SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
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THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment") is
entered into as of the 5th day of May, 1999, by and between MGI PROPERTIES, a
trust organized and existing under the laws of the Commonwealth of Massachusetts
("MGI") for itself and as agent for each of the entities more particularly
described on Schedule 1 attached hereto (MGI and each such entity are
collectively, the "Sellers") and BCIA FUNDING CORP., a Massachusetts corporation
("Purchaser").
RECITALS
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A. Reference is made to a certain Purchase and Sale Agreement by and between
Sellers as the "Sellers" and Purchaser as the "Purchaser," dated as of March 12,
1999 (the "Original P&S Agreement").
B. The Original P&S Agreement was amended by a certain Amendment to Purchase
and Sale Agreement, dated as of March 28, 1999, provided, however, that such
date was a scrivener's error, and such Amendment was actually entered into on
April 28, 1999 (the "First Amendment"). The Original P&S Agreement, as amended
by the First Amendment, shall be referred to herein as the "P&S Agreement."
C. The parties wish to memorialize certain events which have taken place to
date with respect to the transaction contemplated by the P&S Agreement and to
provide for certain additional terms as more particularly set forth herein.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sellers and Purchaser hereby agree as follows:
1. RECITALS; Capitalized Terms. All of the foregoing Recitals to this
Amendment are true and correct and are hereby incorporated in and made a part of
this Amendment to the same extent as if herein set forth in full. All
capitalized terms not otherwise modified or defined herein shall have the same
respective meanings ascribed to them in the P&S Agreement.
2. PURCHASER'S SATISFACTION OF DUE DILIGENCE. The parties hereby acknowledge
that the execution and delivery of this Agreement by the parties shall
constitute delivery of Purchaser's written notice to Sellers of its approval and
unconditional waiver of the conditions set forth in Subsection 4.2.(a)(i) of the
P&S Agreement. Simultaneously with the
execution and delivery of this Amendment, Purchaser shall deliver the Additional
Deposit in accordance with the terms of the P&S Agreement.
3. PURCHASE PRICE. The Purchase Price is hereby reduced by Six Million Four
Hundred Fifty Eight Thousand Two Hundred and Ninety One Dollars ($6,458,291) to
Four Hundred Three Million Five Hundred Forty One Thousand Seven Hundred and
Nine Dollars ($403,541,709). Seller hereby reserves all rights to all claims,
causes of action, remedies and damages that Seller may have against Navisite or
any of its affiliates with respect to such lease for the Property located at Two
Andover Tech Center and Purchaser hereby acknowledges such reservation and
releases all right, title and interest in any such claims, causes of action,
remedies and damages that it may have. The parties acknowledge and agree that
Three Million Five Hundred Sixty Thousand Dollars ($3,560,000) of the price
reduction set forth above is attributable to the loss of rental income from the
anticipated lease with Navisite for the Property located at Two Andover Tech
Center.
4. TENANT ESTOPPEL CERTIFICATES. Purchaser hereby acknowledges that the
condition to Purchaser's obligations to close contained in Section 4.1(d) has
been satisfied or waived by Purchaser. Notwithstanding the foregoing, Seller
agrees that Purchaser shall receive a credit against the Purchase Price for the
each of the amounts set forth below with respect to issues raised by the tenants
listed below, provided however, that the amount of such credit shall be (i)
reduced by any amounts expended by Sellers to address the issues raised by such
tenants, as evidenced to Purchaser's reasonable satisfaction, or (ii) reduced to
zero if Seller provides a "clean" estoppel from tenant which does not raise the
issue giving rise to such credit.
Tenant Property Maximum Credit Amount
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Cambridge Associates One Winthrop Square $15,885
Xxxx Xxxxxx Xxxxxxxx, Inc. 0000 Xxx Xxxxxx $37,960
Xxxxx Xxxxxx, Inc. 0000 Xxx Xxxxxx $ 5,000
Fleet 0000 Xxx Xxxxxx $ 5,000(*)
Seaboard Internat'l 00 Xxxxxx Xxxx $ 2,500
Biscom 000 Xxxxxxxxx Xx. $ 5,300
Sudan Two Portland $ 1,300
5. SERVICE CONTRACTS. Purchaser hereby acknowledges and agrees that, except
for the property management contracts (which are addressed in Section 6 hereof),
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(*) This amount is on account of potentially disputed CAM charges and real
estate taxes for years prior to 1999 and shall be paid in lieu of any other
adjustment for years prior to 1999. Seller shall assign to Purchaser at
Closing any claims it has against 0000 Xxx Xxxxxx LLC, Seller's predecessor
in title, regarding any such disputed claims for years prior to 1998.
