Exhibit 99.3
CONTRIBUTION AND CONVEYANCE AGREEMENT
CONCERNING
THE CARNEGIE PORTFOLIO
by and between
The Parties Identified on Schedules A and B
collectively as
the Xxxxxx Parties,
and
Boston Properties, Inc.
Boston Properties Limited Partnership
together
as the Transferee
Dated: June 30, 1998
TABLE OF CONTENTS
DEFINITIONS................................................................................................... 2
ARTICLE 1 - CONTRIBUTION AND CONVEYANCE....................................................................... 13
1.1 Contributions and Conveyance...................................................................... 13
1.2 [RESERVED]........................................................................................ 21
1.3 [RESERVED]........................................................................................ 21
1.4 Allocation of Contribution Price and Form of Consideration........................................ 21
1.5 Closing Date...................................................................................... 22
1.6 Blue Sky Cooperation.............................................................................. 22
1.7 Initial Unit Distributions........................................................................ 22
1.8 Post-Closing Agreements; Tax Matters.............................................................. 22
1.9 Repayment/Assumption of Mortgage Debt............................................................. 22
ARTICLE 2 - CONDITIONS TO CLOSING............................................................................. 23
2.1 Conditions to Transferee's Obligations. ......................................................... 23
2.2 Conditions to the Obligations of the Xxxxxx Parties............................................... 29
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES.................................................................... 32
3.1 Representations and Warranties of the Xxxxxx Parties.............................................. 32
3.2 Representations and Warranties of Transferee...................................................... 38
ARTICLE 4 - CERTAIN COVENANTS................................................................................. 41
4.1 Maintenance and Operation......................................................................... 41
4.2 Insurance......................................................................................... 42
4.3 Personal Property................................................................................. 42
4.4 Leasing/Estoppels................................................................................. 42
4.5 Operating Agreements.............................................................................. 43
4.6 Damage or Destruction; Condemnation............................................................... 43
4.7 Tests and Inspections............................................................................. 44
4.8 Mortgage Debt..................................................................................... 45
4.9 Availability of Records........................................................................... 45
4.10 Title and Survey Defects.......................................................................... 47
4.11 Employee Matters.................................................................................. 47
4.12 Cooperation with Transferee....................................................................... 48
4.13 Covenants of all Existing Partners................................................................ 48
4.14 Tax Appeals....................................................................................... 48
4.16 Identified Breaches............................................................................... 48
ARTICLE 5 - CLOSING ADJUSTMENTS............................................................................... 48
5.1 Taxes, Assessments and Utilities.................................................................. 48
5.2 Rent.............................................................................................. 49
5.3 Payments on Permitted Exceptions.................................................................. 53
5.4 Operating Agreement Payments and Other Expenses................................................... 53
5.5 Partners' Elections............................................................................... 53
5.6 Assessments/Condominium Charges................................................................... 53
5.7 Reimbursement for Deposits........................................................................ 53
5.8 Post-Closing Audit................................................................................ 54
ARTICLE 6 - DEFAULTS, TERMINATIONS AND REMEDIES............................................................... 54
6.1 Defaults and Termination Rights................................................................... 54
6.2 Remedies of Transferee............................................................................ 55
6.3 Deposit........................................................................................... 55
6.4 LIQUIDATED DAMAGES................................................................................ 55
6.5 Post-Closing Remedies............................................................................. 55
ARTICLE 7 - INDEMNIFICATION................................................................................... 56
7.1 Survival.......................................................................................... 56
7.2 Indemnification By the Xxxxxx Parties............................................................. 57
7.3 Limitations on Certain Indemnification Obligations of the Xxxxxx Parties.......................... 57
7.4 Indemnification By the Transferee................................................................. 58
7.5 Limitations on Certain Indemnification Obligations of the Transferee.............................. 58
7.6 Indemnification Procedure......................................................................... 59
7.7 Cooperation....................................................................................... 60
7.8 Pledge of Units................................................................................... 60
ARTICLE 8 - INTENTIONALLY OMITTED............................................................................. 62
ARTICLE 9 - MISCELLANEOUS..................................................................................... 62
9.1 Brokers........................................................................................... 62
9.2 Marketing......................................................................................... 62
9.3 Entire Agreement.................................................................................. 62
9.4 Certain Expenses.................................................................................. 63
9.5 Arbitration....................................................................................... 63
9.6 Notices........................................................................................... 63
9.7 No Assignment..................................................................................... 64
9.8 Governing Law..................................................................................... 65
9.9 Multiple Counterparts............................................................................. 65
9.10 Further Assurances................................................................................ 65
9.11 Miscellaneous..................................................................................... 65
9.12 Invalid Provisions................................................................................ 65
9.13 Confidentiality; Publicity........................................................................ 65
9.14 Time of Essence................................................................................... 66
9.15 RESERVED.......................................................................................... 66
9.16 Xxxxxx Parties' Representative.................................................................... 66
SCHEDULES AND EXHIBITS
SCHEDULE A - The Property Owners, their Existing Partners and
the Developed Properties owned by each
Property Owner
SCHEDULE A-1 - List of Existing Partners and Partnership Interests to
be Conveyed by each Existing Partner
SCHEDULE A-2 - Organizational Charts of the Property Owners, the
Existing Partners and the Assignors
SCHEDULE B-1 - The Assignors, the Assets and the Excluded Assets
SCHEDULE B-2 - Assumed Liabilities and Excluded Liabilities
SCHEDULE C - Assigned Value (Developed Properties and Assignors's
Assets)
SCHEDULE D - Schedule of Existing Partners and Assignors--
Consideration Form and Amount (cash, Common Units,
Preferred Units)
SCHEDULE E - Deferred Contribution Price
SCHEDULE F-1 - Developed Properties
SCHEDULE F-2 - Properties Under Development
SCHEDULE F-3 - Development Properties
SCHEDULE G - Management Contracts
SCHEDULE H - Mortgage Debt
SCHEDULE H-1 - Northwestern Mutual Commitment Documents
SCHEDULE I - Personal Property
SCHEDULE I-1 - Excluded Personal Property
SCHEDULE J - Preliminary Title Reports/Schedule of Endorsements
SCHEDULE K - Real Property
SCHEDULE L - Reserved
SCHEDULE M - Assumed Bonds and Assessments
SCHEDULE N - Tax Protection Schedule
SCHEDULE O - Schedule of As-Built Surveys
SCHEDULE P - Rent Rolls for Properties/Miscellaneous Information
Regarding Leases
SCHEDULE Q - Schedule of Agreements, including Assigned Contracts
SCHEDULE R - Reserved
SCHEDULE S - Other Required Consents
SCHEDULE T - Diligence Deliveries
SCHEDULE U - Schedule of Restrictions and Proffers
SCHEDULE V - Schedule of Lease Commissions/Tenant Allowances, Etc.
SCHEDULE W - Outstanding Construction Matters
SCHEDULE X - Warranties
SCHEDULE Y - Schedule of Environmental Reports
SCHEDULE Z - Schedule of Operating Statements
SCHEDULE AA - Insurance
SCHEDULE BB - Schedule of Actions
SCHEDULE CC - Assignor's Subsidiaries
SCHEDULE DD - Reimbursable Deposits
SCHEDULE EE - NML Closing Costs
EXHIBITS
EXHIBIT 1 - Form of Development Agreement
EXHIBIT 2 - Certificate of Designations of Series One Preferred
Units
EXHIBIT 3 - Form of Properties Under Development Contribution
Agreement
EXHIBIT 4 - Form of Representation Letter
EXHIBIT 5 - Form of Tax Protection Agreement
EXHIBIT 6A - Mortgage Debt Credit/NML Mortgage Credit/CIGNA Mortgage
Credit/Gatehall Credit
EXHIBIT 6B - Formula for Third-Party Incentive Fee Participation
EXHIBIT 6C - Formula for Tower 1 Earn-Out
EXHIBIT 6D - Formula for Tower 1 Additional Earn-Out
EXHIBIT 7 - Form of Assignment and Assumption of Partnership
Interest(s)
EXHIBIT 8 - Form of Registration Rights Agreement
EXHIBIT 9 - Form of Limited Partner Signature Page
EXHIBIT 10 - Form of Estoppel Certificate
EXHIBIT 11 - Form of Agreement Regarding Directorship
EXHIBIT 11A - Form of Non-Competition Agreement
EXHIBIT 12 - Form of Pledge and Security Agreement
EXHIBIT 13 - Forms of Opinion
EXHIBIT 14 - Benefits Summary for Certain Employees
EXHIBIT 15 - Title Affidavits and Certificates
EXHIBIT 16 - Form of Notice of Purchase Right with Respect to
Prohibited Fee Properties
EXHIBIT 17 - Form of Management Agreement Regarding Prohibited
Fee Properties
CONTRIBUTION AND CONVEYANCE AGREEMENT
THIS CONTRIBUTION AND CONVEYANCE AGREEMENT (this "AGREEMENT") is entered
into as of this 30th day of June, 1998 by and between (A) (i) Xxxx X. Xxxxxx,
(ii) each of the 14 parties identified on Schedule A attached hereto as a
Property Owner (individually, a "PROPERTY OWNER" and collectively, the "PROPERTY
OWNERS"), (iii) each of the 26 parties identified on such Schedule A as an
EXISTING PARTNER (individually, an "EXISTING PARTNER" and collectively, the
"EXISTING PARTNERS") and (iv) each of the 4 parties identified on Schedule B-1
attached hereto as an ASSIGNOR (individually an "ASSIGNOR" and collectively, the
"ASSIGNORS," and together with Xxxx X. Xxxxxx, the Property Owners and the
Existing Partners, the "XXXXXX PARTIES"), on the one hand; and (B) Boston
Properties, Inc., a Delaware corporation ("BOSTON PROPERTIES") and Boston
Properties Limited Partnership, a Delaware limited partnership ("BPLP") (Boston
Properties and BPLP are sometimes referred to herein, jointly and severally, as
"TRANSFEREE"), on the other hand.
WHEREAS, each Property Owner owns one or more office properties located in
the State of New Jersey, as identified opposite such Property Owner's name on
Schedule A attached hereto, each of which office properties is referred to
herein as a "DEVELOPED PROPERTY";
WHEREAS, each Existing Partner is a partner in one or more Property Owners,
as set forth opposite each Property Owner's name on Schedule A attached hereto
and as specified opposite each Existing Partner's name on Schedule A-1 attached
hereto, and the Existing Partners own, in the aggregate, all of the outstanding
partnership interests in the Property Owners (each such interest, a "PARTNERSHIP
INTEREST" and collectively, the "PARTNERSHIP INTERESTS");
WHEREAS, BPLP desires to issue certain Units (as defined herein)
representing limited partnership interests in BPLP to some or all of the
Existing Partners;
WHEREAS, each Existing Partner desires to transfer all of its right, title
and interest in its Partnership Interests to BPLP or its designee as a
contribution in exchange for such limited partnership interests or as a sale for
cash, and BPLP desires to acquire (either directly or through a designee) all of
the Partnership Interests in the Property Owners;
WHEREAS, the Assignors conduct a variety of leasing, management,
development, construction and other business, including, inter alia, businesses
related to the Properties;
WHEREAS, the Assignors desire to transfer, convey, contribute and assign to
BPLP or its designee substantially all of the assets of the Assignors (subject
to the Assumed Assignor Liabilities), and BPLP desires to acquire (either
directly or through a designee) the same from the Assignors, each in accordance
with the terms and subject to the conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, do hereby agree as follows:
DEFINITIONS
The following capitalized terms as used in this Agreement have the meanings
assigned to them below. The terms set forth below do not constitute all defined
terms set forth in this
Agreement. Such other defined terms shall have the meanings assigned to them
elsewhere in this Agreement.
"ACCOUNTANTS" has the meaning set forth in Section 4.9.
"ACCREDITED INVESTOR" shall mean a person who qualifies as an "accredited
investor" under Rule 501 of the Securities Act.
"ACTION" shall mean any claim, suit, litigation, labor dispute,
arbitration, investigation or other action or proceeding.
"ADDITIONAL RENT" has the meaning set forth in Section 5.2(b).
"AFFILIATE" shall mean any entity in which the person in question owns
directly or indirectly more than fifty percent (50%) of the voting stock or
similar interests issued by such entity or any entity controlling, controlled by
or under common control with the person in question.
"ASSETS" shall mean all of the assets of any Assignor identified as
"Assets" on the attached Schedule B-1 (including, without limitation, goodwill),
but excluding the Excluded Assets (including without limitation, the Gatehall
Contract).
"ASSIGNED CONTRACTS" shall mean (i) those Terminable Contracts which are
identified on Schedule Q as "Assigned Contracts", (ii) the Non-terminable
Contracts and (iii) the Warranties.
"ASSIGNED VALUE" shall mean, with respect to each Developed Property and
each Assignor's Assets the portion of the Contribution Price allocable to such
Developed Property and/or Assignor's Assets as set forth on Schedule C attached
hereto.
"ASSIGNORS" has the meaning set forth in the Introductory Paragraphs
hereto.
"ASSOCIATION ESTOPPEL" shall have the meaning set forth in Section 2.1(j).
"ASSUMED ASSIGNOR LIABILITIES" shall mean those liabilities of each
Assignor identified (and to the maximum extent reasonably possible, quantified)
as "Assumed Assignor Liabilities" on the attached Schedule B-2.
"ASSUMED LIABILITIES" shall mean those liabilities of any Property Owner,
any Existing Partner and/or any Assignor identified (and to the maximum extent
reasonably possible, quantified) as "Assumed Liabilities" on the attached
Schedule B-2, which liabilities are identified on such Schedule by Property
Owner, Existing Partner and Assignor. Notwithstanding the foregoing, in no
event shall Assumed Liabilities include any liabilities which arise under the
Northwestern Mutual Commitment and which are Excluded Liabilities hereunder.
"AT&T OBLIGATIONS" shall mean all liabilities of any kind or nature owed to
AT&T Corp., successor by merger to AT&T Resource Management Corporation ("AT&T")
pursuant to its lease and occupancy at the Tower One Property and relating to or
arising during the period prior to the date of this Agreement, including,
without limitation, all amounts due (or estimated or expected to become due), as
a refund or otherwise, to AT&T which relate to the period prior
to the date of this Agreement, as contemplated or otherwise set forth in that
certain Tenant Estoppel Certificate of AT&T dated as of June 30, 1998.
"AUTHORITY" shall mean a governmental body or agency having or asserting
jurisdiction over Transferee, the Property Owners, any Existing Partner or any
Property.
"BOSTON PROPERTIES" has the meaning set forth in the Introductory
Paragraphs of this Agreement.
"BPLP" has the meaning set forth in the Introductory Paragraphs of this
Agreement.
"BPLP'S KNOWLEDGE" or words of similar import, shall mean the actual (and
not constructive or imputed) knowledge of Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx,
Xxxxxxx X. Xxxxx and/or Xxxxxxxxx X. XxXxxxxxx, without any separate obligation
on their part to make any independent investigation of the matters being
represented, warranted or certified.
"BPLP INDEMNIFIED PARTIES" or "TRANSFEREE INDEMNIFIED PARTIES" shall mean
BPLP, Boston Properties and their respective officers, directors, employees,
agents, consultants, representatives, subsidiaries, Affiliates, stockholders,
partners and attorneys.
"BUSINESS DAY" means any weekday that is not an official holiday in the
Commonwealth of Massachusetts or the State of New Jersey.
"CIGNA MORTGAGE CREDIT" shall equal the amount set forth as the CIGNA
Mortgage Credit on Exhibit 6A attached hereto.
"CLOSING" and "CLOSING DATE" have the meaning set forth in Section 1.5.
"CLOSING PRICE" shall mean, on each applicable date of determination, the
last reported sale price regular way of Boston Properties' Common Shares on the
New York Stock Exchange Composite tape.
"CODE" shall mean the Internal Revenue Code of 1986, as in effect from time
to time, and applicable rules and regulations thereunder. Any reference herein
to a specific section or sections of the Code shall be deemed to include a
reference to any corresponding provision of future law.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMMON SHARES" shall mean the shares of the common stock of Boston
Properties issuable upon exchange of the Units.
"COMMON UNITS" shall mean those certain partnership units in BPLP which are
designated in the Limited Partnership Agreement of BPLP as "Common Units."
"CONDEMNED PROPERTY" shall mean any Property which is the subject of a
Major Condemnation.
"CONFIRMATION CERTIFICATE" shall have the meaning set forth in Section
2.1(d).
"CONSENTS" has the meaning set forth in Section 2.1(b).
"CONTINUING MORTGAGE DEBT" shall mean the Mortgage Debt identified as the
"Continuing Mortgage Debt" on the attached Schedule H, encumbering the Developed
Properties located at Carnegie Center which are commonly known as Xxxxxxxx 000,
Xxxxxxxx 000, Xxxxxxxx 000, Xxxxxxxx 214, Building 504, Building 506, Building
508 (as such Mortgage Debt encumbering Xxxxxxxx 000, Xxxxxxxx 000 and Building
508 shall be refinanced pursuant to and in accordance with the 500 Series NML
Commitment) and the Child Care Center.
"CONTRACTS" shall mean, subject to the terms of this definition below, all
contracts, undertakings, commitments, agreements, obligations, guarantees and
warranties which are in effect as of the date hereof (i) relating to any
Property and/or (ii) to which any Property Owner or Assignor is a party or by
which any Property Owner, Assignor or any Property is bound, other than
Contracts not involving liabilities exceeding $10,000 per year individually or
$100,000 per year in the aggregate (such contracts, individually and
collectively, "IMMATERIAL CONTRACTS"). "Contracts" includes, without limitation,
management contracts, construction contracts, maintenance and service contracts,
parking contracts, employment contracts, equipment leases and brokerage and
leasing agreements, but excludes the Leases (as defined below) and Immaterial
Contracts.
"CONTRIBUTION PRICE" means the amount of the cash and/or Units (after
adjustment as provided in this Agreement unless otherwise noted), to be
delivered by Transferee in consideration of Partnership Interests or the Assets
of an Assignor, or all Partnership Interests and Assets in the aggregate, as the
context requires.
"CONVEYANCING DOCUMENTS" has the meaning set forth in Section 2.1(h)(v).
"CURE PERIOD" has the meaning set forth in Section 1.1(d)(iii)(C)(1).
"DAMAGED PROPERTY" shall mean any Property which is the subject of a Major
Casualty.
"DEFERRED CONTRIBUTION PRICE" of a Property means the dollar amount set
forth opposite such Property's name on Schedule E.
"DEVELOPED PROPERTIES" shall mean, individually and collectively, the
developed Properties identified on Schedule F-1 attached hereto.
"DEVELOPMENT AGREEMENT" shall mean the Development Agreement entered into
at the Closing by Princeton Land Partners, L.L.C., ABL Capital Corp. and the
Transferee (or its nominee), in the form attached hereto as Exhibit 1.
"DEVELOPMENT PROPERTIES" shall mean, individually and collectively, the
Properties which are the subject of the Development Agreement and which are
generally described on the attached Schedule F-3.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as in effect
from time to time, and applicable rules and regulations thereunder. Any
reference herein to specific section or sections of the Exchange Act shall be
deemed to include a reference to any corresponding provision of future law.
"EXCLUDED ASSETS" shall mean those assets of any Assignor identified as
"Excluded Assets" on the attached Schedule B-1.
"EXCLUDED ASSIGNOR LIABILITIES" shall mean those liabilities of each
Assignor which are not Assumed Assignor Liabilities, including without
limitation, those liabilities identified as "Excluded Assignor Liabilities" on
the attached Schedule B-2, which liabilities are identified on such Schedule by
Property Owner, Existing Partner and Assignor.
"EXCLUDED LIABILITIES" shall mean those liabilities of any Property Owner,
any Existing Partner and/or any Assignor which are not Assumed Liabilities,
including without limitation, those liabilities identified as "Excluded
Liabilities" on the attached Schedule B-2. Notwithstanding anything to the
contrary contained in this Agreement, Excluded Liabilities shall in all events
include all costs and expenses of any kind or nature incurred in connection with
the Northwestern Mutual Commitment which relate to the period ending immediately
after the closing of the loan contemplated by such Northwestern Mutual
Commitment (except only NML Closing Costs), including, without limitation, any
and all costs, losses or damages (including all such amounts which are or may be
payable to NML or any other lender under the Northwestern Mutual Commitment) of
any kind or nature which may be incurred by Transferee in the event of a breach
under the Northwestern Mutual Commitment, or in the event the loan contemplated
thereby does not close, for any reason other than the willful breach by
Transferee, on or before the termination date of such commitment.
"EXISTING EMPLOYEES" has the meaning set forth in Section 4.11(a).
"EXISTING PARTNERS" has the meaning set forth in the Introductory
Paragraphs hereto.
"EXTENDED CURE PERIOD" has the meaning set forth in Section
1.1(d)(iii)(C)(1).
"EXTENSION NOTICE" has the meaning set forth in Section 1.1(d)(iii)(C)(1).
"FEE PROPERTY" has the meaning set forth in Section 1.1(d)(iii).
"FINAL FISCAL YEAR" has the meaning set forth in Section 4.9(h).
"500 SERIES NML COMMITMENT" shall have the meaning set forth in the
definition of Northwestern Mutual Commitment.
"500 SERIES PROPERTIES" shall mean the Developed Properties commonly known
as Xxxxxxxx Xxxxxx Xxxxxxxxx 000, 000 and 508.
"GATEHALL CONTRACT" shall mean that certain Management Agreement dated
April 18, 1995 between TriNet Essential Facilities XIV, Inc., as owner, and
Diversified Management Services, L.P., as manager, with respect to the
management of that certain property commonly referred to as Gatehall Corporate
Center II, located in Parsippany, New Jersey.
"GATEHALL CREDIT" shall equal the amount set forth as the Gatehall Credit
on Exhibit 6A attached hereto.
"GPH" shall mean Xxxxxxx, Procter & Xxxx LLP.
"HAZARDOUS SUBSTANCES" and "HAZARDOUS WASTES" have the meanings set forth
in Section 3.1(j).
"IDENTIFIED BREACHES" shall have the meaning set forth in Section 2.1(d).
"INDEMNITEE" has the meaning set forth in Section 7.6(a).
"INDEMNITOR" has the meaning set forth in Section 7.6(a).
"INTANGIBLES" shall mean (i) to the extent transferable, all right, title
and interest, if any, of the Xxxxxx Parties, or any of them, to use the names
"Carnegie Center", "Tower One", "Tower Center", or any other trademark, trade
names or symbols, if any, under which the Property (or any part thereof) or any
of the Assignors is operated or operates, (ii) to the extent transferable, any
Xxxxxx Parties' rights in, to and under the Assigned Contracts, (iii) any
Property Owner's rights in, to and under the Leases, all guaranties of the
Leases, all security deposits under the Leases (unless BPLP elects instead to
have them credited to BPLP), all other security, if any, under the Leases and
any rent prepaid under the Leases (with respect to periods after the Closing)
and (iv) to the extent transferable, any Xxxxxx Parties' rights in, to and under
all Licenses and any warranties and guaranties relating to the ownership, use,
operation or development of the Property (or any part thereof) or the business
and operations of the Assignors, including, without limitation, all Warranties.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940, as
in effect from time to time, and applicable rules and regulations thereunder.
Any reference herein to a specific section or sections of the Investment Company
Act shall be deemed to include a reference to any corresponding provision of
future law.
"LAND" shall have the meaning set forth in the definition of Real Property.
"XXXXXX INDEMNIFIED PARTIES" shall mean Xxxx X. Xxxxxx, Xxxxx Xxxxxx, each
Existing Partner, each Property Owner (to the extent its Developed Properties
were transferred to Transferee) and each Assignor and their respective officers,
directors, employees, agents, consultants, representatives, subsidiaries,
Affiliates, stockholders, partners, members and attorneys.
"XXXXXX INDEMNITORS" has the meaning set forth in Section 7.3(c).
"XXXXXX PARTIES" has the meaning set forth in the Introductory Paragraph
hereto.
"XXXXXX PARTIES' KNOWLEDGE" shall mean the actual (and not constructive or
imputed) knowledge of Xxxx X. Xxxxxx, Xxxxxxxx Xxxxxx and/or Xxxx X. Xxxxxxxx,
without any separate obligation on their part to make any independent
investigation of the matters being represented, warranted or certified.
"LAW" shall mean any law, rule, regulation, order or decree of any federal,
state, local or foreign government.
"LEASE DEFAULTS" has the meaning set forth in Section 3.1(a).
"LEASES" has the meaning set forth in Section 3.1(c).
"LIABILITIES" shall mean liabilities, indebtedness, obligations,
commitments, expenses, claims or guarantees of any nature (whether absolute,
accrued, contingent or otherwise).
"LICENSES" has the meaning set forth in Section 3.1(e).
"LIMITED SURVIVAL INDEMNITY INCREASE" has the meaning set forth in Section
7.3(c).
"LIMITED SURVIVAL REPRESENTATIONS" has the meaning set forth in Section
7.1(a).
"LIMITED SURVIVAL TRANSFEREE REPRESENTATIONS" has the meaning set forth in
Section 7.1(b).
"LOSS" or "LOSSES" shall mean any and all claims, losses, damages, costs,
liabilities and expenses, including, without limitation, reasonable attorney's
fees and disbursements, but excluding in all events, lost profits, consequential
or expectation damages.
"MAJOR CASUALTY" has the meaning set forth in Section 4.6.
"MAJOR CONDEMNATION" has the meaning set forth in Section 4.6.
"MANAGEMENT CONTRACTS" means, collectively, (i) the Third Party Management
Contracts and (ii) the property management contracts for each of the Developed
Properties and the Properties Under Development, as more specifically described
on Schedule G attached hereto.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
financial condition, business, operations, assets or liabilities, including
without limitation, the Partnership Interests and the Assets, of any Property,
any Property Owner, any Existing Partner or any Assignor, individually or in the
aggregate (as the context may require).
