EXHIBIT 10.1
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CONTRIBUTION AGREEMENT
This Contribution Agreement (the "AGREEMENT") made this _____
day of ________, 1999, between RIVERFRONT OFFICE PARK JOINT VENTURE, a
Massachusetts joint venture ("CONTRIBUTOR") composed of Riverfront Office
Park Associates, a Massachusetts limited partnership ("ROPA"), and Carlyle
Real Estate Limited Partnership - XI, an Illinois limited partnership
("CARLYLE"), as Contributor's general partners (the "GENERAL PARTNERS")
with a principal place of business in Cambridge, Massachusetts, and
BRE/RIVERFRONT LLC, a Delaware limited liability company with a business
address at c/o Blackstone Real Estate Advisors, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("COMPANY").
W I T N E S S E T H
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1. CONTRIBUTION AND ACQUISITION
1. Subject to the terms and conditions of this Agreement,
Contributor hereby agrees to contribute, assign, transfer, deliver and
convey to Company, and Company hereby agrees to acquire from Contributor,
all of Contributor's right, title and interest in and to the following
described property (such right, title and interest is collectively called
the "PROPERTY"), in return for the consideration set forth in Section 2 (in
a manner to be treated, at least in part, as a contribution of property to
a limited liability company in exchange for an interest therein to be
governed for tax purposes by Section 721 of the Internal Revenue Code of
1986, as amended (the "CODE")), subject to and in accordance with the
terms, provisions, covenants and conditions more particularly set forth in
this Agreement:
(a) Contributor's interest as tenant under that certain
ground lease between Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx and Xxxxx X.
Xxxxxxx, trustees of Darvel Realty Trust ("DARVEL") pursuant to that
certain Declaration of Trust dated July 24, 1970 and recorded in Book
11865, Page 580, as amended, as landlord, and Contributor, dated
September 23, 1981, as amended by that Amendment dated August 4, 1983 and
as further amended by Amendment No. 2 to Ground Lease dated November 9,
1995 (collectively, the "LEASE") which Lease demises that certain parcel of
land (the "LAND") located in Cambridge, Massachusetts and more particularly
described in EXHIBIT A attached hereto and made a part hereof, subject only
to the exceptions provided for in this Agreement and the matters set forth
on SCHEDULE 1.01.(a) (such exceptions are hereinafter referred to as the
"PERMITTED EXCEPTIONS");
(b) all of Contributor's right, title and interest in and to
all easements, rights of way, privileges, appurtenances, gaps, gores, and
other rights pertaining to the Lease and the Land;
(c) all buildings, improvements and fixtures located on the
Land, including the building located thereon and having an address as 000
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (collectively, the "IMPROVEMENTS");
(d) all personal property and equipment owned by
Contributor and located on or attached or appurtenant to the Land and the
Improvements or used in connection with the operation of said Land and
Improvements, including but not limited to machinery, appliances,
furniture, carpet, and drapes (the "PERSONALTY");
(e) all of Contributor's right, title and interest in and to
any rights and interests under that certain loan from BRE/ROPA I Inc.,
successor in interest to Teachers Insurance and Annuity Association of
America, to Contributor and any escrow accounts (the "ESCROW ACCOUNTS") in
connection therewith, to the extent that funds are currently held in such
accounts (the "ESCROW FUNDS");
(f) all of Contributor's right, title and interest in and to
any land lying in the bed of any street, road or avenue opened or proposed,
public or private, in front of or adjoining the Land, to the center line
thereof;
(g) any award made or to be made and in and to any unpaid
award for damage to the Property by reason of change of grade of any street
or otherwise;
(h) all leases, licenses and occupancy agreements of space in
the Improvements (the "SUBLEASES", the tenants, licensees and occupants of
the Subleases, the "SUBTENANTS"), and all subtenant security deposits in
connection therewith;
(i) to the extent assignable without the consent of
third parties, and requested by Company, all written contracts and
agreements pertaining to the Property (collectively, the "PROPERTY
AGREEMENTS"), including, but not limited to, service contracts, equipment
leases, employment, janitorial, cleaning, pest control, waste disposal,
snow removal, landscaping, maintenance or building service, management,
leasing, advertising or other agreements, if any; and
(j) to the extent assignable without the consent of
third parties, and requested by Company, all other property, if any, owned
by Contributor and pertaining to the Land, the Improvements, or the
Personalty including, without limitation, transferable telephone exchange
numbers, plans and specifications, licenses, permits, engineering plans and
studies, floor plans and landscape plans, trade names and trade marks.
