Exhibit 2.3
PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
30th day of September, 1998 ("Contract Date"), by and between NEW ENGLAND LIFE
PENSION PROPERTIES II: A REAL ESTATE LIMITED PARTNERSHIP, a Massachusetts
limited partnership ("Seller"), and COPT ACQUISITIONS, INC., a Delaware
corporation ("Buyer"), for the purpose of setting forth the agreement of the
parties hereto.
BACKGROUND
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A. This Agreement is made with respect to the following real and
personal property owned by Seller (collectively, the "Property"):
1. The parcel of land described on Exhibit A attached hereto
(the "Land"), together with all rights, easements and interests appurtenant
thereto, including, but not limited to, any streets or other public ways
adjacent to the Land and any water or mineral rights owned by Seller;
2. The reversionary interest in all improvements located on
the Land, including, but not limited to, the building, containing 160,000 net
rentable square feet, located in Rivers Corporate Park and commonly known as
0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx (the "Building"), and all other
structures, systems, and utilities associated with, and utilized by, M.O.R.
(hereafter defined) in the ownership and operation of the Building (all such
improvements being collectively referred to herein as the "Improvements"), but
excluding improvements, if any, owned by the tenants of the Building
("Tenants"); and
3. All intangible property used or useful in connection with
the foregoing including, without limitation, all trademarks, tradenames,
development rights, entitlements, contract rights, tenant improvement loans,
guarantees, licenses, permits and warranties (collectively, the "Intangible
Personal Property").
B. Seller currently leases the Land to M.O.R. XXIX Associates Limited
Partnership, a Maryland limited partnership ("M.O.R.") pursuant to that certain
Amended & Restated Ground Lease, dated as of May 2, 1985, by and between Seller,
as lessor, and M.O.R., as lessee, as amended by that certain First Amendment to
Ground Lease, dated December 24, 1986, and as further amended by that certain
Second Amendment to Ground Lease, dated October 15, 1997 (collectively, the
"Ground Lease"). Title to the Improvements is currently vested in M.O.R.
C. Seller is prepared to sell, transfer, assign and convey the Property
to Buyer, and Buyer is prepared to purchase and accept the same from Seller, all
for the
Purchase Price (hereafter defined) and on the other terms and conditions
hereinafter set forth.
TERMS AND CONDITIONS
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In consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto agree:
1. Sale and Purchase. Seller hereby agree to sell, transfer, assign and
convey the Property to Buyer, and Buyer hereby agrees to purchase and accept the
Property from Seller, in each case for the Purchase Price and on and subject to
the other terms and conditions set forth in this Agreement.
2. Purchase Price. The purchase price for the Property (the "Purchase
Price") shall be Eight Million Five Hundred Seventy-Two Thousand One Hundred
Eight Dollars ($8,572,108) , which, subject to the terms and conditions
hereinafter set forth, shall be paid by Buyer as follows:
2.1. Deposit. Buyer has deposited with the Commonwealth Land
Title Insurance Company (the "Title Company") [ One Hundred Twenty Five Thousand
and 00/100 Dollars ($125,000.00) (the "Deposit"). The Deposit shall be held by
the Title Company in accordance with the terms of Section 12 hereof. If the
Closing (hereafter defined) occurs, any interest earned on the Deposit shall be
paid to Buyer at the time of Closing; otherwise any interest earned on the
Deposit shall be paid to the party entitled to the Deposit pursuant to the terms
of this Agreement.
2.2. Payment at Closing; Funding Agreement. At the
consummation of the transaction contemplated hereby (the "Closing"), Buyer shall
deliver to Title Company cash in an amount equal to the Purchase Price less the
Deposit. The Purchase Price, subject to adjustments and apportionments as set
forth herein, shall be paid at Closing by wire transfer of immediately available
federal funds, transferred to the order or account of Seller or such other
person as Seller may designate in writing.
