<PAGE>
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)
August 31, 2000
DEAN WITTER REALTY YIELD PLUS II,
L.P.
(Exact name of registrant as specified in its
charter)
Delaware 0-18149
13-
3469111
(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) 392-2974
(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 June
14, 2000, as amended, a nominee trust (the
"Trust") acting for GCGA Limited Partnership
("GCGA"), the sole beneficiary of the Trust,
sold the land and building which comprise the
One Congress Street office building and garage
complex (the "Property") on August 31, 2000 to
One Congress Street JV, LLC, an unaffiliated
party, for a negotiated sale price of $118.5
million.
The 19.81% general partnership interest in GCGA
is owned by a corporate joint venture that is
owned 42% by Dean Witter
Realty Yield Plus II, L.P. (the "Partnership")
and 58% by
Dean Witter Realty Yield Plus, L.P. ("YP"), an
affiliate. The limited partners of GCGA are
not affiliated with the Partnership or YP.
GCGA also had an outstanding participating
second mortgage loan (the "Loan") payable to
the Partnership (42%) and YP (58%).
The purchase price was paid in cash at closing.
At closing, approximately $38.0 million of the
sale proceeds were used to settle GCGA's first
mortgage loan, $1.3 million was used to fund
all tenant improvements that GCGA incurred in
renting out the remaining vacant space at the
Property prior to the sale and $1.2 million was
used to fund the remaining agreed upon
repairs to the Property's garage area
(collectively, the "Sale Proceeds Reductions").
The cash GCGA received at closing, net of
the Sale Proceeds
Reductions and closing costs, was
approximately $76.5 million; GCGA paid this
amount to the Partnership and YP in
settlement of the Loan. Accordingly, on August
31, 2000, the Partnership received
approximately $32.1 million representing
its 42% share of the net sale proceeds GCGA
received at closing.
<PAGE>
Item7. Financial Statements and Exhibits
(b) Pro Forma Financial Information
On a pro forma basis, if the sale of the
Property had been consummated on June 30,
2000, the Partnership's Balance Sheet as of
such date would have reflected an increase in
cash and cash equivalents from $2.1
million to $34.2 million, the elimination of
the $14.2 million investment in
joint venture, and an increase in partner's
capital from $16.3 million to $34.2 million.
For the Income Statement for the six months
ended June 30, 2000, if the Property was
sold on January 1, 2000, the equity in
earnings of joint venture of approximately
$584,000 would have been eliminated and the
Partnership would have earned net income of
approximately $28,000 ($0.14 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 of approximately $1.8 million
would have been eliminated and the Partnership
would
have earned a net loss of approximately $57,000
($0.29 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 as of June 14,
2000 between Government Center Garage Realty
Trust as Seller and One Congress Street JV LLC,
as Purchaser.
(2) First Amendment to Purchase and Sale Agreement as
of
July 27, 2000 between Government Center Garage
Realty Trust as Seller and One Congress Street
JV LLC, as Purchaser.
(3) Second Amendment to Purchase and Sale
Agreement between Government Center Garage
Realty Trust as Seller and One Congress Street
JV LLC, as Purchaser.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act
of 1934, the registrant has duly caused this
report to be signed on its behalf by the
undersigned hereunto duly authorized.
DEAN WITTER
REALTY YIELD PLUS II, L.P.
By: Dean Witter
Realty Yield Plus II, Inc.
Managing General
Partner
Date: August 31, 2000
By: /s/
Raymond E. Koch
Raymond E. Koch
Principal
Financial
and
Accounting
Officer
<PAGE>
FIRST AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
Reference is hereby made to the following:
A. That certain Purchase and Sale
Agreement (the
"Purchase and Sale Agreement") dated
as of June 14, 2000, by and between
Robert B. Austin or Ronald J.
DiPietro, as Trustee and not
individually for GOVERNMENT CENTER
GARAGE TRUST, as Seller, and ONE
CONGRESS STREET JV LLC, as Purchaser.
B. Purchaser and Seller desire to amend
the Purchase
and Sale Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of Ten
Dollars ($10.00) and other good and valuable
consideration, in hand this day paid, the
receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
1. All capitalized terms not otherwise defined
herein
shall have the meanings ascribed to such terms
in the
Purchase and Sale Agreement.
2. The Due Diligence Period has been extended
for a period
of seven (7) additional days. Accordingly, the
first
sentence of Article 4 of the Purchase and
Sale Agreement is hereby amended to read as
follows:
"Subject to the third sentence of this
paragraph, the Purchaser shall have a
sixty-seven (67) 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."
3. All dates and time periods set forth in the
Purchase
and Sale Agreement which are computed with
reference to the Due Diligence period are
hereby extended by seven (7) days.
Accordingly, the last sentence of the first
paragraph of Article 4 is also amended to
read as follows:
"The Purchaser may at its option elect
to terminate the Due Diligence Period
at any time on or after the fifty-
second (52nd) day thereof, upon
written notice (the "Early Closing
Notice") of such election to the
Seller and payment to the Seller of
the Additional Contract Deposit as
determined in accordance with Schedule
3 hereof."
Furthermore, Schedule 3 annexed to the
Purchase and Sale Agreement is hereby
deleted and Schedule 3 annexed hereto and
by this reference made a part hereof is
hereby substituted therefor.
4. The Purchase and Sale Agreement is, in all
other
respects, hereby ratified and confirmed.
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the _______
day of _____________, 2000.
SELLER:
<PAGE>
GOVERNMENT CENTER
GARAGE REALTY TRUST
By:_/s/Robert B. Austin
Robert B. Austin or
Ronald J. DiPietro, as
Trustee and not
individually, at the
direction of GCGA
Limited Partnership,
sole Beneficiary of
Government Center
Garage Realty Trust
PURCHASER
ONE CONGRESS STREET JV
LLC
By: RAK GROUP
ACQUISITION
CORPORATION,
as an
Authorized
Member
By:/s/ Michae
l
C
.
Z
e
r
n
e
r
N
a
m
e
:
Michael C. Zerner
Title: Authorized
Signatory
<PAGE>
SECOND AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
Reference is hereby made to the following:
A. That certain Purchase and Sale
Agreement dated as
of June 14, 2000, by and between
Robert B. Austin or Ronald J.
DiPietro, as Trustee and not
individually for GOVERNMENT CENTER
GARAGE TRUST, as Seller, and ONE
CONGRESS STREET JV LLC, as
Purchaser, as amended by First
Amendment to Purchase and Sale
Agreement dated as of July 27, 2000
(as so amended, the "Purchase and
Sale Agreement").
B. That certain Sale and Construction
Agreement (the
"Sale and Construction Agreement"),
dated as of December 21, 1983, by
and among the City of Boston,
acting by and through its Public
Facilities Commission, the Boston
Redevelopment Authority (the "BRA")
and Myrna Putziger and Richard H.
Rubin, as Trustees of the Government
Center Garage Realty Trust.
C. Purchaser and Seller desire to amend
the Purchase
and Sale Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of
Ten Dollars ($10.00) and other good and
valuable consideration, in hand this day
paid, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto
agree as follows:
1. All capitalized terms not otherwise
defined herein
shall have the meanings ascribed to such
terms in the Purchase and Sale Agreement.