"MINIMUM UNIT VALUE" has the meaning set forth in Section 1.1(d)(v).
"MORTGAGE DEBT" shall mean the existing mortgage financing encumbering a
Developed Property and/or a Property Under Development, or any Partnership
Interests in any Property Owner as of the date of this Agreement as described in
Schedule H hereto and as reduced by payments of principal actually paid from and
after the date hereof through the Closing Date.
"MORTGAGE DEBT ASSUMPTION DOCUMENTS" shall have the meaning set forth in
Section 2.1(c).
"MORTGAGE DEBT CREDIT" shall equal the amount set forth as the Mortgage
Debt Credit on Exhibit 6A attached hereto.
"MORTGAGE DEBT PREPAYMENT DOCUMENTS" shall have the meaning set forth in
Section 2.1(c).
"NON CONTINUING EMPLOYEES" has the meaning set forth in Section 4.11(a).
"NON-TERMINABLE CONTRACT" shall mean those Contracts which are not
terminable by a Xxxxxx Party upon less than thirty-one (31) days notice without
cost or penalty.
"NORTHWESTERN MUTUAL COMMITMENT" shall mean that certain Application for
Mortgage Loan for Carnegie 504 Associates, Carnegie 506 Associates and Carnegie
508 Associates dated
October 22, 1997, (as modified by that certain letter agreement dated June 30,
1998 which, among other matters, eliminated the cross-default and cross-
collateralization requirements contained therein, the "500 SERIES NML
COMMITMENT") and that certain Application for Mortgage Loan for Carnegie 510
Associates, LLC dated October 22, 1997, (as modified by that certain letter
agreement dated June 30, 1998 which, among other matters, eliminated the cross-
default and cross-collateralization requirements contained therein, the "510 NML
COMMITMENT"); all from The Northwestern Mutual Life Insurance Company to provide
mortgage financing to the applicable Xxxxxx Parties, to be secured by the 500
Series Properties and the Property Under Development commonly known as Carnegie
Center Building 510, respectively, and in the maximum aggregate principal amount
of $50,000,000 and $28,500,000, respectively. All documents relating to the
Northwestern Mutual Commitment as of the date of this Agreement are attached
hereto as Schedule H-1.
"NML" shall mean The Northwestern Mutual Life Insurance Company.
"NML CLOSING COSTS" shall mean (i) reasonable attorneys fees and expenses
incurred on behalf of the borrower (in the aggregate amount not to exceed
$25,000.00 minus all amounts actually paid by BPLP, from time to time, with
respect to such attorneys fees and expenses as NML Closing Costs hereunder
and/or pursuant to the Properties Under Development Agreement), (ii) reasonable
attorneys fees and expenses incurred by the lender; in each case in documenting
and closing the loan evidenced by the 504/506/508 Commitment, and (iii) other
third party out-of pocket costs and expenses of the kind identified on Schedule
EE incurred in connection with documenting and closing such loan; provided
however, that the Xxxxxx Parties shall propose an anticipated budget (the "NML
CLOSING COST BUDGET"), specifying by item and amount, all costs which are
expected to be included as NML Closing Costs, and the Xxxxxx Parties shall use
reasonable efforts to keep all such costs, fees and expenses as low as possible,
and in line with other similar mortgage loan transactions, to the extent
practicable.
"NML MORTGAGE CREDIT" shall equal the amount set forth as the NML Mortgage
Credit on Exhibit 6A attached hereto.
"NOTICE OF CLAIM" has the meaning provided in Section 7.1(c).
"NOTICE OF PURCHASE RIGHT" has the meaning provided in Section 1.1(d)(iii).
"PARTNERSHIP AGREEMENT" or "LIMITED PARTNERSHIP AGREEMENT" has the meaning
set forth in Section 3.2(c).
"PARTNERSHIP CLAIM" shall mean any actual or threatened claim or other
action of any Person (including without limitation any direct or indirect owners
of any Partnership Interest and/or Existing Partner) (i) that any Xxxxxx Party
and/or any direct or indirect owner of any Xxxxxx Party has (or may have)
breached its fiduciary obligations or other obligations (including without
limitation obligations arising under any applicable organizational documents or
other contractual agreements or obligations of full and fair disclosure) and
whether arising out of the transactions contemplated by this Agreement or
otherwise, or (ii) that (A) the consideration payable to any Xxxxxx Party and/or
any direct or indirect owner of any Xxxxxx Party in connection with the
transactions contemplated by this Agreement and/or (B) the allocation of any
consideration paid by Transferee under this Agreement or related agreements is
contrary to agreements or improper, or (iii) with respect to or under the terms
of any organizational documents of any Xxxxxx Party and/or any direct or
indirect owner of any Xxxxxx Party.
"PARTNERSHIP INTERESTS" has the meaning set forth in the Introductory
Paragraphs hereto.
"PAYABLES" has the meaning set forth in Section 1.1(d)(iv).
"PERMITTED EXCEPTIONS" means, with respect to any Property, those
exceptions to title to such Property and those encumbrances on Personal Property
as are identified in the applicable Preliminary Report (other than the documents
evidencing the Mortgage Debt to the extent such Mortgage Debt is to be repaid in
full and discharged in connection with the Closing) in the form in which it may
have been modified to exist as of the date of this Agreement and those matters
first appearing on the applicable Preliminary Report following the date of this
Agreement as are approved in writing by BPLP.
"Person" or "person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, business trust, limited
liability company, trust, unincorporated organization or government or a
political subdivision, agency or instrumentality thereof or other entity or
organization of any kind.
"PERSONAL PROPERTY" shall mean all of any Property Owner's or Assignor's
right, title and interest in and to any personal property, including
Intangibles, if any, in and to: (i) all signs, supplies, maintenance equipment,
appliances, security systems, tools, decorations, furniture, fixtures,
furnishings, equipment, machinery, mechanical systems, landscaping and other
tangible and intangible personal property located at and/or used in connection
with the leasing, management, operations, maintenance and repair of the
Developed Property (excluding any personal property belonging to any tenant or
licensee, if any, and including without limitation, the items listed on Schedule
I attached hereto; (ii) all site plans, surveys, plans and specifications,
marketing materials and floor plans relating to the Developed Property and
Properties Under Development; (iii) all warranties and guarantees relating to
the Developed Properties; (iv) all permits, licenses, certificates of occupancy,
and other governmental approvals, including without limitation Licenses, which
relate to the Developed Properties. Notwithstanding anything to the contrary
contained herein, Personal Property shall exclude the personal property
specifically identified on the attached Schedule I-1 (such excluded property,
the "EXCLUDED PERSONAL PROPERTY").
"POST-CLOSING AUDIT" has the meaning set forth in Section 5.8.
"PREFERRED UNITS" shall mean preferred limited partnership units in BPLP
which, generally, will upon issuance bear a cumulative, preferred, quarterly
distribution right of 7.25% per annum and will be convertible into Common Units,
all as more particularly set forth in the Certificate of Designations of Series
One Preferred Units attached hereto as Exhibit 2.
"PREFERRED UNIT VALUE" has the meaning set forth in Section 1.1(d)(v).
"PRELIMINARY REPORT" shall mean a final form, current extended coverage
commitment to issue a title policy with respect to each Property, including
endorsements thereto, in form and substance as contemplated in this Agreement
and attached hereto as Schedule J, issued by the Title Company.
"PROHIBITED FEE PROPERTY" has the meaning set forth in Section 1.1(d)(iii).
"PROHIBITED FEE PROPERTY MANAGEMENT AGREEMENTS" has the meaning set forth
in Section 1.1(d)(iii).
"PROPERTIES UNDER DEVELOPMENT" shall mean, individually and collectively,
the Properties identified on Schedule F-2 attached hereto.
"PROPERTIES UNDER DEVELOPMENT CONTRIBUTION AGREEMENT" shall mean the
Properties Under Development Contribution Agreement entered into at the Closing
by the applicable Xxxxxx Parties and the Transferee (or its nominee), in the
form attached hereto as Exhibit 3.
"PROPERTY" shall mean, individually and collectively, all Real Property,
Personal Property and Intangibles. All references in this Agreement to the
Property shall be deemed to refer to all or any portion of the Property.
"PROPERTY OWNER" and "PROPERTY OWNERS" have the meaning set forth in the
Introductory Paragraph of this Agreement.
"REAL PROPERTY" shall mean the land more particularly described in Schedule
K hereto (the "LAND"), together with all rights, privileges, interests in
condominium common areas and other rights related thereto, and easements
appurtenant thereto, and the air rights, water, water rights, riparian rights
and water stock relating to the Land, if any, used in connection with the
beneficial use and enjoyment of the Land and all of the Property Owners' right,
title and interest in and to all roads, easements, rights of way, strips or
gores, alleys and other appurtenances adjoining or servicing the Land
(collectively, the "APPURTENANCES") and all improvements and fixtures located on
the Land, including, without limitation, the building(s) located on the Land,
and all apparatus, equipment and appliances owned by Property Owners and/or
Assignors and used in connection with the operation or occupancy of the Land,
such improvements or the Appurtenances, including, without limitation, heating
and air conditioning systems and facilities used to provide any utility,
refrigeration, ventilation, garbage disposal, recreation or other services on
the Land or the Appurtenances or for the improvements, and all parking
(collectively, the "IMPROVEMENTS"). All references in this Agreement to the
Real Property shall be deemed to refer to all or any portion of the Real
Property and shall include the Properties Under Development and the Development
Properties.
"REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in Section
2.1(i).
"RELATED AGREEMENTS" means, collectively, all documents to be executed and
delivered pursuant to this Agreement, including, without limitation, the
Registration Rights Agreement and all other documents referred to in Section
2.1.
"RENT ROLL" has the meaning set forth in Section 3.1(g).
"REPAID MORTGAGE DEBT" shall mean all Mortgage Debt other than the
Continuing Mortgage Debt.
"REPRESENTATION LETTER" means a letter delivered by an Existing Partner or
Assignor that has elected to receive Units hereunder and in the form of the
letter attached hereto as Exhibit 4.
"SCHEDULE OF ACTIONS" has the meaning set forth in Section 3.1(q).
"SCHEDULE OF AGREEMENTS" has the meaning set forth in Section 3.1(h).
"SCHEDULE OF PARTNERS" has the meaning set forth in Section 1.4.
"SECURITIES ACT" shall mean the Securities Act of 1933, as in effect from
time to time, and applicable rules and regulations thereunder. Any reference
herein to a specific section or sections of the Securities Act shall be deemed
to include a reference to any corresponding provision of future law.
"SECURITIES LAWS" shall mean the Securities Act, the Exchange Act, the
Investment Company Act or any applicable state or other federal securities Law
or any rule or regulation promulgated thereunder, including without limitation,
any so-called roll-up laws, rules or regulations.
"SPECIFIED REPRESENTATIONS" has the meaning set forth in Section 7.1(a).
"SPECIFIED TRANSFEREE REPRESENTATIONS" has the meaning set forth in Section
7.1(b).
"TAX PROTECTION AGREEMENT" shall mean the Tax Protection Agreement entered
into at the Closing by the applicable Property Owners and/or Existing Partners
and BPLP pursuant to Section 1.8 hereof, in substantially the form attached
hereto as Exhibit 5.
"TAX PROTECTION SCHEDULE" has the meaning set forth in Section 1.8.
"TERMINABLE CONTRACT" shall mean those Contracts which are terminable by
the Xxxxxx Parties upon not more than thirty (30) days notice without cost or
penalty.
"THIRD-PARTY INCENTIVE FEE PARTICIPATION" has the meaning set forth in
Section 1.1(e)(iii) and shall be calculated in accordance with the formula set
forth on Exhibit 6B attached hereto.
"THIRD PARTY MANAGEMENT CONTRACTS" shall mean, individually and
collectively, as applicable, all of the third party property management
contracts by and between any Assignor (or an Affiliate of any Assignor) and the
owner of the fee or leasehold interest in any property which is not a Property,
excluding, however, the Gatehall Contract.
"TITLE COMPANY" shall mean First American Title Insurance Company or such
other national title insurance company as is reasonably satisfactory to BPLP and
the Xxxxxx Parties.
"TOWER ONE" shall mean that certain 23-story office Property commonly known
as Tower One and located in the East Brunswick, New Jersey development commonly
known as "Tower Center," which property consists of approximately 420,006 square
feet of net rentable office space and approximately 1,252 parking spaces.
"TOWER 1 ADDITIONAL EARN-OUT" has the meaning set forth in Section
1.1(e)(ii) and shall be calculated in accordance with the formula set forth on
Exhibit 6D attached hereto.
"TOWER 1 EARN-OUT" has the meaning set forth in Section 1.1(e)(i) and shall
be calculated in accordance with the formula set forth on Exhibit 6C attached
hereto.
"TOWER TWO" shall mean that certain 23-story office property commonly known
as Tower
Two and located in the development commonly known as "Tower Center", which
property is, as of the date of this Agreement, multi-tenanted and serves as the
regional headquarters for PNC Bank. Assignor is the property manager of Tower
Two pursuant to a Third Party Management Agreement.
"TRANSFEREE" has the meaning set forth in the Introductory Paragraphs
hereto.
"TRANSFEREE PREPAYMENT PREMIUM OBLIGATION" shall mean, prepayment premiums
or penalties (and not any charges or costs of any other kind or nature) actually
paid at the Closing to the holders of the Repaid Mortgage Debt in an amount not
to exceed, in the aggregate, $2,550,000, in accordance with the prior written
instruction of the Xxxxxx Parties (as to which of the prepayment premiums which
are identified in the Mortgage Debt Prepayment Documents are to be included as
Transferee Prepayment Premium Obligations) and otherwise in accordance with the
Mortgage Debt Prepayment Documents.
"UNIT" means a unit of limited partnership interest in BPLP (whether a
Common Unit or a Preferred Unit).
"UNIT HOLDER" means any Existing Partner or Assignor which receives or may
receive Units hereunder.
"UNIT VALUE" has the meaning set forth in Section 1.1(d)(v).
"WARRANTIES" shall mean all presently effective warranties or guaranties
inuring to any Property Owner's benefit from any contractors, subcontractors,
suppliers, servicemen or materialmen in connection with the Property, including,
without limitation, any construction, renovation, repairs or alterations of any
Improvements, any Personal Property or any tenant improvements.
ARTICLE 1
CONTRIBUTION AND CONVEYANCE
1.1 CONTRIBUTIONS AND CONVEYANCE.
(a) Agreement of Existing Partners to Convey Partnership Interests in
the Property Owners. Each Existing Partner agrees, subject to the terms and
conditions of this Agreement, to assign, transfer and otherwise convey on the
Closing Date all of its Partnership Interests in the Property Owners to the
Transferee pursuant to an Assignment and Assumption of Partnership Interest(s)
in the form attached hereto as Exhibit 7. Each Existing Partner has elected to
receive for each such Partnership Interest either cash, Common Units or
Preferred Units, as set forth opposite such Existing Partner's name on Schedule
D. In the case of any Existing Partner that has elected to receive Common Units
or Preferred Units, such Existing Partner is delivering contemporaneously with
its execution of this Agreement a Representation Letter.
(b) Agreement of Assignors to Convey Assets. Each Assignor agrees,
subject to the terms and conditions of this Agreement, to transfer, assign and
otherwise convey on the Closing Date all of such Assignor's Assets to the
Transferee pursuant to an assignment and assumption agreement, xxxx of sale and
other conveyance documents as contemplated in Article 2
below. Subject to the terms and conditions of this Agreement, BPLP agrees to
accept such transfer, assignment and conveyance pursuant to such conveyance
documents and to assume the Assumed Assignor Liabilities pursuant to an
assignment and assumption agreement as contemplated in Article 2 below. Each
Assignor has elected to receive for its assets either cash, Common Units or
Preferred Units, as set forth opposite such Assignor's name on Schedule D. In
the case of an Assignor that has elected to receive Common Units or Preferred
Units, such Assignor is delivering contemporaneously with its execution of this
Agreement a Representation Letter. The parties hereto have agreed that it is of
material importance to each such party that (x) the conveyance of the Assets be
affected in a manner which will not materially or adversely impact any of the
Assets or any of the Excluded Assignor Liabilities or the Assumed Assignor
Liabilities and (y) the Transferee shall not, with respect to the Assets, assume
or take subject to any liabilities or obligations of any kind or nature except
only the Assumed Assignor Liabilities.
(c) Payment of Consideration. Subject to the terms and conditions of
this Agreement (including the terms relating to the adjustments and prorations
of such amounts), BPLP shall accept conveyance of the Partnership Interests and
the Assets and shall (x) pay by wire transfer of immediately available funds
the cash consideration payable to each Existing Partner pursuant to instructions
to be provided by each such Existing Partner prior to the Closing and (y) issue
the Units to the Xxxxxx Parties entitled to receive Units hereunder, such Units
to be issued free and clear of any claims, liens, voting agreements, options,
charges or encumbrances or restrictions of any kind, nature or description
(other than as may be created pursuant to this Agreement or by any Xxxxxx
Party). Notwithstanding anything to the contrary contained in this Agreement,
in no event shall Transferee have any obligation to issue Preferred Units after
the date which is sixty (60) days after the first Closing Date under this
Agreement (provided, however, such sixty (60) day period shall be extended to
ninety (90) days in the event that the Xxxxxx Parties deliver a Conveyance
Notice (as defined in Section 1.1(d)(iii)(C)(3) below) to Transferee on or
before the date which is sixty (60) days after the first Closing Date hereunder,
and a Closing Date with respect to the 500 Series Properties occurs on or before
the date which is ninety (90) days after the first Closing Date under this
Agreement, unless the failure to close such acquisition by such date is solely
the result of any action or inaction of Transferee, in which event such ninety
(90) shall be extended until the actual Closing Date for such 500 Series
Properties), and in lieu of any Preferred Units that would otherwise be issued
hereunder, there shall be issued an amount of cash or Common Units (at the
Xxxxxx Parties' election) sufficient to satisfy each such obligation.
(d) Certain Provisions Regarding the Consideration to be Delivered
for the Partnership Interests and the Assets.
(i) Value of Units. For purposes of determining the value of a
Unit to be delivered at on the first Closing Date (or at any time within the
sixty (60) day period thereafter (or within the ninety (90) day period, as the
same may be extended, as provided for in the last sentence of Section 1.1(c)
above)) in accordance with the terms of this Agreement, all Units (Common and
Preferred) shall have a value of $34.00 per Unit. All Common Units which are
issued pursuant to this Agreement after the date which is sixty (60) days after
the first Closing Date (or after the ninety (90) day period, as the same may be
extended, as provided for in the last sentence of Section 1.1(c) above) shall
have a value per Common Unit equal to the then current market value of each
share of Common Shares at the time of delivery of such Common Units, based upon
the volume-weighted average of the daily Closing Price for each of the ten (10)
consecutive trading days commencing twelve (12) trading days before any date of
determination.
(ii) Assigned Values. Each Developed Property and the Assets of
each Assignor has an Assigned Value as set forth on Schedule C. The aggregate
amount of the cash and Units that each Existing Partner in a particular Property
Owner has elected to receive, as set forth on Schedule D, is equal to the
Assigned Value for that Property Owner's Developed Property, and the aggregate
amount of the cash and Units that each Assignor has elected to receive for its
Assets, as set forth on Schedule D, is equal to the Assigned Value of those
Assets. Each Existing Partner and the Assignors acknowledge and agree that the
Assigned Value for each Developed Property and the Assets is subject to
adjustment, proration and other limitations to the extent provided in this
Agreement (for example, pursuant to clause (iv) below, on account of outstanding
Mortgage Debt). In the event of any reduction in the aggregate consideration to
be paid for all of the Partnership Interests in a Property Owner, such reduction
shall be applied pro rata to all of the Existing Partners of such Property
Owners based on the aggregate value of cash and Units that each has elected to
receive prior to such reduction as set forth on Schedule D, by reducing the cash
and Units (pro rata as between cash and Units) to be received by such Existing
Partner at Closing, unless the Xxxxxx Parties elect for such reduction to be
applied to the Existing Partners of such Property Owners otherwise by giving
written notice to Transferee not less than five (5) business days prior to the
Closing. Notwithstanding anything to the contrary contained in this Agreement,
in the event that any Prohibited Fee Property is not acquired by BPLP on the
first Closing Date under this Agreement, the Contribution Price payable under
this Agreement on the first Closing Date shall be reduced on the first Closing
Date by an amount equal to the Deferred Contribution Price of such Property. In
the event of any reduction in the aggregate consideration to be paid for the
Assets of an Assignor, such reduction shall be made by reducing the cash and
Units (pro rata as between cash and Units) received by that Assignor at Closing.
(iii) Excluded Properties/Excluded Partnership Interests.
(A) The parties hereto have agreed that it is a material term
of this Agreement that the Developed Properties be acquired by BPLP through
the conveyance and assignment to BPLP by each Existing Partner of 100% of
each Existing Partner's Partnership Interests in each applicable Property
Owner such that 100% of the partnership interests in each applicable
Property Owner is conveyed to BPLP, rather than through the Property
Owners' transfer of their respective Developed Property to BPLP.
(B) In the event any Existing Partner fails to or is unable to
transfer 100% of such Existing Partner's Partnership Interests to BPLP
pursuant to Section 1.1, but subject to the satisfaction of all other
conditions precedent under this Agreement, the applicable Property Owner in
which such Existing Partner owns the Partnership Interests which are not
then being transferred, shall convey the affected Developed Property
directly to BPLP (any such Property, a "FEE PROPERTY") for the applicable
portion of the Contribution Price allocable thereto. In connection with the
conveyance of a Fee Property to BPLP, the applicable Property Owner shall
deliver a Representation Letter and an amount equal to all real estate
transfer taxes and other similar amounts payable with respect to such
direct transfer shall be deducted from the portion of the Contribution
Price allocable to such property (or the Deferred Contribution Price
allocable thereto, if applicable) to be delivered to the applicable
Property Owner (and/or its constituent Existing Partners) at Closing and
BPLP shall assume the Assumed Liabilities which are attributable to such
Fee Property.
(C) (1) Notwithstanding the foregoing, each applicable
Property Owner of a 500 Series Property shall have the right, upon not less
than five (5) days
written notice to BPLP (any such notice, an "EXTENSION NOTICE"), to extend
the Closing Date with respect to all (but not less than all) of the 500
Series Properties (in such event, each such property, a "PROHIBITED FEE
PROPERTY" and collectively, the "PROHIBITED FEE PROPERTIES") for a period
not to exceed one (1) year (such period, the "CURE PERIOD") in the event
that and only for so long as, the applicable Property Owner is prohibited
from conveying or is otherwise unable or unwilling to convey the Prohibited
Fee Properties by reason of (x) an existing court order of any Federal or
State court having or claiming jurisdiction over such conveyance, and only
for so long as such court order remains in existence or (y) any other legal
impediment to such conveyance (including without limitation, upon the
advice of legal counsel, in writing, in the event of any pending or
threatened dispute as to whether or not the applicable Existing Partners or
the Property Owner in which they hold Partnership Interests has the legal
right and authority at such time to convey such Partnership Interests or
the applicable Prohibited Fee Property) or (z) a continuing dispute by and
among the Existing Partners of the applicable Property Owners (or the
constituent owners of such Existing Partners) with respect to the material
terms of the proposed conveyance of the applicable 500 Series Property or
the appropriate allocation of the proceeds from any such conveyance. An
amount equal to the Deferred Contribution Price allocable to the 500 Series
Properties, if and to the extent that such 500 Series Properties are not
conveyed to BPLP on first Closing Date under this Agreement, shall not be
paid at the first Closing Date, but rather shall be paid upon the
conveyance, if any, of such 500 Series Properties to BPLP in accordance
with the terms and conditions of this Agreement. Subject to subsection (2)
below, in the event that the applicable Xxxxxx Parties are unable or
unwilling to cause all of the Existing Partners of the Property Owners
which own the 500 Series Properties to convey the applicable Partnership
Interests to BPLP by no later than the last day of the Cure Period, the
applicable Property Owners shall convey such 500 Series Properties to BPLP
in accordance with (B) above. Notwithstanding the foregoing, BPLP shall
have no obligation to acquire the 500 Series Properties after the first
Closing Date under this Agreement unless (x) the Xxxxxx Parties are able to
convey to BPLP all of the 500 Series Properties or all of the Partnership
Interests in the Property Owners which own the 500 Series Properties
simultaneously, (y) (i) no material adverse physical change (including
without limitation, any Major Casualty or Major Condemnation)
(collectively, a "MATERIAL ADVERSE PHYSICAL CHANGE") has occurred at any of
the 500 Series Properties and has not been cured to Transferee's reasonable
satisfaction, and (ii) no material adverse change in the financial
condition of any of the 500 Series Properties as a result of changes in
lease terms or conditions from those terms and conditions which exist on
the first Closing Date hereunder shall have occurred (e.g., and by way of
example only, a material lease is terminated and is not replaced with a
lease with a similar quality tenant and requiring at least the same rental
payment terms as pursuant to the terminated lease). Notwithstanding the
foregoing, in the event of a dispute between Transferee and the Xxxxxx
Parties as to whether or not a Material Adverse Physical Change or a
material adverse change in financial condition has occurred under (y)
above, the parties agree to negotiate in good faith and for a period of not
less than fifteen (15) days to resolve any such dispute and if not resolved
within such fifteen (15) day period, such dispute shall be resolved by
arbitration in accordance with Section 9.5. Notwithstanding the foregoing,
in no event shall an Extension Notice hereunder be valid or effective
unless such Extension Notice is accompanied by (i) an executed and
acknowledged Notice of Purchase Right (the "NOTICE OF PURCHASE RIGHT"), in
the form attached hereto as Exhibit 16 and otherwise in recordable form,
evidencing the ongoing acquisition right of BPLP of the 500 Series
Properties pursuant to this Section 1.1(d)(iii), and (ii) an executed
Prohibited Fee Property Management Agreement (the "PROHIBITED FEE PROPERTY
MANAGEMENT AGREEMENT"), in the form attached hereto as Exhibit 17, pursuant
to which BPLP shall have the right to manage, lease and market each such
Prohibited Fee Property. BPLP acknowledges that it has received an
Extension Notice and the requirements of the immediately preceding sentence
have been satisfied.