3. Representations and Warranties of Seller. Except (A) as otherwise
set forth in the written schedules attached to this Agreement (the "Schedules"),
if any, which set forth the exceptions to the representations and warranties
contained in this Section 3 and certain other information called for by this
Agreement (unless otherwise specified, (i) each reference in this Agreement to
any numbered schedule is a reference to that numbered schedule which is included
in the Schedules and (ii) no disclosure made in any particular numbered schedule
of the Schedules shall be deemed made in any other numbered schedule of the
Schedules unless expressly made therein (by cross-reference or otherwise)), and
(B) as expressly set forth in any document delivered to Buyer by Seller or
M.O.R. prior to the Closing, Seller represents and warrants to Buyer that the
following matters are true and correct as of the Contract Date, in all
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material respects, and shall be true and correct as of the Closing Date
(hereafter defined), in all material respects, and further covenants as follows:
3.1. Authority. The execution and delivery of this Agreement
by Seller, and the performance of this Agreement by Seller, has been duly
authorized by Seller, and, to the best of Seller's knowledge, this Agreement is
binding on Seller and enforceable against it in accordance with its terms. No
consent of any creditor, investor, partner, shareholder, tenant-in-common,
judicial or administrative body, Governmental Authority, or other governmental
body or agency, or other party to such execution, delivery and performance by
Seller is required. Neither the execution of this Agreement nor the consummation
of the transactions contemplated hereby will (i) result in a breach of, default
under, or acceleration of, any agreement to which Seller is a party or by which
Seller or the Property are bound; or (ii) violate any restriction, court order,
agreement or other legal obligation to which Seller and/or the Property are
subject. For the purposes of this Agreement, "Governmental
Authority/Authorities" shall mean any agency, commission, department or body of
any municipal, township, county, local, state or Federal governmental or
quasi-governmental regulatory unit, entity or authority having jurisdiction or
authority over all or any portion of the Property or the management, operation,
use or improvement thereof.
3.2. FIRPTA. Seller is a "United States Person" within the
meaning of Section 1445(f)(3) of the Code, as amended, and shall execute and
deliver an "Entity Transferor" certification at Closing.
3.3. Title. The Ground Lease is in full force and effect
according to the terms set forth therein, and has not been modified, amended, or
altered, in writing or otherwise. All obligations of Seller under the Ground
Lease that have accrued to the date hereof have been performed. Seller is not,
and, to the best of Seller's knowledge, M.O.R. is not, in default under the
Ground Lease, and there has not occurred any event which, with the giving of
notice and/or the passage of time, or both, would constitute a default by Seller
or, to the best knowledge of Seller, by M.O.R., thereunder.
3.4. Seller's Deliveries. To the best of Seller's knowledge,
the copy of the Ground Lease and all other items delivered by Seller or its
agents in connection with this Agreement are true, accurate, correct and
complete in all material respects, and fairly present the information set forth
in a manner that is not misleading. The copy of the Ground Lease delivered by
Seller to Buyer constitutes the only agreement relating to or affecting the
ownership and operation of the Property to which Seller is a party (excluding
any loan documents by and between Seller and M.O.R.), there being no "side" or
other agreements, written or oral, in force or effect, to which Seller is a
party.
3.5. Defaults. Seller has not received written notice alleging
the existence of any default under (i) any of the recorded documents affecting
the Property, or (ii) under any certificate of occupancy, license, permit,
authorization or other approval required by law or by any governmental authority
having jurisdiction thereover in respect of the Property, or any
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portion thereof, the occupancy thereof or any present use thereof (the
"Governmental Approvals").
3.6. Contracts. Other than the Ground Lease, there are no
contracts of any kind to which Seller is a party relating to the management,
leasing, operation, maintenance or repair of the Property.
3.7. Employees. Seller does not employ any persons at the
Property.
3.8. Compliance with Laws and Codes; Re-Zoning. Seller has not
received written notice of (i) any violations of any applicable federal, state
or local statutes, regulations, directives ordinances, regulations, codes,
licenses, permits and authorizations affecting the Property or the use thereof
(or the use and operation of any component, portion or area of the Property),
including without limitation those pertaining to environmental matters,
contamination of any type whatsoever or health and safety matters, (ii) any
threatened proceeding for the rezoning of the Property or any portion thereof,
or (iii) the taking of any other action by governmental authorities that would
have an adverse or material impact on the value of the Property or use thereof.
3.9. Litigation. There are no pending or, to the best of
Seller's knowledge, threatened judicial, municipal or administrative proceedings
affecting Seller or the Property, or in which Seller is or will be a party by
reason of Seller's ownership or operation of the Property. No attachments,
execution proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization or other proceedings are pending against Seller, or
to the best of Seller's knowledge, threatened against Seller or pending against
any direct or indirect partner of Seller, nor are any of such proceedings
contemplated by Seller. In the event any proceeding of the character described
in this Section 3.9 is initiated or threatened against Seller prior to the
Closing, Seller shall promptly advise Buyer thereof in writing.
3.10. Personal Property; Inventory. Seller does not own (i)
any personal property either (A) located on or in the Land or Improvements, or
(B) used in connection with the operation and maintenance of the Property, or
(ii) any building materials, supplies, hardware, carpeting and other inventory
in connection with Seller's ownership and operation of the Land.
3.11. Real Estate Taxes. Seller has not received written
notice of any proposed increase in the assessed valuation or rate of taxation of
the Property from that reflected in the most recent real estate tax bills.
Except as may be initiated by M.O.R., there is not now pending, and Seller will
not, without the prior written consent of Buyer (which consent shall not be
unreasonably withheld or delayed), institute prior to the Closing Date, any
proceeding or application for a reduction in the real estate tax assessment of
the Property or any other relief for any tax year.