2. CONTRIBUTION AMOUNT
1. The payment (or deemed payment) to be given by Company to
Contributor (the "CONTRIBUTION AMOUNT") in exchange for the Property shall
be paid as follows:
(a) Upon Closing (as hereinafter defined), as part of the
Contribution Amount, FOUR HUNDRED FIFTY FOUR THOUSAND FIVE HUNDRED FORTY
FIVE DOLLARS ($454,545.00) (the "CODMAN CASH AMOUNT") shall be paid by
Company to Codman Riverfront Associates and NINE MILLION THREE HUNDRED
THOUSAND DOLLARS ($9,300,000.00) (the "XXXXXXX XXXX AMOUNT") shall be paid
by Company to Carlyle (the Codman Cash Amount and the Xxxxxxx Xxxx Amount,
collectively, the "CASH AMOUNT"), as direct or indirect partners of
Contributor, at Closing (hereinafter defined) as Contributor directs in
accordance with this Section 2.01.(a). All monies payable under this
Agreement, unless otherwise specified in this Agreement, shall be paid by
(a) unendorsed certified checks of Company drawn on any bank, savings bank,
trust company or savings and loan association having a banking office in
the State of New York or (b) unendorsed official bank checks of Company
drawn by any such banking institution, payable directly to the order of
Contributor, or at its direction, to any other person or entity, or (c)
wire transfers immediately available in a bank designated by Contributor on
or prior to the Closing (hereinafter defined); and
(b) The remainder of the Contribution Amount shall be paid,
upon Closing (as hereinafter defined) by Company issuing to ROPA, a partner
of Contributor, an aggregate membership interest in Company (the
"MEMBERSHIP INTEREST") of 9.645%, to be distributed by ROPA to Darvel and
Xxxxxxxx-Riverfront Associates ("XXXXXXXX"), two (2) of the indirect
partners of Contributor (the "NEW MEMBERS"), in the percentages set forth
in the Operating Agreement (hereinafter defined) attached hereto as
EXHIBIT B, and accordingly Company shall admit the New Members as Members
(as defined in that certain Limited Liability Agreement of BRE/Riverfront
LLC dated as of the date hereof, hereinafter, the "OPERATING AGREEMENT") of
Company.
3. THE CLOSING
1. Except as otherwise provided in this Agreement, the
consummation of the transaction contemplated hereunder (the "CLOSING")
shall take place on [__________ ___], 1999 (The actual date of the Closing
being herein referred to as the "CLOSING DATE."). The Closing shall take
place at the offices of Company's counsel, Weil, Gotshal & Xxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx such other location, as may be agreed
to by the parties.
4. PERMITTED EXCEPTIONS
1. Contributor shall convey and Purchaser shall accept good,
marketable and indefeasible fee simple title in and to the Improvements and
a ground lessee's interest under the Lease and good title to the other
Property in accordance with the terms of this Agreement, subject to there
being no defects in or objections to title unless such defects in or
objections to title are among the "PERMITTED EXCEPTIONS" described in
SCHEDULE 1.01(a) attached hereto.
5. CONTRIBUTOR'S REPRESENTATIONS
Contributor represents as of the date of this Agreement, as
follows:
1. Contributor is a joint venture duly created, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts.
2. Contributor has full power, authority and legal right to
execute, deliver, and perform its obligations under this Agreement and all
documents now or hereafter to be executed by Contributor pursuant to or in
connection with this Agreement (collectively, "CONTRIBUTOR'S DOCUMENTS"),
to consummate the transaction contemplated hereby, and to perform its
obligations hereunder and under Contributor's Documents.
3. Contributor and each of the General Partners is solvent; no
receiver has been appointed for Contributor or any of the General Partners
or any of its or their assets or properties nor is any application for
receivership pending with respect to Contributor or any of the General
Partners; neither Contributor nor any of the General Partners contemplate
insolvency; no proceedings are pending by or against Contributor nor any of
the General Partners in bankruptcy or reorganization in any Federal, state
or foreign court, nor has Contributor or any of the General Partners
committed any act of bankruptcy.
4. Contributor is not a "foreign person" as defined in the Federal
Foreign Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform
Act, as amended.
5. The execution, delivery and performance by Contributor of its
obligations under this Agreement will not conflict with or result in a
breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulations, judgment, decree or order by which
Contributor is bound, or by any of the provisions of any contract to which
Contributor is a party or by which Contributor is bound or, if Contributor
is not an individual, by Contributor's declaration of trust, certificate of
incorporation, bylaws or partnership agreement, as the case may be.
6. This Agreement and Contributor's obligations hereunder are
legal, valid and binding obligations of Contributor, enforceable in
accordance with their terms, and there are no claims or defenses, personal
or otherwise, or offsets whatsoever to the enforceability or validity of
this Agreement.
7. The Subtenant list attached hereto as SCHEDULE 5.07. and the
Subleases provided to Company are a true, correct and complete list and
copies of all the Subleases (and all modifications, amendments and
extensions thereto) now in effect with respect to the Property.
SCHEDULE 5.07.(a) is a true, complete and correct list of the security
deposits held by Contributor (the "SECURITY DEPOSITS"). To the best
knowledge of Contributor, there is no monetary default or non-monetary
default, and no event or omission has occurred which but for the passing of
time or giving of notice or both would be a monetary or non-monetary
default, on the part of either Contributor or, to the best knowledge of
Contributor, any of the Subtenants thereunder, except as may be disclosed
on SCHEDULE 5.07.(b), and to the best knowledge of Contributor, there is no
outstanding defense, counterclaim or offset against the payment of any rent
or other amount payable thereunder, except as may be disclosed on SCHEDULE
5.07.(b), or against the performance of any other obligation thereunder.