(2) Notwithstanding the foregoing subsection (1), each
applicable Property Owner of a 500 Series Property shall have the further
right, upon not less than five (5) days written notice to BPLP, to further
extend the Closing Date with respect to all (but not less than all) of the
500 Series Properties, from time to time, to a date not later than the
tenth (10th) anniversary of the first Closing Date under this Agreement
(such period, the "EXTENDED CURE PERIOD") in the event that and only for so
long as such 500 Series Properties continue to constitute Prohibited Fee
Properties as specified in (1) above. Notwithstanding anything to the
contrary contained in this Agreement, and notwithstanding the Property
Owners' (and their constituent Existing Partners) continuing obligation,
for the ten (10) year period noted herein, to convey the 500 Series
Properties to BPLP, BPLP shall have the right (such right, the "BPLP
PURCHASE RIGHT"), but not the obligation, which right may be exercised in
BPLP's sole discretion, to acquire all of the 500 Series Properties for the
Deferred Contribution Price allocable to such Properties as and when a
Conveyance Notice is delivered hereunder, such right to be exercised
pursuant to subsection (3) below. Notwithstanding the foregoing, in the
event any Property Owner of a 500 Series Property incurs capital expenses
with respect to such 500 Series Property after the first anniversary of the
first Closing Date hereunder, which capital expenses have been specifically
approved in writing by BPLP in its sole and absolute discretion, the
Deferred Contribution Price with respect to such 500 Series Property shall
be increased by the amount of such approved capital expenses.
(3) Immediately upon the termination of the prohibition against
or inability or unwillingness to convey all (but not less than all) of the
Prohibited Fee Properties, the Xxxxxx Parties shall give written notice
(such notice, the "CONVEYANCE NOTICE") of their ability to cause (i) all of
the applicable Partnership Interests concerning such Prohibited Fee
Properties to be conveyed to BPLP or (ii) all of the Prohibited Fee
Properties to be conveyed directly to BPLP. In the event that the
Conveyance Notice is given prior to the first anniversary of the first
Closing Date hereunder (but subject to the terms of this subsection (3) and
the last sentence of subsection (1) above), the 500 Series Properties shall
be conveyed to BPLP as set forth herein. No Conveyance Notice given
hereunder shall be valid unless the first page of each such Conveyance
Notice contains the phrase: "TIME SENSITIVE APPROVAL RIGHTS WHICH MUST BE
EXERCISED WITHIN FIFTEEN (15) DAYS" in bold and capital letters. In the
event that the Conveyance Notice is given on or after the first anniversary
of the first Closing Date hereunder, but subject to the terms of this
subsection (3), BPLP shall have the right, but not the obligation, to
elect, by written notice (the "BPLP NOTICE") given to the Xxxxxx Parties
not more than fifteen (15) days after BPLP's receipt of such Conveyance
Notice from the Xxxxxx Parties, to acquire the 500 Series Properties as set
forth herein. If (i) a BPLP Notice is not given within such fifteen (15)
day period after receipt of a valid Conveyance Notice or (ii) the 500
Series Properties have not been acquired by BPLP on or before the tenth
(10th) anniversary of the first Closing Date under this Agreement (provided
that no Conveyance Notice or BPLP Notice is then outstanding), the 500
Series Properties shall no longer be the subject of the BPLP Purchase Right
hereunder and BPLP shall promptly thereafter deliver to the Xxxxxx Parties
an executed termination notice of the
Notice of Purchase Right, in form and substance reasonably satisfactory to
the Xxxxxx Partners and in form appropriate for recording.
(D) In the event that the 500 Series Properties are to be
conveyed hereunder, a closing date for the acquisition of such Prohibited
Fee Properties shall be scheduled as soon as is reasonably practicable
after delivery of the Conveyance Notice or the BPLP Notice, as applicable,
but in any event not later than thirty (30) days after delivery of such
notice, and subject to the continued compliance with the other terms and
conditions (including without limitation, the conditions precedent set
forth in Section 2.1 below, it being agreed that, for purposes of the
delivery of all materials at the Closing Date, including without
limitation, updated Rent Rolls, estoppels, documents related to the
applicable mortgage debt, and other affidavits and certificates
contemplated under this Agreement, all such documents and other materials
shall be dated as of the actual Closing Date with respect to such
Prohibited Fee Properties, except that the estoppels to be delivered in
connection with such Closing may be dated not more than thirty (30) days
prior to such Closing Date) and authorizations which are to be dated within
a certain number of days prior to the first Closing Date are to be dated
the same number of days prior to the Closing Date for the 500 Series
Properties, whereupon BPLP shall acquire such Prohibited Fee Properties for
the Deferred Contribution Price allocable to such Prohibited Fee
Properties, after all adjustments, prorations and limitations to the extent
provided herein.
(E) In the event that there is a failure of a condition
precedent to BPLP's obligation to effect a Closing with respect to the
Prohibited Fee Properties which has been voluntarily created or permitted
to exist by the Xxxxxx Parties or which is otherwise susceptible to cure
and which has not been waived, in writing by BPLP, BPLP may notify the
Xxxxxx Parties that it must cure the failed condition within ninety (90)
days of the delivery of such notice, subject to the following terms:
(1) If the failure of such condition has occurred because
of the existence of a mortgage, mechanics lien, judgment lien, tax lien or
other encumbrance or lien in violation of this Agreement which can be cured
by payment of money, the Xxxxxx Parties or the applicable Property Owner
shall pay such money and cause such encumbrance or lien to be removed;
provided, that the applicable Property Owner or the Xxxxxx Parties shall
not be required to remediate or cure any Environmental Matter.
(2) If the failure of such condition requires action by the
Xxxxxx Parties or the applicable Property Owner in order to cure, the
Xxxxxx Parties and the applicable Property Owners shall use commercially
reasonable efforts (not to exceed $500,000 in the aggregate) to cure such
failed condition unless such failure was caused in willful breach of this
Agreement; provided that the applicable Property Owner and the Xxxxxx
Parties shall not be required to remediate or cure any Environmental
Condition, and provided, further that if such failure of condition is not
cured and the Property Owners thereafter intend to sell, transfer or
otherwise convey any or all of the 500 Series Properties (or any interest
therein) to any person other than BPLP for consideration having value equal
to or less than the Deferred Contribution Price for such Prohibited Fee
Properties proposed to be so sold, transferred or conveyed, BPLP shall be
entitled to a right of first offer on the sale, transfer or other
conveyance of each or all of such 500 Series Properties, as follows:
(v) The Property Owners may not sell, transfer or otherwise
dispose of any or all of the 500 Series Properties unless the Property
Owners first give notice of their intention to so transfer to BPLP and
an offer to so transfer the subject property to BPLP on the terms
(including price for (for cash)) set forth in such notice.
(w) BPLP shall have the right for a period of thirty (30)
days after receipt of such notice to accept such offer to purchase the
subject property from the Property Owners. Acceptance of the offer
may be made in such period by giving an irrevocable written notice
thereof to the Property Owners.
(x) If the offer by the Property Owners is not accepted by
BPLP within such thirty (30) day period, the Property Owners may, for
a period of one hundred eighty (180) days after the date they
delivered notice under clause (v) above, contract to sell, transfer or
otherwise dispose of the subject property to an unaffiliated third
party on terms which are substantially similar (or which are more
favorable to the Property Owners) than the terms offered to BPLP,
provided that the price may be as low as ninety-five percent (95%) of
the price offered to BPLP and, if applicable, to close under such
contract within ninety (90) days after such 180 day period.
(y) Upon acceptance of any such offer by a third party, the
Property Owners shall provide notice thereof to BPLP, with reasonable
detail as to the basic terms and the identity of the third party. Any
such third party shall acquire the subject property free and clear of
this right of first offer if such right has been complied with.
(z) The right of first offer described herein shall
terminate on the tenth (10th) anniversary of this Agreement.
(aa) BPLP shall execute and deliver a document, in
recordable form, acknowledging the termination of the right of first
offer hereunder as and when such right terminates.
(F) In the event any Property becomes a Prohibited Fee Property,
Schedule H shall be deemed to be revised to delete the loan associated with
such Prohibited Fee Property from the definition of Mortgage Debt until
such time as the Prohibited Fee Property or the Partnership Interests in
the Property Owner of such Fee Prohibited Property is actually conveyed to
BPLP.
(G) The Xxxxxx Parties shall, at all times from and after the
first Closing Date hereunder, (x) in good faith, attempt to cause each of
the Prohibited Fee Properties to be conveyed to BPLP by causing each
applicable Existing Partner to convey its Partnership Interest in the
applicable Property Owner in accordance with Section 1.1 above as soon as
is reasonably practicable, and (y) diligently and continuously defend
and/or prosecute, as applicable, all reasonably necessary or appropriate
legal actions (including without limitation, litigation and/or arbitration)
in order to endeavor to cause each Prohibited Fee Property to be conveyed
to BPLP as soon as is reasonably practicable after first Closing Date
hereunder, provided, however, that the Xxxxxx Parties shall have no
obligation to settle any dispute under Section 1.1(d)(iii)(C)(1)(z) above
on terms which are not satisfactory to such Xxxxxx Parties.
(H) Notwithstanding anything to the contrary contained in this
Agreement, and by way of supplementation and clarification, all Developed
Properties, except only the Prohibited Fee Properties, if applicable
pursuant to this Section 1.1(d)(iii), shall be conveyed to BPLP on the
first Closing Date under this Agreement.
(iv) Certain Adjustments to the Contribution Price for the Partnership
Interests or Assets. The Contribution Price payable to the Existing Partners
for the Partnership Interests of a Property Owner (or to a Property Owner in the
event of a direct conveyance pursuant to Section 1.1(d)(iii) above) shall be
reduced by (A) all unpaid principal of and accrued and unpaid interest
(including any participating or shared appreciation interest) on the Mortgage
Debt of such Property Owner as of the Closing Date (the Property Owners
acknowledging that the Mortgage Debt of each Property Owner has the respective
principal and interest balances set forth on Schedule H as of June 30, 1998
(assuming that all applicable debt service payments are made prior to such
date)), (B) in the case of Partnership Interests in the Property Owners which
own Carnegie Center Building 101 and Carnegie Center Building 214, the Mortgage
Debt Credit, (C) in the case of Partnership Interests in the Property Owners
which own the 500 Series Properties, the NML Mortgage Credit, (D) as and to the
extent set forth on Schedule B-2 attached hereto, on a Property Owner by
Property Owner basis, the accrued and unpaid payables reflected on the balance
sheet of the Property Owners in accordance with Generally Accepted Accounting
Principles (the "Payables") and (E) in the case of the Partnership Interests in
the Property Owners (or the Property Owner, as applicable) which own Carnegie
Center Building 202 and Carnegie Center Building 212, the CIGNA Mortgage Credit.
The Contribution Price payable to the Assignors in consideration of the
conveyance of the Assets shall be reduced by an amount equal to the sum of (y)
$750,000.00 plus (z) the Gatehall Credit. The Contribution Price payable for
the Partnership Interests of a Property Owner or an Assignor's Assets shall be
reduced or increased, as applicable, by the amount of any prorations applicable
to such Property Owner or Assignor described in Article 5 and other closing
adjustments or costs which are the responsibility of or to be credited to such
Property Owner and/or Assignor, as applicable.
(v) Minimum Dollar Value of Units Delivered. Notwithstanding anything
to the contrary contained in this Agreement, in no event shall the aggregate
value, based on the assumed value of $34.00 per Unit (such aggregate value, the
"UNIT VALUE"), of the Common Units and Preferred Units to be delivered at the
first Closing Date to the Existing Partners and Assignors, if applicable, who
have elected pursuant to Schedule D to receive Units be less than the excess of
(x) (i) One Hundred Million Dollars ($100,000,000) or (ii) Eighty Five Million
Dollars ($85,000,000) in the event the Prohibited Fee Properties are not
conveyed to BPLP at the first Closing Date, over (y) the aggregate value of the
Units which Xxxx X. Xxxxxx certifies to BPLP as of the Closing Date are, as of
such date, expected (reasonably and in good faith) to be delivered by BPLP at
the closing of the acquisition of the Properties Under Development (the "MINIMUM
UNIT VALUE"), and to the extent that, due to prorations or reductions, the Unit
Value will be less than the Minimum Unit Value, then the parties hereto agree to
negotiate in good faith a reallocation of the form of aggregate Contribution
Price so that the portion of the Contribution Price which will be paid in cash
will be reduced and the portion which will be paid in Units will be increased.
Notwithstanding anything to the contrary contained in this Agreement, in
no event shall the aggregate value (such aggregate value, the "PREFERRED UNIT
VALUE"), of the Preferred Units
to be delivered at the Closing to the Existing Partners and Assignors, if
applicable, who have elected pursuant to Schedule D to receive Preferred Units
be less than $40,000,000 (or $34,000,000 in the event the Prohibited Fee
Properties are not conveyed to BPLP at the first Closing Date hereunder), and
if, due to prorations or reductions, the Preferred Unit Value would be less than
$40,000,000 (or $34,000,000 in the event the Prohibited Fee Properties are not
conveyed to BPLP at the first Closing Date hereunder), then the parties hereto
agree to negotiate in good faith a reallocation of the form of aggregate
Contribution Price so that either (A) no Preferred Units will be issued and in
lieu thereof either cash or Common Units will be issued (but the condition set
forth in the preceding paragraph regarding the Minimum Unit Value must be
satisfied after such adjustment) or (B) the portion of the Contribution Price
which will be paid in Preferred Units will be increased to $40,000,000 (or
$34,000,000, as applicable) and the portion of the Contribution Price which will
be paid in cash or Common Units will be reduced.
(e) Additional Consideration; Post-Closing.
(i) Tower 1 Earn-Out. In addition to the Contribution Price
payable to the applicable Xxxxxx Parties under this Agreement, the Existing
Partners which are partners in the Property Owner which owns fee title to Tower
One shall receive from BPLP as additional consideration for the conveyance of
Tower One to BPLP, an amount, if any, equal to the Tower 1 Earn-Out calculated
in accordance with the formula set forth on Exhibit 6C attached hereto. All such
additional consideration shall be paid in the manner and in proportion to the
allocation of the Assigned Value to such Existing Partners of the Property Owner
that owns Tower One (as set forth on Schedule D), such that each such Existing
Partner of the Property Owner shall receive its proportionate share of the Tower
1 Earn-Out in cash and Units, as applicable based on the form of consideration
it received at Closing. Notwithstanding the foregoing, in lieu of any Preferred
Units that would otherwise be issued to such an Existing Partner pursuant to
this clause (i) there shall be issued an amount of Common Units sufficient to
satisfy the obligation based upon the then current market value of such Units at
the time delivered (based upon the volume-weighted average of the daily Closing
Price for each of the twenty (20) consecutive trading days commencing twenty-two
(22) trading days before any date of determination).
(ii) Tower 1 Additional Earn-Out. In addition to the
Contribution Price payable to the applicable Xxxxxx Parties under this
Agreement, in the event that on or before the date which is the third
anniversary of the Closing Date, (x) Tower Two is acquired by BPLP or (y) BPLP
enters into a binding agreement to acquire Tower Two and thereafter acquires
Tower Two pursuant to such binding agreement; (as any such acquisition may or
may not be made in the sole discretion of BPLP, and on terms and conditions
satisfactory to BPLP in its sole discretion) the Existing Partners which are
partners in the Property Owner which owns fee title to Tower One shall receive
from BPLP on the date of such acquisition and as additional consideration for
the conveyance of Tower One to the BPLP, an amount, if any, equal to the Tower 1
Additional Earn-Out calculated in accordance with the formula set forth on
Exhibit 6D attached hereto. All such additional consideration shall be paid in
the manner and in proportion to the allocation of the Assigned Value to the
Existing Partners of the Property Owner that owns Tower One (as set forth on
Schedule D), such that each such Existing Partner of the Property Owner shall
receive its proportionate share of the Tower 1 Earn-Out in cash and Units, as
applicable based on the form of consideration it received at Closing.
Notwithstanding the foregoing, in lieu of any Preferred Units that would
otherwise be issued to such an Existing Partner pursuant to this clause (i)
there shall be issued an amount of Common Units sufficient to satisfy the
obligation based upon the then current market value of such Units at the time
delivered (based upon the volume-weighted average
of the daily Closing Price for each of the twenty (20) consecutive trading days
commencing twenty-two (22) trading days before any date of determination).
(iii) Third-Party Incentive Fee Participation. In addition to the
Contribution Price payable to the applicable Xxxxxx Parties under this
Agreement, each applicable Assignor shall receive, in cash, from BPLP, as
additional consideration for the conveyance of its Assets to BPLP, an amount, if
any, equal to the Third-Party Incentive Fee Participation calculated in
accordance with the formula set forth on Exhibit 6B attached hereto, provided,
however, that in no event shall (x) the aggregate amount of the Third-Party
Incentive Fee Participation payable hereunder exceed $5,000,000 and (y) any
amount be payable with respect to any period from and after the third
anniversary of the Closing Date.
1.2 [RESERVED]
1.3 [RESERVED]
1.4 ALLOCATION OF CONTRIBUTION PRICE AND FORM OF CONSIDERATION. Attached
hereto as Schedule D is a schedule (the "SCHEDULE OF PARTNERS") containing (i)
an identification of all Existing Partners and Assignors, (ii) an allocation of
Assigned Value to the Existing Partners of each Property Owner and (iii) an
identification of which Existing Partners and which Assignors have elected to
receive cash, Common Units or Preferred Units upon the conveyance of their
respective Partnership Interests or Assets. Neither BPLP nor Boston Properties
shall have any liability or responsibility in any way with respect to the
preparation of the Schedule of Partners or the determination of the allocations
described above and on such Schedule, and BPLP and Boston Properties shall be
entitled to rely on the Schedule of Partners in full and without inquiry. Each
Existing Partner and Assignor who has elected to receive Units shall receive
such Units (subject to adjustment and limitation as set forth herein) and shall
be admitted as a limited partner in BPLP in accordance with the terms of the
Limited Partnership Agreement upon Closing only if such Existing Partner or
Assignor (i) agrees to be bound by and comply with the terms of the Limited
Partnership Agreement by executing and delivering to BPLP at Closing a Limited
Partner Signature Page in the form attached hereto as Exhibit 9, (ii) delivers
an executed Representation Letter and (iii) executes the Registration Rights
Agreement.
1.5 Closing Date. Unless this Agreement is sooner terminated pursuant to
its terms, the closing of the transaction contemplated by this Agreement (the
"CLOSING") shall take place on June 30, 1998 (as it shall be extended to provide
any full cure period due under Section 1.1(d)(iii) or Article 6, including
without limitation, the Cure Period, the "CLOSING DATE"). The Closing shall
occur in the offices of Xxxxxxx, Procter & Xxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx on the Closing Date, unless otherwise agreed in writing by the
Xxxxxx Parties and BPLP. Notwithstanding anything to the contrary contained in
this Agreement, the references to Closing and Closing Date shall refer to the
actual closing dates with respect to the Properties hereunder, it being
acknowledged that the Closing Date with respect to the Prohibited Fee Properties
may be later than the Closing Date for the other Properties (provided, however,
that all representations, warranties and covenants hereunder which refer to the
Closing Date, to the extent such representations, warranties and covenants do
not relate to a Property, shall be deemed to mean the first Closing Date under
this Agreement). The Assets shall be conveyed on the first Closing Date
hereunder. Each Closing shall occur pursuant to closing arrangements reasonably
satisfactory to BPLP and the Xxxxxx Parties.
1.6 BLUE SKY COOPERATION. The Property Owners and each Assignor and
Existing Partner who is to receive Units shall cooperate and do all acts as may
be reasonably required or requested by Transferee to enable Transferee to
fulfill any requirement under state Securities Law to qualify the Units for
issuance to such Assignor or Existing Partners.
1.7 INITIAL UNIT DISTRIBUTIONS. The Xxxxxx Parties acknowledge and agree
that the first quarterly distribution paid by BPLP on any Units which may be
issued pursuant to this Agreement (whether at Closing or thereafter) (i) shall
be with respect to the quarter in which such Units are issued and (ii) shall be
prorated based on the number of days during such quarter for which such Units
are outstanding.
1.8 POST-CLOSING AGREEMENTS; TAX MATTERS. At the Closing, BPLP shall
execute and deliver to each Unit Holder who so elects, a Tax Protection
Agreement in substantially the form attached hereto as Exhibit 5, with only such
modifications thereto as may be appropriate in order to provide each applicable
Unit Holder with its allocable amount of such protection. Attached hereto as
Schedule N is a schedule (the "TAX PROTECTION SCHEDULE") setting forth the
aggregate amount of the Built-in Gain and the Non-Recourse Built-in Gain (each
as defined in the Tax Protection Agreement) attributable to all Unit Holders,
including an allocation of such amounts to each Unit Holder.
1.9 REPAYMENT/ASSUMPTION OF MORTGAGE DEBT. All payments of principal and
interest, and all other amounts of any kind or nature, on the Mortgage Debt
(except only the Transferee Prepayment Premium Obligation) shall be the sole
cost and expense of the Xxxxxx Parties (and the applicable Existing Partners).
Upon Closing, BPLP, at the Xxxxxx Parties sole cost and expense, shall cause
each of the Repaid Mortgage Debt loans to be prepaid in full. In addition, upon
Closing the Xxxxxx Parties (and each applicable Existing Partner) shall be
responsible for and shall pay (i) any and all accrued and unpaid interest
(including, without limitation, all participation and shared appreciation
interest, if any) as of the Closing Date with respect to the Mortgage Debt, (ii)
all prepayment premiums or penalties in excess of the Transferee Prepayment
Premium Obligation actually paid to holders of the Repaid Mortgage Debt which is
being prepaid in connection with the Closing, (iii) all prepayment premiums or
penalties actually paid to NML (or any subsequent holder) of the Continuing
Mortgage Debt loans encumbering Buildings 504, 506 and 508 as of the date of
this Agreement, each located at Carnegie Center, irrespective of when such
mortgage debt is actually repaid (which the parties hereto acknowledge is
expected to be repaid after the first Closing Date, but on or prior to the
Closing Date with respect to the 500 Series Properties), (iv) all other costs or
expenses of any kind or nature due in connection with the prepayment of the
Repaid Mortgage Debt and/or the assumption or other continuation of the
Continuing Mortgage Debt (including, without limitation, any fees, charges or
other amounts payable in connection with such Continuing Mortgage Debt and any
costs and expenses , except for expenses of BPLP's counsel and any title
insurance which may be purchased by BPLP, incurred in documenting the Mortgage
Debt Assumption Documents and the Mortgage Debt Prepayment Documents) and (v)
all costs and expenses of any kind or nature incurred in connection with the
Northwestern Mutual Commitment which relate to the period ending immediately
after the closing of the loan contemplated by such Northwestern Mutual
Commitment (except only NML Closing Costs with respect to the 500 Series NML
Commitment), including, without limitation, any and all costs, losses or damages
(including all such amounts which are or may be payable to NML or any other
lender under the Northwestern Mutual Commitment) of any kind or nature which may
be incurred by Transferee in the event of a breach under the Northwestern Mutual
Commitment, or in the event the loan contemplated thereby does not close, for
any reason other than the willful breach by Transferee. In addition to the
foregoing
(and in addition to the reduction of the Contribution Price on account of the
Mortgage Debt as set forth elsewhere in this Agreement, but without double-
counting such amount), BPLP shall receive an additional credit against the
Contribution Price in an amount equal to the Mortgage Debt Credit with respect
to the Manufacturers Life Insurance Company mortgage loan encumbering Building
101 and the State Mutual Life Assurance Company mortgage loan encumbering
Building 214, each located at Carnegie Center. The Xxxxxx Parties and BPLP
acknowledge and agree that the Partnership Interests shall be transferred to
BPLP while the Developed Properties remain subject to the Mortgage Debt,
including without limitation the Repaid Mortgage Debt which is to be prepaid in
connection with the Closing, and that the Repaid Mortgage Debt shall be repaid
immediately after such transfer. Notwithstanding anything to the contrary
contained in this Agreement, BPLP shall be responsible for and shall pay the
Transferee Prepayment Premium Obligation, if any, at the Closing.
ARTICLE 2 - CONDITIONS TO CLOSING
2.1 CONDITIONS TO TRANSFEREE'S OBLIGATIONS. The obligation of Transferee
to consummate the transactions contemplated hereunder shall be subject to the
satisfaction or waiver by Transferee of each of the conditions set forth below
on or before the Closing Date. The Transferee may waive any condition specified
in this Section 2.1 if it executes a writing so stating at or prior to the
Closing or if it elects to close notwithstanding non-fulfillment.
(a) Title. On the Closing Date, the Title Company shall irrevocably
commit, subject only to the payment of all applicable title insurance premiums
related thereto, to issue its title insurance policy for the Developed
Properties and the Properties Under Development in form customary in New Jersey
and containing the endorsements and affirmative insurance listed on Schedule J
or as identified on the Preliminary Report, and subject only to the exceptions
and other matters contained in the Preliminary Report or otherwise agreed to by
BPLP. The applicable Xxxxxx Parties, on or before the Closing Date, shall have
executed and delivered to the Title Company the certifications and affidavits
which are attached hereto as Exhibit 15. On or before the date of this
Agreement, the Property Owners have provided to BPLP the "as-built" surveys of
the Real Property identified on Schedule O attached hereto. It shall be a
condition to BPLP's obligation to close under this Agreement that any update of
each such survey on the Closing Date would show no change to each such survey
which change relates to a matter which first arose after the date of this
Agreement and which would have a material adverse effect on the use of the Real
Property in question.