3.12. Condemnation. Seller has no knowledge of any pending or
contemplated condemnation or other governmental taking proceedings affecting all
or any part of the Property.
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Whenever a representation and warranty in this Section 3 or elsewhere
in this Agreement is qualified by "to the best knowledge of Seller," or a
similar phrase, it shall mean the actual, not imputed or constructive, knowledge
of Xxxxx Xxxxxx and Xxxxxxx Xxxxx of AEW Capital Management, L.P. ("AEW"),
investment manager of Seller, without any obligation on such individual's part
to make any independent investigation of the matters being represented and
warranted.
The representations and warranties in this Section 3 shall be deemed
remade by Seller as of the Closing Date with the same force and effect as if in
fact specifically remade at that time. Such representations and warranties shall
survive the Closing for a period of one year; provided, however, that Buyer
shall not be entitled to bring a claim with respect to any representation and
warranty during such one year period if, on or prior to the Closing Date, Buyer
acquired actual, not imputed or constructive, knowledge that the applicable
representation and warranty was not true in all material respects as of the
Closing Date.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND
AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS
AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND
CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY IN ITS CONDITION ON THE DATE
THEREOF, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR
IN THE M.O.R. AGREEMENT (HEREAFTER DEFINED). BUYER HAS NOT RELIED AND WILL NOT
RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED
WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
ANY PROSPECTUS DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY
SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT OR THE M.O.R. AGREEMENT.
BUYER AGREES THAT IT HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING,
SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL
AND ENVIRONMENTAL CONDITIONS THEREOF,
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AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF
THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OF OR CURATIVE ACTION TO BE TAKEN
WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE
PROPERTY. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT AND THE M.O.R. AGREEMENT (INCLUDING WITHOUT LIMITATION THE
REPRESENTATIONS AND WARRANTIES AND THE PROVISIONS RELATING TO A BREACH THEREOF),
BUYER IS RELYING ON SUCH INDEPENDENT INVESTIGATIONS.
4. Conditions Precedent to Buyer's Obligations.
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4.1. Seller's Deliveries. To the extent in Seller's or AEW's
possession, Seller shall continue to make available to Buyer, from and after the
Contract Date, at reasonable times and upon reasonable notice, all books,
records, tax returns, correspondence, financial data, leases, and all other
documents and matters, public or private, maintained by Seller or AEW, relating
to receipts and expenditures pertaining to the Property for the three most
recent full calendar years and the current calendar year and all contracts,
rental agreements and all other documents and matters, public or private,
maintained by Seller or its agents, relating to operations of the Property
(collectively, "Records").
4.2. Inspection; Access.
(a) Basic Property Inspection. From and after the
Contract Date, at reasonable times and upon reasonable notice, Buyer, its agents
and representatives shall be entitled to conduct inspections of the Property,
which will include the rights to: (1) enter upon the Land and Improvements to
perform inspections and tests of any and all of the Property, including, but not
limited to, inspection, evaluation and testing of the heating, ventilation and
air-conditioning systems and all components thereof, all structural and
mechanical systems within the Improvements, including, but not limited to,
sprinkler systems, power lines and panels, air lines and compressors, automatic
doors, tanks, pumps, plumbing and all equipment and vehicles; (ii) examine and
copy any and all Records; (iii) make investigations with regard to zoning,
environmental (including, but not limited to, an environmental assessment as
specified in Section 4.2(b), which includes, but is not limited to, an analysis
of the presence of any asbestos, chlordane, formaldehyde or other Hazardous
Material in, under or upon the Property, or any underground storage tanks on, or
under, the Land), building, code, regulatory and other legal or governmental
requirements; (iv) make or obtain market studies and real estate tax analyses;
and (v) interview Tenants with respect to their current and prospective
occupancies. Without limitation of the foregoing, Buyer or its designated
independent or other accountants may audit the financial statements and all
income and expense statements, year-end financial and monthly and annual
operating statements for the Property for calendar years 1995, 1996, 1997 and,
to the extent available, 1998, and Seller shall supply such documentation as
Buyer or its accountants may reasonably request in order to complete such audit.
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(b) Environmental Assessment. From and after the
Contract Date, at reasonable times and upon reasonable notice, Buyer or Buyer's
agent(s) shall have the right to employ one or more environmental consultants or
other professional(s) to perform or complete such environmental inspections and
assessments of the Property as Buyer deems necessary or desirable; provided,
however, that Buyer shall not perform a "Phase II" environmental assessment or
undertake any other invasive physical tests at the Property without first
obtaining Seller's approval to do so, which approval shall not be unreasonably
withheld or delayed. Buyer and its consultants shall also have the right to
undertake or complete a technical review of all documentation, reports, plans,
studies and information in possession of Seller or AEW, or its past or present
environmental consultants, concerning or in any way related to the environmental
condition of the Property. In order to facilitate the assessments and technical
review, Seller shall extend its full cooperation (but without third party
expense to Seller) to Buyer and its environmental consultants, including,
without limitation, providing access to all files and fully and completely
answering all questions.