2. The Buyer's obligation to purchase the
Property under
the Purchase and Sale Agreement shall be
conditioned upon delivery by the Seller
of the Certificate of Completion
referred to in Section 304 of the Sale
and Construction Agreement. Accordingly,
Section 8(r) of the Purchase and Sale
Agreement is hereby amended to read as
follows and a new Section 8(s) is
hereby inserted as follows:
"(r) A Certificate of Completion (the
"Certificate of Completion"), which
Certificate of Completion shall have
been furnished to the Seller by the
Boston Redevelopment Authority
pursuant to Section 304 of that
certain Sale and Construction
Agreement, dated as of December 21,
1983, by and among the City of
Boston, acting by and through its
Public Facilities Commission, the
Boston Redevelopment Authority and
Myrna Putziger and Richard H.
Rubin, as Trustees of the Government
Center Garage Realty Trust.
(s) All other documents the Seller is
required to deliver pursuant to
the provisions of this Agreement,
including without limitation, any
documents required to assign the
General Services Administration
Lease."
3 Furthermore, Article 14 of the
Purchase and Sale
Agreement is also amended to include the
following:
"14.4 Seller's Failure to Deliver
Certificate of Completion.
Notwithstanding anything to the
<PAGE>
contrary contained herein, if the Closing fails
to occur by reason of the Seller's
inability or failure
to deliver the Certificate of Completion
pursuant to Section 8(r) hereof, then the
Seller may at its option elect to extend
the Closing Date to the date which is
thirty (30) days after the Closing Date
(as such term is defined in Section 1.2
hereof), unless such day is not a day on
which the Registry of Deeds and the
Suffolk Registry District of the Land Court
of Suffolk County, Massachusetts are open
for business, in which case, the Closing
shall take place on the next day on which
such offices are open, upon written notice
of such election delivered to the Purchaser
on or before three (3) days prior to the
originally scheduled Closing Date."
4. The Purchase and Sale Agreement is, in all
other
respects, hereby ratified and confirmed.
[The remainder of this page is left
intentionally blank]
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the _______
day of _____________, 2000.
SELLER:
GOVERNMENT CENTER
GARAGE REALTY TRUST
By: /s/ Robert B.
Austin
Robert B. Austin
or Ronald J.
DiPietro, as
Trustee and not
individually, at
the direction of
GCGA Limited
Partnership, sole
Beneficiary of
Government Center
Garage Realty
Trust
PURCHASER
ONE CONGRESS STREET JV
LLC
By: RAK GROUP
ACQUISITION
CORPORATION,
as an
Authorized
Member
By:/s/ Michae
l
C
.
Z
e
r
n
e
r
N
a
m
e
:
Michael C. Zerner
Title: Authorized
Signatory
<PAGE>
PURCHASE AND SALE AGREEMENT
PURCHASE AND SALE AGREEMENT (this
"Agreement"), dated as of the 14th day of
June, 2000, by and between Robert B. Austin
or Ronald J. DiPietro, as Trustee and
not individually, for GOVERNMENT CENTER GARAGE
REALTY TRUST, a Massachusetts nominee trust,
acting for GCGA Limited Partnership, a
Massachusetts Limited Partnership and the sole
beneficiary of the Seller, having an office c/o
Dean Witter Realty Inc., Two World Trade Center,
64th Floor, New York, New York 10048 (the
"Seller"), and ONE CONGRESS STREET JV LLC, a
Delaware limited liability company, having an
office at 140 West 57th Street, Suite 5A, New
York, New York 10019 (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the
real property known as "The Government Center
Garage", or "One Congress Street", which is
located in Boston, Massachusetts;
WHEREAS, the Seller and the Purchaser have
entered into negotiations wherein the Purchaser
expressed its intent to purchase the Property
(as defined herein) from the Seller and the
Seller expressed its intent to sell the Property
to
the Purchaser; and
WHEREAS, the Seller and the Purchaser now
desire to
enter into an agreement whereby, subject to the
terms and conditions contained herein, the
Seller shall sell the Property to the
Purchaser and the Purchaser shall purchase the
Property from the Seller.
NOW, THEREFORE, in consideration of
ten ($10.00)
dollars and the mutual covenants and agreements
hereinafter set forth, and intending to be
legally bound hereby, it is
hereby agreed as follows:
1. Sale of the Property.
The Seller agrees to sell and convey to the
Purchaser, and the Purchaser agrees to
purchase from the Seller, at the price and
upon the terms and conditions set forth in
this Agreement, all those certain plots, pieces
and parcels of
land described in Schedule 1 hereto (the
"Land") listed thereon as owned by the
Seller, together with (i) all buildings and
other improvements situated on the Land
(collectively, the "Buildings"), (ii) all
easements, rights of way, reservations,
privileges, appurtenances, and other estates
and rights of the Seller pertaining to the Land
and the Buildings and all licenses and
permits pertaining thereto held by the
Seller (to the extent the same are
transferable), (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
<PAGE>
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,
150 Federal Street, Boston, Massachusetts,
at 10:00 A.M. on (i) the date which is
fifteen (15) days after the end of the
Due Diligence Period or such earlier or
later date as the Seller and Purchaser may
agree in writing, or (ii) at the
option of the Purchaser upon payment by
the Purchaser of the Contract Extension
Deposit (pursuant to and as defined in
Section 2(c) below), the date which is
thirty (30) days after the end of the
Due Diligence Period, unless either such
day is not a day on which the Registry of
Deeds and the Suffolk Registry District
of the Land Court of Suffolk County,
Massachusetts is open for business, in
which case, the Closing shall take place
on the next day on which such offices are
open (the "Closing Date").
2. Purchase Price.
The purchase price to be paid by the
Purchaser to the Seller for the Property
(the "Purchase Price") shall be $121,000,000,
unless the Purchaser shall have delivered to
the Seller an Early Closing Notice pursuant to
Section 4 hereof, in which case the Purchase
Price shall be that price which is listed on
Schedule 3 hereof for the date of such Early
Closing Notice. The Purchase Price shall be
payable as follows:
(a) Initial Contract Deposit. Five Hundred Thousand
Dollars ($500,000.00) (the "Initial Contract
Deposit") shall be payable simultaneously with the
execution and delivery of this Agreement, by
delivery to First American Title Insurance Company
(the "Escrow Agent") of a certified or bank check
drawn on or by a bank which is a member of the New
York Clearing House Association (a "Clearing House
Bank") or by wire transfer of immediately available
funds to the Escrow Agent's account as set forth in
the Escrow
<PAGE>
(b) Agreement. The Initial Contract Deposit shall be held
and disbursed by the Escrow Agent in accordance
with the terms of Section 15. At the Closing,
the Initial Contract Deposit, along with
interest accrued thereon, shall be
(c) delivered to the Seller and such amount
shall be credited against the portion of the
Purchase Price payable pursuant to Section 2(c);
(b) Contract Extension Deposit. An
additional Two Hundred and Fifty Thousand
Dollars ($250,000.00) (the "Contract
Extension Deposit") shall be payable
simultaneously with the request for an
extension of the Closing Date pursuant to
Section 1.2(ii), by delivery to the
Escrow Agent of a certified or bank check
drawn on or by 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
Contract Extension Deposit shall be held
and disbursed by the Escrow Agent in
accordance with the terms of Section 15.