(b) Consents. It shall be a condition to BPLP's obligation to close
that, on or before the Closing Date, the Property Owners, the Assignors and the
Existing Partners shall obtain and deliver to BPLP all authorizations, consents,
approvals and waivers from all applicable partners and all material
authorizations, consents, approvals and waivers from all other Persons (as
approved by BPLP pursuant to the terms of this Section, collectively, the
"CONSENTS", provided that Consents shall not include any such authorization,
consent or approval required to be obtained by BPLP or Boston Properties),
including, without limitation, Consents from each of the Existing Partners, the
Assignors and all applicable Authorities, necessary (i) to enable the Property
Owners to convey the Developed Properties to BPLP directly or through the sale
or other conveyance of 100% of the Partnership Interests in each Property Owner,
and to enable the Existing Partners to convey their interests in Property Owners
to BPLP, all in accordance with the terms of this Agreement and all other
agreements by which the Property Owners or the Property is bound or to which the
Property Owners or the Property is subject, (ii) to enable the Property
Owners, the Assignors and the Existing Partners to perform all of their
respective obligations under this Agreement and the Related Agreements,
including without limitation, the right to enter into and perform their
respective obligations under the Development and Acquisition Agreement and the
Properties Under Development Contribution Agreement, and to affect the
conveyance of the Assets (without material default by any party under any
material agreement which is a part of such Assets and otherwise as provided in
this Agreement) and (iii) to permit issuance of the Units and the payment of
cash, if applicable, to the Existing Partners in accordance with all applicable
Securities Laws and the organizational documents of each Property Owner, each
Existing Partner and each Assignor (and to approve any necessary amendments to
such organizational documents in order to enable the contemplated transactions
to occur). The form and substance of the Consents shall be reasonably
satisfactory to BPLP and duly authorized, executed and delivered copies thereof,
from each Existing Partner, Assignor and other Person in form and substance
reasonably satisfactory to BPLP shall have been delivered to BPLP on or before
the Closing Date.
(c) Mortgage Lender's Pay-Off Letters/Assumption Documents/500 Series
NML Commitment. The Property Owners shall have obtained and delivered to BPLP on
or before the date of this Agreement, a binding pay-off letter from each holder
of any Repaid Mortgage Debt, permitting a full payoff of such Repaid Mortgage
Debt held by it on or after the Closing Date for a sum certain, together with
any other documents required to evidence the release or discharge of such
indebtedness (as approved by BPLP pursuant to the terms of this Section below,
collectively, the "MORTGAGE DEBT PREPAYMENT DOCUMENTS"). In addition, with
respect to the 500 Series Properties, the Mortgage Debt encumbering such 500
Series Properties shall be refinanced on or before the Closing Date with respect
to the acquisition by BPLP of such 500 Series Properties in accordance with and
pursuant to the 500 Series NML Commitment. The loan documents evidencing such
refinanced mortgage loan shall be substantially similar to the mortgage
documents (the "NML Comparison Documents") evidencing the loan from NML to an
affiliate of BPLP secured by certain real property located in Reston, Virginia,
as such documents exist on the first Closing Date hereunder, with only such
changes as are necessary to reflect the terms and conditions of the 500 Series
NML Commitment which differ from the terms of such loan (such changes, in both
form and substance, to be reasonably acceptable to BPLP) and such other changes
as may be reasonably acceptable to both the Xxxxxx Parties and BPLP (including
without limitation such changes as may be necessary in order to reflect New
Jersey specific remedies customarily included in mortgage loan documents
comparable to the NML Comparison Documents). The loan documents evidencing the
refinanced mortgage loan from NML pursuant to the 500 Series NML Commitment
shall be subject to the prior written approval of BPLP, such approval not to be
unreasonably withheld or delayed; and deemed granted if such loan documents are
not disapproved by BPLP within five (5) Business Days after receipt by BPLP of
the loan documents in the form to be executed by all parties thereto (and
subsequently thereafter executed in such form). Notwithstanding the foregoing,
BPLP shall not disapprove any such loan documents based solely upon provisions
which are included in the NML Comparison Documents, to the extent that such
matters are not required to be modified in accordance with this provision and
are otherwise consistent with the 500 Series NML Commitment. In addition, the
Property Owners shall have obtained and delivered to Transferee on or before the
date of this Agreement, all applicable approvals, consents, acknowledgments,
agreements and authorizations from the holders of the Continuing Mortgage Debt
in order to permit such Continuing Mortgage Debt to be assumed by BPLP or taken
subject to (all documents in connection therewith, the "MORTGAGE DEBT ASSUMPTION
DOCUMENTS"). The Mortgage Debt Assumption Documents shall contain such
amendments or modifications to the existing documents evidencing the Continuing
Mortgage Debt as BPLP may reasonably request, with such modifications and as the
Lenders may reasonably
request and as are reasonably satisfactory to BPLP. It shall be a condition to
BPLP's obligations under this Agreement that the Mortgage Debt Prepayment
Documents and the Mortgage Debt Assumption Documents, as applicable, shall be in
form and substance reasonably satisfactory to BPLP, provided, however, that the
Mortgage Debt Assumption Documents with respect to the mortgage loan from NML
with respect to the 500 Series Properties shall be acceptable to BPLP if such
documents are in substantially similar form to those delivered to BPLP with
respect to the Continuing Mortgage Debt on the first Closing Date hereunder.
(d) Accuracy of Representations and Warranties. The representations
and warranties of Xxxx X. Xxxxxx, the Assignors and the Existing Partners
contained herein shall be true and correct as and to the extent made as of the
date of this Agreement and as of the Closing Date (except with respect to any
representations or warranties made as of a specific date, which representations
and warranties shall continue to be true and correct as of such specified date
and except further for any breaches of representations and warranties identified
on the Confirmation Certificate), and a certificate to such effect shall have
been executed and delivered by Xxxx X. Xxxxxx, the Assignors and the Existing
Partners as of the Closing Date (such certificate, the "CONFIRMATION
CERTIFICATE"); provided, however, that the Confirmation Certificate may identify
breaches of or other changes in the representations and warranties ("IDENTIFIED
BREACHES"), and shall include a description of each such breach in reasonable
detail, together with such person's good faith estimate of the Losses
attributable to or expected to be incurred in connection with such breaches and
the basis for the amount of the Losses attributable to or expected to be
incurred in connection with each such breach.
(e) Opinion of Counsel. The Property Owners shall have delivered to
BPLP an opinion of Xxxxxx Klar & Xxxxxxxx, LLP in form attached hereto as
Exhibit 13, dated as of the Closing Date.
(f) Absence of Litigation. No Action shall be pending or overtly
(whether orally or in writing) threatened against the Property Owners, the
Assignors, the Existing Partners, BPLP, Boston Properties or the Property, which
(i) questions the validity or legality of the transaction contemplated under
this Agreement or the Related Agreements or (ii) would have a Material Adverse
Effect. At the Closing, the Property Owners and the Assignors shall certify as
to the foregoing items (i) and (ii) to the extent they (A) regard the Property
Owners, the Assignors, the Existing Partners or the Property or (B) regard BPLP
or Boston Properties, which certification pursuant to item (B) shall be to the
Xxxxxx Parties' Knowledge and shall relate solely to Actions which are pending
or overtly (whether orally or in writing) threatened by the Existing Partners
and/or the direct or indirect owners of the Existing Partners.
(g) Estoppel Certificates. BPLP shall have received an estoppel
certificate, in the form attached hereto as Exhibit 10 or as may be attached to
the subject lease, or as otherwise agreed upon by BPLP and the Xxxxxx Parties,
without changes or additional notations (other than as may be reasonably
acceptable to BPLP, provided that such changes or additional notations do not
affect a change in the substance of the applicable estoppel certificate), dated
not earlier than thirty (30) days prior to the Closing Date (or sixty (60) days
prior to the Closing Date, if the Closing Date is extended as provided for in
this Agreement), from each Tenant who leases in excess of 15,000 square feet of
space pursuant to the Leases (which estoppels shall relate to leases that in the
aggregate constitute not less than 85% of the total leased rentable square
footage of the Developed Properties). In the case of the tenant improvement
work or allowances described on the Rent Roll, each such Tenant shall have
provided an estoppel or certification at Closing certifying that such work has
been completed to the satisfaction of such Tenant or certifying as to
the status of any incomplete work, as well as a statement as to the status of
funding for such work or such allowances, including any landlord liability for
payment or reimbursement for such work.
(h) Delivery of the Property Owner/Assignor Documents. At the
Closing, the applicable Xxxxxx Parties shall have delivered to BPLP the
following:
(i) Original Documents and Files. A certificate of the general
partner of each Property Owner and a certificate executed on behalf of the
Assignors which certifies that originals or copies of Assigned Contracts or
Leases and Licenses have been previously delivered to the BPLP or are located at
the offices of the Property Owners and/or the Assignors;
(ii) Rent Roll. An updated Rent Roll for the Property dated no
earlier than ten (10) days prior to Closing, which updated Rent Roll will be
used to identify all Leases of space at the Property for purposes of this
Agreement as of the Closing Date and shall be identical in form and substance in
all material respects to the Rent Roll attached hereto as Schedule P (e.g.,
changes which relate to matters specifically contained in the applicable lease,
such as step-ups in rent, shall not be deemed to be material). The applicable
Property Owners shall deliver a certificate dated as of Closing Date certifying
that such updated Rent Roll is true and complete in all material respects
(including, without limitation, as to the amount of security deposits and that
all material uncured tenant defaults and delinquencies known to the Property
Owner are listed thereon or on Schedule P);
(iii) Payoff/Assumption of Mortgage Debt. The Mortgage Debt
Prepayment Documents and or the Mortgage Debt Assumption Documents, as
applicable, including, with respect to the 500 Series Properties, the
refinancing of the existing Mortgage Debt pursuant to the 500 Series NML
Commitment and this Agreement, and the subsequent execution of Mortgage Debt
Assumption Documents in connection therewith;
(iv) Management Agreement. Evidence of (x) termination or
assignment, as applicable in accordance with the terms and conditions of this
Agreement, of all management agreement(s) in effect for the Developed Properties
and the Properties Under Development and (y) assignment of the management
agreement in effect for Tower Two; in each case, prior to the Closing,
including, without limitation, confirmation from all applicable parties of the
continuing existence, in good standing and without default of such management
agreement with respect to Tower Two;
(v) Fee Property and/or Partnership Interests Conveyancing
Documents. If and to the extent applicable (x) in connection with each Fee
Property, a deed for such Fee Property, a xxxx of sale, an assignment and
assumption of Leases, an assignment of Intangibles and an assignment and
assumption of the Assigned Contracts and the Assumed Liabilities and/or (y) in
connection with all other Developed Properties, such Assignment and Assumption
of Partnership Interests in form attached hereto as Exhibit 7 and other
conveyancing documents, in form and substance reasonably satisfactory to BPLP,
as are necessary or appropriate to transfer the applicable Property to BPLP free
and clear of all liens, claims and encumbrances, except for the Permitted
Exceptions (collectively, the "CONVEYANCING DOCUMENTS"); the Property Owners,
the Existing Partners and the Assignors shall have also delivered true and
complete copies of all organizational documents relating to the Property Owners,
the Existing Partners and the Assignors, certified as true and complete by a
general partner or executive officer of each such Person;
(vi) Assignor Conveyance Documents. Such documents of assignment
and assumption, or other conveyance documents, as are necessary or appropriate
to affect the transfer or other conveyance by the Assignors of the Assets in
accordance with this Agreement;
(vii) Entity Transfer Certificates. Entity transfer
certifications confirming that the Property Owners, the Existing Partners and
the Assignors are not "foreign persons" as defined in Section 1445(f)(3) of the
Code; and
(viii) Other. Such other documents, instruments, consents,
authorizations or approvals as may be reasonably requested by BPLP, its counsel
or the Title Company and that may be reasonably necessary to consummate the
transaction that is the subject of this Agreement and the Related Agreements and
to otherwise effect the agreements of the parties hereto, including, without
limitation, as required under this Section, except that the Xxxxxx Parties shall
have no obligation to deliver any document, instrument, certificate, consent,
authorization or approval which is not otherwise contemplated under this
Agreement or the Related Agreements which increase the liabilities of the Xxxxxx
Parties hereunder or under the Related Agreements, other than de minimis
amounts.
(i) Proceedings. All corporate and other proceedings regarding the
Xxxxxx Parties in connection with the transactions contemplated by this
Agreement and any other agreement, instrument or document required to be
executed and delivered by the Xxxxxx Parties hereunder, and all documents
incident thereto, shall be in form and substance reasonably satisfactory to BPLP
and its counsel, and BPLP shall have received all such originals or certified or
other copies of such documents as BPLP or its counsel may reasonably request.
(j) Delivery of the Unit Holder Documents. At Closing, each of the
Unit Holders who is to receive Units shall have delivered to BPLP (i) a
signature page to the Limited Partnership Agreement and an executed copy of the
Registration Rights Agreement and Lock-Up Agreement in the form attached hereto
as Exhibit 8 (the "REGISTRATION RIGHTS AGREEMENT"), each dated as of the Closing
Date, duly executed and delivered and (ii) to the extent not previously
delivered to BPLP or dated more than thirty (30) days prior to Closing, a
Representation Letter.
(k) Non-competition Agreement/Agreement Regarding Directorship. In
the event Xxxx X. Xxxxxx accepts appointment as a member of the Boston
Properties Board of Directors, Xx. Xxxxxx shall execute and deliver an Agreement
Regarding Directorship in the form attached hereto as Exhibit 11 and all of the
agreements attached thereto, including, without limitation, the Noncompetition
Agreement in the form attached hereto as Exhibit 11A.
(l) Development Agreement. On or before the Closing Date, each party
(other than BPLP) shall have executed and delivered to Transferee the
Development Agreement together with evidence reasonably satisfactory to
Transferee that such Development Agreement has been duly executed and delivered
and that all consents, approvals and authorizations from all Persons (including
without limitation, all applicable third parties, Existing Partners and
Authorities, except only authorizations such as building permits and
certificates of occupancy, which have not yet been issued by the applicable
Authorities due to the non-satisfaction of certain conditions precedent to such
issuance (or the applicable Xxxxxx Parties' decision not to request such
authorizations), provided, however, that the Xxxxxx Parties shall certify that
they have not received written notice that would reasonably be expected to call
into question the timely issuance of all such authorizations) have been obtained
in order to allow the performance by the Xxxxxx Parties of their
respective obligations under such agreement and Xxxx X. Xxxxxx, or an entity
owned and controlled by Xxxx X. Xxxxxx shall have acquired all of BCP
Associates, L.P.'s right, title, and interest in and to Princeton Land Partners,
L.L.C.
(m) Properties Under Development Contribution Agreement. On or before
the Closing Date, each applicable Xxxxxx Party shall have executed and delivered
to Transferee the Properties Under Development Contribution Agreement together
with evidence reasonably satisfactory to Transferee that such Properties Under
Development Contribution Agreement has been duly executed and delivered and that
all consents, approval and authorizations from all Persons (including, without
limitation, all applicable third parties, Existing Partners and Authorities,
except only authorizations such as certificates of occupancy, which have not yet
been issued by the applicable Authorities due to the non-satisfaction of certain
conditions precedent to such issuance, provided, however, that the Xxxxxx
Parties shall certify that they have not received written notice that would
reasonably be expected to call into question the timely issuance of all such
authorizations) have been obtained in order to allow the performance by the
Xxxxxx Parties of their respective obligations under such agreement.
(n) Contracts. The Property Owners shall have terminated, prior to
Closing and at their own cost and expense, all Contracts which BPLP has notified
the Property Owners on or before the date of this Agreement that it elects to
have terminated.
(o) Material Adverse Effect. BPLP shall have the right to terminate
this Agreement in its entirety if, as of the Closing Date, there exist breaches
of representations and warranties of the applicable Xxxxxx Parties (whether or
not such breaches are Identified Breaches) which are reasonably expected, by
Transferee, to result in Losses which have a Material Adverse Effect on the
Partnership Interests, the Properties or the Assignors, in each case taken as a
whole. Notwithstanding the foregoing, a failure of a precondition (including
without limitation, a breach of a representation and warranty under this
Agreement) which relates solely to one or more 500 Series Properties as of the
first Closing Date hereunder, but only if and to the extent that such 500 Series
Properties are not conveyed to BPLP on such first Closing Date hereunder, shall
not be deemed to have a Material Adverse Effect for purposes of this Section
2.1(o) as of such first Closing Date, provided, however, that if such failure of
precondition (or breach of a representation or warranty) continues to exist on
the Closing Date for such 500 Series Properties, such failure or breach shall,
if and to the extent applicable hereunder, constitute a Material Adverse Effect
for purposes of this Section 2.1(o).
(p) Notice of Purchase Right/Prohibited Fee Property Management
Agreement. At or before the Closing, each Property Owner which owns a Prohibited
Fee Property shall execute, acknowledge and deliver to BPLP a Notice of Purchase
Right and each Property Owner which owns a Prohibited Fee Property shall execute
and deliver to BPLP a Prohibited Fee Property Management Agreement.
(q) Association/Condominium Estoppels. The applicable Property Owners
shall have delivered to BPLP estoppel certificates from all parties under any
condominium documents and/or other associations as shall be identified by
Transferee in the exercise of its reasonable business judgment affecting the
Property, dated no earlier than fifteen (15) days prior to the Closing Date,
each in form and substance reasonably satisfactory to Transferee (each, an
"ASSOCIATION ESTOPPEL").
(r) Minimum Number of Developed Properties. On the Closing Date, it
shall be the case that all of the Developed Properties (or in lieu of a
Developed Property, all of the Partnership Interests in the applicable Property
Owner) shall be conveyed to BPLP, except that the 500 Series Properties (or, in
lieu thereof, all of the Partnership Interests in the applicable Property
Owners) may fail to be conveyed to BPLP for any of the reasons contemplated by
this Agreement and the condition set forth in this clause (r) shall be deemed to
be satisfied nevertheless.
(s) A fully completed Schedule A-1 shall have been delivered to
Transferee, such Schedule A-1 shall have been certified by each Existing Partner
as being true and correct in all respects with respect to such Existing Partner
only, and Transferee shall have received copies of documentation that enable it
to reasonably verify the information set forth in such Schedule A-1.
2.2 CONDITIONS TO THE OBLIGATIONS OF THE XXXXXX PARTIES. The obligation
of the Xxxxxx Parties to consummate the transactions contemplated hereunder
shall be subject to the satisfaction or waiver by the Xxxxxx Parties of each of
the conditions set forth below on or before the Closing Date. The Xxxxxx Parties
agree that Xxxx X. Xxxxxx may waive (on behalf of all Xxxxxx Parties) any
condition specified in this Section 2.2 if he executes a writing so stating at
or prior to the Closing or such condition will be waived if the Xxxxxx Parties
elect to close notwithstanding non-fulfillment.
(a) Accuracy of Representations and Warranties. All representations
and warranties of BPLP and Boston Properties hereunder shall be true and correct
as and to the extent made as of the Closing Date, as if made as of the Closing
Date (except with respect to any representations or warranties made as of a
specific date, which representations and warrants shall continue to be true and
correct as of such specified date), and a certificate to such effect shall have
been executed and delivered by BPLP and Boston Properties as of the Closing
Date.
(b) Execution of Limited Partnership Agreement. BPLP shall have
executed and delivered to the Unit Holders an executed copy of an amendment to
the Partnership Agreement admitting such persons as limited partners thereto
with the applicable number of Common Units or Preferred Units together with a
certificate of Boston Properties, as general partner of BPLP, certifying the
issuance of the applicable number and type of Units to such persons and further
certifying that the Certificate of Designations of Series One Preferred Units
shall then be effective.
(c) Registration Rights Agreement. BPLP shall have executed and
delivered to the Unit Holders the Registration Rights Agreement.
(d) Opinion of Counsel. Transferee shall have delivered to the Xxxxxx
Parties an opinion of GPH, dated as of the Closing Date, in form attached hereto
as Exhibit 13, together with a reliance letter of GPH permitting the Xxxxxx
Parties to rely upon the most recently delivered opinion (which opinion shall
not have been delivered earlier than January, 1998) regarding the qualification
of Boston Properties as a real estate investment trust pursuant to Section 856
of the Code as if delivered to the Xxxxxx Parties on the date of that opinion.
In addition, Transferee shall agree to cause GPH to deliver a reliance letter to
the Xxxxxx Parties in connection with the first opinion delivered by GPH after
the Closing Date regarding the qualification of Boston Properties as a real
estate investment trust pursuant to Section 856 of the Code, together with a
copy of such opinion.
(e) Assumption of Contracts/Mortgage Debt. BPLP shall have executed
and delivered to the Xxxxxx Parties executed copies of such Conveyancing
Documents and other applicable documents as are necessary to affect the
assignment of the Assets by the Assignors and the assumption by BPLP of the
Assumed Assignor Liabilities. BPLP shall, to the extent applicable, have
executed and delivered the Mortgage Debt Assumption Documents.
(f) Delivery of Consideration. BPLP shall have paid the consideration
for the contribution, conveyance, assignment or other transfer of the
Partnership Interests (or the fee interest in and to the Developed Properties,
as applicable) and the Assets in accordance with this Agreement.
(g) Board Representation. On or before the Closing Date the Boston
Properties Board of Directors shall have taken all corporate action necessary to
elect Xxxx X. Xxxxxx to serve on the Boston Properties Board of Directors upon
the completion of the Closing and his execution and delivery to Boston
Properties of an Agreement Regarding Directorship in the form attached hereto as
Exhibit 11, and Boston Properties shall promptly thereafter deliver to him a
fully executed copy of such agreement.
(h) Tax Protection Agreement. On or before the Closing Date BPLP
shall have executed and delivered to each Unit Holder who has previously
executed and delivered the same to BPLP, a Tax Protection Agreement in
accordance with the terms of this Agreement.
(i) Development Agreement. On or before the Closing Date, the
Transferee shall have executed and delivered the Development Agreement to the
Xxxxxx Parties who are parties thereto.
(j) Properties Under Development Contribution Agreement. On or before
the Closing Date, the Transferee shall have executed and delivered the
Properties Under Development Contribution Agreement to the Xxxxxx Parties who
are parties thereto.
(k) Proceedings. All corporate and other proceedings regarding the
Transferee in connection with the transactions contemplated by this Agreement
and any other agreement, instrument or document required to be executed and
delivered by the Transferee hereunder and all documents incident thereto, shall
be in form and substance reasonably satisfactory to the Xxxxxx Parties and its
counsel, and the Xxxxxx Parties shall have received all such originals or
certified or other copies of such documents as the Xxxxxx Parties or its counsel
may reasonably request.
(l) Absence of Litigation. No Action shall be pending or overtly
(whether orally or in writing) threatened against BPLP or Boston Properties,
which (i) questions the validity or legality of the transaction contemplated
under this Agreement or the Related Agreements as it relates to BPLP or Boston
Properties or (ii) would have a material adverse effect on BPLP or Boston
Properties. At the Closing, the Transferee shall certify as to the foregoing
and shall further certify that, except as may have been previously disclosed in
writing to the Xxxxxx Parties (or otherwise disclosed by the Xxxxxx Parties to
BPLP), to BPLP's Knowledge, there are no Actions which are pending or overtly
(whether orally or in writing) threatened by the Existing Partners and/or the
direct or indirect owners of the Existing Partners in connection with the
transactions contemplated by this Agreement.
(m) Other. Such other documents, instruments, consents,
authorizations or approvals as may be reasonably requested by the Xxxxxx
Parties, its counsel or the Title Company
and that may be reasonably necessary to consummate the transaction that is the
subject of this Agreement and the Related Agreements and to otherwise effect the
agreements of the parties hereto, including, without limitation, as required
under this Section, except that the Transferee shall have no obligation to
deliver any document, instrument, certificate, consent, authorization or
approval which is not otherwise contemplated under this Agreement or the Related
Agreements which increase the liabilities of the Transferee hereunder or under
the Related Agreements, other than de minimis amounts.
(n) Minimum Number of Developed Properties. On the Closing Date, it
shall be the case that all of the Developed Properties (or in lieu of a
Developed Property, all of the Partnership Interests in the applicable Property
Owner) shall be conveyed to BPLP, except that the 500 Series Properties (or, in
lieu thereof, all of the Partnership Interests in the applicable Property
Owners) may fail to be conveyed to BPLP for any of the reasons contemplated by
this Agreement and the condition set forth in this clause (n) shall be deemed to
be satisfied nevertheless.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE XXXXXX PARTIES. Xxxx X. Xxxxxx,
the Assignors and the Existing Partners hereby represent and warrant to
Transferee as of the date of this Agreement and as of the Closing Date except
with respect to any representations and warranties made as of a specific date,
which shall be remade on the Closing Date as of such specific date (but, in all
such events (i) with respect to each Assignor only, severally (and not jointly)
with respect to matters relating to itself and to its assets and liabilities and
(ii) with respect to each Existing Partner only, severally (and not jointly)
with respect to matters relating to itself, to its Partnership Interests and the
Property Owners of which it is a partner and such Property Owners' Property), in
each case as follows:
(a) Existence and Power. The Property Owners, Princeton Land
Partners, L.L.C., the Assignors and Existing Partners (other than the Existing
Partners which are individuals) have been duly formed and each is a validly
existing general partnership, limited partnership or limited liability company
under the laws of the state of its organization. The Property Owners, Princeton
Land Partners, L.L.C., the Assignors and Existing Partners have all power and
authority under their respective organizational documents to enter into and
deliver this Agreement and all other documents to be executed and delivered in
connection with the transaction that is the subject of this Agreement,
including, without limitation, all Related Agreements, to the extent they are to
be executed by the Property Owners, Princeton Land Partners, L.L.C., the
Assignors and/or Existing Partners, and to perform their respective obligations
under this Agreement and the Related Agreements executed by the Property Owners,
Princeton Land Partners, L.L.C., the Assignors and/or Existing Partners. The
Property Owners, Princeton Land Partners, L.L.C., the Assignors and the Existing
Partners have delivered to Transferee a true and complete copy of their
respective organizational documents and qualification to do business in the
State of New Jersey. The Existing Partners in the aggregate hold 100% of the
partnership interests in the Property Owners; Schedule A-1 as attached hereto is
true and correct in all respects except for the omission of percentages
identifying each Existing Partners' partnership interest in each Property Owner;
and Schedule A-1, as completed and delivered to Transferee pursuant to Section
2.1(s), shall accurately identify each Existing Partner's percentage partnership
interest in each Property Owner. As of the Closing Date, Princeton Carnegie
Associates, V is the sole manager-member holding a fifty percent (50%)
membership interest of Princeton Land Partners,
L.L.C., and Xxxx X. Xxxxxx, (or an entity owned and controlled, directly or
indirectly, by Xxxx X. Xxxxxx) is the only other member of Princeton Land
Partners, L.L.C. Princeton Carnegie Associates V, is a New Jersey limited
partnership, the sole general partner of which is ABL Capital Corp., a Delaware
corporation the sole shareholder of which is Xxxx X. Xxxxxx.