No commission, compensation or other amount is now, or hereafter shall
become, payable to any broker or other agent under any written or oral
agreement or understanding with any broker or other agent in connection
with any of the Subleases or renewals thereof, or any other options
thereunder, except as may be disclosed on SCHEDULE 5.07.(b).
8. Except as may be set forth on SCHEDULE 5.08. hereto, to the
best knowledge of Contributor, Contributor has satisfied in full all tenant
improvement obligations, work letters, construction obligations, rent
allowances, and leasing commissions, if any, required to be satisfied prior
to the date hereof, relating to the Property. Contributor's obligations
under the Subleases regarding tenant improvements obligations, work
letters, construction obligations, rent allowances or leasing commissions,
if any, required to be satisfied after Closing are set forth on SCHEDULE
5.08.
9. Other than the rights of parties being extinguished at the
Closing, no person or entity has any option, right of first refusal or
other right to acquire title to the Property or any part thereof or
interest therein.
10. Contributor recognizes that at such time as Company acquires
the Property, that Company will simultaneously be the owner of the fee
interest in the Land and the holder of the landlord's as well as the
tenant's position under the Lease, and Company intends to merge the
interest of the fee and the leasehold so that the Lease is terminated and
the Company is the fee owner of the Land and the Improvements (the
"MERGER").
11. To the best knowledge of Contributor, there is no action, suit
proceeding or other litigation pending, being prosecuted or threatened
before any court, board, agency or governmental instrumentality with
respect to the Property or any portion thereof, the ownership, use,
possession or operation thereof, except for that certain litigation titled
RIVERFRONT OFFICE PARK ASSOCIATES II LIMITED PARTNERSHIP V. BRE/ROPA II
INC. 97-12453 JLT in the USDC for the District of Massachusetts (the "ROPA
LITIGATION").
12. Except for the citywide reexamination of zoning classifications
by the City of Cambridge, to the best knowledge of Contributor: (i) the
Property has access to public roads either directly or by easement or
special permit and (ii) there are no pending or contemplated condemnation
or eminent domain proceedings, proceedings to change or redefine zoning
classifications, or proposed changes in street grade or location which may
adversely affect access to the Property.
13. To the best knowledge of Contributor, the continued
maintenance, occupancy and operation of the Property is not dependent to
any extent on improvements or facilities located at, or agreements with any
other property, except as set forth in SCHEDULE 5.13. annexed hereto, and
to the best knowledge of Contributor: (i) the continued maintenance,
occupancy and operation of any other property is not dependent to any
extent on, or agreements with, except as set forth on SCHEDULE 5.13.
annexed hereto; (ii) no building or other improvement not part of the
Property relies to any extent on the Property or any part thereof or any
interest therein to fulfill any governmental requirement; and (iii) no
building or other improvement on the Property relies to any extent on any
property or any interest therein not included within the Property to
fulfill any governmental requirement.
14. Contributor has good, marketable and indefeasible fee simple
title to the Property, and Contributor owns the Property free and clear of
any liens and encumbrances, except as set forth in the Permitted
Exceptions.
15. Except as may be set forth on SCHEDULE 5.15. hereto, to the
best knowledge of Contributor, the Property is covered by a certificate or
certificates of occupancy which are in full force and effect, and to the
best knowledge of Contributor, no alterations have been made at the
Property since the issuance of the certificate or certificates of occupancy
which would require any additional approvals of any governmental
authorities, except to the extent such approvals have been obtained.
16. Except as may be set forth on SCHEDULE 5.16. hereto, to the
best knowledge of Contributor, all material certificates, permits,
licenses, franchises, authorizations and approvals which are necessary to
permit the lawful access, use, occupancy and operation of the Property for
their present and intended accesses, uses, occupancies and operations have
been duly and validly obtained are in full force and effect, and
Contributor does not have any knowledge of any pending threat or
contemplation of modification, cancellation or non-renewal of any
certificates, permits, licenses, franchises, authorizations or approvals.
17. To the best knowledge of Contributor, the present use and
operation of the Property is in material compliance with, and a conforming
use under, all applicable laws, municipal ordinances, regulations and
orders and requirements (building, fire, zoning, subdivision, handicapped
persons, earthquakes, environmental or otherwise) of all governmental
authorities, and no notes or notices of any material violation of any law,
municipal ordinances, regulations or orders or requirements of any
governmental authority having jurisdiction against or affecting the
Property have been entered or received by Contributor with respect to the
Property, and to the best knowledge of Contributor no condition exists at
the Property which could be a basis of any such action. To the best
knowledge of Contributor, neither the Property nor any part thereof has
been designated as a historic landmark or as part of a preservation
district.
18. To the best knowledge of Contributor, the Property and its use
in all material respects complies with all applicable deed restrictions or
other covenants, restrictions or agreements, site plan approvals or
subdivision regulations or urban redevelopment plans applicable to the
Property, as modified by any duly issued variances.