At the Closing, the Contract Extension
Deposit, along with interest accrued
thereon, shall be delivered to the
Seller and such amount shall be
credited against the portion of the
Purchase Price payable pursuant to Section
2(d);
(c) Additional Contract Deposit. An
additional deposit, which amount shall be
determined in accordance with the
schedule set forth in Schedule 3 (the
"Additional Contract Deposit") shall be
payable no later than one (1) business day
after the expiration or early termination
of the Due Diligence Period pursuant to
Section 4 hereof, by delivery to the Escrow
Agent of a certified or bank check drawn
on or by 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 Additional
Contract Deposit shall be held and
disbursed by the Escrow Agent in
accordance with the terms of Section
15. At the
Closing, the Additional Contract Deposit,
along with interest accrued thereon,
shall be delivered to the Seller and
such amount shall be credited against the
portion of the Purchase Price payable
pursuant to Section 2(d);
(d) Balance of the Purchase Price.
The balance
of the Purchase Price (i.e., the Purchase
Price minus the Deposit), plus or minus
the apportionments set forth in Section
3, shall be paid at the Closing by bank
wire transfer of immediately available
funds to the
<PAGE>
Seller's account or to the account or
accounts of such other party or parties as
may be designated by the Seller on or
before the Closing Date.
3. Apportionments
The following shall be apportioned between
the Seller and the Purchaser at the Closing as
of 11:59 p.m. of the day preceding the Closing
Date (the "Adjustment Date"):
<PAGE>
(a) for all Leases, fixed or base
rents ("Rents") which have been prepaid,
Rents received by Seller 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 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 4 hereto
or permitted renewals or replacements
thereof and interest payments under the
Garage Tenant Note;
(e) utilities, to the extent
required by Section
3.4;
(f) 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;
(g) personal property taxes on
the Personal
Property, if any, on the basis of the
fiscal year for which assessed;
(h) all other revenues from the
operation of the
Property collected by the Seller 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);
(i) New Lease Expenses as provided
in Section
10.1.2 and Section 10.1.3; and
(j) such other items as are customarily
apportioned between sellers and purchasers of real
properties of a type similar to the Property and
located in Boston, Massachusetts.
<PAGE>
3.1. Taxes.
If the amount of real estate taxes, special
assessments or other taxes for the Property for the
fiscal year during which 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.
The Seller has advised the Purchaser that tax
abatement proceedings are currently pending for the tax
years 1997, 1998 and 1999 and that it intends to file
such abatement proceedings for the tax year 2000. The
Seller will make reasonable efforts to settle such
proceedings on or before March 31, 2001. If and to the
extent Seller shall receive any refund of any taxes
which are the subject of such proceedings, the Seller
shall promptly remit to any present or former tenants
who are entitled to the same each such tenant's share
of any such refund. The provisions of this Section 3.1
will survive the Closing.
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 then current month in
which the payment was received if Rent is due and
owing for such month, (ii) second, 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 <PAGE>
in connection with the collection thereof,
shall be promptly paid to the other party (to the
extent not collected from or reimbursed by
tenants).
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 or other charges of a
similar nature ("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 then current month in which the
payment was received if Additional Rent is
due and owing for such month, (ii) second,
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 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
<PAGE>
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
other than legal actions or proceedings
against a Government Tenant for any
reason other than nonpayment of Rent.
The Purchaser agrees to cooperate with
the Seller, at the Seller's sole cost
and expense, in connection with all
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;
provided however, that the
Purchaser shall not be required to join in
any legal action against any tenant. 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 ten (10) 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 attempt 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.
<PAGE>
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 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 forever.
<PAGE>
4. Due Diligence Period.
Subject to the third sentence of this
paragraph, the Purchaser shall have a sixty (60)
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. Included in the Property
Information which is to be provided to Purchaser or
otherwise made available by Seller for review by
Purchaser, upon execution hereof or promptly
following request therefor by Purchaser, are the
following: leases, lease files (including
correspondence),
maintenance logs, financial books and records
(excluding financial information of the Seller-
entity, as opposed to the Property, any appraisals
received by Seller and internal memoranda regarding
Seller's partnership matters, as opposed to matters
relating to the Property), contracts, plans and
specifications, engineering reports, construction
contracts, environmental reports, permits,
licenses and approvals, bills, escalation
calculations, operating
statements,
operating and capital budgets, to the extent that
the same are in the possession of the Seller or the
Property Manager and located at the office of the
Property Manager in Boston or Maryland. The
Purchaser may at its option elect to terminate the
Due Diligence Period at any time on or after the
forty-fifth (45th) day thereof, upon written notice
(the "Early Closing Notice") of such election to the
Seller and payment to the Seller of the Additional
Contract Deposit as determined in accordance with
Schedule 3 hereof.
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 one (1) 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 samplings to be done on the
Property without the Seller's prior written
consent, which consent shall not be
unreasonably withheld or delayed. Any entry
upon the Property and all Investigations shall
be during the Seller's normal business hours or
at such other time or times as may be reasonably
acceptable to Seller and at the sole risk
and expense of the Purchaser and the
Purchaser's Representatives, and shall not
unreasonably interfere with the activities on or
about the Property of the Seller, its
tenants and their employees and invitees. The
Purchaser shall:
<PAGE>
(a) promptly repair any
damage to the
Property resulting from any such
Investigations and replace, refill and
regrade any holes made in, or
excavations of, any portion of the
Property used for such Investigations
so that the Property shall be in
the same condition 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;
(c) permit the Seller to
have a
representative present during all
Investigations undertaken hereunder;
(d) take all actions and
implement all protections necessary
to ensure that all actions taken in
connection with the Investigations,
and the equipment, materials,
and substances generated, used or
brought onto the Property pose no
threat to the safety or health of
persons or the environment, and
cause no undue damage to the Property
or other property of the Seller or
other persons;
(d) 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 5, as additional insureds,
against any injuries or damages to persons or property that
may result from or are related to (i) the Purchaser's and/or
the Purchaser's Representatives' entry upon the Property,
(ii) any Investigations or other activities conducted
thereon, and (iii) any and all other activities undertaken by
the Purchaser and/or the Purchaser's Representatives in
connection with the Property, and deliver evidence of such
insurance policy to the Seller at the earlier of ten (10)
days after the date of this Agreement or the first entry on
the Property;
<PAGE>
(f) indemnify the Seller and the Seller's
Affiliates and hold the Seller and the Seller's
Affiliates harmless from and against any and
all claims, demands, causes of action,
losses,
damages, liabilities, costs and
expenses
(including without limitation
reasonable attorneys' fees and disbursements)
(a "Loss"), suffered or incurred by the Seller
or any of the Seller's Affiliates and
arising out of or in connection with (i)
the Purchaser and/or the Purchaser's
Representatives' entry upon
the
Property, and (ii) any investigations or
other activities conducted thereon by the
Purchaser or the Purchaser's Representatives
except to the
extent such Loss results from a condition
existing at
the Property prior to the time of such
investigations or other activities; and
(g) not, at any time, contact or
communicate with any tenant of the Property
for any reason whatsoever without having first
afforded to Seller an opportunity to contact
such tenant in order to notify such tenant
that Purchaser wishes to communicate with
such tenant and to set up an appointment
for same. Seller or its designee shall have
the right to be present at or otherwise
participate in such meetings.