(c) Buyer's Undertaking. Buyer hereby covenants and
agrees that it shall cause all studies, investigations and inspections performed
at the Property pursuant to this Section 4.2 to be performed in a manner that
does not materially or unreasonably disturb or disrupt the tenancies at or
business operations of the Property. In the event that, as a result of Buyer's
exercise of its rights under Sections 4.2(a) and 4.2(b), physical damage occurs
to the Property, then Buyer shall promptly repair such damage, at Buyer's sole
cost and expense, so as to return the Property to substantially the same
condition as exists on the Contract Date. Buyer hereby indemnifies, protects,
defends and holds Seller harmless from and against any and all losses, damages,
claims, causes of action, judgments, damages, costs and expenses that Seller
actually suffers or incurs as a direct result of any physical damage caused to,
in, or at the Property during the course of, or as a result of, any or all of
the studies, investigations and inspections that Buyer elects to perform (or
causes to be performed) pursuant to this Section 4.2.
(d) Confidentiality. Each party agrees to maintain in
confidence, and not to disclose to Tenants or Tenants' employees, the
information contained in this Agreement or pertaining to the transaction
contemplated hereby and the information and data furnished or made available by
Seller to Buyer, its agents and representatives in connection with Buyer's
investigation of the Property and the transactions contemplated by this
Agreement; provided, however, that each party, its agents and representatives
may disclose such information and data (i) to such party's accountants,
attorneys, existing or prospective lenders, investment bankers, accountants,
underwriters, ratings agencies, partners, consultants and other advisors in
connection with the transactions contemplated by this Agreement to the extent
that such representatives reasonably need to know (in the disclosing party's
reasonable discretion) such information and data in order to assist, and perform
services on behalf of, the disclosing party; (ii) to the extent required by or
appropriate under any applicable statute, law, regulation or Governmental
Authority; (iii) in connection with any litigation that may arise between the
parties in connection with the transactions contemplated by this Agreement or
otherwise relating to the Property or any of them; (iv) to the extent such
disclosure is required or appropriate in connection with any securities offering
or other capital markets or financing transaction undertaken by any Affiliate
(hereafter defined) of Buyer; (v) to the extent such information and
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data become generally available to the public other than as a result of
disclosure by such party or its agents or representatives; (vi) to the extent
such information and data become available to such party or its agents or
representatives from a third party who, insofar as is known to such party, is
not subject to a confidentiality obligation to the other party hereunder; and
(vii) to the extent necessary in order to comply with each party's respective
covenants, agreements and obligations under this Agreement. In the event the
transactions contemplated by this Agreement shall not be consummated, such
confidentiality shall be maintained indefinitely. Furthermore, Seller and Buyer
acknowledge that, notwithstanding any contrary term of this Section 4.2(d),
Buyer shall have the right to conduct Tenant interviews, and the disclosure of
the existence of this Agreement to the Tenants shall not constitute a breach of
the above restriction. Buyer shall also have the right to issue a press release
upon the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
4.3. Title and Survey Matters.
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(a) Title. Buyer shall accept title to the Property
subject only to those matters shown on Schedule B Section 2 (the "Permitted
Exceptions") of the marked-up title insurance commitment ("Specimen Policy")
attached hereto as Exhibit B.
(b) Title A Condition Precedent. It shall be a
condition precedent to Buyer's obligation to close (a "Buyer Condition
Precedent") that the title insurance policy issued at the Closing be in the form
of the Specimen Policy, including without limitation having all standard and
general printed exceptions deleted so as to afford full "extended form
coverage," and including all commercially available endorsements which Buyer
elects to procure.
(c) Failure Regarding Title. Any and all title
exceptions affecting the Property that are not shown on the Specimen Policy
shall be "Disapproved Exceptions." If any such Disapproved Exceptions exist at
the time of Closing, Buyer shall have the option of either: (i) completing the
Closing subject to such Disapproved Exceptions without any abatement of the
Purchase Price, or (ii) terminating this Agreement and being immediately paid
the Deposit and, in the case where the Disapproved Exception was voluntarily
created by Seller, being reimbursed for the actual out-of-pocket costs and
expenses incurred by Buyer in connection with this Agreement and the Property,
including, but not limited to, legal fees, title company charges, engineering
fees, environmental consultant's fees, architects' and surveyors' fees and other
similar charges, whereupon the parties shall be released from all liability or
obligation to the other and this Agreement shall then and thereafter be null and
void.