19. Intentionally Deleted
20. To the best knowledge of Contributor, all: (i) public utility
connections located at the Property have been paid for and all water and
other public utilities required for the operation of the Property enter
through adjoining public streets or through valid recorded easements across
adjoining private lands, (ii) loading bays located within the perimeter of
the Property are private and have not been dedicated to any public
authority; and (iii) Contributor has not been notified of any law, rule,
regulation, ordinance, moratorium or policy decision of or imposed by any
governmental authority having jurisdiction prohibiting or restricting the
use, installation or connection of any storm sewers, public water
facilities or gas and electrical facilities necessary to the ownership and
operation of the Property.
21. SCHEDULE 5.21. annexed hereto and made a part hereof is a true,
complete and correct schedule of all insurance policies now in effect with
respect to the Property; such policies are in full force and effect;
Contributor has not received any notice or request from any insurance
company or board of fire underwriters requesting the performance of any
work or alteration with respect to the Property and has no knowledge that
the issuance of any such notice or request is currently being contemplated.
22. SCHEDULE 5.22. is a true, complete and correct list of all the
Property Agreements to which Contributor is a party in connection with the
operation of the Property. Contributor has not received any notice and
knows of no potential claims with respect to the Property Agreements which
may result in a lien against the Property.
23. All machinery, equipment and other Personalty included in this
sale are owned free and clear of any liens and encumbrances, except as set
forth in the Permitted Exceptions.
24. Except as set forth on SCHEDULE 5.24., no material work has
been performed on the Property during the past twelve (12) months for which
full payment has not been made.
25. There are no employment or union contracts with respect to the
Property, except for any employment or union contracts with respect to the
Property for which any of the Subtenants is a party, for which Company may
incur any liability, expense or obligation.
26. To the best knowledge of Contributor, no special or other
assessments for public improvements or otherwise have been levied or
imposed with respect to the Property which have resulted or could result in
a lien against the Property, and Contributor has not received notice of any
pending or contemplated change in any applicable legal requirements which
may adversely affect the use, management or operation of the Property.
27. Except as set forth in SCHEDULE 5.27., Contributor has not
withdrawn, settled, commenced or otherwise compromised any protest or
reduction proceeding affecting real estate taxes assessed against the
Property for the current tax year or any tax year hereafter and there are
no real estate tax refunds or credits due from the municipality to
Contributor for the current tax year or any tax year hereafter.
28. Neither Contributor nor any partner of Contributor nor, to the
best knowledge of Contributor, any affiliate of the foregoing persons
described in subsections (E), (F), (G), (H) or (I) of Section 3(14) of
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), is a
"party in interest" or a "disqualified person" (as defined in Section
4975(e)(2) of the Code) with respect to Company; none of the General
Partners of Contributor is an employee benefit plan (as defined in
Section 3(2) of ERISA); and as of the Closing to the best knowledge of
Contributor, there shall exist no lease or sublease with respect to any
portion of the Property, and no agreement to lease or sublease any portion
of the Property nor any service agreement with any person who is a "party
in interest" or a "disqualified person", or who bears a relationship to
Contributor as described in Section 267(b) or 707(b) of the Code.
29. To the best knowledge of Contributor: (a) the Property and its
existing use complies, and, at all times since July 1, 1997, has complied,
in all material respects, with all applicable federal, state and local
statutes, laws, regulations, ordinances, codes, licenses and permits
relating to toxic and hazardous substances and other environmental,
ecological, pollution and storm water runoff matters, including, without
limitation, the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Safe
Drinking Water Act (42 U.S.C. Section 3000(f) et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. Section 9601 et seq.), and the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), in each case, as amended or extended
(individually and collectively, as the context requires, "ENVIRONMENTAL
LAW"); (b) neither Contributor nor any Subtenant, occupant or the user of
the Property or any part thereof, nor any agent, servant or employee of
Contributor or Subtenant, occupant or other user, is in violation of, or
since July 1, 1997 has violated, any Environmental Law in connection with
the ownership, use, maintenance or operation of all or any part of the
Property and/or the conduct of any business thereat or related thereto; and
(c) Contributor has obtained all permits, certificates, licenses,
registrations and other consents and approvals required by Environmental
Law in connection with Contributor and/or the Property, the failure to
obtain which would have a material adverse effect on Company and/or the
Property. Without limiting the generality of the foregoing, to the best
knowledge of Contributor (i) no hazardous or toxic materials, substances,
pollutants, contaminants or wastes (collectively, "HAZARDOUS SUBSTANCES",
which term shall include without limitation all elements and compounds
defined as "hazardous substances" or "hazardous waste" under any
Environmental Law, including, without limitation, those listed at 50
Federal Register 13,474-13,522 (1985), as amended from time to time, and
oil and petroleum products) have been or are being received, generated,
handled, used, stored, treated, shipped or disposed of at the Property, or
into any sewage system or holding area or tank serving the Property, and
(ii) no Hazardous Substances are being, or are intended or threatened to
be, and since July 1, 1997 none have ever been, spilled, released,
discharged, placed or disposed of, or otherwise caused to become located
at, on or near the Property, or into any sewage system or holding area or
tank serving the Property, and (iii) the Property has not been used at any
time by any person as a waste disposal site, in violation of any
Environmental Law. To the best knowledge of Contributor, no Environmental
Law requires any work, repairs, construction or expenditures with respect
to all or any part of the Property, and Contributor has received no notice
of any such requirement. To the best knowledge of Contributor, no
underground tanks or other underground storage facilities are now and at
any time since January 1, 1997, have been, located at the Property. To the
best knowledge of Contributor, all xxxxx, water discharges and other water
diversions at the Property are properly registered and/or permitted under,
and do not violate any applicable federal, state or local statute, law,
regulation, ordinance, code, license or permit. Contributor has received
no notice of any violation of any of the foregoing matters referred to in
this Section 5.29. relating to the Property or its use or any other
property owned by Contributor and its use, and to the best knowledge of
Contributor, there are no writs, injunctions, decrees, orders or judgments
outstanding, no suits, claims, actions, proceedings or investigations have
been instituted or filed, and none are pending or threatened, nor is there
any basis, with respect to the ownership, use, maintenance or operation of
the Property. To the best knowledge of Contributor, there are no PCB's or
asbestos-containing materials, including, without limitation, asbestos
fire-proofing substances, in any of the improvements on the Property.