The provisions of this Section 4.1 (other
than Section
4.1(g)) 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 for any
reason or for no reason, in its sole and absolute
discretion by giving written notice (the
"Purchaser's Termination Notice") of such election
to the Seller at any time prior to the expiration
of the Due Diligence Period.
If for any reason whatsoever the Purchaser
shall not have given 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.
<PAGE>
4.3. Estoppel Certificates.
Promptly after execution and delivery of
this Agreement, the Seller agrees to use
commercially reasonable efforts to obtain Estoppel
Certificates from each tenant under a Lease, 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 the Garage Tenant and the
Government Tenants. In order to satisfy the
requirements hereof, all Estoppel Certificates
shall disclose no (i) information which is
inconsistent with the information contained in
Schedule 8, nor (ii) any modifications to such
Estoppel Certificates which are otherwise
unacceptable to Purchaser in Purchaser's
reasonable judgment. The Estoppel Certificates
shall be in the form annexed hereto as Exhibit H 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 H, after
requesting an Estoppel Certificate from such tenant
in the form of Exhibit H, 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. All Estoppel Certificates received
from tenants
will be delivered to Purchaser promptly
following receipt by Seller. If any tenant other
than
a Government Tenant or the Garage Tenant
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.
<PAGE>
5. Title.
The Seller shall convey and the Purchaser shall
accept title to the Property subject to those matters
set forth on Schedule 6 hereto
(collectively the "Permitted
Encumbrances"). The Seller is in possession of
(i) a specimen policy for an owner's fee title
insurance policy with respect to the Property (the
"Specimen Policy") from First American 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, and (ii)
an as-built survey ("Survey") entitled Plan of
Land Government Center Parking Garage, Boston, Mass.
and dated September 16, 1998. On the Closing Date,
Purchaser will obtain, at Purchaser's expense, a
policy of title insurance (the "Title Policy") from
the Title Company in form contemplated by the
Specimen Policy. The Seller shall deliver to the
Purchaser, at the Seller's expense, within thirty
(30) days after the execution of this Agreement an
update to the Survey (the "Updated Survey")
certified to the parties designated by the Purchaser.
5.1. Unacceptable Encumbrances.
If the Title Policy or the Updated 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 on or
prior to the Closing Date, 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, which additional title insurance
shall be obtained at the sole cost and
expense of the Seller and shall, if it is in
the form of affirmative insurance rather than
an
elimination of reference to the
Unacceptable
Encumbrances in the Title Policy, be in
form and substance satisfactory to Purchaser
in its sole discretion) subject to Section
5.2. The Seller may adjourn the Closing one
or more times for up to thirty (30) days in
the aggregate in order to eliminate
Unacceptable Encumbrances, subject to the
consent of the Purchaser.
5.2. Removal of Unacceptable Encumbrances.
The Seller shall not be obligated to
bring any action or proceeding, to make any
payments or otherwise to incur any expense in
order to eliminate Unacceptable Encumbrances not
waived by the Purchaser or to arrange for
title insurance insuring against enforcement
of such Unacceptable Encumbrances against, or
collection of the same out of, the Property;
except that the Seller shall satisfy
Unacceptable Encumbrances which are (i)
mortgages and past due real estate taxes <PAGE>
and assessments secured by or
affecting the
Property and any other Liens placed on the
Property with the Seller's consent, 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 $120,000 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 at the sole
cost and expense of the Seller which, if it is
in the form of affirmative insurance rather
than an elimination of reference to the
Unacceptable Encumbrances in the Title Policy,
be in form and substance satisfactory to
Purchaser in its sole discretion.
5.3. Options Upon Failure to Remove Unacceptable
Liens.
If the Seller is unable to
eliminate all
Unacceptable Encumbrances not waived by the
Purchaser after having made the efforts to
eliminate the
Unacceptable Encumbrances required by Section
5.2, or
to bond over or arrange for title
insurance with respect to such Unacceptable
Encumbrances as provided by Section 5.2, and
to convey title in accordance with the terms
of this Agreement on or before the Closing Date
(whether or not the Closing is adjourned
as provided in Section 5.1), the Purchaser shall
elect on the Closing Date, as its sole remedy
for such inability of the Seller, either (i)
to terminate this Agreement by notice given to
the Seller pursuant to Section 14.1,
in which event the provisions of Section 14.1
shall
apply, or (ii) to accept title subject to
such Unacceptable
Encumbrances and receive no credit
against, or reduction of, the Purchase Price.
5.4. Use of Purchase Price.
If on the Closing Date there may be any
Liens or other encumbrances which the
Seller must pay or
discharge in order to convey to the
Purchaser such title as is herein provided to
be conveyed, the Seller may use any portion of
the Purchase Price to satisfy the same,
provided:
(a) the Seller shall deliver
to the Purchaser or the Title Company,
at the Closing, instruments in recordable
form and sufficient to satisfy such Liens
or other encumbrances of record together
with the cost of recording or filing said
instruments; or
<PAGE>
(b) the Seller, having made
arrangements with the Title Company,
shall deposit with said company
sufficient moneys acceptable to said
company to insure the obtaining and the
recording of such satisfactions.
5.5. Transfer Taxes; Title Insurance
Premiums.
At the Closing, the Seller shall pay all
transfer taxes (the "Transfer Tax Payments")
imposed pursuant to the Laws of the
Commonwealth of Massachusetts in respect of
the transactions contemplated by this
Agreement by delivery to the Title
Company of sufficient funds to pay such
taxes. At the Closing, the premiums due the
Title Company to obtain title insurance
policies in the form contemplated by the
Specimen Policy (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 7 hereto.
<PAGE>
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 nominee trust organized under the
laws of the Commonwealth of
Massachusetts and is qualified under the
laws of the Commonwealth of
Massachusetts 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 and all of
the foregoing have been duly authorized and
directed by the beneficiaries of the
Seller.
(c) This Agreement and the Seller's
Documents do not and will not contravene
any provision of the trust indenture of
the Seller, 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,
licenses or other
occupancy agreements affecting any
portion of the Property (collectively,
the "Leases") on the date hereof,
except for the Leases listed in Schedule
8 annexed hereto and made a part hereof.
The copies of the Leases furnished by the
Seller to the Purchaser are true, correct
and complete, and to the Seller's
knowledge, all of the Leases are in full
force and effect. Except as listed on
Schedule 8, the Seller has not given or
received any notice of default which
remains uncured or unsatisfied. To
the Seller's knowledge, as of the date
hereof, there are no current defaults
with respect to any of the Leases, except
as listed on Schedule 8. Except as listed
on Schedule 8, there are (i) no brokerage
commissions, with respect to any of the
Leases or any extensions thereof, and (ii)
no outstanding obligations with respect
to tenant improvements made or to be made
by the landlord under any of the Leases
or other work done or to be done by the
landlord under any of the Leases.