4.4. Additional Buyer's Conditions Precedent. In addition to
the other conditions enumerated in this Agreement, the following shall be
Buyer's Conditions Precedent:
(a) Physical Condition. The physical condition of
Property shall be substantially the same on the Closing Date as on the Contract
Date, reasonable wear
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and tear excepted, unless the alteration of said physical condition is the
result of Damage.
(b) Bankruptcy. As of the Closing Date, neither
Seller nor the Property shall be the subject of any bankruptcy proceeding for
which approval of this transaction has not been given and issued by the
applicable bankruptcy court.
(c) Representations and Warranties True. The
representations and warranties of Seller contained in this Agreement shall be
true and correct as of the Closing Date, in all material respects, as though
such representations and warranties were made on such date.
(d) Covenants Performed. All covenants of Seller
required to be performed on or prior to the Closing Date shall have been
performed, in all material respects .
(e) Simultaneous Closing. The closing of the
transaction contemplated by that certain Contribution Agreement, dated of even
date herewith, by and between Buyer and M.O.R. (the "M.O.R. Agreement") shall
occur simultaneously with the Closing contemplated hereunder. Seller
specifically acknowledges that, in connection with the transactions contemplated
hereby and by the M.O.R. Agreement, Seller has waived any and all purchase
rights it may have under the Ground Lease.
5. New Leases and Lease Modifications. Effective as of the execution of
this Agreement, Seller hereby covenants with Buyer as follows:
5.1. Ground Lease; New Leases. Seller shall not amend or
terminate the Ground Lease, nor shall Seller execute any new lease, license, or
other agreement affecting the ownership or operation of all or any portion of
the Property, without in each case obtaining Buyer's prior written approval,
which approval shall not be unreasonably withheld or delayed.
5.2. New Contracts. Seller shall not enter into any contract
with respect to the ownership and operation of all or any portion of the
Property that will survive the Closing, or that would otherwise affect the use,
operation or enjoyment of the Property, without Buyer's prior written approval,
which approval may granted or denied in Buyer's sole discretion.
5.3. Operation of Property. To the extent any such obligations
are not those of M.O.R. under the Ground Lease, Seller shall perform, when due,
all of its obligations under the Ground Lease, Governmental Approvals and other
agreements relating to the Property and otherwise in accordance with applicable
laws, ordinances, rules and regulations affecting the Property. Except as
otherwise specifically provided herein, Seller shall deliver the Property at
Closing in substantially the same condition as it is in on the Contract Date,
reasonable wear and tear excepted. None of the fixtures shall be removed from
the Property, unless replaced by fixtures of equal or greater utility and value.
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5.4. Good Faith. All actions required pursuant to this
Agreement that are necessary to effectuate the transaction contemplated herein
will be taken promptly and in good faith by the parties hereto, and each party
shall furnish the other with such documents or further assurances as the
requesting party may reasonably require.
5.5. No Assignment. After the Contract Date and prior to the
Closing, Seller shall not assign, alienate, lien, encumber or otherwise transfer
all or any part of the Property or any interest therein.
5.6. Availability of Records, Audit Representation Letter.
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(a) Upon Buyer's reasonable request, for a period of
two years after the Closing, Seller shall make the Records available to Buyer
for inspection, copying and audit by Buyer's designated accountants. At any time
before or within two years after the Closing, Seller further agrees to provide
to the Buyer's designated independent auditor, upon the reasonable request of
Buyer or such auditor, an audit representation letter delivered by Seller
regarding the books and records of the Property maintained by Seller, in a form
reasonably agreed upon by Buyer, Seller and their respective accountants.
(b) In addition, during such two year period, Seller
shall provide, and cooperate in all reasonable respects in providing, Buyer with
copies of, or access to, such factual information as may be reasonably requested
by Buyer, and in the possession of Seller or AEW, to enable any Affiliate of
Buyer to issue one or more press releases concerning the transaction that is the
subject of this Agreement, to file a Current Report on Form 8-K, if, as and when
such filing may be required by the Securities and Exchange Commission and to
make any other filings that may be required by any Governmental Authority. The
obligation of Seller to cooperate in providing Buyer with such information shall
be at Buyer's sole cost and expense.
5.7. Change in Conditions. Seller shall promptly notify Buyer
of any change in any condition with respect to the Property of which it receives
notice or of the occurrence of any event or circumstance of which it receives
notice that makes any representation or warranty of Seller to Buyer under this
Agreement untrue or misleading, or any covenant of Buyer under this Agreement
incapable or less likely of being performed.
