EXHIBIT 10.16
Form of Xxxxxx Square Option Agreement
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement") is made this ____ day of June,
1997 by and between 17M Associates, a District of Columbia limited partnership,
with an address at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 ("Optionor") and
Boston Properties Limited Partnership, a Delaware limited partnership, with an
address at 0 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 ("Optionee").
WHEREAS, Boston Properties, Inc., a Delaware corporation and the general
partner of Optionee, has proposed an initial public offering of its common stock
(the "IPO");
WHEREAS, the owners of interests, directly and indirectly, in 17M-Boston
Associates Limited Partnership, a Massachusetts limited partnership and the
general partner of Optionor (the "General Partner"), will benefit from the IPO
as the holders of units of limited partnership interest in Optionee and have
consented to the granting of the Option (as defined below) granted hereby and
acknowledged such benefit in instruments of even date herewith;
WHEREAS, Optionor is the owner of a certain real property, as more
particularly described in EXHIBIT A attached hereto (together with any and all
personal property, rights and easements now or hereafter related thereto, and
subject to any rights of third parties therein now existing or hereafter arising
in the ordinary course of the business of operating the property, collectively,
the "Property");
WHEREAS, Optionor has incurred, and may continue to incur, indebtedness in
connection with the acquisition, development and ownership of the Property (all
outstanding indebtedness of Optionor as of the Option Exercise Date (as defined
below), including accrued interest thereon and any prepayment penalties that may
be incurred in connection with the exercise of the Option, is referred to herein
as the "Debt"); and
WHEREAS, Optionor desires to grant to Optionee, and Optionee desires to
obtain, an option to purchase the Property.
NOW, THEREFORE, for and in consideration of the sum of ten dollars ($10.00)
paid by Optionee to Optionor, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Optionor and Optionee
hereby agree as follows.
1. GRANT OF OPTION. Optionor hereby grants to Optionee an option (the
"Option") to purchase the Property on the terms and conditions set forth herein.
If requested by Optionee upon the exercise of the Option, Optionor shall use its
reasonable best efforts, at the expense of Optionee, to restructure the
transaction so that in lieu of purchasing the Property either (i) all direct and
indirect interests in Optionor are acquired by Optionee and its affiliates, (ii)
Optionor is merged with and into Optionee or an affiliate of Optionee, or (iii)
another transaction of similar economic effect to Optionor is engaged in (any of
the foregoing, an "Alternative Transaction").
2. TERM AND EXERCISE OF OPTION. The Option may be exercised by Optionee
giving written notice to Optionor at any time on or before the ___ anniversary
of the closing date of the IPO (the "Option Termination Date"), which written
notice shall state that Optionee desires to exercise the Option. If Optionee
does not exercise the Option by the Option Termination Date, the Option shall be
deemed terminated and shall be of no further force and effect, and Optionor and
Optionee shall have no further obligations hereunder. The date upon which
Optionee exercises the Option is referred to herein as the "OPTION EXERCISE
DATE."
3. PURCHASE AND SALE AGREEMENT. Optionor and Optionee hereby agree that,
promptly following the exercise of the Option, they shall in good faith
negotiate and enter into a purchase and sale agreement (or, if an Alternative
Transaction will be engaged in, an appropriate agreement or agreements with
respect thereto), which agreement or agreements shall include customary
representations and warranties and a due diligence period, each appropriate in
both scope and substance, and appropriate limitations on the scope of liability
of Optionor with respect to the property-specific representations and warranties
included therein.
4. OPTION PRICE.
(a) If the Option is exercised and the agreement or agreements
described in Paragraph 3 are consummated, then, at the closing of such
transaction, Optionee shall pay, as the purchase price for the Property or
in consideration of the closing of an Alternative Transaction (the "Option
Price"), cash in an amount equal to:
(i) one ($1.00) dollar; PLUS
(ii) to the extent not assumed by Optionee, the Debt; PLUS
(iii) the total of all cash capital contributions made to Optionor
by its partners after the closing date of the IPO; LESS
(iv) the total value of all cash and property distributed by
Optionor to its partners after the closing date of the IPO;
PLUS
(v) to reflect a return on net capital contributed after the
IPO, interest on the positive difference between clauses
(iii) and (iv) outstanding from time to time at the rate of
[9.25]% per annum; PLUS
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(vi) any expenses associated with negotiation of the agreement
or agreements described in Paragraph 3 and the consummation
of the transaction therein contemplated, which expenses in
the aggregate shall not exceed fifty thousand ($50,000)
dollars; PLUS
(vii) an amount equal to the transfer taxes to be incurred by
the partners of Optionor or by the Optionor as a result of
the transfer of the Property or the consummation of an
Alternative Transaction.
Each of the items described above shall be determined as of the closing of
the purchase of the Property or, if applicable, consummation of an
Alternative Transaction. At Optionee's request, Optionor shall provide to
Optionee, within a reasonable period of time following receipt of such
request, an estimate of the Option Price if the Option were exercised and
the purchase consummated as of the date of Optionor's response to such
request, which estimate shall set forth each of the items described in
clauses (i) -(vii) above.