<PAGE>
(e) To the Seller's actual
knowledge, there are
no pending actions, suits,
proceedings or
investigations to which the Seller is a
party before any court or other
governmental authority with respect to the
Property owned by the Seller except as set
forth on Schedule 9 hereto. Except as set
forth on Schedule 9, in the period from
October 27, 1997 through the date hereof,
the Seller has not received any written
notice from any governmental authority of
any violation of law (other than an
Applicable Environmental Law) relating to
the Property.
(f) Except as disclosed on Schedule
10 hereto, since October 27, 1997, (i)
neither the Seller nor, to the Seller's
actual knowledge, any third party has
engaged in the generation, use,
manufacture, treatment, storage or
disposal of any Hazardous Substance (as
hereinafter defined) on the Property in
violation of Applicable Environmental Law
(as hereinafter defined), and (ii) neither
the Seller nor, to the Seller's actual
knowledge, any third party has received
any written notice from any
governmental authority having
jurisdiction over the Property of any
violation of Applicable Environmental
Law with respect to the
Property which requires corrective action.
Disclosure of any matter on
Schedule 10 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 as hazardous, toxic or
dangerous 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 state
and local laws and ordinances and the
regulations implementing such statutes in
effect on the date hereof imposing
liability or establishing standards of
conduct for environmental protection.
(g) The list of Contracts provided on
Schedule 4 hereto is true, correct and
complete. Except as set forth on
Schedule 4, to the Seller's actual
knowledge there are no material
defaults under any of the Contracts
to be assumed by the Purchaser. Any
management, leasing and/or brokerage
agreements affecting the Property shall be
<PAGE>
terminated at Closing. On or prior to
the date of this Agreement, Seller has
elected and has directed the contractor
under the Repairs Contract to proceed with
all of Alternatives A, B and C pursuant to
Article II of the Repairs Contract.
Attached hereto as Exhibit N is a true
and correct copy of that certain Promissory
Note issued by the Seller to the Garage
Tenant, dated as of November 1, 1983, in
the stated principal amount of $3,000,000 (the
"Garage Tenant Note"), all
obligations under which shall be assigned
by the Seller to the Purchaser
pursuant to the Assignment and
Assumption of Contracts and License,
attached hereto as Exhibit D, as of
Closing. The Seller has not given or
received any notice of default which
remains uncured or unsatisfied under the
Garage Tenant Note. To the Seller's
knowledge, as of the date hereof, there are
no current defaults with respect to the
Garage Tenant Note. Interest under the
Garage Tenant Note has been paid through
the June 30, 2000. The current principal
balance of the Garage Tenant Note as of
June 30, 2000 is $2,331,140.
5.6. Survival of Representations.
The representations and warranties of
the Seller set forth in this Section 6 (i)
shall be true, accurate and correct in all
material respects upon the execution of
this Agreement and shall be deemed to be
repeated on and as of the Closing Date
(except as they relate only to an earlier
date), and (ii) shall remain operative and
shall survive the Closing and the
execution and
delivery of the Deed for a period of nine
(9) months following the Closing Date and
then shall expire, and no action or claim
based thereon shall be commenced
after such period.
5.7. 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 thirty
(30) 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
<PAGE>
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
actually knew that such representation or
warranty was untrue, inaccurate or
incorrect at the time of the Closing and
the Purchaser nevertheless closes title
hereunder.
5.8. 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 Agreement. As
of the Closing (and not as of the
date hereof), the Purchaser
acknowledges that the
Seller, pursuant to the terms of this
Agreement, has afforded the Purchaser
the opportunity for full and complete
investigations, examinations and
inspections of the Property and all
Property Information. The
Purchaser acknowledges and agrees that (i)
the Property Information delivered or
made available to the
Purchaser and the Purchaser's Representatives
by the Seller or the Seller's Affiliates, or
any of their agents or representatives may
have been prepared by third parties and may
not be the work product of the Seller and/or
any of the Seller's Affiliates; (ii) neither
the Seller nor any of the Seller's Affiliates
has made any independent investigation or
verification of, or
has any knowledge of, the accuracy or
completeness of, the Property Information;
(iii) the Purchaser is relying solely on its
own investigations, examinations and inspections
of the Property and those of the Purchaser's
Representatives and is not relying in any way on
the Property Information furnished by the Seller
or any of the Seller's Affiliates, or any of
their agents or representatives; and (iv) the
Seller expressly disclaims any representations
or warranties with respect to the accuracy or
completeness of the Property Information, and
the Purchaser releases the Seller and the
Seller's Affiliates, and their agents and
representatives, from any and all liability
with respect thereto. The Purchaser or anyone
claiming by, through or under the
Purchaser, hereby fully and irrevocably
releases the Seller and the <PAGE>
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. Nothing in this Section 6.3 shall
diminish the representations or warranties of
the Seller set forth in this Section 6.
The provisions of this Section 6 shall
survive the Closing.
6. Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the
Seller as follows:
(a) The Purchaser is a duly formed and
validly
existing limited liability company organized
under the laws of the State of Delaware,
and is as of the Closing, registered under
the laws of the Commonwealth of Massachusetts to
conduct business therein.
(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 certificate of organization or
operating agreement of the Purchaser, any
judgment, order, decree, writ or injunction
issued against the Purchaser, or
any
provision of any Laws applicable to the
Purchaser. The
consummation of the transactions contemplated
hereby will not result in a breach or constitute
a default or event of default by the
Purchaser under any agreement to which the
Purchaser or any of its assets are subject or
bound and will not result in a violation of any
Laws applicable to the Purchaser.
(d) There are no pending actions,
suits,
proceedings or investigations to which the
Purchaser is a party before any court or
other governmental authority which may have
an adverse impact on the transactions
contemplated hereby.
<PAGE>
The representations and warranties of the
Purchaser set forth in this Section 7 and elsewhere
in this Agreement (i) 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, and (ii) shall remain
operative and shall survive the Closing and the
execution and delivery of the Deed for a period of
nine (9) months following the Closing Date and then
shall expire, and no action or claim based
thereon shall be commenced after such period.
7. 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 quitclaim deed or its
equivalent (the
"Deed") conveying title to the Property in the
form of Exhibit A annexed hereto and made a
part hereof.
(b) A lease agreement, by and between the
Seller
and Kaplan Educational Center, Inc. (the
"Kaplan Lease"), executed and delivered on a
date prior to the Closing Date and
substantially in the form of Exhibit B annexed
hereto, with such alterations or modifications
as may be negotiated by the Seller on or after
the date hereof, which alterations or
modifications shall be subject to the
approval of the Purchaser, which approval,
if requested prior to the conclusion of the
Due Diligence Period, shall not be
unreasonably withheld or delayed and, if
requested thereafter, may be denied or granted
in Purchaser's sole discretion.
(c) The Assignment and Assumption of
Leases and
Security Deposits in the form of Exhibit C
annexed hereto and made a part hereof
assigning 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 together with any interest thereon
which Purchaser may be obligated to pay over
to tenants pursuant to the Leases, if any (the
"Lease Assignment").