(b) Authorization; No Contravention. The execution and delivery of
this Agreement and the Related Agreements executed by the Property Owners,
Princeton Land Partners, L.L.C., the Assignors and/or Existing Partners and the
performance of their respective obligations under all of the foregoing have been
duly authorized by all requisite organizational action on the part of the
Property Owners, Princeton Land Partners, L.L.C., the Assignors and Existing
Partners. This Agreement constitutes and, upon execution thereof, the Related
Agreements executed by the Property Owners, Princeton Land Partners, L.L.C., the
Assignors and/or the Existing Partners will constitute the valid, legal and
binding obligations of the Property Owners, Princeton Land Partners, L.L.C., the
Assignors and/or Existing Partners, as applicable. None of this Agreement or the
Related Agreements executed by the Property Owners, Princeton Land Partners,
L.L.C., the Assignors and/or the Existing Partners will violate, in any material
manner, any term of any material agreement, order or decree to which any
Property Owner, Princeton Land Partners, L.L.C., any Assignor and/or any
Existing Partner, as applicable, is a party or by which any Property Owner,
Princeton Land Partners, L.L.C., any Assignor and/or any Existing Partner, as
applicable, is bound. Except for the consents and other approvals which have
been obtained on or before the date of this Agreement, including without
limitation, the consents of the Existing Partners of the Property Owners, the
holders of the Mortgage Debt, the third-parties for whom Assignor provides
services (other than in connection with the Gatehall Contract) and the other
consents set forth on the attached Schedule S, no consent of any lender,
partner, shareholder, beneficiary, tenant, creditor, investor, Authority or
other person is required in order for the Xxxxxx Parties to enter into this
Agreement or the Related Agreements or for the consummation of the transactions
contemplated by this Agreement and all Assets will, to the extent applicable,
remain in full force and effect and be in good standing (and not in default)
following the consummation of the transactions contemplated herein; other than
such consents where the failure to obtain would not have a Material Adverse
Effect or a material adverse effect on any Xxxxxx Parties' ability to consummate
the transactions contemplated hereby.
(c) Descriptive Information; Diligence. True, correct and complete
copies of all documents identified on Schedule T attached hereto, including,
without limitation, all leases of the Real Property identified on the Rent Roll
(collectively, the "LEASES") and all contracts and other material agreements by
which the applicable Property Owner and/or Assignor is bound (other than
Immaterial Contracts) have been delivered by or on behalf of the Property Owners
and/or Assignors to Transferee, or made available to Transferee for review in
connection with the transaction contemplated by this Agreement and the Related
Agreements. To the Xxxxxx Parties' Knowledge, there are no other material
agreements relating to the subject matter thereof in any Property Owner's
possession or under its control.
(d) Mortgage Debt. Schedule H attached hereto contains a list of all
material documents relating to the Mortgage Debt, including without limitation,
all material documents evidencing, securing or otherwise executed in connection
with the Mortgage Debt. Except as set forth on Schedule H, there are no
material or binding agreements with any Person to provide or obtain any mortgage
or other debt relating to the Properties. The Xxxxxx Parties have delivered to
Transferee true, complete and accurate copies of all of the documents identified
on Schedule H. Except only as and to the extent set forth on the attached
Schedule H and in the Northwestern Mutual Commitment, no Xxxxxx Party has any
obligation of any kind or nature, to NML or any
affiliate thereof, whether current, accrued or contingent and whether in
connection with any prior commitment or other agreement to provide financing or
otherwise. Notwithstanding anything to the contrary contained in this Agreement,
to the extent Transferee receives a binding estoppel certificate from a holder
of any Mortgage Debt which estoppel certificate specifically confirms
information set forth on Schedule H with respect to such Mortgage Debt, the
applicable Xxxxxx Parties shall be released from all liability hereunder with
respect to such confirmed information (including without limitation, any
indemnification obligation under Article 7 hereof with respect to such confirmed
information), but shall not be released with respect to any other or any
unconfirmed information set forth on Schedule H.
(e) Compliance with Law. To the Xxxxxx Parties' Knowledge, the
Property Owners have not received (x) any written notice alleging that the
Property violates any Law, including without limitation, Laws relating to
zoning, subdivision and land-use matters and the Americans with Disabilities
Act, or (y) any written notice from any insurer or board of fire underwriters
that the Real Property violates, in any material respect, any requirement under
any insurance policy issued by such a person; except, in either such event, for
violations which have previously been cured. To the Xxxxxx Parties' Knowledge,
the Property Owners and/or Princeton Land Partners, L.L.C. have not received any
written notice of any special assessment proceedings affecting the Property, in
any material respect, and, to the Xxxxxx Parties' Knowledge, there is no such
special assessment, other than immaterial assessments. To the Xxxxxx Parties'
Knowledge, all licenses, permits, approvals, variances, easements and rights of
way (collectively, the "LICENSES") required for the ownership, use or operation
of the Property as presently used and operated have been validly issued and are
in full force and effect. To the Xxxxxx Parties' Knowledge, the Property Owners
have not received any written notice of proceedings relating to the revocation
or modification of any License. As of the Closing Date, except as set forth on
Schedule U, the Xxxxxx Parties and/or Princeton Land Partners, L.L.C., as
applicable, shall have paid all applicable so-called TID (Transportation
Improvement District Ordinance) and COAH (Counsel on Affordable Housing) fees,
charges and costs and all other fees, charges or costs of any similar nature in
connection with the development and/or construction of the Properties, including
all off-site road and other improvement costs. Except as set forth on Schedule
U attached hereto, to the Xxxxxx Parties' Knowledge, there are no agreements to
which any Property Owner or Princeton Land Partners, L.L.C. is a party or is
otherwise subject, relating to land-use restrictions or other conditions
limiting or otherwise affecting, in any material respect, the development,
construction or operation of the Real Properties.
(f) Leases. The Leases are in full force and effect. All brokerage
commissions or compensation in respect of any of the Leases have been, or prior
to Closing will be, paid by the Property Owners except as set forth on Schedule
V. True, complete and correct copies of all Leases in effect on the date of
this Agreement (including all amendments, side letters, option exercise letters
and any other documents, certificates or instruments which may create future
material obligations under any of the Leases) have been delivered or made
available to Transferee. True, complete and correct copies of all Leases in
effect on the Closing Date shall be delivered (to the extent not previously
delivered) to Transferee on such date. True, correct and complete copies of all
agreements relating to brokerage commissions or other compensation in respect of
any of the Leases affecting the Developed Properties and the Properties Under
Development have been delivered or made available to Transferee prior to the
date of this Agreement. To Xxxxxx' Knowledge, no person or entity has any
option or right of first refusal or first opportunity to acquire any interest in
the Developed Property or the Properties Under Development or any portion
thereof. The Leases identified on the Rent Roll are the only leases or other
rights or
grants of occupancy by Property Owners of all or any part of the Developed
Properties and the Properties Under Development.
(g) Rent Roll. Attached hereto as Schedule P is the Rent Roll (the
"RENT ROLL"), which is a true, complete and correct statement of the information
contained therein as of the date of this Agreement. Except for the defaults set
forth on Schedule P (collectively, the "LEASE DEFAULTS"), there are no monetary,
or to the Xxxxxx Parties' Knowledge, other material defaults under any of the
Leases which have not been cured. The Rent Roll attached as Schedule P shall be
updated as of the date that is ten (10) days prior to Closing, and as of such
date, such updated Rent Roll shall be true, complete and correct in all material
respects and shall be identical in form and substance in all material respects
to the Rent Roll attached as Schedule P (e.g., changes which relate to matters
specifically contained in the applicable lease, such as step-ups in rent, shall
not be deemed to be material). Except as set forth on the Rent Roll or
otherwise set forth on the attached Schedule P there are no "free" or "reduced"
rent periods (other than, with respect to "reduced" rent periods, increases in
the base rent payable under the applicable lease based solely on the passage of
time, and regardless of whether such increases are in a fixed amount or are
based upon a calculation (e.g., consumer price index based increases)),
concessions or rebates (whether oral or written) of any kind whatsoever under
any of the Leases which would have an effect on or after the Closing Date.
Except as set forth in the Rent Roll or otherwise set forth on the attached
Schedule P (but excluding tenant improvement or refurbishment allowances which
are set forth in the Leases), no tenant under any lease is entitled to any
rebate, concession, deduction or (if based on landlord's actions on or prior to
the Closing Date) offset under its lease, except for the obligation, if any, to
refund any excess estimated payments made by a tenant on account of operating
expenses or real estate taxes. Except for security deposits placed with
Property Owners, a true and correct list of which is identified on the Rent Roll
or otherwise set forth on the attached Schedule P, none of the Tenants has paid
to Property Owners any rent or other charge of any nature under its Lease or
otherwise relating to any Property for a period of more than thirty (30) days in
advance. Except as set forth on the Rent Roll and Schedule V (with respect to
tenant improvements), the landlord under each Lease has performed or paid all
obligations (including, without limitation performance of all work and payment
of all work and other tenant allowances, other than tenant improvement or
refurbishment allowances which may be applicable to any unexercised renewal term
of any Lease) required to be performed or paid by it under each of the Leases
and is not in default of any of its material obligations under any of the
Leases. Notwithstanding the foregoing, the parties hereto acknowledge that
certain construction work on the Developed Property has been commenced and has
not yet been completed with respect to certain of the Leases as set forth on
Schedule W attached hereto. True, correct and complete copies of all agreements
relating to tenant construction affecting the Developed Properties (other than
tenant construction work which has been completed and paid for in full) have
been delivered or made available to Transferee prior to the date of this
Agreement. Notwithstanding anything to the contrary contained in this
Agreement, to the extent Transferee receives an Estoppel Certificate from a
Tenant under a Lease which Estoppel Certificate specifically confirms
information contained in the Rent Roll with respect to such Lease, the
applicable Xxxxxx Parties shall be released from all liability hereunder with
respect to such confirmed information (including without limitation, any
indemnification obligation under Article 7 hereof with respect to such confirmed
information), but shall not be released with respect to any other or any
unconfirmed information contained in the Rent Roll.
(h) Contracts. Attached hereto as Schedule Q is a schedule (the
"SCHEDULE OF AGREEMENTS") setting forth a list of all of the Contracts (on a
Property by Property basis (including all Developed Properties, all Properties
Under Development and all Development
Properties) with respect to Contracts which relate to the Properties and by
Assignor with respect to Contracts which relate to the Assignors) other than
Immaterial Contracts including in all events, the names of the contracting
party, the dates of the Contracts and a listing of all amendments to such
Contracts, and identifying each such Contract as a Terminable Contract or a Non-
terminable Contract (and, with respect to each Non-terminable Contract, whether
or not such Non-terminable Contract is with an Affiliate of any Xxxxxx Party).
True, complete and correct copies of all Contracts have been provided to
Transferee. To the Xxxxxx Parties' Knowledge, the Contracts are in full force
and effect, and the Terminable Contracts are terminable on not more than thirty
(30) days' prior written notice and without payment or penalty of any kind. To
the Xxxxxx Parties' Knowledge, all Warranties with respect to the Developed
Property are listed on Schedule X.
(i) Utilities. To the Xxxxxx Parties' Knowledge, the Property Owners
have received no written notice from a tenant, a utility or an Authority that
any of the facilities or utilities located at the Property are inadequate to
service the Property or do not meet the requirements of applicable Law.
(j) Hazardous Substances. To the Xxxxxx Parties' Knowledge, the
Property Owners have not generated, stored, released, discharged or disposed of,
used or handled Hazardous Substances or Hazardous Wastes (as those terms are
defined below) at, upon or from the Property in material violation of any Law
or in connection with which remedial action would be required under any Law. As
used in this Agreement, the terms "HAZARDOUS SUBSTANCES" and "HAZARDOUS WASTES"
shall have the meanings set forth in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and the regulations thereunder, the
Resource Conservation and Recovery Act, as amended, and the regulations
thereunder, and the Federal Clean Water Act, as amended, and the regulations
thereunder, and such terms shall also include asbestos, petroleum products
(except in a naturally occurring state), radon, radioactive materials, lead
paint, Urea Formaldehyde Foam Insulation and any other regulated substances
under any Law relating to the protection of the environment. To the Xxxxxx
Parties' Knowledge, except as contained in the environmental reports listed on
Schedule Y attached hereto, no Hazardous Substances or Hazardous Wastes are
located on any Property in material violation of any Law. To the Xxxxxx
Parties' Knowledge, except as contained in the environmental reports listed on
Schedule Y attached hereto, no underground storage tanks are located at any
Property.
(k) Financial Statements; Absence of Undisclosed Liabilities. Between
the date of the operating statements listed on the attached Schedule Z, true,
complete and correct copies of which have been delivered to Transferee prior to
the date of this Agreement (which are the most recently prepared operating
statements prior to the date of this Agreement) and the date of this Agreement,
no events or circumstances have occurred or arisen which, individually or taken
together, would have a Material Adverse Effect, or would result in any material
increase in the indebtedness or other liabilities of the Property Owners, or the
Assignors or the Developed Properties. To the Xxxxxx Parties' Knowledge, there
are no Liabilities, including material contingent liabilities, of the Assignors
or the Property Owners which are not shown or provided for in the operating
statements listed on the attached Schedule Z, other than (i) liabilities
incurred in the ordinary course of business and in accordance with established
operating policies and procedures and past practice of the applicable Xxxxxx
Parties, (ii) liabilities specifically disclosed in this Agreement or the
Schedules hereto, including without limitation liabilities under Assigned
Contracts and Leases, (iii) liabilities identified on the attached Schedule BB
which are covered by insurance, (iv) liabilities arising under Immaterial
Contracts and (v) liabilities which are the specific subject of any other
representation or warranty in this Section 3.1, which other representations and
warranties shall be the sole and exclusive representations with respect to such
subject matter (e.g., liabilities relating to non-material violations of Law
relating to Hazardous Substances, the existence of which would not be a breach
of the applicable representation and warranty under Section 3.1(j) above).
(l) Taxes. All tax returns required to be filed on or before the date
hereof by, on behalf of or with respect to the liabilities of the Property
Owners or Princeton Land Partners, L.L.C. (or the properties or assets thereof),
and Assignors have been filed through the date hereof or will be filed on or
before the date when due in accordance with all applicable Laws, and there is no
Action pending against or with respect to any Property Owner, Princeton Land
Partners, L.L.C., any Assignor or the Property in respect of any tax (or against
any Existing Partner with respect to any of the tax liabilities of or assessed
against the Properties or the Property Owners), nor is any claim for additional
tax asserted by any Authority against any Property Owner, Princeton Land
Partners, L.L.C., any Assignor or the Property (or against any Existing Partner
with respect to any of the tax liabilities of or assessed against the Properties
or the Property Owners). All taxes of or assessed against the Properties, the
Property Owners or Princeton Land Partners, L.L.C., have been timely paid when
due in accordance with applicable laws. All real estate taxes and assessments
relating to the Property that are due and payable have been paid and copies of
most recent tax bills have been delivered to Transferee.
(m) Insurance. The Property Owners, Princeton Land Partners, L.L.C.
and the Assignors currently have in place the public liability, casualty,
workers compensation, builders' risk and other insurance coverage with respect
to the Property and the Assignors as set forth in Schedule AA, and, to the
Xxxxxx Parties' Knowledge, each of such insurance policies is in full force and
effect and all premiums due and payable thereunder have been fully paid when
due.
(n) Capital Structure. All of the partnership interests of each
Property Owner have been duly and validly issued. Except as set forth on
Schedule A-1 (as completed pursuant to Section 2.1(s)), there are no equity
interests of any Property Owner outstanding or issuable upon conversion or
exchange of any security of any Property Owner or any other Person. Except as
specifically set forth on Schedule A-2, no holder of any equity interest of any
Property Owner nor any other Person is entitled (i) to any preemptive or other
right to subscribe for any equity interests of any Property Owner or (ii) to any
right of first refusal or similar right with respect to or as a result of any of
the transactions contemplated hereby. The organizational charts attached hereto
as Schedule A-2 are true, complete and correct in all respects and set forth all
of the Existing Partners and all of the partners, members, shareholders and
other beneficial owners of such Existing Partners, and as of the Closing Date,
the organizational charts attached hereto as Schedule A-2 shall be revised to
identify the percentage interest of each such Existing Partner in the Property
Owners.
(o) Condemnation. To Xxxxxx Parties' Knowledge, none of the Property
Owners has received any written notice of any pending or contemplated
condemnation proceedings affecting all or any part of any Property.
(p) Permitted Exceptions. No Property Owner is in monetary default
and, to the Xxxxxx Parties' Knowledge, each Property Owner has performed all
material obligations under and is not in material non-monetary default in
complying with the terms and provisions of any of the covenants, conditions,
restrictions, rights-of-way or easements constituting one or more of the
Permitted Exceptions for each Property.
(q) Actions. Attached hereto as Schedule BB is a schedule (the
"SCHEDULE OF ACTIONS") setting forth all Actions pending or, to Xxxxxx Parties'
Knowledge, overtly (whether orally or in writing) threatened against any
Property Owner, Princeton Land Partners, L.L.C., any Existing Partner or any
Assignor, or the Property or Assets, which (y) question the validity of, or the
ability of the Xxxxxx Parties to consummate, the transactions contemplated
hereunder, or (z) affect the Property, the Property Owners, the Existing
Partners or any interests therein, in a materially adverse way, or have a
Material Adverse Effect.
(r) Assignors. The Assignors are the only entities through which the
Xxxxxx Parties, or any Affiliate of any of them, operates any of the Properties
or any of its businesses (other than businesses which do not involve the
ownership, management, development, construction, leasing and/or marketing of
real property) or otherwise has any interest in any of the Properties or any of
its businesses (other than the Property Owners and the Existing Partners).
Except as set forth on Schedule CC attached hereto, none of the Assignors has
any subsidiaries or investments in, or loans to, any other Person involving
amounts in excess of $50,000 in the aggregate for all such investments and
loans. There are no material contracts, agreements, rights and other assets of
any kind or nature owned or held by any Assignor or any Subsidiary of Assignor
except as set forth on Schedule B attached hereto. No Assignor is in monetary
or, to the Xxxxxx Parties' Knowledge, material non-monetary default under any
material documents, contract, agreement or other instrument by which any
Assignor is bound including without limitation, the Assets and the Licenses.
Specifically, no Assignor is entitled to receive any payment, fee, commission,
compensation or other consideration of any kind or nature which has not been (or
will not be) assigned to BPLP at the first Closing Date hereunder, except only
as and to the extent specifically identified on Schedule B-2.
(s) Title to Partnership Interests. Each Existing Partner owns
beneficially and on the records of the applicable Property Owner, and is
transferring free and clear of any liability claim, lien, pledge, voting
agreement, option, charge, security interest, mortgage, deed of trust,
encumbrance, right of assignment, purchase right or other restriction of any
kind, nature or description (other than as may be created in writing by Boston
Properties or BPLP), its Partnership Interests. Such Existing Partner's
Partnership Interests were validly issued. There is no agreement, instrument or
understanding with respect to such Existing Partner's Partnership Interests,
except the partnership agreement of the applicable Property Owner, to which
BPLP, as successor, will be bound.
(t) Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act. The "ultimate
parent" of Diversified Management Services L.P., Alpha Realty Services, Metric
Construction and Development L.P. and Princeton Realty Advisors L.P. is not a
"$10 million person" within the meaning of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended ("HSR ACT") and its implementing rules and,
accordingly, compliance with the HSR Act's pre-merger notification and waiting
period provisions is not required.
(u) Tax Treatment. To the extent that Units are delivered hereunder
in consideration for the transfer of partnership interests in the Property
Owners or any other assets (i) the Existing Partners and the Assignors, as
applicable, will treat the transfer as a contribution subject to Section 721 of
the Code and (ii) the Existing Partners and the Assignors, as applicable, will
treat the Units for all tax and other financial reporting purposes as equity
interests in BPLP, except in each case as otherwise required by applicable Law
(not including any tax Law except to the extent required by any adjustment
proposed by the Internal Revenue Service in a 90-day letter) or contractual
obligations (such as loan agreements) of BPLP.
(v) AT&T Obligations. The Existing Partners of the Property Owner
which owns the Tower One Property shall pay all AT&T Obligations (including all
interest and/or penalties related thereto) and shall indemnify and hold harmless
the Property Owner and the BPLP Indemnified Parties from and against the AT&T
Obligations and any Losses resulting from the nonpayment of the AT&T
Obligations, and shall in all events pay or otherwise satisfy such AT&T
Obligations prior to the date (taking into account any notice or cure period)
that such nonpayment would entitle AT&T to terminate its lease at the Tower One
Property.
3.2 REPRESENTATIONS AND WARRANTIES OF TRANSFEREE. Each of Boston
Properties and BPLP, jointly and severally, hereby represents and warrants to
the Xxxxxx Parties as of the date of this Agreement and as of the Closing Date
as follows:
(a) Existence and Power. Boston Properties and BPLP have been duly
formed, are validly existing as a Delaware corporation and a Delaware limited
partnership, respectively, are duly qualified to do business in all
jurisdictions where such qualification is necessary to carry on their business
as now conducted and, at the Closing, will be duly qualified in the jurisdiction
in which the Property is located. Each of Boston Properties and BPLP has all
power and authority under their respective organizational documents to carry on
its business as presently conducted and to execute, deliver and perform its
obligations under this Agreement and the Related Agreements executed by such
party.
(b) Authorization; No Contravention. The execution and delivery of
this Agreement have been duly authorized by all requisite organizational action
on the part of Transferee. This Agreement has been and each Related Agreement
to which Transferee is a party will on the Closing Date have been, duly executed
and delivered by Transferee. None of the foregoing will require any action by
or in respect of, or filing with, any Authority or contravene or constitute a
default under any provision of applicable Law, any organizational document of
Transferee or any agreement, judgment, injunction, order, decree or other
instrument binding upon Transferee. This Agreement constitutes and, upon the
execution thereof the Registration Rights Agreement and the other Related
Agreements executed by Boston Properties or BPLP, as applicable, will
constitute, the valid, legal and binding obligations of Boston Properties or
BPLP, as applicable, enforceable in accordance with their respective terms,
subject to bankruptcy and similar laws affecting the remedies or resources of
creditors generally and principles of equity. Except for the consents and other
approvals which have been obtained on or before the date of this Agreement, no
consent of any lender, partner, shareholder, beneficiary, tenant, creditor,
investor, Authority or other person is required in order for Boston Properties
and BPLP to enter into this Agreement or for the consummation of the
transactions contemplated by this Agreement, other than such consents where the
failure to obtain would not have a material adverse effect on Boston Properties
or BPLP or on their ability to consummate the transactions contemplated hereby.
(c) Partnership Agreement. BPLP has provided the Xxxxxx Parties with
correct and complete copies of the limited partnership agreement of BPLP (the
"PARTNERSHIP AGREEMENT") as in effect on the date of this Agreement. Between
the date of this Agreement and the Closing Date there have been no amendments or
modifications to, supplements to, or waivers with respect to, the Partnership
Agreement other than (x) as contemplated by this Agreement, including without
limitation, by the Certificate of Designation establishing the terms of the
Series One Preferred Units and as set forth on the attached Exhibit 2 and (y)
amendments, modifications, supplements and waivers in the ordinary course of
business and which do not have a material adverse effect on the Xxxxxx Parties'
interest in BPLP (including, without limitation, amendments
for the purpose of issuing Common Units and/or admitting limited partners to
BPLP). As of the Closing Date, the Certificate of Designation establishing the
terms of the Series One Preferred Units has been duly adopted and will be
effective as an amendment to the Partnership Agreement. As of the date of this
Agreement there are no outstanding Preferred Units and as of the Closing Date
there are no options, warrants, rights or other agreements to issue Series One
Preferred Units to any person other than pursuant to this Agreement and the
Related Agreements. BPLP qualifies as a partnership for Federal income tax
purposes.