30. Since November 9, 1995, all sums generated in connection with
the Property received by or on behalf of Contributor have been used for the
operation and maintenance of the Property in the ordinary course of
business including, without limitation, leasing and tenant-fit-up costs and
costs and deposits to the Escrow Accounts, and Contributor has not made any
distributions to any of its direct or indirect partners.
31. The representations and warranties of Contributor set forth in
this Section 5 and elsewhere in this Agreement shall be true, complete and
correct in all material respects upon the execution of this Agreement and
shall be deemed to be repeated on and as of the Closing Date. The
representations and warranties (whether express or implied) shall remain
operative and shall survive the Closing for a period of one (1) year.
32. For purposes of Section 5, the phrase "to the best knowledge of
Contributor" shall mean and be limited to the knowledge of Xxxxx Xxxx, the
property manager, and Xxxx X. Xxxxx, the Director of Real Estate of
Contributor (collectively, the "KNOWLEDGE PARTIES"), without any obligation
on their part to make any independent investigation of the matters being
represented and warranted, or to make any inquiry of any other persons, or
to search or examine any files, records, books, correspondence or the like
and, notwithstanding anything express or implied to the contrary in this
Agreement, in no event shall the Knowledge Parties have any personal
liability with respect to any representations or warranties by Seller under
this Agreement. Seller shall not have any liability if as of the Closing
Date any of Seller's representations and warranties set forth herein shall
be untrue, if Purchaser has knowledge of such facts prior to the Closing
Date and proceeds to close notwithstanding such facts.
6. COMPANY'S REPRESENTATIONS
Company represents as of the date of this Agreement, as
follows:
1. Company is a duly formed and validly existing limited liability
company and is in good standing under the laws of the State of Delaware.
2. Company has the full legal right, power, authority and
financial ability to execute and deliver this Agreement and all documents
now or hereafter to be executed by it pursuant to this Agreement
(collectively, the "COMPANY'S DOCUMENTS"), to consummate the transactions
contemplated hereby, and to perform its obligations hereunder and under
Company's Documents.
3. This Agreement and Company's Documents do not and will not
contravene any provision of the Operating Agreement, any judgment, order,
decree, writ or injunction issued against Company, or any provision of any
laws applicable to Company. The consummation of the transactions
contemplated hereby will not result in a breach or constitute a default or
event of default by Company under any agreement to which Company or any of
its assets are subject or bound and will not result in a violation of any
laws applicable to Company.
4. Company is solvent; no receiver has been appointed for Company
or any of its assets or properties nor is any application for receivership
pending with respect to Company; Company is not contemplating insolvency;
no proceedings are pending by or against Company in bankruptcy or
reorganization in any Federal, state or foreign court, and Company has not
committed any act of bankruptcy.
5. There are no pending actions, suits, proceedings or
investigations to which Company is a party before any court or other
governmental authority which may have an adverse impact on the transactions
contemplated hereby.
6. The representations and warranties of Company set forth in this
Section and elsewhere in this Agreement shall be true, complete and correct
in all material respects upon the execution of this Agreement. Company's
Representations shall be deemed to be repeated on and as of the Closing
Date (except as they relate only to an earlier date) and shall survive the
Closing for one (1) year.
7. CONDITIONS PRECEDENT TO CLOSING
1. Company's obligation under this Agreement to acquire the
Property is subject to the fulfillment of each of the following conditions:
(a) The representations and warranties of Contributor
contained herein shall be materially true, complete and correct as of the
Closing Date;
(b) Contributor shall be ready, willing and able to deliver
title to the Property in accordance with the terms and conditions of this
Agreement; and
(c) Contributor shall have delivered all the documents and
other items required pursuant to Section 8 of this Agreement and shall have
performed all other covenants, undertakings and obligations, and complied
with all conditions required by this Agreement to be performed or complied
with by Contributor at or prior to the Closing.