(d) The Assignment and Assumption of
Contracts
and Licenses in the form of Exhibit D annexed
hereto and made a part hereof (the "Contract
and License Assignment") assigning 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
<PAGE>
assignable purchase orders,
guaranties and
warranties, equipment leases, advertising
agreements, franchise agreements, license
agreements, management agreements, leasing
and brokerage agreements and other
contracts relating to the Property
(collectively, the "Contracts") not
terminated by Seller pursuant to the
terms of this Agreement.
(e) The Assignment and Assumption
of Intangible
Property in the form of Exhibit E annexed
hereto and made part hereof assigning 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 11 annexed hereto and
made a part hereof, including, without
limitation, the trade names "Government
Center Garage" and "One Congress
Street" (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").
(f) To the extent in the Seller's
possession,
executed counterparts of all Leases and New
Leases 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. In addition to the foregoing,
Seller will make available to Purchaser,
for copying at Purchaser's expense, all
correspondence in Seller's possession
relating to the Leases, but Seller makes
no representation or warranty concerning
the completeness of such correspondence.
(g) A bill of sale in the form of
Exhibit F
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 and any other
documentation reasonably
required by the Title Company to close the
transaction in accordance with the
provisions of this Agreement.
(h) Notices to the tenants of the
Property in the form of Exhibit G 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.
<PAGE>
(i) A certificate of a trustee of the
Seller that the Seller has taken all
necessary trust action to authorize the
execution, delivery and performance of
this Agreement and the consummation of the
transaction contemplated hereby.
(j) 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.
(k) To the extent in the Seller's
possession and
not already located at the Property, keys
to all entrance doors to, and equipment and
utility rooms located in, the Property.
(l) To the extent in the Seller's
possession and
not already located at the Property, all Licenses.
(m) To the extent in the possession of the
Seller or otherwise located at the
Property, executed
counterparts of all Contracts and all
warranties in connection therewith which are in
effect on the Closing Date and which are
assigned by the Seller.
(n) To the extent in the Seller's
possession and
not located at the Building, plans and
specifications of the Buildings.
(o) A "FIRPTA" affidavit sworn to by the
Seller
in the form of Exhibit I 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.
(p) The Transfer Tax Payments.
(q) A certificate of Seller
that all
representations and warranties are true and
correct on the Closing Date, except to the
extent they relate only to an earlier date.
(r) All other documents the Seller is required to deliver
pursuant to the provisions of this Agreement, including
without limitation, any documents required to assign the
General Services Administration Lease.
<PAGE>
8. 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) (i) reasonable evidence of the
authority of
the person executing documents at Closing
on behalf 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; and (iii) a qualification to do
business certificate issued by
the Commonwealth of Massachusetts, dated
within thirty (30) days of the Closing
Date.
(d) The A & A Agreements.
(e) All other documents the Purchaser
is required to deliver pursuant to
the provisions of this
Agreement, including without limitation,
any documents required to assign the
General Services Administration Lease, and
any other documents which are otherwise
reasonably required by the Title Company
in connection with this transaction.
9. Operation of the Property prior to the
Closing Date.
Between the date hereof and the Closing
Date, the Seller shall operate and maintain
the Property, consistent with its past
practices.
9.1. New Leases.
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, if sought prior to the
conclusion of the Due
Diligence Period, shall not be
unreasonably withheld and, if sought
thereafter, may be given or denied,
in Purchaser's sole discretion, but in
any event shall be given or
denied, with the reasons for any
such denial, within five business (5)
days after receipt by the Purchaser
of the Seller's notice requesting the
Purchaser's consent to the proposed
action relating to such existing or
proposed Lease; provided, however,
that the foregoing provisions shall
not apply to the Kaplan 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 <PAGE>
provide the Seller with the
reasons for such denial, the
Purchaser's consent shall be deemed to
have been granted.
9.1.1. New Lease Expenses.
If after the date of this Agreement
the Seller enters into any Leases,
or if there is any extension or
renewal of any Leases, whether or not
such Leases provide for their
extension or renewal, or any
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, including
any expenses incurred for
architectural or engineering
services, (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 <PAGE>
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).
9.1.2. 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
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 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.
9.1.3. Kaplan Lease.
The foregoing provision,
Section 10.1.2,
shall not apply to the Kaplan Lease.
All of the New <PAGE>
Lease Expenses in connection with the Kaplan
Lease (other than the Additional Allowance (as
defined in the Kaplan Lease)) shall be paid by the
Seller on or prior to the Closing Date, except as
hereinafter set forth. If and to the extent the
Allowance (as defined in the Kaplan Lease) has not
been fully funded to Kaplan prior to the Closing,
the Seller shall credit to the Purchaser the
remaining portion of such Allowance, and the
Purchaser shall be required to fund such remaining
portion to Kaplan as and when owing pursuant to
the Kaplan Lease. If and to the extent that any
portion of the Additional Allowance shall have
been paid by Seller to Kaplan prior to the Closing
Date, the Purchaser shall reimburse to the Seller
such portion at Closing. The provisions of this
Section 10.1.3 shall survive the Closing.
9.2. 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 other than any Government Tenant,
the Garage Tenant or the tenant under the Kaplan Lease
(collectively, such tenants, the "Key Tenants") or
terminate any Lease (other than a lease with a Key
Tenant) as a result of a default by the tenant
thereunder prior to the Closing Date. 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 after the date hereof, by any tenant of its
obligations under any Lease. The removal of a tenant
other than a Key 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.
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.
9.3. 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.
After the expiration of the Due Diligence Period, the
Seller shall not modify, extend, renew or cancel any
<PAGE>
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 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. The Purchaser
shall give notice to the Seller at
least ten (10) business days prior to
the Closing Date of any
Contracts (including any Contracts entered
into after the date hereof) that the
Purchaser does not desire to assume. The
Seller shall terminate any such Contracts
on or prior to the Closing Date. All
other Contracts will be assumed by the
Purchaser on the Closing Date.
9.4. Repairs.
Prior to the Closing Date, the Seller
shall cause to be undertaken the remedial
improvements and repairs to the Property
(such repairs, the "Remedial Repairs")
contemplated in that certain contract by
and between the Seller and T Equipment
Corp., dated as of February 4, 2000, a
complete and correct copy of which is
annexed hereto as Exhibit L (the "Repairs
Contract"). Seller agrees that the Repairs
Contract will not be amended to effect a
reduction in the scope of the work
thereunder without the consent of
Purchaser, which consent may be granted
or denied in Purchaser's sole discretion.
Seller further agrees that there shall be
no other change orders or amendments
effected under such Contract without the
prior consent of Purchaser, which
consent will not be withheld or delayed
unreasonably. To the extent that the
Remedial Repairs have not been completed
prior to the Closing Date, the Purchaser
shall assume the Repairs Contract at
Closing and thereafter the Purchaser shall
diligently complete such Remedial Repairs
pursuant to the Repairs Contract. In
addition to the foregoing, Seller
shall cause Engineers Design Group, Inc.