(d) Units and Common Shares. The Units to be issued hereunder have
been duly authorized for issuance and, upon such issuance, will be validly
issued, fully paid and non-assessable and will not be subject to any preemptive
rights or rights of first refusal upon their issuance. The Common Shares to be
issued upon exchange of the Units, and the Common Units to be issued upon
exchange of the Preferred Units have been duly authorized for issuance and, upon
such issuance will be validly issued, fully paid and non-assessable and will not
be subject to any preemptive rights or rights of first refusal upon their
issuance. At the Closing each Xxxxxx Party receiving Units will receive such
Units free and clear of any claims, liens, voting agreements, options, charges,
or encumbrances or restrictions of any kind, nature or description (other than
as may be created pursuant to this Agreement (including under the Registration
Rights Agreement), the Partnership Agreement and other organizational documents
of BPLP, or by any Xxxxxx Party, and other than restrictions on transfer that
may be applicable under Securities Laws). Boston Properties has reserved for
issuance out of its authorized common stock, a number of Common Shares
sufficient to provide for the exchange of Units into Common Shares. If
applicable, BPLP is authorized to issue Common Units sufficient for the exchange
of Preferred Units into Common Units.
(e) Pending Actions. There is no existing or, to the best of
Transferee's knowledge, threatened Action involving Boston Properties or BPLP,
any of their respective assets or the operation of any of the foregoing, which,
if determined adversely to either Boston Properties or BPLP or their respective
assets, would have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations or business of either
Boston Properties or BPLP or their respective assets or which would interfere
with the ability of either Boston Properties or BPLP to execute or deliver, or
perform their respective obligations under this Agreement or any of the Related
Agreements executed by it.
(f) Taxes. Boston Properties and BPLP have filed all federal, state
and local income and franchise tax returns required to be filed through the date
hereof and have paid all taxes due thereon, and no tax deficiency has been
determined adversely to Boston Properties or BPLP which has had (nor does Boston
Properties of BPLP have any knowledge of any tax deficiency which, if determined
adversely to Boston Properties or BPLP might have) a material adverse effect on
the consolidated financial position, stockholders' equity, results of operations
or business of Boston Properties or BPLP. There is no material tax controversy
pending with respect to Boston Properties or BPLP for which Boston Properties or
BPLP, as applicable, has not made reasonable provision.
(g) No Assignment. Neither Boston Properties nor BPLP nor any of
their subsidiaries has (i) made a general assignment for the benefit of the
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by BPLP's or Boston Properties' creditors,
(iii) suffered the appointment of a receiver to take possession of all or
substantially all of BPLP's or Boston Properties' assets, (iv) suffered the
attachment, or other judicial seizure of all, or substantially all, of BPLP's or
Boston Properties' assets, (v) admitted
in writing its inability to pay its debts as they come due, or (vi) made an
offer of settlement, extension or compromise to its creditors generally.
(h) Private Placement. Assuming the accuracy of, and in reliance
upon, the representations and warranties of the Xxxxxx Parties set forth in
Section 3.1 hereof and in the Representation Letters delivered by each
applicable Xxxxxx Party, (x) neither BPLP nor Boston Properties nor any agent or
other person acting on its behalf, directly or indirectly, has done or caused to
be done (or has omitted to do or to cause to be done) any act which act (or
which omission) would result in bringing the issuance or sale of the Common
Shares or Units within the provisions of Section 5 of the Securities Act and (y)
the granting and the sale of the Units hereunder and the issuance and delivery
of the Common Shares upon the exchange of the Units by any person that has
delivered a Representation Letter, are exempt from registration under the
Securities Act and under applicable state securities and "blue sky" laws.
(i) Investment Company Act. Neither Boston Properties nor BPLP is an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined under the Investment Company Act.
(j) Boston Properties' Qualification. Boston Properties is organized
and operates, and intends to continue to operate, in a manner so as to qualify
as a "real estate investment trust" under Sections 856 through 860 of the Code.
To BPLP's Knowledge, Boston Properties has not received any written notice from
the Internal Revenue Service which specifically calls into question Boston
Properties' qualification as a "real estate investment trust" under Sections 856
through 860 of the Code and Boston Properties has taken no action that would
reasonably be expected to cause Boston Properties to cease to so qualify.
(k) Filings. Boston Properties has made all filings required by the
Securities Act and the Exchange Act (excepting only those filings the failure to
make of which will not render Boston Properties ineligible to file a
registration statement on Form S-11). All such filings made by Boston
Properties fairly present the financial condition of Boston Properties as of the
date of any balance sheet or similar financial statement contained therein and
the results of Boston Properties's operations for the period covered by any
income statement or similar financial statement contained therein, and none of
such filings contains, as of the date of such filing, any untrue statement of a
material fact or omits any information necessary to make the statements
contained therein not materially misleading, and since the date of the last such
filing, there has not occurred any material adverse change in the financial
condition, business, operations, assets or liabilities of Boston Properties or
BPLP.
(l) Tax Treatment. To the extent that Units are delivered hereunder
in consideration for the transfer of partnership interests in the Property
Owners or any other assets (i) BPLP will treat the transfer as a contribution
subject to Section 721 of the Code and (ii) BPLP will treat the Units for all
tax and other financial reporting purposes as equity interests in BPLP, except
in each case as otherwise required by applicable Law (not including any tax Law
except to the extent required by any adjustment proposed by the Internal Revenue
Service in a 90-day letter, provided, however, that BPLP shall have no
obligation to spend more than de minimis amounts of time or money in connection
therewith) or contractual obligations (such as loan agreements) of BPLP.
ARTICLE 4 - CERTAIN COVENANTS
4.1 MAINTENANCE AND OPERATION. Through the Closing, the Property Owners
agree to maintain and operate the Developed Property in the ordinary course of
business and in accordance with its established operating policies and
procedures and in the manner maintained and operated prior to the date of this
Agreement, subject to any limitations or restrictions as set forth herein. Each
Property Owner agrees that from the date of this Agreement to the Closing Date,
it will: (i) use its reasonable efforts to preserve its relations with tenants
and others having business dealings with it; (ii) not mortgage or encumber any
part of the Property or take or suffer any other action affecting title to the
Property without the prior written consent of Transferee such consent not to be
unreasonably withheld or delayed (it being agreed that if Transferee fails to
deny such consent or approval with respect to any non-material, non-monetary
encumbrance within five (5) business days after written request therefore,
Transferee shall be deemed to have granted such consent or approval hereunder);
(iii) not become a party to any new licenses, equipment leases, contracts or
agreements of any kind relating to the Property, except such contracts or
agreements as will be terminated at or prior to Closing without cost or expense
to Transferee or contracts which Transferee agrees to assume at Closing, such
agreement not to be unreasonably withheld or delayed (it being agreed that if
Transferee fails to deny such consent or approval with respect to any such
contract or agreement within five (5) business days after written request
therefore, Transferee shall be deemed to have granted such consent or approval
hereunder); and (iv) not intentionally take any action that would reasonably be
likely to result in a material adverse change to the "as-built" surveys of the
Developed Property identified on the attached Schedule O.
4.2 INSURANCE. Through the Closing Date, the Property Owners shall
maintain at their sole cost and expense (subject to Article 5 below) all
insurance set forth on Schedule AA or similar replacement coverage.
4.3 PERSONAL PROPERTY. BPLP acknowledges that the Property Owners shall
have the right, from and after the date of this Agreement through the Closing
with respect to the Property, to remove or replace items of its Personal
Property from time to time in the normal course of operation of the Property and
any items of Personal Property that are damaged or destroyed by fire or other
casualty. BPLP agrees that the Property Owners may remove items of Personal
Property from the Property (i) if such items are immaterial or are no longer
necessary or appropriate for the use and operation of the applicable Property,
(ii) if such items are obsolete and replaced by Personal Property of equal or
greater utility or value or (iii) which are identified as excluded Personal
Property on Schedule I-1. Any such Personal Property removed shall cease to
constitute "Personal Property" for all purposes under this Agreement.
4.4 LEASING/ESTOPPELS. Each Property Owner agrees that from and after the
date of this Agreement to the Closing Date, it will (i) not cancel, terminate,
modify or amend any of the Leases, or accept the early surrender thereof, enter
into any new leases, or consent to the assignment, subletting or mortgaging of
any lease or space except to the extent required to do so pursuant to the terms
of any applicable Lease, without having obtained in each case the prior written
consent of Transferee, such consent not to be unreasonably withheld or delayed
and to be based upon then prevailing market terms and conditions; (ii) execute
and deliver in the ordinary course of business all new Leases and modifications
or amendments of Leases approved by Transferee in accordance with clause (i), it
being agreed that if Closing occurs hereunder, Transferee shall pay for and
perform all tenant work and tenant allowances required under Leases and
modifications or amendments of Leases approved by Transferee in writing (and
specifically including any Leases which are deemed approved as set forth below)
in accordance with clause
(i) and other Leases which are set forth on the attached Schedule V (but only to
the extent that the tenant work, tenant allowances and leasing commissions with
respect to the Leases identified on Schedule V are specifically noted on such
Schedule V as being Transferee's obligation), and pay any leasing commissions in
connection with all new Leases and modifications and amendments to Leases
approved (or deemed approved hereunder) by Transferee in accordance with clause
(i) (all other tenant work, tenant allowances and leasing commissions to be paid
for and/or performed by the applicable Property Owners prior to Closing); (iii)
diligently endeavor to comply with and perform all material provisions and
obligations to be complied with and/or performed by Property Owners under the
Leases prior to the Closing Date in accordance with past practice; (iv) promptly
upon receipt, provide Transferee with copies of all written notices delivered or
received under the Leases and correspondence received from tenants, neighboring
property owners, any insurance company which carries insurance on its Property,
from any Authorities or from any other person or entity with respect to its
Property or any portion thereof. Notwithstanding anything to the contrary
contained herein, Transferee shall grant or deny all consents or approvals
requested by the Property Owners under this Section 4.4 within five (5) business
days after request therefore (it being agreed that if Transferee fails to deny
such consent or approval within such five (5) business day period, Transferee
shall be deemed to have granted such consent or approval hereunder). The
Property Owners shall send to each tenant a letter (in form reasonably
acceptable to BPLP and the Xxxxxx Parties) and an estoppel certificate in the
form attached hereto as Exhibit 10 or, if applicable, in the form attached to
the subject Lease. Prior to sending out such estoppel certificates, Property
Owners shall consult with Transferee regarding the form of such certificates.
The Property Owners shall, promptly upon receipt, deliver to BPLP copies of all
correspondence or other matters received by the Property Owners in connection
with such estoppel certificates. Property Owners shall use good faith efforts
(without the obligation to expend any amounts in connection therewith, other
than de minimis amounts) to obtain all such certificates.
4.5 OPERATING AGREEMENTS. Except as set forth in Section 44, the Property
Owners shall not enter into any Contract affecting the Property, or any
amendment of any Contract, that will be binding on the Property or BPLP without
having obtained in each case the prior written consent of Transferee, such
consent not to be unreasonably withheld or delayed and to be based upon then
prevailing market terms and conditions. Notwithstanding the foregoing, the
Property Owners may enter into a Contract which by its own terms shall terminate
prior to the Closing Date or is terminable by the Property Owners prior to the
Closing Date (which shall be terminated by such Property Owner unless such
Contract has been designated as an Assigned Contract by BPLP) and which shall
not create any liability for or be binding on the Property or BPLP on or after
the Closing Date. The Property Owners shall not waive, compromise or settle any
rights of the Property Owners under any Assigned Contract, without in each case
obtaining BPLP's prior written consent thereto, such consent not to be
unreasonably withheld or delayed and to be based upon then prevailing market
terms and conditions. Notwithstanding anything to the contrary contained herein,
BPLP shall grant or deny all consents requested by the Property Owners under
this Section 4.5 within five (5) business days after request therefore (it being
agreed that if BPLP fails to deny such consent or approval within such five (5)
business day period, BPLP shall be deemed to have granted such consent or
approval hereunder).
4.6 DAMAGE OR DESTRUCTION; CONDEMNATION. The Property Owners shall
deliver to BPLP written notice of any casualty involving in excess of $50,000 to
repair or any taking involving the Property promptly upon learning of such
casualty or taking. If, prior to the Closing, any Property (each such Property,
a "DAMAGED PROPERTY") is damaged or destroyed by casualty such that the cost to
repair and/or restore such damage and/or destruction (which cost, for purposes
of this Section, shall be deemed to include reasonably anticipated post-Closing
rental loss
not covered by rental loss insurance through completion of such repair and/or
restoration) would exceed Five Million Dollars ($5,000,000) with respect to any
individual Property, or Twenty-Five Million Dollars ($25,000,000) in the
aggregate with respect to all Properties, and the Damaged Property cannot be
repaired and/or restored to substantially the same condition as immediately
prior to such casualty, without termination, amendment or modification of any
Leases or other material agreements relating to such Damaged Property, within
twelve (12) months after the Closing Date (any such event, a "MAJOR CASUALTY"),
then BPLP shall have the right to terminate its obligation to complete the
transaction contemplated under this Agreement in its entirety by delivery of
written notice thereof to the Property Owners within ten (10) Business Days
after BPLP's first learning of the occurrence of such casualty and the Property
Owner's good faith estimate of the cost of such repair and/or restoration,
timing for completion of such repair and/or restoration and confirmation that no
Leases or other material agreements will be terminated, amended or modified as a
result of such casualty. If all or any part of the Property is damaged and/or
destroyed by fire or other casualty prior to the Closing but (i) the event is
not a Major Casualty or (ii) the event is a Major Casualty but BPLP does not
terminate its obligation to complete the transaction contemplated under this
Agreement in its entirety pursuant to this Section 4.6 as a result thereof, then
the Closing Date shall occur as scheduled with respect to such Property
notwithstanding such damage or destruction, and the Property Owner's interest in
all proceeds of insurance payable by reason of such casualty, including, without
limitation, for rental loss to the extent allocable to the period after the
Closing Date, shall be assigned to BPLP as of the Closing Date or credited to
BPLP if previously received by the Property Owner, and the Property Owner shall
also be responsible for the amount of any deductible under such insurance (and
such amount shall be credited to BPLP at the Closing). If, prior to Closing, an
Authority commences any eminent domain or condemnation proceeding to take any
portion of the Property or the Property Owner enters into an agreement in lieu
thereof, and the portion of the Property lost thereby would have a material
adverse effect on the operations of the Property (a "MAJOR CONDEMNATION", and
the effected Developed Property, a "CONDEMNED PROPERTY"), then, except as set
forth below, BPLP shall have the option to terminate its obligation to complete
the transaction contemplated under this Agreement in its entirety by delivery of
written notice thereof to the Property Owners within ten (10) Business Days
after BPLP first learns of such commencement or entry. If, prior to the Closing
Date, an Authority commences any eminent domain or condemnation proceeding to
take any portion of the Property or the Property Owner enters into an agreement
in lieu thereof but (i) such event does not constitute a Major Condemnation or
(ii) the event is a Major Condemnation, but BPLP does not terminate its
obligation to complete the transaction contemplated under this Agreement in its
entirety pursuant to this Section 4.6 as a result thereof, then the Closing Date
shall occur as scheduled notwithstanding such proceeding or entry, and the
Property Owner's interest in all awards or payments arising out of such
proceedings or agreement shall be assigned to BPLP as of the Closing Date or
credited to BPLP if previously received by the Property Owner. The Property
Owner's obligations under this Section shall survive the Closing.
4.7 TESTS AND INSPECTIONS.
(a) The Property Owner hereby authorizes BPLP, its authorized
representatives, agents and employees to enter upon the Property on reasonable
prior notice and in coordination with the applicable Property Owners so that the
timing thereof does not materially interfere with operations at the Property,
from time to time to perform such tests and inspections as BPLP deems necessary
or appropriate in its reasonable discretion, including, without limitation, such
soil boring and compacting tests, test well and water table, soil porosity and
liquid absorption tests, other environmental inspections and tests and
engineering tests. Any entry by BPLP onto the
Property in connection with its due diligence shall not unreasonably interfere
with the rights of tenants under Leases. BPLP hereby agrees to repair any damage
to the Property resulting from the conduct of any test or inspection performed
by BPLP and to indemnify and hold the Xxxxxx Indemnified Partners harmless from
and against any and all Losses arising on account of any test or inspection
performed by BPLP, including, without limitation, for mechanic's liens to the
extent attributable to any test or inspection performed by BPLP. This provision
shall survive a termination of the obligations to complete the transaction
contemplated under this Agreement or Closing.
(b) BPLP, its authorized representatives, its agents and its
employees shall have the right to conduct, from and after the date hereof until
the Closing Date (including for such purpose any later closing date with respect
to each Developed Property which is not acquired on the Closing Date), any and
all due diligence relative to the Property as may be deemed necessary or
appropriate by BPLP in its sole discretion, provided, however, that BPLP shall
not unreasonably interfere with the operations of the Developed Properties,
including the rights of tenants under Leases. Without limiting the foregoing,
the Property Owner shall make available to BPLP for review and copying at BPLP's
election, in a manner which does not unreasonably interfere with the operations
of the Developed Properties, all of its materials, files, books, records,
information and documents relating to the Property, including, without
limitation, all Leases, management agreements, maintenance files, tenant
correspondence, certificates of occupancy, plans and other construction records
for the Improvements, service and other contracts, financial reports, Rent Roll,
existing surveys, permits and other similar or dissimilar materials, to the
extent not previously delivered to BPLP. BPLP shall have the right to talk with
third-parties selected by BPLP in the performance of its due diligence on the
Property.
4.8 MORTGAGE DEBT. Prior to the Closing, the Property Owners will keep
all debt service payments and other payments owed in connection with the
Mortgage Debt current on the Property and will endeavor not to permit or suffer
to exist any monetary or material non-monetary default under any document
evidencing the Mortgage Debt. All costs, fees and charges required to be paid
to a holder of Mortgage Debt or on behalf of such holder in connection with the
repayment or assumption (or other continued existence) and amendment of the
Mortgage Debt shall be paid by the Property Owners at or prior to the Closing
(except only as and to the extent set forth in Section 1.9 with respect to
certain prepayment premiums and charges, and as applicable, the NML Closing
Costs). Prior to the Closing Date with respect to the 500 Series Properties,
the Property Owners of such 500 Series Properties shall diligently and in good
faith undertake to completion the refinancing of the Mortgage Debt encumbering
such 500 Series Properties in accordance with the 500 Series NML Commitment and
the terms and conditions of this Agreement.
4.9 AVAILABILITY OF RECORDS. Each Existing Partner and Assignor agrees to
cooperate with Transferee to permit Transferee to obtain any information needed
from any Assignors or the Existing Partners to enable Transferee to file any
necessary tax returns. Upon written request of Transferee, for a period of two
(2) years after the Closing, the Existing Partners and Assignors shall (i) make
their respective records relating to the Properties, the Property Owners, the
Partnership Interests, the Assignors and the Assets available to Transferee for
inspection, copying and audit by Transferee's designated accountants at
Transferee's sole cost and expense, and (ii) cooperate with Transferee to the
extent reasonably necessary to obtain any applicable Licenses not in existence
on the Closing Date and necessary for the operation of the Property. Without
limiting the foregoing and in addition thereto, for the period of time
commencing on the date of this Agreement and continuing through the second (2nd)
anniversary of the Closing Date, the Existing
Partners and Assignors shall, from time to time, upon reasonable advance notice
from Transferee, provide Transferee and its representatives, agents and
employees with access to all financial and other information in its possession
relating to the Developed Properties, the Property Owners, the Assignors, the
Partnership Interests and the Assets pertaining to the period of the Property
Owner's ownership in and operation of, as the case may be, the Developed
Property, which information is relevant and reasonably necessary, in the opinion
of Transferee's outside, third party accountants (the "ACCOUNTANTS"), to enable
Transferee and its Accountants to prepare financial statements in compliance
with any or all requirements of (a) Rule 3-14 of Regulation S-X of the
Commission; (b) any other rule issued by the Commission and applicable to
Transferee; and (c) any registration statement, report or disclosure statement
filed with the Commission by, or on behalf of, Transferee. The Existing Partners
and Assignors acknowledge and agree that the following is a representative
description of the information and documentation that Transferee and the
Accountants may require in order to comply with (a), (b) and (c) above. The
Existing Partners and Assignors shall provide such information, and
documentation in existence as of the date of this Agreement. The Existing
Partners' and Assignors' obligations under this Section 4.9 shall survive the
Closing.
(a) Applicable Rent Roll for the calendar month in which the Closing
occurs and the eleven (11) calendar months immediately preceding the calendar
month in which the Closing occurs;
(b) The Property Owners' and Assignors' internally-prepared operating
statements;
(c) Access to applicable Leases;
(d) The Property Owners' and Assignors' budgeted annual and monthly
income and expenses, and actual annual and monthly income and expenses;
(e) Access to the Property Owners' and Assignors' cash receipt
journal(s) and bank statements for the Property;
(f) The Property Owners' general ledger with respect to the Property;
(g) The Property Owners' schedule of expense reimbursements required
under Leases in effect on the Closing Date, if one exists;
(h) Schedule, if one exists, of those items of repairs and
maintenance performed by, or at the direction of the Property Owners, during the
Property Owners' final fiscal year in which the Property Owners owned and
operated the Property (the "FINAL FISCAL YEAR").
(i) Schedule, if one exists, of those capital improvements and fixed
asset additions made by, or at the direction of, the Property Owners during the
Final Fiscal Year;
(j) Access to the Property Owners' invoices with respect to
expenditures made during the Final Fiscal Year;
(k) Access (during normal and customary business hours) to
responsible personnel to answer accounting questions; and
(l) a representation letter, signed by the individual(s) responsible
for the Property Owners' and Assignors' financial reporting, as prescribed by
generally accepted auditing standards promulgated by the Auditing Standards
Division of the American Institute of Certified Public Accountants, which
representation letter may be reasonably required to assist the Accountants in
rendering an opinion on such financial statements.
4.10 TITLE AND SURVEY DEFECTS. The Property Owners shall not knowingly and
voluntarily encumber or create any exception to title to the Developed Property
that is not removed on or before Closing.
4.11 EMPLOYEE MATTERS.
(a) Employment. On or before June 1, 1998, the Xxxxxx Parties will
present to Transferee a list of employees of the Assignors (the "EXISTING
EMPLOYEES"). Transferee and the Xxxxxx Parties will thereafter meet to review
and consider such list in good faith and in the context of the stated goal of
Transferee and the Xxxxxx Parties to achieve economies of scale in connection
with the contemplated transactions, including through overhead efficiencies and
cost savings and the consolidation and elimination of duplicative operations.
The parties hereto acknowledge that any offer of employment by Transferee shall
be made on an individual basis following Transferee's evaluation, in its sole
discretion, of Transferee's staffing requirements, which consideration may
include interviewing Existing Employees, consideration of such Existing
Employees salaries and other compensation and benefits and current or prior
reviews. Any offer of employment by Transferee shall be on terms satisfactory
to Transferee in its sole discretion. Notwithstanding the foregoing, and without
having conducted any such evaluation, it is the Transferee's present intent (as
of the date of this Agreement) that Transferee, or its affiliates, will offer
employment opportunities to many or substantially all of the Existing Employees.
Attached hereto as Exhibit 14 is a summary statement of the Boston Properties
policies, as of the date of this Agreement, regarding benefits anticipated to be
offered to Existing Employees who are offered employment by Boston Properties,
provided, however, that Boston Properties reserves the right to make variations
to such policies, either in general or with respect to any particular matter,
and in so doing, may take into account such matters as Boston Properties may
deem applicable, including without limitation, job descriptions,
responsibilities, cost of living and prevailing market terms and conditions.
All Existing Employees not employed by Transferee, or its affiliates, as of the
Closing Date pursuant to this Section (collectively, "NON-CONTINUING EMPLOYEES")
shall not be employed by, or deemed employed by, Transferee or its affiliates.
(b) Severance. Transferee shall not have any responsibility for
payment of any severance or other benefits to Non-Continuing Employees, it being
acknowledged and agreed that the Xxxxxx Parties shall be solely responsible for
paying any such benefits, pursuant to the existing policies and legal
obligations, if any, of the Assignors or otherwise. Transferee and the Xxxxxx
Parties further agree that the Xxxxxx Parties shall also be responsible for any
liabilities, damages or other payments paid or payable to, or claimed by, any
Non-Continuing Employees, including without limitation, all employees of the
Assignors who are terminated in connection with the transactions contemplated by
this Agreement, including without limitation, the cost of investigating and
defending any such claims.
(c) Vacation, Sick Leave, Etc. The Xxxxxx Parties shall be
responsible for all vacation, sick leave, and all other pension and welfare
benefits (i) accruing to and including the day immediately preceding the Closing
Date with respect to the Existing Employees and (ii) with respect to the Non-
Continuing Employees. In no event shall Transferee assume or continue any
benefit plans maintained by the Xxxxxx Parties for the Existing Employees
(including without limitation, the Non-Continuing Employees).
4.12 COOPERATION WITH TRANSFEREE. The Property Owners and Transferee shall
cooperate with each other and do all acts as may be reasonably required or
requested by the other with regard to the fulfillment of any condition to the
Property Owners' or Transferee's, as the case may be, obligations hereunder,
provided, however, in no event shall the obligations of Property Owners and
Transferee which arise exclusively as a result of this Section 4.12 increase the
liability on the part of each such person under this Agreement other than de
minimis amounts.
4.13 COVENANTS OF ALL EXISTING PARTNERS. Each Existing Partner agrees that
from the date of this Agreement to the Closing Date, it will not voluntarily
encumber, assign, transfer or convey any of the Partnership Interests which are
the subject of this Agreement (except only to another Xxxxxx Party and only
after written notice of such transfer or other action has been given to
Transferee). Each Existing Partner shall cooperate and do all acts (including
executing and delivering a copy of the completed Schedule A-1 as contemplated by
Section 2.1(s)) as may be reasonably required or requested by Transferee or the
Properties Owners to fulfill any condition to Transferee's obligations
hereunder.
4.14 TAX APPEALS. Property Owners agree that they will not, without the
prior written consent of BPLP such consent not to be unreasonably withheld or
delayed (it being agreed that if BPLP fails to deny such consent within ten (10)
business days after request therefore, BPLP shall be deemed to have granted such
consent hereunder), settle prior to the Closing Date, any proceeding or
application for a reduction in the real estate tax assessment of the Property
for the current tax year unless required by a tenant pursuant to such tenant's
Lease.