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Purchaser has not requested Sellers to terminate any of the
Service Contracts, including, without limitation, all of the service, equipment,
supply, or maintenance agreements delivered or made available to Purchaser
during the Inspection Period. Accordingly all such contracts shall be assumed by
Purchaser at Closing and shall constitute Assumed Service Contracts under the
P&S Agreement. During the remaining term of this Agreement, Seller shall not
enter into any new service contract nor any amendments of or modifications to
the existing Service Contracts (each a "New Service Contract") with respect to
the Properties which is not terminable at Closing without the prior written
consent of Purchaser, which consent shall not be unreasonably withheld and which
shall be deemed granted if Purchaser does not respond within three (3) Business
Days after delivery of any written request for consent setting forth the
business terms of the proposed service contract or enclosing a copy of the
proposed service contract. All such New Service Contracts which have been
consented to or deemed consented to shall constitute Assumed Service Contracts
under the P&S Contract.
6. PROPERTY MANAGEMENT CONTRACTS. Without limiting any other term of the P&S
Agreement or of this Amendment, Purchaser acknowledges that it has received and
reviewed all of the property management contracts currently in effect with
respect to the Properties.
(a) Seller agrees that it shall terminate all existing property management
contracts between any Seller and MGI Property Management, Inc.
(b) Purchaser acknowledges and agrees that the property management
contract between MGI Portland Management Company, a Maine corporation ("Portland
Management Co.") and One Portland Square Condominium Association ("Portland
Square Management Contract") shall not be terminated prior to the Closing and
that at Purchaser's option to be exercised not less than ten (10) Business Days
prior to the Closing, Sellers shall transfer to Purchaser all of the outstanding
stock in Portland Management Co. free and clear of any liens or encumbrances.
Sellers represent and warrant to Purchaser that there are no other assets or
liabilities of Portland Management Co. other than the Portland Management
Contract and personal property and vendor contracts entered into by Portland
Management Co. in the satisfaction of its obligations under the Portland Square
Management Contract and that to Seller's knowledge, there are no defaults under
the Portland Square Management Contract.
(c) The parties acknowledge and agree that the property management
contracts with unaffiliated third parties for (i) all three (3) of the
Properties located in Forge Park, Franklin, Massachusetts and (ii) all three (3)
of the Properties located in Connecticut shall be terminated as of the Closing
Date. All three of the property management contracts for Properties located on
Southborough Drive in South Portland, Maine shall not be terminated by Sellers
prior to Closing and shall constitute "Assumed Contracts" under the P&S
Agreement.
7. NEW LEASES. Purchaser hereby acknowledges and agrees that it has received
and consented or deemed to have consented to each of the Leases set forth on
Exhibit A attached hereto, all of which constitute "Approved Leases" under the
P&S Agreement.
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8. CONSTRUCTION CONTRACTS AND NEW LEASE COSTS. Attached hereto as Exhibit C are
addenda to Exhibit R and Exhibit L to the P&S Agreement, which are hereby
incorporated in and become a part of Exhibit R and Exhibit L, respectively under
the P&S Agreement for all purposes.
9. POLAND SPRINGS LEASE TRANSACTION. With respect to the Property located at
000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx ("375 Paramount"), the parties
acknowledge that Sellers are currently negotiating a lease with Poland Springs
Corporation and that it will be a condition of such lease that Sellers acquire a
certain one acre parcel located adjacent to 375 Paramount. Sellers shall not
enter into a purchase and sale agreement for such adjacent land without the
consent of Purchaser, which consent shall not be unreasonably withheld or
delayed. If prior to the Closing, Sellers have entered into such purchase and
sale agreement, then at the Closing, Purchaser shall reimburse Sellers for all
third party costs and expenses reasonably incurred by Sellers in connection with
such purchase, including, without limitation, all deposits, the purchase price
paid if the adjacent land is acquired prior to the Closing, all diligence,
engineering and legal costs and shall assume all other costs and expenses in
connection with such purchase which Sellers have incurred. In any event, at
Closing Purchaser shall reimburse Sellers for any and all costs and expenses
incurred with respect to such transaction for which Purchaser has provided prior
approval. If the acquisition of such adjacent land has not closed by the
Closing, Sellers shall assign its rights and obligations under the purchase and
sale agreement to Purchaser and Purchaser shall assume all obligations of
Sellers thereunder. If the adjacent parcel is acquired by Sellers prior to the
Closing, Sellers shall convey such adjacent land to Purchaser at the Closing
subject to only those liens and encumbrance (other than mortgage liens) which
existed at the time of Sellers' acquisition of such parcel.
10. SPRINT LEASE. Seller is currently negotiating a lease with Sprint
Communications Company LP for the Property located at 0000 Xxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx. For purposes of Section 10.1(c)(ii) of the P&S
Agreement, the effective date of such lease shall be deemed to be after June 1,
1999 notwithstanding that the actual effective date may be prior thereto.
11. MGI LEASE. Attached hereto as EXHIBIT B is a term sheet for MGI's existing
space in the property located at Xxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx. The
term sheet is hereby modified with respect to the term of the lease, which shall
be for eighteen (18) months, with MGI having the right to terminate the lease at
any time upon six (6) months prior written notice, and the amount of rent, which
shall be $35 per square foot for the first twelve (12) months and $38 per square
foot for the last six (6) months; provided, however, the rent for the 1,000
square feet of storage space shall be $12.50 per square foot. The parties shall
in good faith negotiate a definitive lease agreement based upon such term sheet
as modified in this Section 13 and using MGI's existing form lease for such
Property within twenty-one (21) days after the date of this Agreement. At the
Closing, such lease shall be executed and delivered by Purchaser as the landlord
and MGI as the tenant.