("EDG"), in accordance with the
contract between EDG and Seller for
such services a complete and correct
copy of which is annexed hereto as
Exhibit M (the "EDG Contract"), to provide
reasonable and customary architectural
and engineering services with respect
to the Repairs
Contract, which will include, without
limitation, requirements for reasonable
and customary oversight, field supervision
of work, monitoring of compliance of the
work with the Contract Documents, reviews
of shop drawings and reviews of
contractors' requisitions for payments.
Seller shall be responsible for all
payments due to EDG pursuant to the EDG
Contract. At Closing, the Seller shall
place in escrow with the Escrow Agent,
pursuant to an escrow agreement mutually
acceptable to the Seller and the
Purchaser and reflecting the terms of this
Section 10.4, the form of which escrow
<PAGE>
agreement shall be negotiated to
completion no later than ten (10) days
after the end of the Due Diligence
Period (or if the Due Diligence Period
is prematurely terminated and an early
Closing Date is established pursuant to
Section 1.3, prior to such early
Closing Date), an amount equal to the
product of 1.25 and the estimated cost to
complete the portion of the Remedial
Repairs remaining unfinished as of the
Closing Date (the "Estimated Cost").
The Estimated Cost shall be determined by
one or more certificates to be obtained by
the Seller from the contractor
performing the Remedial Repairs.
Completion of the work shall be
determined by an independent, licensed
architect mutually agreeable to the
Seller and the Purchaser, the cost of
whose services shall be the sole expense of
the Seller. The Escrow Agent shall
disburse to the Purchaser escrowed funds
to pay the Purchaser's actual, invoiced,
third-party costs of effecting the
Remedial Repairs, within ten (10) business
days after Purchaser's proper written
requisition therefor (but no more
frequently than twice a month) which
shall be accompanied by invoices and
other commercially reasonable supporting
documentation as set forth in the escrow
agreement, which requisition and
supporting documentation shall be
simultaneously delivered to the Seller
for review and approval, which approval
shall not be unreasonably withheld or
delayed and shall be deemed to have been
given if written objection is not given to
the Purchaser and the Escrow Agent within
such ten (10) day period. The balance of
the escrowed funds shall be returned to the
Seller within thirty (30) days after the
final retainage payments have been made
to the contractor under the Repairs
Contract. If the Seller disapproves any
requisition, or if the Seller and the
Purchaser can not agree on a mutually
agreeable architect, the disagreement
shall be arbitrated by a licensed
architect selected by the Seller, a
licensed architect selected by the
Purchaser, and a third licensed
architect selected by those two
architects, and the decision of a majority
of these three shall be binding on the
parties, with detailed arbitration
procedures and time lines to be
established in the escrow agreement. The
Seller shall be responsible for the cost
of all Remedial Repairs pursuant to
the Repairs Contract which are completed on
or prior to the Closing Date. The
provision of this Section 10.4 shall
survive the Closing.
9.5. Remedial Repairs Claims.
The Seller agrees (i) to indemnify
the Purchaser for any claims made by the
Garage Tenant for monetary damages or off-
set rent resulting solely from the
Garage Tenant's loss of use of parking
spaces in the Property occasioned by
and occurring during the
duration of the Remedial Repairs, and (ii) to
<PAGE>
promptly pay any claim made or
reimburse any offset taken by the Garage
Tenant resulting solely from such loss of
use of parking spaces, notice of which is
given to the Seller prior to March 25,
2001; provided, however, that should such
claims be made by the Garage Tenant, giving rise to
such a indemnification
obligation, the Seller shall have the right
to continue or commence legal actions or
proceedings against the Garage Tenant
with respect to the same; provided
further that the Purchaser shall not be
obligated to join in such a proceeding.
Any rent so recovered from the Garage
Tenant will not be subject to the
adjustment provisions of Section 3.2.1.
The provisions of this Section 10.5 shall survive
the Closing.
10. Broker.
The Purchaser and the Seller represent and
warrant to each other that Cushman & Wakefield
(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.
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; provided, however, that the
Purchaser's election shall be ineffective
if within ten (10) days after the Seller's
receipt of the Purchaser's election
notice, the Seller shall elect by notice
to the Purchaser to repair such damage or
destruction and shall thereafter complete
such repair within thirty (30) days after
the then scheduled <PAGE>
Closing Date at the time of the
Purchaser's election. If the Seller makes
such election to repair, the Seller shall
have the right, with the consent of the
Purchaser, to adjourn the Closing Date one
or more times for up to thirty (30) in the
aggregate in order to complete such
repairs and shall have the right to
retain all insurance proceeds which the
Seller may be entitled to receive as a
result of such damage or destruction.
If (i) the Purchaser does not elect to
terminate this Agreement as to the damaged
Property, 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,
together with any deductible
thereunder, less the amount of all
costs incurred by the Seller in
connection with the repair of such damage or
destruction, together with any
coinsurance payments required by the
insurer, 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 be equal to or
in excess of $1,000,000.
11.2. Condemnation.
If, prior to the Closing Date, all or
any portion of the Property is
taken by eminent domain or
condemnation (or is the subject of a
pending taking which has not been
consummated), the Seller shall notify
the Purchaser of such fact and the
Purchaser
shall have the option to terminate this
Agreement upon notice to the Seller given
not later than ten (10) days after receipt
of the Seller's notice. If the Purchaser
does not elect to terminate this
Agreement, 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.
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.
<PAGE>
12. Conditions Precedent to Closing.
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 true,
accurate and correct as of the Closing
Date in all material respects except to
the extent they relate only to an earlier
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) 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; and
(iv) if required by Section 10.4., the
Seller shall have funded an escrow
account with the Escrow Agent to cover
remaining Remedial Repairs.
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; and
(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.
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 as a result of
such Seller's inability, then this
Agreement shall be
terminated and neither party shall have
any further rights, obligations or
liabilities hereunder, except as otherwise
expressly provided herein (collectively,
the "Surviving Obligations"), and except
that the Purchaser shall be entitled to a
return of the Deposit. Nothing contained
herein shall limit or restrict
the
Purchaser's ability to pursue any rights or
remedies it may have against the Seller
with respect to the Surviving
Obligations. 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 wrongful action of, or
wrongful 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 material 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 <PAGE>
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 wrongful action of, or
wrongful 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.
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 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 wrongful
action of, or wrongful 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.
<PAGE>
14. Escrow.
The Escrow Agent shall hold the
Initial Contract Deposit, the Contract
Extension Deposit and the Additional Contract
Deposit, 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 J 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 representing interest earned on
the Initial Contract
Deposit, the Contract
Extension Deposit and the Additional
Contract Deposit, shall be the party
responsible for the payment of any tax due
thereon.
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:
Government Center Garage Realty Trust
c/o Morgan Stanley Dean Witter Realty Inc.
Two World Trade Center
27th Floor
New York, New York 10020
Attention: William J. O'Shaughnessy, Esq.
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Attention: Vincent M. Sacchetti, Esq.
If to the Purchaser:
RAK Group Acquisition Corporation
140 West 57th Street, Suite 5A
New York, NY 10019
Attention: Randy A. Kohana, President
and
PaineWebber Real Estate Fund I, L.P.