4.15 TAX TREATMENT NOTIFICATION. If, to BPLP's Knowledge, BPLP receives
written notice of any challenge or examination by the Internal Revenue Service
with respect to the treatment of the Units as equity interests in BPLP for
federal income tax purposes, BPLP shall promptly thereafter notify Xxxx X.
Xxxxxx of the existence of any such challenge or examination.
4.16 IDENTIFIED BREACHES. If, to the Xxxxxx Parties' Knowledge, it is
probable that there will be an Identified Breach on the Confirmation Certificate
to be delivered at Closing, then Xxxx X. Xxxxxx shall notify the Transferee in
writing of such fact a reasonable period of time prior to the scheduled Closing
Date or, if earlier, as soon as practicable after such determination by the
Xxxxxx Parties. If there is or will be an Identified Breach, the Xxxxxx
Parties' will cooperate in providing such information as Transferee reasonably
requests with respect thereto.
ARTICLE 5 - CLOSING ADJUSTMENTS
All apportionments with respect to each Property shall be made in
accordance with customary practice in the county in which the Property is
located, except as expressly provided herein.
5.1 TAXES, ASSESSMENTS AND UTILITIES. All real estate taxes, charges and
assessments affecting the Property and to the extent not paid by tenants, all
charges for water, sewer, electricity, gas, telephone and all other utilities
with respect to the Property, shall be apportioned on a per diem basis as
provided below. General real estate taxes payable for the fiscal year in which
the Closing occurs shall be prorated by the Property Owners and BPLP as of the
Closing
Date. The Property Owners shall pay on or before Closing the full amount of any
bonds or assessments against the Property, including, without limitation,
interest payable therewith, except only those bonds or assessments set forth on
the attached Schedule M, but including, without limitation, any bonds or
assessments which are not set forth on such Schedule M that may be payable after
the Closing Date as a result of or in relation to the construction or operation
of any improvements on the Land or any public improvements that took place or
for which any assessment was levied prior to the Closing Date. If any prorations
under this Section cannot be calculated finally on the Closing Date, then they
shall be estimated at the Closing and calculated finally as soon after the
Closing Date as feasible. The parties' obligations under this Section 5.1 shall
survive the Closing.
5.2 RENT.
(a) To the extent that any tenant is entitled to any rebate, concession,
deduction or offset under its Lease, such entitlement shall be included as a
closing adjustment, except that free rent under any Leases shall not be adjusted
(but rather shall be incurred by the applicable Property Owner with respect to
the period prior to Closing and shall be incurred by BPLP with respect to the
period from and after Closing). Further, except as otherwise set forth in this
Agreement or on Schedule V attached hereto and as to Leases entered into after
the date of this Agreement with the prior written consent (or deemed consent) of
Transferee in accordance with Section 4.4 above, to the extent that any tenant
is entitled to future tenant improvements work under existing Leases (and
without regard to subsequent amendments, extensions or other agreements) to be
paid for by the landlord or tenant is entitled to future tenant improvements
work to be paid for by the landlord, or tenant improvement allowances to be
funded in the future by the landlord under such tenant's Lease, the amount of
landlord's liability and the amount of such allowance for such work shall be
included as a closing adjustment by reducing the portion of the Assigned Value
allocable to the Partnership Interests of the Property Owner which owns the
Developed Property which is subject to such Lease. Monthly rent payable by
tenants shall be adjusted as of 11:59 p.m. on the day immediately preceding the
Closing Date, and any such rent for the month in which the Closing occurs) shall
be paid to Transferee by adjustment to the Contribution Price. Estimated
adjustments will be made on the Closing Date on a reasonable basis for estimated
operating expenses paid by tenants as additional rent. Notwithstanding anything
to the contrary contained in Section 5.1 above or in this Section 5.2, it is the
intent of the Xxxxxx Parties and the Transferee that prorations of all operating
expenses with respect to the full year 1998 shall be made as follows:
(i) All Additional Rent (as hereinafter defined) collected by the Xxxxxx
Parties with respect to the period from January 1, 1998 through June 30, 1998
shall be credited to BPLP. In addition, to the extent that the base rent
collected from any tenant includes a base year component (the "Base Year
Amount"), the Base Year Amount collected by the Xxxxxx Parties with respect to
the period from January 1, 1998 through June 30, 1998 shall be credited to BPLP.
(ii) Any base rent and Additional Rent remitted to the Xxxxxx Parties from
and after the Closing Date shall be remitted to BPLP.
(iii) The Xxxxxx Parties shall be credited with all operating expenses
paid by them with respect to the period from January 1, 1998 through June
30,1998.
(iv) No separate adjustment shall be made with respect to the real estate
taxes or utilities. BPLP shall pay all unpaid bills and invoices (whether
received prior to or subsequent to the Closing
Date, but only if the same are included as operating expenses for purposes of
calculating escalations under tenant leases) and shall pay all real estate taxes
for the Properties.
Notwithstanding anything contained herein to the contrary, neither party
shall profit or be penalized by any material change in the occupancy of the
Properties and that neither the Xxxxxx Parties nor BPLP will benefit from the
pro-ration of operating expenses during calendar year 1998.
(b) Any of the following charges and/or rents provided for by any Lease
(but without duplication): (A) the payment of additional rent based upon a
percentage of the tenant's business during a specified annual or other period
(sometimes referred to as "percentage rent"), (B) common area maintenance or
"CAM" charges, (C) "escalation rent" or additional rent based upon real estate
taxes, insurance, operating expenses, labor costs, cost of living, or other
index including the consumer price index or otherwise, or (D) any other items of
additional rent, however determined, e.g., charges for electricity, water,
utilities, cleaning, overtime services, sundries and/or miscellaneous charges
and building expenses, shall be adjusted and prorated on an if, as and when
collected basis (such percentage rent, CAM charges, escalation rent and other
additional rent being collectively called "ADDITIONAL RENT").
(c) Rent and such tenant charges (excluding Additional Rent) which are due
but uncollected as of the Closing Date shall not be adjusted, but, with respect
to tenants whose rent is no more than 120 days in arrears, provided the Property
Owners (or, if after the Closing, the applicable Existing Partners) provide in a
timely manner all back-up materials, reconciliations and other information
requested by tenants with respect thereto, Transferee shall remit promptly to or
on behalf of the applicable Existing Partners any such amounts actually paid by
such tenants to Transferee (provided that such amounts shall be in excess of the
then current rent and other charges due (including Additional Rent), including
for such purpose, all past due amounts which relate to the period from and after
the Closing Date) within twelve (12) months after the Closing Date. Transferee's
obligations with respect to such delinquent rent and other charges shall be
limited to billing the applicable tenant therefor, monthly for the six (6) month
period commencing on the Closing Date (and remitting to the applicable Existing
Partners amounts actually received on account of such delinquent rent as
provided above). Notwithstanding anything to the contrary in the foregoing, the
applicable Existing Partners retain all rights against former tenants whose
Leases have expired or have been terminated and possession discontinued prior to
the date of this Agreement (or, the Closing Date with respect to Leases
terminated after the date of this Agreement with the prior written approval of
Transferee) and, with respect to tenants who do not pay all past due rent within
six (6) months after the Closing Date, the applicable Existing Partners shall
have the right, upon prior written notice to BPLP, to pursue tenants to collect
such delinquencies (including, without limitation, the prosecution of one or
more lawsuits), provided, however, that BPLP shall have no obligation to join in
such lawsuits or other pursuits, and provided further, however, that the
Existing Partners shall not be entitled to evict (by summary proceedings or
otherwise) any such tenants or otherwise effect BPLP's or such tenant's rights
under the applicable Lease. Except as otherwise adjusted at Closing, but subject
to the terms and conditions of this Section 5.2, Transferee shall be obligated
to pay to the applicable Existing Partners any payments of rent made to
Transferee by any tenants applicable to the period prior to the Closing Date.
The parties agree that in the event that any tax appeals relating to any
Property, whether now existing or hereafter filed, results in any rebate of real
property or other taxes paid for such Property, such rebate (after deducting
therefrom all costs and expenses of procuring the same, and amounts owing to the
tenants of such Property for the period of such rebate) shall be prorated as of
the Closing Date between the respective applicable Existing Partners and
Transferee based on respective
periods of ownership. All prepaid rentals, tenant security deposits, whether
cash or non-cash (including security deposits for tenants who owe rent or other
charges on the Closing Date), together with all interest required to be paid
thereon which has accrued through the Closing Date, shall be delivered to
Transferee on the Closing Date. Promptly following the Closing Date, the
applicable Existing Partners shall request any tenants who have posted letters
of credit as security deposits to have such security deposits amended or re-
issued, if necessary, so that they run to the benefit of BPLP, if applicable, as
landlord under the Leases. If any prorations under this Section cannot be
calculated finally on the Closing Date, then they shall be estimated at the
Closing and calculated finally as soon after the Closing Date as feasible. This
Section 5.2 shall survive the Closing.
5.3 PAYMENTS ON PERMITTED EXCEPTIONS. Payments owing under any Permitted
Exceptions shall be apportioned on a per diem basis as of 11:59 p.m. on the date
immediately preceding the Closing.
5.4 CERTAIN PAYABLES. All of the Mortgage Debt and the Payables which
are credited against the Contribution Price under Section 1.1(d)(iv), constitute
qualified liabilities within the meaning of Section 1.707-5(a)(6) of the Code.
All such Payables shall thereafter be expenses of BPLP and shall be paid by
BPLP. This Section 5.4 shall survive the Closing.
5.5 PARTNERS' ELECTIONS. All costs and expenses associated with
preparing, printing, distributing and collecting the Consents, including,
without limitation, all federal and state securities filings associated
therewith (excluding, however state and federal "blue sky" filings), shall be
the responsibility of the Existing Partners.
5.6 ASSESSMENTS/CONDOMINIUM CHARGES. Association assessments (including
condominium charges of any kind or nature) which are attributable to the period
on or before the Closing Date or which are due and payable as of the Closing
Date shall be paid by the Property Owners or allowance therefor made at Closing
by a decrease in the portion of the Contribution Price payable to the applicable
Existing Partners.
5.7 REIMBURSEMENT FOR DEPOSITS. At the Closing, (a) all cash balances
maintained by the Property Owners in unrestricted bank accounts may be withdrawn
and retained by the Existing Partners, (b) all receivables of the Property
Owners set forth on Schedule DD shall be treated as a credit to the Existing
Partners for the purposes of adjustments made pursuant to this Article 5 and (c)
BPLP shall replace all letters of credit, bond deposits, sinking funds, escrows,
similar funds and other amounts relating to the Properties as set forth on
Schedule DD. All of the foregoing payments shall be made in cash at the Closing
and none of the foregoing shall have any effect on the calculation of the
Contribution Price under this Agreement.
5.8 POST-CLOSING AUDIT. On or before March 31, 1999, BPLP shall cause a
post-Closing audit to be conducted by Coopers & Xxxxxxx, LLP (or such other
accounting firms as may be selected by BPLP and reasonably satisfactory to the
Xxxxxx Parties) to determine the accuracy of all prorations made under this
Article (the "POST-CLOSING AUDIT"). The Xxxxxx Parties shall have the right to
review and reasonably approve the results of such Post-Closing Audit. In the
event the Xxxxxx Parties do not so approve the results of such Post-Closing
Audit, BPLP and the Xxxxxx Parties shall jointly retain another accounting firm
(which accounting firm shall be reasonably satisfactory to BPLP and the Xxxxxx
Partners) to review such Post-Closing Audit. Any decision of such other
accounting firm with respect to such Post-Closing Audit shall be binding upon
BPLP and the Xxxxxx Parties. Any party owing another party a sum of money based
on post-
Closing prorations required under this Article or the Post-Closing Audit, as
reasonably approved by BPLP and the Property Owners, shall promptly pay such sum
to theother party, together with interest thereon at the Reference Rate (as
hereinafter defined) from the Closing Date to the date of payment if payment is
not made within ten (10) days after delivery of a xxxx therefor. This Section
5.8 shall survive Closing.
ARTICLE 6 - DEFAULTS, TERMINATIONS AND REMEDIES
6.1 DEFAULTS AND TERMINATION RIGHTS. In the event (i) any conditions
precedent, as set forth in Article 2 above, to the obligations of a party have
not been satisfied (or waived in writing by the other party) on or before the
Closing Date (as the same may be extended pursuant to this Agreement or by
agreement of the parties), and any such conditions precedent remains unsatisfied
for more than fifteen (15) days following receipt of notice thereof from the
other party or (ii) of a failure by a party to perform any of its obligations
hereunder in any material respect, which failure continues for more than fifteen
(15) days following receipt of notice thereof from the other party, then the
other party shall have the right to terminate its obligation to complete the
transaction contemplated under this Agreement by delivery of notice thereof to
the other party. In the event of a failure of a condition to a party's
obligations under this Agreement, such party shall, as its sole and exclusive
remedy (except as set forth in this Article below), subject to Transferee's
right to return of the Deposit (as defined below), either elect to terminate its
obligation to complete the transaction contemplated under this Agreement or to
waive satisfaction of such condition, each by delivery of notice thereof to the
other party. Subject to the terms of this Article below, upon any such
termination or any termination otherwise permitted under this Agreement, all
rights and obligations of the parties under this Agreement, other than those
that by their terms survive termination, shall terminate without recourse, and
this Agreement shall be of no further force or effect.
Notwithstanding anything to the contrary contained in this Agreement,
unless caused by fraud or willful breach by a Property Owner and/or any Existing
Partner, the Xxxxxx Parties shall not be deemed to be in breach of its
obligations under this Agreement with respect to any Prohibited Fee Properties
if and for so long as the applicable Xxxxxx Parties (i) diligently and
continuously comply with their respective obligations with respect to such
Properties as set forth in Sections 1.1 and 1.3, including, without limitation,
the obligation to use good faith efforts to cure any such breach or
noncompliance (and to diligently and continuously pursue any applicable
litigation, arbitration or other actions in connection with any Prohibited Fee
Property) and upon such cure to cause the applicable Property (or the applicable
Partnership Interests) to be conveyed to BPLP and (ii) enter into a Notice of
Purchase Right and a Prohibited Fee Property Management Agreement with respect
to each such Property.
6.2 REMEDIES OF TRANSFEREE. In addition to its right to terminate this
Agreement, as provided elsewhere in this Agreement, upon the occurrence on or
before Closing of a willful breach by a Property Owner, any Existing Partner
and/or any Assignor in the performance of any of their respective obligations
under this Agreement, which willful breach continues for more than fifteen (15)
days following receipt of notice thereof (but subject to the terms and
conditions and additional cure periods set forth in Section 1.1(d)(iii), if
applicable), Transferee shall also have the right, as its sole and exclusive
remedy other than termination, to seek and obtain specific performance of the
terms of this Agreement, including without limitation the right to seek and
obtain specific performance of the conveyance to BPLP (in accordance with the
terms and
procedures contained in this Agreement) of the Partnership Interests and/or Fee
Properties (including Prohibited Fee Properties).
6.3 LIQUIDATED DAMAGES. THE PARTIES HERETO ACKNOWLEDGE THAT THIS AGREEMENT
HAS BEEN EXECUTED AT THE FIRST CLOSING HEREUNDER. THE PROPERTY OWNERS HEREBY
AGREE THAT THEY SHALL NOT BE ENTITLED TO ACTUAL DAMAGES UPON A TERMINATION OF
THIS AGREEMENT AND THAT IF THE PROPERTY OWNERS TERMINATE THIS AGREEMENT WHEN
PERMITTED HEREUNDER PURSUANT TO SECTION 6.1, THE APPLICABLE PROPERTY OWNERS
SHALL ONLY BE ENTITLED TO THE AMOUNT OF $1,500,000 (THE "LIQUIDATED AMOUNT")
UPON DEMAND THEREFOR FOLLOWING SUCH TERMINATION. THE PROPERTY OWNERS AGREE THAT
IT IS IMPOSSIBLE TO CALCULATE WHAT THEIR ACTUAL DAMAGES WOULD BE IN THE EVENT OF
SUCH A TERMINATION, AND THE PROPERTY OWNERS AGREE THAT THE LIQUIDATED AMOUNT IS
A REASONABLE ESTIMATION THEREOF. THEREFORE, THE APPLICABLE PROPERTY OWNERS
ACKNOWLEDGE THAT THEIR RIGHT TO THE LIQUIDATED AMOUNT SHALL CONSTITUTE
LIQUIDATED DAMAGES AND THEIR SOLE RIGHT AND REMEDY UPON A TERMINATION BY THEM OF
THIS AGREEMENT PURSUANT TO SECTION 6.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS SECTION, NOTHING CONTAINED IN THIS SECTION SHALL BE DEEMED TO
LIMIT TRANSFEREE'S LIABILITY UNDER ITS INDEMNITY CONTAINED IN SECTION 7.4.
6.4 POST-CLOSING REMEDIES. The parties hereto acknowledge and agree that
the limitations on remedies contained in this Article only apply in the event
that the transactions contemplated under this Agreement do not occur and do not,
subject to the terms of Article 7, apply post-Closing. As to Developed
Properties and Assets which have been acquired by BPLP, the sole remedies from
and after the Closing Date for such Developed Properties and Assets shall be as
set forth in Article 7.
ARTICLE 7- INDEMNIFICATION
7.1 SURVIVAL.
(a) All representations and warranties of Xxxx X. Xxxxxx, the
Existing Partners and the Assignors contained in this Agreement or in the
Representation Letter shall survive the Closing regardless of any investigation
made as follows: (x) the representations and warranties set forth in Section
3.1(a), the first sentence of Section 3.1(b), Section 3.1(n), Section 3.1(s) and
Section 9.1 of this Agreement and in the Representation Letter, shall survive
the Closing indefinitely (the "SPECIFIED REPRESENTATIONS") and (y) (i) the
representations and warranties set forth in Section 3.1(k) shall survive only
until (but excluding) the date which is the second anniversary of the Closing,
(ii) the representations and warranties set forth in Section 3.1(u) shall
survive only until (but including) the expiration of the statute of limitations
with respect to the contribution of Partnership Interests at the first Closing
Date as contemplated by this Agreement, and (iii) the representations and
warranties set forth in Section 3.1(v) shall survive until (and including) the
date that the AT&T Obligations are paid or otherwise satisfied in full, and (z)
all other representations and warranties shall survive only until (but
excluding) the date which is the first anniversary of the Closing (such
representations and warranties in clauses (y) and (z), the "LIMITED SURVIVAL
REPRESENTATIONS") provided that, if a Notice of Claim asserting a claim for
breach of any such Limited Survival Representations or a claim for
indemnification under this Article 7 with respect to any such Limited Survival
Representations shall have been given prior to the expiration of such Limited
Survival Representations, such Limited Survival Representations shall survive,
to the extent of the claim only, until such claim is resolved.
(b) All representations and warranties of BPLP and of Boston
Properties contained in this Agreement shall survive the Closing regardless of
any investigation made as follows: (x) the representations and warranties set
forth in Section 3.2(a), the first sentence of Section 3.2(b), Section 3.2(d),
the first sentence of Section 3.2(j) and Section 9.1 of this Agreement shall
survive the Closing indefinitely (the "SPECIFIED TRANSFEREE REPRESENTATIONS"),
(y) the representations and warranties set forth in Section 3.2(l) shall survive
only until (but including) the expiration of the statute of limitations with
respect to the contribution of Partnership Interests at the first Closing Date
as contemplated by this Agreement and (z) all other representations and
warranties shall survive only until (but excluding) the date which is the first
anniversary of the Closing (such representations and warranties in clauses (y)
and (z), the "LIMITED SURVIVAL TRANSFEREE REPRESENTATIONS") provided that, if a
Notice of Claim asserting a claim for breach of any such Limited Survival
Transferee Representations or a claim for indemnification under this Article 7
with respect to any such Limited Survival Transferee Representations shall have
been given prior to the expiration of such Limited Survival Transferee
Representations, such Limited Survival Transferee Representations shall survive,
to the extent of the claim only, until such claim is resolved.
(c) With respect to any claim by a party hereto for indemnification
for a Loss resulting from the breach of the representations or warranties
contained in this Agreement (or, with respect to the applicable Xxxxxx Parties,
the Representation Letters), notice of such claim ("NOTICE OF CLAIM") must be
given to the relevant other party within the survival period for the relevant
representation or warranty. Notwithstanding the foregoing, claims brought by (i)
any Transferee Indemnified Party in connection with any Limited Survival
Representation which is untrue as a result of fraud by the party making it or
(ii) any Xxxxxx Indemnified Party in connection with any Limited Survival
Transferee Representation which is untrue as a result of fraud by the party
making it, may be brought at any time, without regard to the limitations on
survival set forth in this Section 7.1 above.
7.2 INDEMNIFICATION BY THE XXXXXX PARTIES. Subject to the limitations on
the indemnification obligations set forth in this Article 7, if the Closing
occurs, from and after the Closing Date, (i) Xxxx X. Xxxxxx agrees to indemnify,
defend and hold harmless the BPLP Indemnified Parties from and against all
Losses which are incurred or suffered by any one or more of them based upon,
arising out of, in connection with or by reason of (A) the breach by Xxxx X.
Xxxxxx of the representations and warranties in his Representation Letter or the
breach by any Xxxxxx Party of the Limited Survival Representations and/or the
Specified Representations under this Agreement (except that, with respect to the
Limited Survival Representations only, Xxxx X. Xxxxxx' liability under this
Article 7 shall be limited to the Units pledged or other collateral provided to
Transferee pursuant to Section 7.8 below) or (B) any Excluded Liability or (C)
any Partnership Claim and (ii) each Existing Partner and each Assignor
(severally and not jointly) agrees to indemnify, defend and hold harmless the
BPLP Indemnified Parties from and against all Losses which are incurred or
suffered by any one or more of them based upon or arising out of (A) any breach
of representation or warranty made by such person in this Agreement or in such
person's Representation Letter or (B) any Excluded Liability which is or was a
liability of such Existing Partner of Assignor.
7.3 LIMITATIONS ON CERTAIN INDEMNIFICATION OBLIGATIONS OF THE XXXXXX
PARTIES. With respect to the indemnification obligations under Section 7.2, the
following provisions, if and to the extent applicable, shall apply:
(a) Time Limit Regarding Limited Survival Representations. The
indemnity obligations shall not apply to any Loss based upon a breach of the
Limited Survival Representations as to which the Transferee Indemnified Party
did not give a timely Notice of Claim in accordance with Section 7.1(c).
(b) Minimum Threshold for Claims for Losses: Credit. Xxxx X. Xxxxxx,
the Existing Partners and the Assignors shall have no liability to the
Transferee Indemnified Parties for the first $500,000 of Losses incurred by the
Transferee Indemnified Parties under this Agreement and the Properties Under
Development Contribution Agreement (other than with respect to (i) Excluded
Liabilities which relate to the Northwestern Mutual Commitment and (ii) the AT&T
Obligations, for which Xxxx X. Xxxxxx and the Existing Partners shall have
liability for all Losses incurred by the Transferee Indemnified Parties). In
addition, the Transferee Indemnified Parties shall, upon the first Closing
hereunder (or any subsequent Closing hereunder with respect to the 500 Series
Properties only), be deemed to have waived (i) any right to indemnification with
respect to Losses which relate solely to an Identified Breach if such Identified
Breach was a Material Adverse Effect, and BPLP nevertheless elected to
consummate the transactions contemplated by this Agreement on the first Closing
Date hereunder (if the Identified Breach which was a Material Adverse Effect
does not relate to the 500 Series Properties and the 500 Series Properties are
not acquired on the first Closing Date hereunder), notwithstanding the existence
of such Material Adverse Effect and (ii) any right to indemnification with
respect to Losses which relate solely to an Identified Breach if such Identified
Breach was a Material Adverse Effect with respect to one or more of the 500
Series Properties, and BPLP nevertheless elected to consummate the acquisition
of such 500 Series Properties on the applicable Closing Date with respect to
such properties, notwithstanding the existence of such Material Adverse Effect.
(c) Maximum Liability for Breaches of Limited Survival
Representations: Cap. Except in the case of fraudulent conduct, the aggregate
liability of Xxxx X. Xxxxxx, the Existing Partners and the Assignors
(collectively, the "XXXXXX INDEMNITORS") for Losses incurred with respect to
Limited Survival Representations and the "Limited Survival Representations"
under the Properties Under Development Contribution Agreement shall not exceed
$15,000,000; provided, however, that in the event that the 500 Series Properties
are acquired by BPLP prior to the satisfaction in full or other discharge of the
AT&T Obligations, the aggregate liability of the Xxxxxx Indemnitors for Losses
incurred with respect to Limited Survival Representations shall increase by the
difference between (i) $2,000,000.00 minus (ii) amounts actually paid by the
Xxxxxx Indemnitors in reduction of the AT&T Obligations identified on that
certain Tenant Estoppel Certificate of AT&T dated as of June 30, 1998 (such
amount, the "LIMITED SURVIVAL INDEMNITY INCREASE").
(d) Third Party Recoveries. There shall be netted from any payment
for a Loss required under Section 7.2: (i) the amount of any indemnification
received by the indemnified party from an unrelated party with respect to such
Loss and (ii) the amount of any insurance proceeds or other cash receipts paid
to the indemnified party against any such Loss provided, however, that any such
recoveries from unrelated parties and/or insurers shall not reduce the maximum
aggregate liability of the applicable Xxxxxx Parties under Section 7.3(c) above.
(e) Pledged Units. The indemnity obligations of the Xxxxxx Parties
under this Article 7 shall be satisfied by any BPLP Indemnified Party in all
cases first against Units pledged or other collateral provided under Section 7.8
below. In the event that notwithstanding such requirement, for any reason an
indemnification claim is paid by any Xxxxxx Party Indemnitor under Section 7.2
hereof (whether by judgment, arbitration award, settlement or otherwise) to any
BPLP Indemnified Party then Transferee shall release Units or other collateral,
if applicable, from the pledge under Section 7.8 having a value equal to the
amount so paid.
