Witter Realty
Fourth Income
Properties, Inc.,
managing general
partner
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: Vice
President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL CORP.
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: President
PURCHASER:
MACK-CALI REALTY
ACQUISITION CORPORATION
By:/s/ Timothy M. Jones
Name:Timothy M. Jones
Title:President
<PAGE>
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Second Amendment to Purchase and Sale Agreement
(this "Amendment") is entered into as of May 11, 2000 by and
between Taxter Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Realty Acquisition
Corporation ("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller entered into a
Purchase and Sale Agreement dated as of April 4, 2000, as
amended by that certain First Amendment to Purchase and Sale
Agreement dated as of May 3, 2000 (as amended, the
"Agreement"), with respect to certain property known and
numbered as 555 and 565 Taxter Road, Elmsford, New York and
more particularly described in the Agreement (the
"Property").
B. The Agreement currently provides that the Due
Diligence Period expires May 11, 2000.
C. Purchaser and Seller wish to amend the Agreement
to (i) extend the Due Diligence Period to May 17, 2000 and
(ii) provide that the Closing Date shall be May 22, 2000.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Purchaser, Sublandlord and Seller hereby agree to amend the
Agreement as follows:
1. Defined Terms. All capitalized terms used herein
and not otherwise defined shall have the meaning ascribed to
such terms in the Agreement.
2. Due Diligence Period. The first sentence in
Section 4 of the Agreement shall be deleted in its entirety
and the following sentence shall be inserted in place
thereof:
"Notwithstanding anything to the contrary contained
herein, the Purchaser shall have a forty-three (43) day
period, commencing on April 4, 2000 and expiring on May 17,
2000 (the "Due Diligence Period") to examine title to the
Property, to inspect the physical and financial condition of
the Property and to review the Property Information
(including, without limitation, environmental reports)."
The parties acknowledge and agree that, notwithstanding
anything to the contrary contained in the Agreement,
Purchaser shall have the right to deliver a Purchaser's
Termination Notice on or prior to 5:00 p.m. E.S.T. on May
17, 2000 pursuant to Section 4.2 of the Agreement. After
5:00 p.m. E.S.T. on May 17, 2000, Purchaser shall have no
further right to deliver a Purchaser's Termination Notice
pursuant to the provisions of Section 4.2 of the Agreement.
<PAGE>
3. Closing Date. Section 1.2 of the Agreement shall
be deleted in its entirety and the following amended Section
1.2 shall be inserted in place thereof:
"1.2. Closing Date. The delivery of the
Deed and the consummation of the transactions
contemplated by this Agreement (the "Closing")
shall take place at the offices of Bingham Dana
LLP, 399 Park Avenue, New York, New York 10022
4689, at 10:00 a.m. on May 22, 2000 (the "Closing
Date"). Provided, however that Seller and
Purchaser agree that they may mutually agree to
conduct the Closing on any mutually acceptable
date after May 17, 2000 (provided the Clerk of the
County of Westchester, Division of Land Records
(the "Recorder's Office") of Westchester County,
New York is open for business), but in any event
prior to May 22, 2000. Notwithstanding the
foregoing sentence, Purchaser shall have one (1)
option to extend the Closing Date for three (3)
days, provided Purchaser delivers to Seller
written notice of its intent to exercise such
option no later than May 17, 2000."
4. Ratification. Purchaser, Sublandlord
and Seller each hereby ratify and confirm
that all of the terms and conditions of the
Agreement, as modified by this Amendment, remain
in full force and effect and constitute the
valid and binding obligation of each party.
5. Counterparts. This Amendment may be
executed in one or more counterparts, each of
which is an original, but all of which shall
constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE IS
INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has
been fully executed by the parties hereto as
an instrument under seal as of the date first
above written.