<PAGE>
1285 Avenue of the Americas, 38th Floor
New York, New York 10019
Attention: Kevin D. Cox, Managing Director
with a copy to:
Goulston & Storrs
400 Atlantic Avenue Boston, MA 02110
Attention: Eli Rubenstein, 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 or tender of 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 or tendered for delivery 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 (i) who need to know
the Property Information for the purpose of
evaluating the Property, and who are informed
by the Purchaser of the confidential nature of
the Property Information and (ii) who agree to
be bound by the terms of this Section 17
and Section 6.3. The
provisions of this Section 17 shall in no
event apply to Property Information which is a
matter of public record and shall not prevent
the Purchaser from complying with Laws,
including, without limitation, governmental
regulatory, disclosure, tax and reporting
requirements.
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, 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
<PAGE>
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 and the
Purchaser's Representatives shall promptly
deliver to the Seller all or substantially
all originals and copies of the Property
Information in the possession of the
Purchaser and the Purchaser's
Representatives. Notwithstanding
anything herein contained to the
contrary, a portion of the Deposit equal
to One Hundred Thousand Dollars ($100,000),
which the Purchaser would otherwise be
entitled to have returned to it
pursuant to this Agreement, shall be held
by the Escrow Agent until such time
as the Purchaser has fulfilled its
obligations under the preceding sentence.
Notwithstanding the foregoing, the
Purchaser shall not be required to deliver
to Seller any internal memoranda,
projections or financial information
concerning the Property produced by or for
the Purchaser, nor shall Purchaser be
required to deliver any information or
documents or the like prepared for
Purchaser by counsel to Purchaser or by
Purchaser's third party contractors;
provided that any such material from
third-party contractors, if not given
over to the Seller, shall be promptly
destroyed by the Purchaser. The
foregoing deliveries to Seller
are solely in response to Seller's
concerns about the confidentiality of
such information. Accordingly, Seller
acknowledges that Seller is not entitled to
rely upon any information or document or
other Property Information which may be
delivered by Purchaser to Seller.
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) furnished to, or otherwise made
available for review by, the
Purchaser or its directors, officers,
employees, affiliates, partners, brokers,
agents or other representatives,
including, without limitation, attorneys,
accountants, contractors, consultants,
engineers and financial advisors
(collectively, the "Purchaser's
Representatives"), by the Seller or any of
the Seller's Affiliates, or their
agents or
representatives, including, without
<PAGE>
limitation, their contractors,
engineers, attorneys, accountants,
consultants, brokers or
advisors, 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.
The provisions of this Section 17 shall
survive the termination of this Agreement and
the Closing.
17. Access to Records.
For a period of three (3) years
subsequent to the Closing Date, the Seller,
the Seller's Affiliates and their employees,
agents and representatives shall be entitled to
access during business hours to all documents,
books and records given to the Purchaser by
the Seller at the Closing for tax and audit
purposes, regulatory compliance, and
cooperation with governmental investigations
upon reasonable prior notice to the Purchaser,
and shall have the right, at their sole cost
and expense, to make copies of such
documents, books and records.
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 without the prior written consent of
the Seller and any assignment or attempted
assignment by the Purchaser
without such prior written consent shall
constitute a default by the Purchaser
hereunder and shall be null and void;
provided, however that Purchaser may assign its
rights hereunder to an affiliate controlling,
controlled by or under common control with
either Paine Webber Group Inc. or PaineWebber
Real Estate Fund I, L.P. or RAK Group
Acquisition Corporation, provided, further
that if this Agreement is assigned to
an affiliate of RAK Group
Acquisition Corporation, such affiliate must
have as a member or partner an institutional
investor, the identity of which is satisfactory
to the Seller. "Control" as used in this
section shall mean ownership of 50% or more
of the equity interest in such affiliate entity
and the ability to control such entity's
decisions. Any assignment pursuant to the
previous sentence shall in no way affect
Purchaser's obligations or liabilities
hereunder.
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, (i) the Purchaser's acceptance of
the Deed shall be deemed a discharge of
all of the obligations of the Seller hereunder
and (ii) all of the Seller's representations,
<PAGE>
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, except as
explicitly set forth below, it does not have
and will not have any claims or causes of
action against any disclosed or undisclosed
officer, director, employee, trustee,
shareholder, partner, principal, parent,
subsidiary or other affiliate of the Seller,
including, without limitation, Dean Witter
Realty Inc. and the parent and affiliates of
Dean Witter Realty Inc. (collectively, the
"Seller's Affiliates"), arising out of or in
connection with this Agreement or the
transactions contemplated hereby. The Purchaser
agrees to look solely to the Seller or its
beneficiary and the assets of the Seller or
its beneficiary 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 other than its beneficiary with
respect to any matters arising out of or in
connection with this Agreement or the
transactions contemplated hereby.
The
total liability hereunder of the Seller and its
beneficiary shall in no event exceed an
amount equal to the Deposit. The beneficiary
of the Seller shall maintain a liquid net
worth in an amount equal to the Deposit until
the later of (i) March 31, 2001, and (ii) the
date upon which any such claim which shall
have been timely made is fully resolved. The
Seller shall have the right, but not the
obligation, at any time (a) to provide a
guaranty of the Seller's liabilities
hereunder limited in an amount equal to the
Deposit and covering claims made on or before
March 31, 2001, from a credit-worthy, third
party guarantor reasonably satisfactory to the
Purchaser, which guaranty shall be in form
and substance reasonably satisfactory to the
Purchaser, or (b) to place in escrow cash in
the amount of the Deposit pursuant to an
escrow agreement, in form and substance
reasonably satisfactory to the Purchaser,
which shall provide that the cash will be
delivered to the Seller on March 31, 2001, if
no claims have been made thereon by the
Purchaser. For so long as such guaranty or
cash escrow continues in full force and effect,
all obligations of the Seller to maintain
liquidity set forth in this Section 22 shall be
deemed to have been satisfied.
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
<PAGE>
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
Commonwealth of
Massachusetts 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 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. Attorneys' 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.
26. Counterparts.
This Agreement may be executed by
the parties hereto in separate counterparts,
each of which when so executed and
delivered shall be an original, but all such
counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, this Agreement has
been duly executed by the parties hereto as of
the day and year first above written.
SELLER:
<PAGE>
GOVERNMENT CENTER
GARAGE REALTY
TRUST
By:/s/Robert B.
Austin
Robert B. Austin or Ronald J. DiPietro,
as Trustee and not individually,
at the direction of GCGA Limited
Partnership, sole Beneficiary of
Government Center Garage Realty Trust
SOLELY IN
CONNECTION WITH
SECTION 22 ABOVE:
GCGA LIMITED
PARTNERSHIP, as
the sole
beneficiary of
Seller
By: DW GCGA
I, Inc., its
sole
general
partner
By: /s/Rober
t B.
Austin
Robert
B.
Austin,
its
President
PURCHASER:
ONE CONGRESS STREET JV LLC
By: RAK GROUP
ACQUISITION CORPORATION,
as an authorized Member
By: _/s/Randy A. Kohana
Name: Randy A. Kohana
Title: President