7.02. After Contributor tenders performance as provided in Section
7.01., Contributor's obligation under this Agreement to contribute the
Property to Company is subject to the fulfillment by Company of each of the
following conditions:
(a) The representations and warranties of Company contained
herein shall be materially true, complete and correct as of the Closing
Date;
(b) Company shall have issued the Membership Interest as set
forth in the Operating Agreement; and
(c) Company shall have delivered the Cash Amount and all the
documents to be executed by Company set forth in this Agreement pursuant to
Section 9 and shall have performed all other covenants, undertakings and
obligations, and complied with all conditions required by this Agreement to
be performed or complied with by Company at or prior to the Closing.
8. CONTRIBUTOR'S CLOSING OBLIGATIONS
At the Closing, Contributor shall deliver the following to
Company:
1. An assignment of Contributor's right, title and interest to the
Lease in the form attached hereto as EXHIBIT C, properly executed in proper
form for recording so as to convey the good, marketable and insurable
title, free of all liens and encumbrances (other than Permitted Exceptions)
required by this Agreement.
2. A Massachusetts Quitclaim Deed, properly executed by
Contributor in proper form for recording so as to convey good, marketable
and insurable title, free of all liens and encumbrances (other than the
Permitted Exceptions) as required by this Agreement.
3. An Assignment and Assumption of Leases, Rents and Security
Deposits, in the form attached hereto as EXHIBIT D.
4. An Assignment and Assumption of Leases, in the form attached
hereto as EXHIBIT E.
5. A Xxxx of Sale, attached hereto as EXHIBIT F, conveying,
transferring and selling to Company all of Contributor's right, title and
interest in and to all Personalty. Contributor acknowledges that no part
of the Contribution Amount shall be deemed to have been paid by Company for
the Personalty, and Contributor agrees to execute a document evidencing
such acknowledgement at the request of Company.
6. The original, fully executed Lease, and if not the original,
then a certified copy.
7. Mutual releases for the ROPA Litigation.
8. Originals, or copies if the originals are not available, of all
Subleases and Property Agreements.
9. A termination of those certain reciprocal easement agreements ,
by and among, Contributor, Darvel and Riverfront Office Park Associates II
Limited Partnership, as they pertain to the Property, in the form attached
hereto as EXHIBIT G.
10. A Termination of Management Agreement, in the form attached
hereto as EXHIBIT H.
11. A Waiver of ROPA's right of first refusal, in the form attached
hereto as EXHIBIT I.
12. An Assignment and Assumption of Contracts, Licenses and
Warranties, in the form attached hereto as EXHIBIT J, assigning all of
Contributor's right, title and interest, if any, in and to all of the
following assignable to the extent requested by Company: (i) licenses,
permits, certificates, approvals, authorizations and variances issued for
or with respect to the Property by any governmental authority, (ii)
warranties, guaranties and indemnitees with respect to work or materials
used in connection with the Property or the Improvements thereon and (iii)
Property Agreements relating to the operation of the Property.
13. Originals of any warranties and guaranties in Contributor's
possession.
14. A certified rent roll identifying all Subleases (including the
Security Deposits and termination dates thereto) current as of a date not
earlier than thirty (30) days prior to the date hereof and any rent records
pertaining to the Property.
15. An opinion of Contributor's counsel in form and substance
reasonably satisfactory to Company and Company's counsel with respect to
the due authorization, execution and delivery of this Agreement and the
consummation of the transaction contemplated by this Agreement.
16. Certified copies of all organization documents for Riverfront
Office Park Associates.
17. A certification of non-foreign status, in the form attached
hereto as EXHIBIT K, signed under penalty of perjury. Contributor
understands that such certification will be retained by Company and will be
made available to the Internal Revenue Service on request.
18. To the extent in Contributor's possession and not already
located at the Property, keys to all entrance doors to, and equipment and
utility rooms located in, the Property.
19. An original letter, executed by Contributor or by its agent,
advising Subtenants of the transfer of the Property to Company and
directing that any rents and other payments thereafter be sent to Company
or as Company may direct.
20. A Cancellation of Lease Affidavit, in the form attached hereto
as EXHIBIT L.
21. To the extent in Contributor's possession, as-built plans and
specifications for the Property.
22. Fire Underwriter's Certificates for the Property, and
Electrical Underwriter's Certificate for the Property.
23. Certificates of Inspection for:
(i) elevators;
(ii) plumbing; and
(iii) sprinklers.
24. The permanent certificate of occupancy for the Improvements,
together with copies of any and all other material certificates, permits or
licenses that are necessary for, and issued in relation to, the normal
occupancy and operations of the Improvements.
25. A direction letter pursuant to Section 2.01.(a) hereof, in form
substantially similar to the form attached hereto as EXHIBIT M.
26. Any other documents required by this Agreement to be delivered
by Contributor.
27. Checks to the order of the appropriate officers in payment of
all of the recording fees, which checks shall be certified or official bank
checks if required by the taxing authority.
9. COMPANY'S CLOSING OBLIGATIONS
At the Closing, Company shall:
1. Deliver to Contributor the Cash Amount payable at the Closing.
2. Deliver to ROPA the requisite percentage of Membership
Interests in accordance with Section 2.01.(b) by including Xxxxxxxx and
Xxxxxx as Members of Company pursuant to the Operating Agreement.
3. Deliver any other documents required by this Agreement to be
delivered by Company.