(b) In addition to the Option Price, at the closing of the purchase or
the Alternative Transaction, Optionee shall pay to each of the limited
partners of Optionor as of the date hereof whose name is set forth on
EXHIBIT B attached hereto or their successors in interest (other than
persons who are Affiliates or Associates of the persons with an interest in
the General Partner at such time) (each, a "Designated Limited Partner" and
collectively, the "Designated Limited Partners"), or to Optionor with
Optionor to cause such payments to be distributed appropriately to the
Designated Limited Partners an amount equal to the excess, if any, of:
(i) the amount that would have been distributed to each
Designated Limited Partner under the Agreement of Limited
Partnership of 17M Associates, as in effect on the date
hereof and in accordance with each Designated Limited
Partner's percentage interest as set forth on EXHIBIT B
attached hereto, if the Property had been sold for Fair
Market Value on the Option Exercise Date; OVER
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(ii) the amount that such Designated Limited Partner will receive
upon the distribution of the Option Price by Optionor to its
partners (or, in the case of an Alternative Transaction, the
amount to be received by the Designated Limited Partner).
"FAIR MARKET VALUE" shall be the fair market value of the Property as of
the Option Exercise Date as determined by Optionor and Optionee in good
faith. "AFFILIATE" and "ASSOCIATE" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended, as in effect on the
date of this Agreement.
(c) The Option Price and any other payments due hereunder shall be paid
to Optionor (or its partners, if appropriate) by federal funds wire
transfer or certified check on the closing of the purchase of the Property.
5. AUTHORITY. Each party hereto represents and warrants that it has full
right, authority and power (i) to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by or on behalf of it
pursuant to this Agreement and (ii) to carry out the transactions contemplated
hereby and thereby. Each party hereto has obtained all necessary consents,
approvals and authorizations required with respect to (a) this Agreement and
each agreement, document and instrument to be executed and delivered by or on
behalf of it pursuant to this Agreement and (b) the transactions contemplated
hereby and thereby.
6. ASSIGNMENT, ETC. Optionee shall not assign this Agreement without
Optionor's written consent, which consent shall not be unreasonably withheld if
such assignment is to an affiliate of Optionee. Optionor shall not assign this
Agreement or sell, or agree or commit to sell, or remove from the premises of
the Property, any of the Property (other than related personal property in the
ordinary course of the business of operating the Property) without the prior
written consent of Optionee.
7. MEMORANDUM OF OPTION. Optionor agrees to execute, acknowledge, and
cause to be recorded in the appropriate recording office, promptly after the
date hereof, a memorandum of option or other instrument which is in recordable
form with the appropriate authorities in Washington, D.C. in a form reasonably
satisfactory to Optionee to provide record notice of the existence of this
Agreement.
8. BROKERAGE. Optionor and Optionee warrant to each other that neither
has retained the services of any broker in connection with the transaction
provided for in this Agreement, and each agrees to indemnify the other against
any commission, as well as any costs, fees and expenses, including attorneys'
fees, incurred by the other as a result of any claim for a commission, arising
out of such party's own acts.
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9. AMENDMENT. This Agreement may not be amended except by an instrument
in writing signed by both Optionor and Optionee.
10. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties hereto with respect to the subject matter hereof.
11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given and delivered three (3) days after posting
when mailed, by registered or certified mail, return receipt requested, postage
prepaid, or on the day of delivery if sent by hand or recognized overnight
courier service, addressed to the parties as indicated above or at such other
address of which one party shall notify the other party in accordance with the
foregoing.
12. NO CREDITOR BENEFIT. None of the terms hereof shall be construed as
being for the benefit of or enforceable by any creditor of Optionor or Optionee.
13. EFFECTIVENESS. This Agreement is conditioned and shall become
effective only upon the completion of the IPO.
14. BINDING EFFECT. This Agreement shall be binding upon, and shall be
enforceable by and inure to the benefit of, Optionor and Optionee and their
respective successors and assigns.
15. TITLES. The titles of the paragraphs of this Agreement are included
for convenience of reference only and shall have no effect on the construction
or meaning of this Agreement.
16. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Agreement or the application
of such term or provision to persons, properties and circumstances other than
those as to which it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Agreement shall be valid and enforceable to
the fullest extent permitted by law.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first written above.
OPTIONOR:
17M ASSOCIATES
By: 17M-Boston Associates Limited
Partnership, its General Partner
By: 17M-Boston Associates,
its General Partner
By:___________________________
Name: Xxxxxx X. Xxxxx
Title: General Partner
OPTIONEE:
BOSTON PROPERTIES LIMITED
PARTNERSHIP
By: Boston Properties, Inc.,
its General Partner
By:___________________________
Name: Xxxxxx X. Xxxxx
Title: President and
Chief Executive Officer