SELLER:
TAXTER PARK
ASSOCIATES
By: Dean Witter
Realty Income
Partnership
II, L.P.,
general
partner
By: Dean
Witter Realty Income Properties II, Inc.,
managing general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title: Vice President
By: Dean Witter
Realty Income Partnership III, L.P.,
general
partner
By: Dean
Witter Realty Income Properties III, Inc.,
managing
general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
By: Dean Witter
Realty
Income Partnership IV, L.P.
general
partner
By: Dean
Witter Realty Fourth Income
Properties, Inc.,
managing
general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL
CORP.
By:/s/ Robert B.
Austin
Name: Robert B.
Austin Title:
President
PURCHASER:
MACK-CALI REALTY
ACQUISITION
CORPORATION
By:/s/ Roger W.
Thomas Name: Roger
W. Thomas
Title: Executive Vice
President &
General
Counsel
<PAGE>
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Third Amendment to Purchase and
Sale Agreement (this "Amendment") is entered
into as of May 17, 2000 by and between Taxter
Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Realty
Acquisition Corporation ("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller
entered into a Purchase and Sale Agreement
dated as of April 4, 2000, as amended by that
certain First Amendment to Purchase and Sale
Agreement dated as of May 3, 2000, and as
further amended by that certain Second Amendment
to Purchase and Sale Agreement dated as of May
11, 2000 (as amended, the "Agreement"), with
respect to certain property known and numbered
as 555 and 565 Taxter Road, Elmsford, New
York and more particularly described in the
Agreement (the "Property").
B. The Agreement currently provides
that the Due Diligence Period expires May 17,
2000.
C. Purchaser and Seller wish to amend
the Agreement to (i) extend the Due Diligence
Period to 12:00 noon on May 19, 2000, and (ii)
provide that the Closing Date shall be May 25,
2000.
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser,
Sublandlord and Seller hereby agree to amend
the Agreement as follows:
1. Defined Terms. All capitalized terms
used herein
and not otherwise defined shall have the meaning
ascribed to such terms in the Agreement.
2. Due Diligence Period. The first
sentence in
Section 4 of the Agreement shall be deleted in
its entirety and the following sentence shall
be inserted in place thereof:
"Notwithstanding anything to the
contrary contained herein, the Purchaser
shall have a forty-five (45) day period,
commencing on April 4, 2000 and expiring on
12:00 noon on May 19, 2000 (the "Due Diligence
Period") to examine title to the Property, to
inspect the physical and financial condition of
the Property and to review the Property
Information (including, without limitation,
environmental reports)."
The parties acknowledge and agree that,
notwithstanding anything to the contrary
contained in the Agreement,
Purchaser shall have the right to
<PAGE>
deliver a Purchaser's Termination Notice on
or prior to 12:00 (noon) E.S.T. on May 19, 2000
pursuant to Section 4.2 of the Agreement.
After 12:00 (noon) E.S.T. on May 19, 2000,
Purchaser shall have no further right to
deliver a Purchaser's Termination Notice
pursuant to the provisions of Section 4.2 of the
Agreement.
3. Closing Date. Section 1.2 of the
Agreement shall
be deleted in its entirety and the following
amended Section 1.2 shall be inserted in place
thereof:
"1.2. Closing Date. The delivery
of the
Deed and the consummation of the
transactions contemplated by this
Agreement (the "Closing") shall take
place at the offices of Bingham Dana LLP,
399 Park Avenue, New York, New York 10022
4689, at 10:00 a.m. on May 25, 2000 (the
"Closing Date"). Provided, however
that Seller and Purchaser agree that
they may mutually agree to conduct the
Closing on any mutually acceptable date
after May 19, 2000 (provided the Clerk of
the County of Westchester, Division of
Land Records (the "Recorder's Office") of
Westchester County, New York is open for
business), but in any event prior to May
25, 2000.
4. Notices. Section 16 of the Agreement
shall hereby
be amended by inserting the following language
at the end of Section 16:
"Notwithstanding the above
provisions, Seller, Sublandlord and
Purchaser hereby agree
that solely with respect to the
transmission of Purchaser's Termination
Notice pursuant to Section 4.2 of this
Agreement, Purchaser may deliver such
Purchaser's Termination Notice to Seller
(with a copy to Vincent M. Sacchetti,
Esq.) by facsimile on or before 12:00
noon, May 19, 2000 (to be followed with
original documents sent via federal
express, to be received on the next
business day) to the following numbers:
Taxter Park Associates Attention:
Robert B. Austin
Phone Number: 212-392-6888
Facsimile Number: 212-392-3123
with a copy to:
Bingham Dana LLP
Attention: Vincent M. Sacchetti, Esq.