4. Pay all fees, charges and expenses incurred or payable for the
cost of recording all recordable documentation in connection with Company's
acquisition of the Property.
10. BROKER
1. Contributor and Company each represent and warrant to the other
that neither party has had any dealings with respect to this transaction
with any real estate broker, firm or salesman, or any other person or
corporation. Contributor and Company each agree to indemnify the other
against, and defend the other and save the other harmless from any and all
claims, and the other's reasonable expenses related thereto (including
attorneys' fees), for brokerage commissions, fees or other compensation by
any other person, firm or corporation who shall allege to have acted in
this transaction with the party or dealt with the party in connection
herewith. The provisions of this Section shall survive the Closing and any
termination of this Agreement.
11. NOTICES
1. All notices, elections, consents, approvals, demands,
objections, requests or other communications which Contributor or Company
may be required or desire to give pursuant to, under or by virtue of this
Agreement must be in writing and sent by (i) first class U.S. certified or
registered mail, return receipt requested, with postage prepaid, or (ii)
express mail or courier (for next business day delivery), addressed as
follows:
(a) If intended for Contributor:
Riverfront Office Park Joint Venture
Xxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Rich, May, Xxxxxxxx & Xxxxxxxx, P.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxxx-Riverfront Associates
00 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) If intended for Company
BRE/Riverfront LLC
c/o Blackstone Real Estate Advisors
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Tel. (000) 000-0000
Fax. (000) 000-0000
2. Contributor or Company may designate another addressee or
change its address for notices and other communications hereunder by a
notice given to the other parties in the manner provided in this
Section 11.02. A notice or other communication sent in compliance with the
provisions of this Section 11.02. shall be deemed given and received on (i)
the third (3rd) day following the date it is deposited in the U.S. mail, or
(ii) the date it is delivered to the other party if sent by express mail or
courier.
12. MISCELLANEOUS PROVISIONS
1. This Agreement shall be binding upon and inure to the benefit
of the parties hereto, their respective heirs, legal representatives,
successors, and assigns, except that no party hereto may assign or transfer
any of its interest hereunder without the express written consent of the
other party hereto.
2. This Agreement embodies and constitutes the entire
understanding between the parties with respect to the transaction
contemplated herein, and all prior agreements, understandings,
representations and statements, oral or written, are merged into this
Agreement. Neither this Agreement nor any provision hereof may be waived,
modified, amended, discharged or terminated, except by an instrument signed
by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent
set forth in such instrument.
3. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts.
4. The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent
of this Agreement or any of the provisions hereof.
5. This Agreement shall not be binding or effective until properly
executed and delivered by Contributor and Company.
6. As used in this Agreement, the masculine shall include the
feminine and neuter, the singular shall include the plural and the plural
shall include the singular, as the context may require.
7. Company agrees that it shall not record this Agreement or any
memorandum thereof.
8. Contributor shall indemnify and hold harmless Company from all
loss, expense (including reasonable counsel fees), and liability resulting
from claims made by any of the Subtenants with respect to matters arising
before the Closing Date to the extent such loss, expense or liability,
individually or in the aggregate with all other losses, expenses (including
reasonable counsel fees) and liability under this Section 12.08, together
with any loss, claim or liability under Section 13.01., exceeds the
Threshold Amount (as defined in Section 13.01.), subject to Section 13.02.
and Company shall indemnify and hold harmless Contributor from all loss,
expense (including reasonable counsel fees) and liability resulting from
claims made by any of the Subtenants with respect to matters arising after
the Closing Date, subject to Section 13.02. The provisions of this
Section 12.08 shall survive the Closing.
9. No failure or delay of either party in the exercise of any
right or remedy given to such party hereunder or the waiver by any party of
any condition hereunder for its benefit (unless the time specified herein
for exercise of such right or remedy has expired) shall constitute a waiver
of any other or further right or remedy nor shall any single or partial
exercise of any right or remedy preclude other or further exercise thereof
or any other right or remedy. No waiver by either party of any breach
hereunder or failure or refusal by the other party to comply with its
obligations shall be deemed a waiver of any other or subsequent breach,
failure or refusal to so comply.
10. Delivery of this Agreement shall not be deemed an offer and
neither Contributor nor Company shall have any rights or obligations
hereunder unless and until both parties have signed and delivered an
original of this Agreement.
11. Contributor agrees, upon the written request of Company, to
execute and deliver to Company or as Company may direct, from time to time,
any additional instruments or documents reasonably considered necessary by
Company to effectuate the contemplated transaction, including but not
limited to any instruments required by the Middlesex South Registry of the
Land Court to cause the transaction contemplated hereby to be valid and
effective.