7.4 INDEMNIFICATION BY THE TRANSFEREE. Subject to the limitations on the
indemnification obligations set forth in this Article 7, if the Closing occurs,
from and after the Closing Date, each of Boston Properties and BPLP agrees to
indemnify, defend and hold harmless the Xxxxxx Indemnified Parties from and
against all Losses which are incurred or suffered by any one or more of them (A)
based upon, arising out of, in connection with or by reason of the breach of any
of the representations or warranties of Transferee in this Agreement, (B) based
upon, arising out of, in connection with or by reason of any Assumed Liability,
(C) based upon, arising out of, in connection with or by reason of any claim for
personal liability brought by any holder of the Continuing Mortgage Debt against
any Xxxxxx Indemnified Party pursuant to guaranty or other provisions contained
in the documents evidencing such Continuing Mortgage Debt as of the Closing
Date, but only if and to the extent such liability arises and relates solely to
the period from and after the Closing Date or (D) based upon or arising out of
BPLP's operation or ownership of the Property Owners (or their successors and
assigns) or their respective assets after the Closing Date, but only if and to
the extent such liability arises and relates solely to the period from and after
the Closing Date (and further, only to the extent that the BPLP Indemnified
Parties are not entitled to indemnification for such matter by any Xxxxxx Party
under this Article 7).
7.5 LIMITATIONS ON CERTAIN INDEMNIFICATION OBLIGATIONS OF THE TRANSFEREE.
With respect to the indemnification obligations under Section 7.4, the following
provisions, if and to the extent applicable, shall apply:
(a) Time Limit. The indemnity obligations shall not apply to any Loss
based upon a breach of the Limited Survival Transferee Representations as to
which the Xxxxxx Indemnified Parties did not give a timely Notice of Claim in
accordance with Section 7.1(c).
(b) Third Party Recoveries. There shall be netted from any payment
for a Loss required under Section 7.4: (i) the amount of any indemnification
received by the indemnified party from an unrelated party with respect to such
Loss and (ii) the amount of any insurance proceeds or other cash receipts paid
to the indemnified party against any such Loss.
(c) Tax Consequences. Notwithstanding anything to the contrary
contained in this Agreement, the Xxxxxx Parties acknowledge that neither Boston
Properties nor BPLP nor any Affiliate of either of them shall assume any
responsibility for the tax consequences of the transaction contemplated by this
Agreement and the Related Agreements to any Xxxxxx Party except only to the
extent provided in any applicable Tax Protection Agreement.
7.6 INDEMNIFICATION PROCEDURE.
(a) Notice of Claim: In the event that any party shall incur or
suffer any Losses in respect of which indemnification may be sought by such
party pursuant to the provisions of this Article 7, the party seeking to be
indemnified hereunder (the "INDEMNITEE") shall promptly provide a Notice of
Claim to the party from whom indemnification is sought (the "INDEMNITOR")
stating the nature and basis of such claim, and the estimated amount of the
claim, to the extent specified of otherwise known or reasonably estimated. In
the case of Losses arising by reason of any third party claim, the Notice of
Claim shall be given promptly after the filing of any such claim against the
Indemnitee or the determination by Indemnitee that a claim will ripen into a
claim for which indemnification will be sought, but the failure of the
Indemnitee to give the Notice of Claim within such time period shall not relieve
the Indemnitor of any liability that the Indemnitor may have to the Indemnitee
except to the extent that the Indemnitor is prejudiced thereby and then only to
the extent of such prejudice.
(b) Information: The Indemnitee shall provide to the Indemnitor on
request all information and documentation in the possession or under the control
of the Indemnitee reasonably necessary to support and verify any Losses which
the Indemnitee believes give rise to a claim for indemnification hereunder and
shall give the Indemnitor reasonable access to all books, records and personnel
in the possession or under the control of the Indemnitee which would have
bearing on such claim.
(c) Third Party Claims/Other: In the case of third party claims for
which indemnification is sought, the Indemnitor shall have the option (x) to
conduct any proceedings or negotiations in connection therewith, (y) to take all
other steps to settle or defend any such claim (provided that the Indemnitor
shall not, without the consent of the Indemnitee, settle any such claim on terms
which provide for (A) a criminal sanction or fine, (B) injunctive relief or (C)
monetary damages in excess of the amount that the Indemnitor is required to pay
hereunder) and (z) to employ counsel, which counsel shall be reasonably
acceptable to the Indemnitee, to contest any such claim or liability in the name
of the Indemnitee or otherwise. In any event, the Indemnitee shall be entitled
to participate at its own expense and by its own counsel in any proceedings
relating to any third party claim; provided, however, that if the defendants in
any such action or claim include both the Indemnitee and the Indemnitor and the
Indemnitee shall have reasonably concluded that there would be a conflict of
interest under DR 5-105 of the Code of Professional Responsibility or other
applicable federal or state law were the same counsel to represent the
Indemnitee and the Indemnitor, the Indemnitee shall be entitled to be
represented by separate counsel at the Indemnitor's expense (provided, however,
that Indemnitor shall only be obligated to pay for one (1) additional counsel
with respect to all Indemnitees). So long as the Indemnitor has assumed defense
of an action or claim, such action or claim shall not be settled without the
Indemnitor's consent, which shall not unreasonably be withheld. The Indemnitor
shall, within thirty (30) days of receipt of the Notice of Claim, notify the
Indemnitee of its intention to assume the defense of such claim. Until the
Indemnitee has received notice of the Indemnitor's election whether to defend
any claim, the Indemnitee shall take reasonable steps to defend (but may not
settle) such claim. If the Indemnitor shall decline to assume the defense of
any such claim, or shall fail to notify the Indemnitee within thirty (30) days
after receipt of the Notice of Claim of the Indemnitor's election to defend such
claim, the Indemnitee may defend against and/or settle such claim. The expenses
of all proceedings, contests or lawsuits in respect of the claims described in
the preceding sentence shall be borne by the Indemnitor but only if the
Indemnitor is responsible pursuant hereto to indemnify the Indemnitee in respect
of the third party claim and, if applicable, only as required within the
limitations set forth in Sections 7.2 or 7.4 as the case may be. Regardless of
which party shall assume the defense of the claim, the parties agree to
cooperate fully with one another in connection therewith.
(d) Payment of Losses: In the case of a claim for indemnification
made under Section 7.2 or 7.4, (i) if (and to the extent) the Indemnitor is
responsible pursuant hereto to indemnify the Indemnitee in respect of the third
party claim, then within five (5) Business Days after the
occurrence of a final non-appealable determination with respect to such third
party claim (or sooner if required by such determination) and delivery of notice
from the Indemnitee to the Indemnitor thereof, the Indemnitor shall pay the
Indemnitee (or sooner if required by such determination), in immediately
available funds, the amount of any Losses (or such portion thereof as the
Indemnitor shall be responsible for pursuant to the provisions hereof) and (ii)
in the event that any Losses incurred by the Indemnitee do not involve payment
by the Indemnitee of a third party claim, then, if (and to the extent) the
Indemnitor is responsible pursuant hereto to indemnify the Indemnitee against
such Losses, the Indemnitor shall within five (5) Business Days after agreement
on the amount of Losses or the occurrence of a final non-appealable
determination of such amount pay to the Indemnitee and delivery of notice from
the Indemnitee to the Indemnitor thereof, in immediately available funds, the
amount of such Losses (or such portion thereof as the Indemnitor shall be
responsible for pursuant to the provisions hereof) such notices under clauses
(i) or (ii), a "DEMAND FOR PAYMENT."
7.7 COOPERATION. Each party indemnified under any indemnity contained in
this Agreement shall cooperate in all reasonable respects in the defense of the
third-party claim pursuant to which the indemnifying party is alleged to have
liability. BPLP agrees to cooperate in all reasonable respects in the defense
or prosecution of any claim which must be made by the applicable Property Owner
against AT&T in connection with the resolution of the dispute concerning the
AT&T Obligations, provided, however, that (i) all costs and expenses associated
with any such cooperation shall be paid, in advance, by the applicable Xxxxxx
Parties, (ii) BPLP shall have no obligation to join in any such action or claim,
or to take any action with respect to or under the AT&T lease at the Tower One
Property, and (iii) the Xxxxxx Parties shall indemnify BPLP from and against any
and all loss, cost and expense incurred in connection with such cooperation.
7.8 PLEDGE OF UNITS.
(a) In connection with the closing of the transaction contemplated by
this Agreement, upon the Closing, a portion of the Units issued to Xxxx X.
Xxxxxx and Xxxxx Xxxxxx having a value equal to $15,000,000 as of the first
Closing Date hereunder shall be pledged pursuant to a Pledge and Security
Agreement in the form attached hereto as Exhibit 12 as security for the
indemnification obligations of the Xxxxxx Parties under this Article 7.
Notwithstanding anything to the contrary contained in this Agreement, in the
event that the 500 Series Properties are acquired by BPLP prior to the
satisfaction in full or other discharge of the AT&T Obligations, Xxxx X. Xxxxxx
and/or Xxxxx Xxxxxx shall deliver, as additional collateral under such Pledge
and Security Agreement, additional Units having a then current market value
equal to the Limited Survival Indemnity Increase.
(b) Such pledge shall be released on the first anniversary of the
first Closing Date (or such later date as is provided in the Pledge and Security
Agreement) unless prior to any such first anniversary (i) a Notice of Claim has
been made in accordance with this Article 7 or (ii) the AT&T Obligations have
not been satisfied in full and a tenant estoppel from AT&T acknowledging such
satisfaction has been received by BPLP, in which event Transferee shall release
such portion of such pledged Units as it reasonably determines will not be
required to satisfy any such asserted claim or claims and the AT&T Obligations,
as applicable (and such other amounts as are set forth in the Pledge and
Security Agreement). Notwithstanding anything to the contrary contained
herein, it is agreed and acknowledged that pledged Units having a value of
$3,000,000 minus an amount equal to the amount of the AT&T Obligations which
have then been satisfied or otherwise discharged, as certified in writing to
BPLP by AT&T (or by any final court
order from a court having jurisdiction, or by an arbitrator's binding
determination in accordance with the AT&T lease at the Tower One Property) (such
amount, the "AT&T PLEDGE AMOUNT") shall at all times be maintained under the
Pledge and Security Agreement with respect to the AT&T Obligations until such
AT&T Obligations are satisfied in full, as evidenced by a tenant estoppel from
AT&T acknowledging such satisfaction. Promptly upon final determination of any
such claim or claims (or portion thereof) Transferee shall release such portion
of such pledged Units as it reasonably determines are no longer required to
satisfy any then remaining claim or claims. At all times prior to the
termination of the pledge, if the then current market value of the Units shall
be in excess of $18,000,000 (plus the Limited Survival Indemnity Increase, if
applicable) or, if after such first anniversary the Units so pledged (if any)
have a then current market value in excess of 120% of the dollar amount of
claims then outstanding (as reasonably determined by Transferee) plus the AT&T
Pledge Amount (and such other amounts as are set forth in the Pledge and
Security Agreement), the Transferee shall promptly release Units from such
pledge having a then current market value in excess of $18,000,000 (plus the
Limited Survival Indemnity Increase, if applicable) or, if after such first
anniversary, the amount in excess of the sum of such 120% threshold plus the
AT&T Pledge Amount (and such other amounts as are set forth in the Pledge and
Security Agreement), as the case may be. All dividends or other distributions
payable on account of such pledged Units shall be currently payable to the
Xxxxxx Parties, notwithstanding the existence of the pledge or any outstanding
claim. Notwithstanding the foregoing, in the event that the 500 Series
Properties are acquired after the release of the Pledge and Security Agreement
or after a reduction in the amount of the collateral under the Pledge and
Security Agreement, a new Pledge and Security Agreement and/or additional
collateral (which may be Units issued in connection with such acquisition), as
applicable, shall be executed and/or delivered as provided in the Pledge and
Security Agreement.
(c) Notwithstanding the foregoing, upon the written request therefore
by Xxxx X. Xxxxxx given at any time prior to the date when any Notice of Claim
has been made, the Xxxxxx Parties may obtain the release of such Pledge and
Security Agreement upon the simultaneous delivery by the Xxxxxx Parties of
substitute collateral in the amount of $18,750,000 (plus the Limited Survival
Indemnity Increase, if applicable) and in form and substance reasonably
acceptable to Transferee, in lieu thereof (which substitute collateral may, if
reasonably acceptable to Transferee (taking into account the form of such
guaranty, the net worth and liquid assets of Xxxx X. Xxxxxx, and covenants
regarding maintenance of such net worth and liquidity) be in the form of an
unconditional guaranty from Xxxx X. Xxxxxx); such substitute collateral to be
subject to release and further substitution provisions as are reasonably
acceptable to Transferee and reasonably equivalent to the foregoing release and
substitution provisions relating to the pledged Units hereunder (including,
without limitation, the 120% threshold plus the AT&T Pledge Amount prior to the
release and reduction of any portion of the collateral).
ARTICLE 8 - INTENTIONALLY OMITTED
ARTICLE 9 - MISCELLANEOUS
9.1 BROKERS. Each party to this Agreement represents and warrants that
neither it nor any of its Affiliates has had any contact or dealings regarding
the Property, or any communication in connection with the subject matter of the
transaction contemplated by this Agreement, through any real estate broker or
other person who can claim a right to a commission or finder's fee in
connection therewith (other than Eastdil Realty Company, L.L.C. and Bear,
Xxxxxxx & Co., Inc., who shall be paid by Property Owners on or prior to
Closing). In the event that any broker or finder claims a commission or finder's
fee based upon any contact, dealings or communication, the party through whom or
through whose Affiliate such broker or finder makes its claim shall be
responsible for the commission or fee and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) incurred by
the other party and its Affiliates in defending against the same. The party
through whom or through whose Affiliate such broker or finder makes a claim
shall hold harmless, indemnify and defend the other party hereto and its
Affiliates and their respective, agents, employees, officers and directors, and
the Property from and against any and all Losses, arising out of, based on, or
incurred as a result of such claim. The provisions of this Section shall survive
the Closing or termination of the parties' obligations to complete the
transaction contemplated by this Agreement.
9.2 MARKETING. During the term of this Agreement, the Xxxxxx Parties
agree not to market the Property and/or the Assets for sale or entertain or
discuss any offer to purchase or acquire the Property and/or the Assets with any
Person other than Transferee and its Affiliates.
9.3 ENTIRE AGREEMENT; NO AMENDMENT. This Agreement (together with the
Related Agreements) represents the entire agreement among each of the parties
hereto with respect to the subject matter hereof. It is expressly understood
that no representations, warranties, guarantees or other statements with respect
to the subject matter hereof shall be valid or binding upon a party unless
expressly set forth in this Agreement. It is further understood that any prior
agreements or understandings between the parties with respect to the subject
matter hereof have merged in this Agreement, which alone fully expresses all
agreements of the parties hereto as to the subject matter hereof and supersedes
all such prior agreements and understandings. This Agreement may not be
amended, modified or otherwise altered except by a written agreement signed by
the party hereto against whom enforcement is sought. It is agreed that no
obligation under this Agreement which by its terms is to be performed or
continue to be performed after Closing and no provision of this Agreement which
is expressly to survive Closing shall merge upon Closing, but shall survive
Closing.
9.4 CERTAIN EXPENSES. Each party hereto will pay all of its own expenses
incurred in connection with this Agreement and the transaction contemplated
hereby (whether or not the Closing shall take place), including, without
limitation, all costs and expenses herein stated to be borne by such party and
all of its respective accounting, legal, investigatory and appraisal fees. The
Property Owners shall be responsible for paying (i) all amounts required to be
paid to the holder of the applicable Mortgage Debt in connection with the
assumption of the Mortgage Debt (except only as set forth in Section 1.9 above)
and (ii) all applicable State, County and City transfer taxes and/or transfer
fees due in connection with transfer of the Property and the Assets to BPLP in
accordance with this Agreement (provided that the Existing Partners shall not be
liable for any transfer taxes or transfer fees incurred in connection with any
subsequent transfer of each (or any) Developed Property which occurs after the
acquisition by BPLP of the Partnership Interests in the applicable Property
Owner or the fee interest in any such Developed Property in accordance with the
terms of this Agreement). Any escrow fees incurred in connection with the
transfer of title to the Property as contemplated by this Agreement shall be
split evenly between Transferee and the Property Owner. All other costs and
charges in connection with the conveyance of the Property contemplated by this
Agreement not otherwise provided for in this Agreement shall be allocated by
standard accounting and conveyancing practices in the relevant jurisdiction
where the Property is located. The cost of recording any deeds or other
documents of conveyance (but excluding any transfer taxes and/or transfer fees
or other similar taxes, fees
or charges) shall be paid by Transferee. All sales taxes incurred in connection
with the sale of personal property hereunder shall be paid by the Transferee.
This provision shall survive Closing.
9.5 ARBITRATION. In the event that the parties have agreed to submit
disputes to arbitration in accordance with the specific requirements of this
Agreement, the following shall apply:
The arbitrators shall be (i) located in New York, New York, (ii)
independent and unaffiliated with the parties, (iii) shall be "experts" in
real estate development legal and business issues (such as well-known
retired judges, law professors or lawyers in prominent private practice
firms, etc.). Each of BPLP and Xxxxxx shall be entitled to select one (1)
of the members of the three (3) person arbitration panel; the third
arbitrator shall be selected by such two (2) arbitrators. Any such dispute
or controversy shall be settled exclusively by arbitration in New York, New
York, in accordance with the rules of the American Arbitration Association
then in effect. The award of arbitrators shall be final and binding and
non-appealable and may if necessary be enforced by any court of competent
jurisdiction. Notwithstanding the foregoing, either party may apply to any
court located in New York, New York or Boston, Massachusetts, with
competent jurisdiction, and seek interim provisional injunctive or
equitable relief until the arbitration award is rendered or the controversy
is otherwise resolved.
9.6 NOTICES. Any notice or communication required under or otherwise
delivered in connection with this Agreement to any of the parties hereto shall
be written and shall be delivered to such party at the following address:
If to any Xxxxxx Party:
The Xxxxxx Group
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxx and
Xxxxxxxx Xxxxxx
Fax: (000) 000-0000
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Mechanic, Esq.
Fax: (000) 000-0000
And
Xxxxxx Xxxx & Dinowitz, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to Transferee to:
Boston Properties Limited Partnership
c/o Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Vice President and
Xxxxxxxxx X. XxXxxxxxx, Esq., General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000 and
(000) 000-0000
Each notice shall be in writing and shall be sent to the party to receive it,
postage prepaid by certified mail, return receipt requested, or by a nationally
recognized overnight courier service that provides tracking and proof of
receipt. Inclusion of fax numbers is for conveniences only, and notice by fax
shall neither be sufficient nor required. Notices shall be deemed delivered
upon receipt. Each party may change its address for notice by giving notice to
all other parties in the manner required under this Section 9.6.
9.7 NO ASSIGNMENT. Except as provided in this Section below, neither this
Agreement nor any of the rights or obligations hereunder may be assigned by any
party hereto without the prior written consent of the other parties. Transferee
may, without such consent, assign all or any portion of its rights and
obligations hereunder to an Affiliate provided such Affiliate assumes all
obligations and liabilities of Transferee hereunder effective as of the date of
any such assignment. An assignment by Transferee shall not release Transferee
from responsibility for performance of its obligations hereunder. Each Existing
Partner (other than Xxxx X. Xxxxxx) may, without such consent, transfer all or
any portion of its Partnership Interests to any other Xxxxxx Party provided such
Xxxxxx Party assumes all obligations and liabilities of such Existing Partner
with respect to such transferred Partnership Interests hereunder effective as of
the date of any such transfer. A transfer by an Existing Partner shall not
release such Existing Partner from responsibility for performance of its
obligations hereunder.
9.8 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (without regard, to the
fullest extent permitted by law, to any conflict of laws rules which might
result in the application of the laws of any other jurisdiction).
9.9 MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts. If so executed, all of such counterparts shall constitute but one
agreement, and, in proving this Agreement, it shall not be necessary to produce
or account for more than one such counterpart.
9.10 FURTHER ASSURANCES. From and after the date of this Agreement and
after the Closing, the parties hereto shall take such further actions and
execute and deliver such further
documents and instruments as may be reasonably requested by the other party and
are necessary to provide to the respective parties hereto the benefits intended
to be afforded hereby.
9.11 MISCELLANEOUS. Whenever herein the singular number is used, the same
shall include the plural, and the plural shall include the singular where
appropriate, and words of any gender shall include the other gender when
appropriate. The headings of the Articles and the Sections contained in this
Agreement are for convenience only and shall not be taken into account in
determining the meaning of any provision of this Agreement. The words "hereof"
and "herein" refer to this entire Agreement and not merely the Section in which
such words appear. If the last day for performance of any obligation hereunder
is not a Business Day, then the deadline for such performance or the expiration
of the applicable period or date shall be extended to the next Business Day.
9.12 INVALID PROVISIONS. If any provision of this Agreement (except the
provisions relating to the Property Owners' and Assignors' obligations to
contribute or cause the contribution of the Property and the transfer of the
Assets or BPLP's obligation to issue the Units, the invalidity of which shall
cause this Agreement to be null and void) is held to be illegal, invalid or
unenforceable under present or future laws, such provision shall be fully
severable, this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Agreement,
and the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement.
9.13 CONFIDENTIALITY; PUBLICITY. The Property Owners agree that this
Agreement shall not be recorded in any public real estate registry. Transferee
agrees to maintain in confidence through Closing, unless otherwise required by
applicable Law, reporting requirements or accounting or auditing standards to
disclose, all material and information received from the Property Owners or
otherwise regarding the Property. In the event the parties' obligations to
complete the transaction contemplated by this Agreement are terminated, upon
Property Owners' written request, Transferee shall promptly return to the
Property Owners, or destroy, all materials delivered to Transferee by the
Property Owners and all copies thereof. The Property Owners and Transferee
agree that, prior to the Closing Date, none of them, without the prior written
consent of the other, shall publicly or privately reveal any information
relating to the existence or terms and conditions of the transaction
contemplated hereby, except as permitted below in this Section or in any other
Confidentiality Agreement entered into by of the parties hereto. The parties
agree that nothing in this Section shall prevent a party from disclosing any
information otherwise deemed confidential under this Section (i) in connection
with its enforcement of its rights hereunder, or (ii) pursuant to any legal
requirement, including, without limitation, any Securities Laws, any reporting
requirement or any accounting or auditing standard or any court order. The
Property Owners and Transferee further agree that nothing in this Section shall
prevent any of them from disclosing any information otherwise deemed
confidential under this Section to its respective agents, employees, counsel and
other third parties to the extent reasonably necessary to perform due diligence
and complete the transaction contemplated hereby. Notwithstanding anything to
the contrary contained herein, all publicity concerning the transaction
contemplated by this Agreement shall be subject to the reasonable approval of
Transferee and the Property Owners. This provision shall survive termination of
this Agreement.
9.14 TIME OF ESSENCE. Time is of the essence with respect to this
Agreement.
9.15 RESERVED
9.16 XXXXXX PARTIES' REPRESENTATIVE. Notwithstanding anything to the
contrary contained in this Agreement, the Xxxxxx Parties hereby agree that Xxxx
X. Xxxxxx shall have the power and authority to act on behalf of the Xxxxxx
Parties, including without limitation to grant any consent, waiver or approval
or make any decision or take any action, including receiving or giving notices
hereunder or terminating this Agreement in accordance with Section 6.1 above, on
behalf of and as the duly authorized agent and representative of the Xxxxxx
Parties. The Existing Partners and the Assignors, acknowledging that the
Transferee will rely on such appointment, hereby irrevocably and unconditionally
appoint Xxxx X. Xxxxxx as their authorized agent and representative to act in
connection with and to settle and otherwise agree to any adjustment, proration
or other reduction in the aggregate consideration to be paid to each such
Existing Partner and Assignor in accordance with this Agreement.
[The remainder of this page has been left blank intentionally]
IN WITNESS WHEREOF, the parties hereto have executed this Contribution
Agreement as an instrument under seal as of the date and year first above
written.
TRANSFEREES:
BOSTON PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
___________________________________
Xxxxxxx X. Xxxxx
Senior Vice President
BOSTON PROPERTIES LIMITED PARTNERSHIP
By: Boston Properties, Inc.
By: /s/ Xxxxxxx X. Xxxxx
___________________________________
Xxxxxxx X. Xxxxx
Senior Vice President
Property Owners/Existing Partners/Assignors:
See Attached Signature Pages for
Property Owners, Existing Partners
and Assignors
CONTRIBUTION AND CONVEYANCE AGREEMENT
CONCERNING THE CARNEGIE PORTFOLIO
EXISTING PARTNER SIGNATURE PAGE
Reference is made to that certain Contribution and Conveyance Agreement
Concerning the Carnegie Portfolio (the "CONTRIBUTION AGREEMENT") entered into as
of June 30, 1998 by and among Boston Properties, Inc., Boston Properties Limited
Partnership and the Property Owners, Existing Partners and Assignors named
therein, pursuant to which properties and assets (or indirect interests therein)
located in Xxxxxx County, New Jersey and Middlesex County, New Jersey are to be
contributed and conveyed to Boston Properties Limited Partnership and/or its
subsidiaries. The undersigned, by its execution hereof, becomes a signatory to
and agrees to be bound by and under the Contribution Agreement as an "Existing
Partner" (therein defined) and as party thereto.
Signature Line for Individual:_______________________________________
Name (print):________________________________
State of Residence:__________________________
Signature Line for Entity:
Name of Entity (print):______________________
By:__________________________________________
Name:__________________________________
Title:_________________________________