6. Closing; Deliveries.
6.1. Time of Closing. Except as otherwise provided in
this Agreement, the closing of the transaction contemplated by this Agreement
(the "Closing") shall take place on the date (the "Closing Date") specified by
Buyer upon not less than three (3) days prior notice to Seller, provided that
the Closing Date shall occur no later than fifteen (15) days after the Contract
Date. The Closing shall take place at the offices of Xxxxxx, Xxxxx & Bockius
LLP, 0000 Xxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, at such other
place as may be mutually agreed upon by the parties, or in escrow at the offices
of the Title Company if mutually agreed upon by the parties.
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6.2. Seller Deliveries. At the Closing (or such other times as
may be specified below), Seller shall deliver or cause to be delivered to Buyer
the following, each in form and substance reasonably acceptable to Seller and
Buyer and their respective counsel:
(a) Deed. A Special (or Limited) Warranty Deed to the
Property from Seller, duly executed and acknowledged by Seller, free and clear
of all encumbrances, other than the Permitted Exceptions.
(b) Assignments. An assignment executed by Seller and
Buyer assigning all right, title and interest of Seller in and to the Ground
Lease, and a general assignment executed by Seller to Buyer of all right, title
and interest of Seller and its agents in and to the Intangible Personal Property
(including, but not limited to, the Governmental Approvals);
(c) Affidavit of Title and ALTA Statement. As to
Property, an Affidavit of Title (or comparable document) as required by the
Title Company in the State of Maryland as a condition to the deletion of the
general exceptions of Schedule B, Section 2 of the commitment for title
insurance, executed by Seller, as applicable, and in form and substance
acceptable to the Title Company and to Buyer;
(d) Original Documents. Provided the same are in the
possession of Seller or AEW, originals of the Ground Lease and any Governmental
Approvals;
(e) Closing Statement. A closing statement conforming
to the proration and other relevant provisions of this Agreement (the "Closing
Statement") duly executed by Seller;
(f) Plans and Specifications. All engineering and
architectural plans and specifications, drawings, studies and surveys relating
to the Property in Seller's or AEW's possession;
(g) Entity Transfer Certificate. Entity transfer
certifications confirming that Seller is a "United States Person" within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended;
(h) Closing Certificate. A certificate, signed by
Seller, certifying that the representations and warranties of Seller contained
in this Agreement are true and correct as of the Closing Date and that all
covenants required to be performed by Seller prior to the Closing Date have been
performed; and
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(i) Other. Such other documents and instruments as
may reasonably be required by Buyer, its (or its underwriters' or lenders')
counsel or the Title Company and that may be necessary to consummate the
transaction that is the subject of this Agreement and to otherwise give effect
to the agreements of the parties hereto (including, without limitation, (i)
copies of the documents pursuant to which Seller is organized and operates its
business, together with proof of the authority of the signatory or signatories
of this Agreement on behalf of Seller to execute this Agreement, and (ii) any
documents and instruments in Seller's or AEW's possession that have not
previously been delivered to Buyer).
After the Closing, Seller shall execute and deliver to Buyer such
further documents and instruments as Buyer shall reasonably request to effect
this transaction and otherwise effect the agreements of the parties hereto.
6.3. Buyer Deliveries. At the Closing (or such other times as
may be specified below), Buyer shall pay the balance of the Purchase Price in
accordance with Section 2.2 and cause to be delivered to Seller the following,
each in form and substance reasonably acceptable to Seller and Buyer and their
respective counsel:
(a) Assignment. The assignments described in Section
6.2(b);
(b) Closing Statement. The Closing Statement, duly
executed by Buyer; and
(c) Other. Such other documents and instruments as
may reasonably be required by Seller, its counsel or the Title Company and that
are necessary to consummate the transaction which is the subject of this
Agreement and to otherwise effect the agreements of the parties hereto.
After Closing, Buyer shall execute and deliver to Seller such further
documents and instruments as Seller shall reasonably request to effect this
transaction and otherwise effect the agreements of the parties hereto.
7. Apportionments; Taxes. Except to the extent the following are the
obligation of M.O.R. under the Ground Lease, the following shall be prorated and
adjusted between Seller and Buyer as of the Closing Date, except as otherwise
specified:
7.1. Buyer and Seller shall divide the cost of any transfer
taxes or recording charges equally between them;
7.2. Water, electricity, sewer, gas, telephone and other
utility charges based, to the extent practicable, on final meter readings and
final invoices, or, in the event final readings and invoices are not available,
based on the most currently available billing information, and reprorated upon
issuance of final utility bills;
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7.3. All real estate, personal property and ad valorem taxes
applicable to the Property and levied with respect to tax year 1998 shall be
prorated as of the Closing Date, utilizing the actual final tax bills for those
Property. Prior to or at the Closing, Seller shall cause to be paid all tax
bills that are due and payable prior to or on the Closing Date and shall furnish
evidence of such payment to Buyer and the Title Company. Each party's respective
obligations to reprorate real estate taxes shall survive the Closing.