Phone Number: 617-951-8563
Facsimile Number: 617-951-8736"
<PAGE>
5. Ratification. Purchaser, Sublandlord
and Seller each hereby ratify and confirm
that all of the terms and conditions of the
Agreement, as modified by this Amendment, remain
in full force and effect and constitute the
valid and binding obligation of each party.
6. Counterparts. This Amendment may be
executed in one or more counterparts, each of
which is an original, but all of which shall
constitute one and the same instrument.
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INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has
been fully executed by the parties hereto as
an instrument under seal as of the date first
above written.
SELLER:
TAXTER PARK
ASSOCIATES
By: Dean Witter
Realty Income
Partnership
II, L.P.,
general
partner
By: Dean
Witter Realty Income Properties II, Inc.,
managing general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title: Vice President
By: Dean Witter
Realty Income Partnership III, L.P.,
general
partner
By: Dean
Witter Realty Income Properties III, Inc.,
managing
general partner
By:/s/
Robert B.
Austin
Name:
Robert B. Austin
Title: Vice President
By: Dean Witter
Realty
Income Partnership IV, L.P.
general
partner
By: Dean
Witter Realty Fourth Income
Properties, Inc.,
managing
general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL
CORP.
By:/s/ Robert B.
Austin
Name: Robert B. Austin
Title: President
PURCHASER:
MACK-CALI REALTY
ACQUISITION CORPORATION
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: Vice President
<PAGE>
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Fourth Amendment to Purchase and
Sale Agreement (this "Amendment") is entered
into as of May 18, 2000 by and between Taxter
Park Associates ("Seller"), DW Taxter Special
Corp. ("Sublandlord") and Mack-Cali Taxter
Associates L.L.C., as successor by assignment
from Mack-Cali Realty Acquisition Corporation
("Purchaser").
RECITALS
A. Purchaser, Sublandlord and Seller
entered into a Purchase and Sale Agreement
dated as of April 4, 2000, as amended by the
First Amendment to Purchase and Sale
Agreement, dated as of May 3, 2000, as further
amended by the Second Amendment to Purchase
and Sale Agreement, dated
as of May 11, 2000, as further amended by
the Third Amendment to Purchase and Sale
Agreement, dated as of May 17, 2000,and as
further affected by that certain Assignment of
Purchase and Sale Agreement dated as of May 17,
2000 (as amended and assigned, the
"Agreement"), with respect to certain
property known and numbered as 555 and 565
Taxter Road, Elmsford, New York and more
particularly described in the Agreement (the
"Property").
B. The Agreement currently provides that
the Purchase Price is Forty-Three Million
and 00/100 Dollars ($43,000,000).
C. Purchaser and Seller wish to amend
the Agreement to reduce the Purchase Price
to Forty-Two Million Seven Hundred Twenty-Five
and 00/100 Dollars ($42,725,000).
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser and
Seller hereby agree to amend the Agreement as
follows:
1. Defined Terms. All capitalized terms
used herein and not otherwise defined shall have
the meaning ascribed to such terms in the
Agreement.
2. Purchase Price. The parties acknowledge and agree that
Section 2 of the Agreement is hereby amended by deleting the
dollar figure of "Forty-Three Million and No/100 Dollars
($43,000,000)" and inserting in place thereof "Forty-Two
Million Seven Hundred Twenty-Five and 00/100 Dollars
($42,725,000)."
3. Release. Purchaser hereby unconditionally releases
Seller from any and all obligations solely in connection
with certain tenant improvement obligations
for the following tenants at the Property:
(i) Nextel of New York, Inc., and (ii)
Fieldworks.