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12. MGI OPTION PARCEL INC. At the Closing, MGI, as agent for or on behalf of
MGI Option Parcel Inc.("MGI Option"), shall assign to Purchaser all of MGI
Option's rights to acquire land in Hopkinton, Massachusetts and Portland, Maine
to the extent assignable, without any representation or warranty or at
Purchaser's option to be exercised not less than ten (10) Business Days prior to
the Closing, Sellers shall transfer to Purchaser all of the outstanding stock of
MGI Option free and clear of any liens or encumbrances. Sellers represent and
warrant to Purchaser that MGI owns the stock of MGI Option free and clear of any
liens or encumbrances and that to Seller's knowledge, there are no defaults
under the agreements pursuant to which MGI Option holds rights to acquire land
in Hopkinton, Massachusetts and Portland, Maine.
13. HEXALON PARKING AGREEMENT. Seller hereby agrees to assign, and Purchaser
hereby agrees to assume, all of Seller's rights and obligations under that
certain agreement entitled "Monthly Parking Agreement," dated June 1, 1993
between Hexalon Real Estate, Inc. and MGI Winthrop Associates, Inc., to the
extent assignable, without any representation or warranty.
14. EXHIBIT E - LEASES. Attached hereto as Exhibit D is a true, complete,
correct and current copy of the List of Leases and the List of Licenses attached
to the P&S as Exhibit E which is hereby substituted for the List of Leases and
the List of Licenses previously attached to the P&S Agreement.
15. GENERAL PROVISIONS.
a) Except as set forth in this Amendment, the P&S Agreement remains unmodified
and in full force and effect.
b) This Amendment shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts. This Amendment shall run to, be binding
upon, and inure to the benefit of all successors and assigns of the parties
hereto. The captions used in this Amendment are for convenience only, and are
not part of this Amendment and do not limit, describe or amplify the terms,
provisions or scope of this Amendment. Each party hereto agrees to execute such
documents and take such acts as any other party hereto may reasonably request to
further effectuate the amendments and transactions contemplated hereby.
c) This Amendment may be executed in one or more counterparts, each of which
counterpart when executed and delivered shall be deemed an original, binding
upon all of the parties hereto, notwithstanding that each of them is not a
signatory to the same counterpart and all of which counterparts taken together,
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Amendment to produce or account for more than one such
counterpart. Each party hereto represents and warrants that it has all requisite
power and authority to execute and deliver this Amendment and that the person
executing the Amendment on its behalf is duly authorized to execute this
Amendment on such party's behalf.
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Executed as an instrument under seal as of the date and year first written
above.
SELLERS:
MGI Properties, for itself and as duly
authorized agent for each of the named
Sellers
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Senior Vice President
PURCHASER:
BCIA Funding Corp.
By: /s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Managing Director
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SCHEDULE 1
Identity of Sellers
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MGI Winthrop Associates, Inc.
MGI Ten Winthrop Square, Inc.
MGI One Portland Square, Inc.
MGI Two Portland Square, Inc.
MGI Elm Street, Inc.
MGI 00 Xxxxx Xxxxxx, Inc.
MGI Glastonbury Corp.
MGI Xxxxxx Drive, Inc.
MGI Chelmsford Corp.
MGI Point West Corp.
6 TSC, Inc.
15 TSC, Inc.
000 Xxxxxxx Xxxxxx, Inc.
MGI Bulfinch Drive, Inc.
MGI 8 Forge Park, Inc.
MGI 9 Forge Park, Inc.
MGI 15 Forge Park, Inc.
MGI 000 Xxxxx Xxxx Xxxxxx, Inc.
MGI Forest Street, Inc.
MGI Harvard Street Corp.
MGI 000 Xxxxxxxxxxx Xxxxxx, Inc.
MGI Ballardvale Corp.
MGI Research Drive Corp.
MGI 0 Xxxxxxxxx Xxxxx, Inc.
000 Xxxxxxx Xxxxxx, Inc.
00 Xxxxxx Xxxx, Inc.
MGI One Tech Andover Corp.
MGI Andover Corp.
MGI Tech Center Corp.
MGI 000 Xxxxxxxxx Xxxxx, Inc.
MGI 000 Xxxxxxxxx Xxxxx, Inc.
MGI Riverside Drive, Inc.
MGI 805 Middle Corp.
MGI Federal Street, Inc.
MGI Two Federal Street, Inc.
MGI Five Federal Street, Inc.
MGI Billerica Road, Inc.
MGI 00 Xxxxxx Xxxx, Inc.
MGI One Park West, Inc.
MGI Andover Street, Inc.
MGI Xxxxxxx Road, Inc.
MGI GLAS Two Corp.
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