7.4. All assessments, general or special, shall be prorated as
of the Closing Date on a "due date" basis such that Seller shall be responsible
for any installments of assessments which are first due or payable prior to the
Closing Date and Buyer shall be responsible for any installments of assessments
which are first due or payable on or after the Closing Date;
7.5. Broker's commissions for the Ground Lease, if any,
whether with respect to base lease term, future expansions, renewals, or
otherwise, shall be paid in full at or prior to the Closing by Seller, without
contribution or proration from Buyer;
7.6. All rents and other charges due from M.O.R. under the
Ground Lease, including, without limitation, all Additional Rent, shall be
prorated as of the Closing Date.
7.7. The Purchase Price and the Contribution Consideration (as
defined in the M.O.R. Agreement), each of which reflect the value that Seller
and Buyer and M.O.R. and Buyer, respectively, place upon Seller's interest in
the Property and M.O.R.'s interest in the Property, respectively, as of the
Contract Date, shall be adjusted to give effect to all of the applicable terms
and conditions of the Ground Lease and any loan documents by and between Seller
and M.O.R. The purpose of the foregoing adjustment, which Seller and Buyer agree
is required by virtue of the Ground Lease and such loan documents, is to ensure
that the value of Seller's interest in the Property is accurately reflected as
of the Closing Date. Notwithstanding the foregoing, in no event shall the sum of
the Purchase Price and the Contribution Consideration as of the Closing Date
exceed the sum of the Purchase Price and the Contribution Consideration as of
the Contract Date. Following the adjustment described in this Section 7.7 and
the consummation of the transaction contemplated hereby, Buyer shall have no
obligation to Seller for any sum due under, or in connection with, the Ground
Lease or any such loan documents.
7.8. Such other items that are customarily prorated in
transactions of this nature shall be ratably prorated.
For purposes of calculating prorations, Buyer shall be deemed to be in
title to the Property, and therefore entitled to the income therefrom and
responsible for the expenses thereof, for the entire Closing Date. All such
prorations shall be made on the basis of the actual number of days of the year
and month that shall have elapsed as of the Closing Date. Bills received after
the Closing that relate to expenses incurred, services performed or other
amounts allocable to the period prior to the Closing Date shall be paid. in
cash, by Seller, to the extent due and owing. Bills received by Seller
13
after the Closing Date that relate to expenses incurred, services performed or
other amounts allocable to the period on or after the Closing Date, shall be
paid, in cash, by the Buyer, to the extent due and owing.
8. Damage or Destruction; Condemnation; Insurance. If, prior to the
Closing, all or any portion of the Property is damaged by fire or other casualty
(collectively, "Damage"), or is taken or made subject to condemnation, eminent
domain or other governmental acquisition proceedings (collectively, "Eminent
Domain"), then Buyer, in its sole and absolute discretion, may elect either of
the following options: (i) Buyer may terminate this Agreement by written notice
to Seller and receive an immediate refund of the Deposit, whereupon neither
party shall have any further liability to the other under this Agreement; or
(ii) Buyer may proceed to close on the Property. In such latter event, if the
Property has been made the subject of Eminent Domain, Seller shall fully
cooperate with Buyer in the adjustment and settlement of the governmental
acquisition proceeding and pay over or assign to Buyer the entire amount of the
condemnation award payable by the Governmental Authority.
9. Default; Indemnity.
------------------
9.1. Default by Seller. If any of Seller's representations and
warranties contained herein shall not be true and correct, in all material
respects, on the Contract Date, or if Seller fails to perform any of the
covenants and agreements contained herein to be performed by Seller within the
time for performance as specified herein (including Seller's obligation to
close), or if any of the Buyer's Conditions Precedent shall not have been
satisfied as of the Closing Date, Buyer may elect either to (i) terminate
Buyer's obligations under this Agreement by written notice to Seller and receive
an immediate return of the Deposit; or (ii) close, in which event Buyer may,
subject to the remaining provisions of this Section 9 and the other applicable
provisions of this Agreement, file an action for either or both of specific
performance and damages to compel Seller to cure all or any of such default(s),
in whole or in part.
9.2. Default by Buyer. In the event Buyer defaults in its
obligations to acquire the Property, then Seller's sole and exclusive remedy
shall be to terminate this Agreement and retain the Deposit as liquidated
damages. Seller shall have no other remedy for any default by Buyer. Buyer and
Seller acknowledge that the damages to Seller resulting from Buyer's breach
would be difficult, if not impossible, to ascertain with any accuracy, and that
the liquidated damage amount set forth in this Section 9.2 represents both
parties' best efforts to approximate such potential damages.