4. Ratification. Purchaser and Seller
each hereby ratify and confirm that all of the
terms and conditions of the Agreement, as
modified by this Amendment, remain in full force
and effect and constitute the valid and
binding obligation of such party.
<PAGE>
5. Counterparts. This Amendment may be
executed in one or more counterparts, each of
which is an original, but all of which shall
constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN
INTENTIONALLY LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, this Amendment has
been fully executed by the parties hereto as
an instrument under seal as of the date first
above written.
SELLER:
TAXTER PARK
ASSOCIATES
By: Dean Witter
Realty Income
Partnership
II, L.P.,
general
partner
By: Dean
Witter Realty Income Properties II, Inc.,
managing general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title: Vice President
By: Dean Witter
Realty Income Partnership III, L.P.,
general
partner
By: Dean
Witter Realty Income Properties III, Inc.,
managing
general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
By: Dean Witter
Realty
Income Partnership IV, L.P.
general
partner
By: Dean
Witter Realty Fourth Income
Properties, Inc.,
managing
general partner
By:/s/
Robert B. Austin
Name:
Robert B. Austin
Title:
Vice President
<PAGE>
SUBLANDLORD:
DW TAXTER SPECIAL
CORP.
By:/s/ Robert B.
Austin
Name: Robert B.
Austin
Title: President
PURCHASER:
MACK-CALI TAXTER
ASSOCIATES L.L.C.
By: Grove
Street Associates of
Jersey City
Limited
Partnership, its member
By: Mack-
Cali Sub IV, Inc.,
its general
partner
By:/s/
Roger W.
Thomas
Name:
Roger W.
Thomas
Title:
Executive Vice
President & General
Counsel
<PAGE>
TERMINATION, ASSIGNMENT AND RECOGNITION
AGREEMENT
This TERMINATION, ASSIGNMENT AND
RECOGNITION AGREEMENT (this "Agreement") is
dated as of May ___, 2000, between Taxter
Park Associates, a New York general
partnership ("Taxter"), DW Taxter Special
Corp., a Delaware Corporation ("DWTSC"), KLM
Royal Dutch Airlines, a corporation organized
under the laws of the Netherlands ("KLM"),
and Mack-Cali Realty Acquisition Corporation,
a Delaware corporation, or its permitted
successors and assigns ("Mack-Cali").
WHEREAS, Taxter and Mack-Cali have entered
into that certain Purchase and Sale Agreement,
dated as of April 4, 2000 (the "Purchase
and Sale Agreement") for the real property
known and numbered as 555 and 565 Taxter
Road, Elmsford, New York (the "Property"); and
WHEREAS, Taxter, as successor in
interest to Dean Witter Realty, Inc., is a
party to that certain Agreement Granting
Lease, dated as of October 23, 1987
(the "Overlease") among Taxter, KLM, and URBCO,
Inc., pursuant to which KLM was granted a
leasehold interest in a portion of the
Property (the "Leased Premises") more
particularly described in the Overlease; and
WHEREAS, Taxter and KLM entered into (i)
that certain Lease Agreement dated February
5, 1999 (the "KLM Lease") pursuant to which
KLM agreed to lease from Taxter and Taxter
agreed to lease to KLM a certain portion of
the Leased Premises located at the Property
as more particularly described in the KLM
Lease, and (ii) that certain Purchase and Sale
Agreement, dated February 5, 1999, pursuant
to which Taxter agreed to assume from KLM and
KLM agreed to assign to Taxter the leasehold
interest in certain property within the
premises commonly known as 565 Taxter Road,
Elmsford, New York, located in Taxter corporate
park; and
WHEREAS, Taxter and DWTSC entered into
that certain Assignment and Option Agreement
dated February 8, 1999, (the "Assignment and
Option Agreement"), pursuant to which Taxter
assigned and DWTSC assumed all of Taxter's
rights and obligations under the KLM Lease; and
WHEREAS, DWTSC acquired the tenant's