12. This Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
13. LIMITATIONS OF LIABILITY
1. Company may only seek damages from Contributor for a breach of
the representations and warranties set forth in Sections 5.07., 5.08.,
5.09., 5.11., 5.12., 5.13., 5.14., 5.15., 5.16., 5.17., 5.18., 5.20.,
5.21., 5.22., 5.23., 5.24., 5.25., 5.26., 5.27., 5.28. and 5.29. herein
(the "SECTION 13.01. BREACH") provided that the Section 13.01. Breach
results in damages, individually or in the aggregate with any other Section
13.01. Breach, which together with any liability to Company pursuant to
Section 12.08. and any loss claim or liability under any of the assignment
and conveyance agreements executed by and between Company and Contributor
at Closing, is in excess of the sum of (A) the funds existing on the date
hereof in the Escrow Funds and (B) the amount in the escrow funds existing
on the date hereof conveyed by Riverfront Office Park Associates II Limited
Partnership ("ROPA II") to Company pursuant to that certain Contribution
Agreement dated as of the date hereof (collectively, the "THRESHOLD
AMOUNT"), provided that the expenses of remedying the Section 13.01. Breach
are expenses for which the Escrow Funds would have been permitted to be
used under (x) the Collateral Security and Escrow Agreement, dated as of
November 9, 1995, by and among Contributor, Teachers Insurance and Annuity
Association of America ("TEACHERS") and Xxxxxx Company, Inc. ("XXXXXX") and
(y) the Collateral Security and Escrow Agreement, dated as of July 25,
1994, by and among Teachers, Xxxxxx and ROPA II. This Section 13.01. does
not in any manner limit Company's ability to seek damages from Contributor
with respect to a breach of the other representations and warranties set
forth in Section 5 (i.e., Sections 5.01., 5.02., 5.03., 5.04., 5.05. and
5.06.).
2. The liability of all parties to this Agreement is limited to
and shall not exceed: (i) with respect to Company, Darvel and Xxxxxxxx,
each party's respective Membership Interest and any distributions at any
time paid or payable to them pursuant to the Operating Agreement, and (ii)
with respect to Carlyle and Codman, the Xxxxxxx Xxxx Amount and the Codman
Cash Amount, respectively.
14. JOINT AND SEVERAL LIABILITY
1. Except as otherwise set forth in Section 14.02., all of the
representations and warranties set forth in Section 5 of this Agreement and
as otherwise set forth in this Agreement are hereby restated as if made by
Riverfront Office Park Associates ("RIVERFRONT") and Carlyle. Contributor,
Riverfront and Carlyle are jointly and severally liable for any breach of a
representation, warranty or obligation under this Agreement, except to the
extent a representation or warranty is limited to a party's knowledge or is
personal to such party in which case a breach of such representation or
warranty shall be the several obligation of the breaching party.
2. Notwithstanding Section 13.01., Carlyle shall have no liability
either directly or in its capacity as a general partner of Contributor for
the representations and warranties in this Agreement except for those set
forth in Sections 5.01., 5.02., 5.03. (other than as to matters relating to
Riverfront, as to which Carlyle makes no representation or warranty),
5.04., 5.05. (limited solely to Carlyle's actual knowledge), and 5.06.
herein (and then only to the extent the foregoing representations and
warranties are not affected by matters solely pertaining to Riverfront).
15. THIRD PARTY BENEFICIARY
15.01. Contributor acknowledges that Blackstone Real Estate Advisors
or an affiliate thereof ("BLACKSTONE") is providing the Cash Amount set
forth in 2.01.(a) of this Agreement, and Blackstone, as an intended third
party beneficiary of this Agreement may suffer loss or damage if
Contributor breaches any of the representations and warranties set forth in
this Agreement. Contributor, Riverfront and Carlyle agree to make
Blackstone whole in the event that Contributor breaches any of the
representations and warranties set forth in this Agreement, subject to
Section 13 and Section 14.
16. DARVEL REALTY TRUST
16.01 The name Darvel Realty Trust is the designation of the
trustees under a Declaration of Trust dated July 24, 1970, and recorded
with the Middlesex South District Registry of Deeds on July 24, 1970 in
Book 11865 at Page 580, as amended. The parties hereto other than Darvel
Realty Trust hereby agree, notwithstanding anything contained in this
document to the contrary, to look solely to the Property of Darvel Realty
Trust for the enforcement of any claims against Darvel Realty Trust and
that no trustee, officer, agent or shareholder of Darvel Realty Trust shall
be personally liable for obligations of Darvel Realty Trust hereunder and
the respective properties of such individuals shall not be subject to
claims of any party hereto in respect of any liability of Darvel Realty
Trust hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
CONTRIBUTOR:
RIVERFRONT OFFICE PARK JOINT VENTURE,
A MASSACHUSETTS JOINT VENTURE
By: Carlyle Real Estate Limited Partnership - XI,
an Illinois limited partnership,
Managing General Partner
By: JMB Realty Corporation,
a Delaware corporation
By:
--------------------------
Name:
Title:
By: Riverfront Office Park Associates,
a Massachusetts limited partnership,
General Partner
By: Darvel Realty Trust,
a Massachusetts business trust,
General Partner
By:
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
By: Xxxxxxxx-Riverfront Associates,
a Massachusetts limited partnership,
General Partner
By:
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing General Partner
By: Codman-Riverfront Associates,
a Massachusetts partnership,
General Partner
By:
-------------------------------
Name:
Title:
COMPANY:
BRE/RIVERFRONT LLC, A DELAWARE LIMITED
LIABILITY COMPANY
By: BRE/Riverfront Holdings LLC, a
Delaware limited liability company, its sole Managing Member
By:
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