interest in the Overlease from KLM pursuant
to the Assignment and Option Agreement and a
certain Assignment and Assumption of Lease
dated as of February 8, 1999; and
WHEREAS, in connection with the sale of the
Property to the Mack-Cali, Taxter and DWTSC
wish to terminate the Overlease; and
WHEREAS, in connection with the sale of the
Property to Mack-Cali, Taxter wishes to acquire
from DWTSC and DWTSC wishes to convey to
Taxter its interest under the KLM Lease; and
<PAGE>
WHEREAS, subsequent to the assignment of
the KLM Lease and the termination of the
Overlease, Taxter and KLM wish to acknowledge
and agree that the KLM Lease shall be a direct
lease by and between Taxter and KLM; and
WHEREAS, subsequent to the execution and
delivery of the A & A Agreements (as defined
in the Purchase and Sale Agreement), pursuant
to which the KLM Lease shall be assigned
to and shall be assumed by Mack-Cali, at
Closing (as defined in the Purchase and Sale
Agreement) Taxter, KLM and Mack-Cali wish to
acknowledge and agree that the KLM Lease
shall be a direct lease by and between Mack-
Cali, as landlord, and KLM, as tenant;
NOW, THEREFORE, in consideration of
ten ($10.00) dollars and the mutual covenants
and agreements hereinafter set forth, and
intending to be legally bound hereby, KLM, Mack-
Cali, Taxter and DWTSC hereby agree as follows:
1. Assignment of the KLM Lease. DWTSC
hereby assigns
without warranty or representation all of its interest in
under the KLM Lease to Taxter.
2. Indemnification. DWTSC hereby indemnifies and agrees to
hold harmless Taxter from and against any and all claims,
liabilities, losses, damages, causes of action, costs and
expenses (including without limitation, court costs through
all appeals and reasonable attorneys' fees and disbursements)
based upon or allegedly based upon the obligations of DWTSC
under the KLM Lease arising or accruing prior to the date
hereof.
3. Termination of the Overlease. Effective as of the date
first above written, the Overlease is hereby terminated and
of no further force or effect. DWTSC hereby surrenders any
and all interest of DWTSC in the Leased Premises to Taxter.
4. Attornment. (a) Upon execution of this
Agreement by Taxter, DWTSC, KLM and Mack-Cali, and as a
result of the termination of the Overlease each party
acknowledges and agrees that the KLM Lease shall be a direct
lease by and between Taxter and KLM.
(b) Upon execution and delivery
of the A&A Agreements at Closing by Taxter and Mack-Cali,
the KLM Lease shall be assigned to Mack-
Cali and thereafter shall be a
direct lease between Mack-Cali and
KLM.
5. Counterparts. This Agreement may be
executed in
one or more counterparts, each of
which is an original, but all of which
shall constitute one and the same
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties do hereby
execute and deliver this Agreement as of the
date and year first above written.
TAXTER PARK ASSOCIATES
By: Dean Witter Realty
Income Partnership
II, L.P.,
general partner
By: Dean Witter
Realty Income
Properties
II, Inc.
managing
general
partner
By:/s/ Robert
B. Austin
Name: Robert
B. Austin
Title: Vice
President
By: Dean Witter Realty
Income Partnership
III, L.P.,
general partner
By: Dean Witter
Realty Income
Properties
III, Inc.
managing
general
partner
By:/s/ Robert
B. Austin
Name: Robert
B. Austin
Title: Vice
President
By: Dean Witter Realty
Income Partnership
IV, L.P.
general partner
By: Dean Witter
Realty Fourth
Income
Properties,
Inc. managing
general
partner
By:/s/ Robert
B. Austin
Name: Robert
B. Austin
Title: Vice
President
<PAGE>
MACK-CALI REALTY
ACQUISITION
CORPORATION:
By: /s/ Roger W. Thomas
Name: Roger W. thomas
Title: Executive Vice President &
General Counsel
DW TAXTER SPECIAL CORP.
By:/s/ Robert B. Austin
Name: Robert B. Austin
Title: President
KLM ROYAL DUTCH AIRLINES
By: /s/ Jan Willem A. Smeulers
Name: Jan Willem A. Smeulers
Title: Vice President, Executive
Officer
North America
<PAGE>
TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this
"Agreement") is dated as of May ___, 2000,
between Taxter Park Associates, a New York
general partnership having an office c/o Dean
Witter Realty Inc., Two World Trade Center,
New York, New York, 64th floor 10048
("Taxter"), DW Taxter Special Corp., a
Delaware corporation having an office c/o Dean
Witter Realty Inc., Two World Trade Center, New
York, New York, 64th floor 10048 ("DWTSC").
WHEREAS, Taxter and Mack-Cali Taxter
Associates, L.L.C., a New York limited liability
company, as assigned by Mack-Cali Realty
Acquisition Corporation, a Delaware
corporation, have entered into that certain
Purchase and Sale Agreement, dated as of April
4, 2000, as amended (as amended and assigned,
the "Purchase and Sale Agreement") for the real
property known and numbered as 555 and 565
Taxter Road, Elmsford, New York (the
"Property"); and
WHEREAS, Taxter, as successor in
interest to Dean Witter Realty, Inc., is a
party to that certain Agreement Granting
Lease, dated as of October 23, 1987; as
evidenced by (i) that certain Memorandum of
Agreement Granting Lease dated March 31, 1988
and recorded on December 14, 1989 in Liber
9698 cp 33, (ii) that certain Memorandum of
Agreement Granting Lease by and between
Taxter Park Associates (initial landlord) and
KLM Royal Dutch Airlines ("KLM") (and Urbco
Inc.), as tenant, dated February 8, 1999 and
recorded February 11, 1999 in Liber 12226 cp
29, and (iii) as assigned by that certain
Assignment and Assumption of Lease between
KLM, as assignor, to DW Taxter Special Corp.,
as assignee, dated February 8, 1999 and
recorded February 11, 1999 in Liber 12226 cp
40 (the "Overlease") among Taxter, KLM, and
URBCO, Inc., pursuant to which KLM was granted
a leasehold interest in a portion of the
Property (the "Leased Premises") more
particularly described in the Overlease; and
WHEREAS, DWTSC acquired the tenant's
interest in the Overlease from KLM pursuant
to the Assignment and Option Agreement and a
certain Assignment and Assumption of Lease
dated as of February 8, 1999; and
WHEREAS, in connection with the sale of the
Property to the Mack-Cali, Taxter and DWTSC
wish to terminate the Overlease; and
NOW, THEREFORE, in consideration of
ten ($10.00) dollars and the mutual covenants
and agreements hereinafter set forth, and
intending to be legally bound hereby, Taxter and
DWTSC hereby agree as follows:
5. Termination of the Overlease. Effective as of the date
first above written, the Overlease is hereby terminated and
of no further force or effect. DWTSC hereby surrenders any
and all interest of DWTSC in the Leased Premises to Taxter.
<PAGE>
2. Counterparts. This Agreement may be executed in
one or more counterparts, each of
which is an original, but all of which
shall constitute one and the same
instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT
BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties do hereby
execute and deliver this Agreement as of the
date and year first above written.
TAXTER PARK ASSOCIATES
By: Dean Witter Realty
Income Partnership
II, L.P.,
general partner
By: Dean Witter
Realty Income
Properties
II, Inc.
managing
general
partner
By: /s/
Robert B.
Austin Name:
Robert B.
Austin Title:
Vice
President
By: Dean Witter Realty
Income Partnership
III, L.P.,
general partner
By: Dean Witter
Realty Income
Properties
III, Inc.
managing
general
partner
By: /s/
Robert B.
Austin Name:
Robert B.
Austin Title:
Vice
President
By: Dean Witter Realty
Income Partnership
IV, L.P.
general partner
By: Dean Witter
Realty Fourth
Income
Properties,
Inc. managing
general
partner
By: /s/
Robert B.
Austin Name:
Robert B.
Austin Title:
Vice
President
DW TAXTER SPECIAL CORP.
By: /s/ Robert B.
Austin
Name: Robert B. Austin Title: President