9.3. Indemnification.
---------------
(a) Buyer. Seller agrees to and does hereby
indemnify, defend and hold harmless Buyer, any assignee of Buyer's rights
hereunder and each of their respective partners, officers, directors,
shareholders, agents and employees, and each of their successors and assigns
(collectively, the "Buyer Indemnified Parties"), from and
14
against any and all claims, losses, demands, liabilities, suits, administrative
proceedings, causes of action, costs and damages suffered by any Buyer
Indemnified Party, but excluding consequential damages, and attorneys' fees of
counsel selected by any Buyer Indemnified Party and other costs of defense,
incurred, arising against, or suffered by any Buyer Indemnified Party, both
known and unknown, present and future, at law or in equity (collectively,
"Losses"), arising out of, by virtue of or related in any way to, a breach of
any representation, warranty or covenant set forth in this Agreement.
(b) Seller. Buyer agrees to and does hereby
indemnify, defend and hold harmless Seller and its respective partners,
officers, directors, shareholders, agents and employees, and each of their
successors and assigns, from and against any and all Losses arising out of, by
virtue of or related in any way to, a breach of any representation, warranty or
covenant of Buyer set forth in this Agreement.
(c) Control of Defense Counsel. Each indemnified
party shall give reasonably prompt notice to each indemnifying party of any
action or proceeding commenced against the indemnified party in respect of which
indemnity may be sought hereunder, but failure so to notify an indemnifying
party (i) shall not relieve it from any liability which it may have under any
indemnity provided herein unless and to the extent it did not otherwise learn of
such action and the lack of notice by the indemnified party results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
shall not, in any event, relieve the indemnifying party from any obligations to
any indemnified party hereunder other than its indemnification obligation. If
the indemnifying party so elects within a reasonable time after receipt of such
notice, the indemnifying party may assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by the
indemnifying party; provided, however, that, if such indemnified party or
parties reasonably determine that a conflict of interest exists where it is
advisable for such indemnified party or parties to be represented by separate
counsel or that, upon advice of counsel, there may be legal defenses available
to them which are different from or in addition to those available to the
indemnifying party, then the indemnifying party shall not be entitled to
separate counsel at the indemnifying party's expense. If an indemnifying party
is not so entitled to assume the defense of such action or does not assume such
defense, after having received the notice referred to in the first sentence of
this Section 9.3(c). the indemnifying party or parties will pay the reasonable
fees and expenses of counsel for the indemnified party or parties. In such
event, however, no indemnifying party will be liable for any settlement effected
without the written consent of such indemnifying party. If an indemnifying party
is entitled to assume, and assumes, the defense of such action or proceeding in
accordance with this Section, such indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred thereafter
in connection with such action or proceeding.
9.4. Limitations.
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(a) The obligations of the parties pursuant to this
Section 9 shall be limited to claims made prior to the last date of survival of
the applicable representation, warranty or covenant referred to in this
Agreement (and the absence of any express survival period shall be construed to
mean that such representation, warranty or covenant survives without limit).
(b) The amount of either party's liability under this
Agreement shall be determined taking into account (A) any applicable insurance
proceeds actually received by the other party, and (B) any other savings
realized in connection with such liability that actually reduce the overall
impact of the Losses upon the other party.
(c) Notwithstanding anything in this Agreement to the
contrary, Seller shall have no liability to any Buyer Indemnified Party unless
the valid claims hereunder collectively aggregate more than $60,000, in which
event the full amount of such valid claims shall be actionable, up to the cap
set forth in the following sentence (except for any claim based on fraud by
Seller in connection with this Agreement, which claim shall not be subject to
the limitations of this Section 9.4(c)). Further, any recovery against Seller
hereunder shall be limited to each Buyer Indemnified Party's actual damages and
to an amount which, when combined with any and all other recovery from Seller
shall not exceed $300,000 in the aggregate (except for any recovery based on
fraud by Seller in connection with this Agreement, which recovery shall not be
subject to the limitations of this Section 9.4(c)).
(d) Notwithstanding anything in this Agreement to the
contrary, Buyer shall not have any liability to Seller unless the valid claims
hereunder aggregate more than $60,000, in which event the full amount of such
valid claims shall be actionable, up to the cap set forth in the following
sentence (except for any claim based on fraud by Seller in connection with this
Agreement, which claim shall not be subject to the limitations of this Section
9.4(d)). Further, any recovery against Buyer hereunder shall be limited to
Seller's actual damages and to an amount which, when combined with any and all
other recovery from Buyer, shall not exceed $300,000 in the aggregate (except
for any recovery based on fraud by Seller in connection with this Agreement,
which recovery shall not be subject to the limitations of this Section 9.4(d)).
10. Notices. All notices and other communications provided for herein
shall be in writing and shall be sent to the address set forth below (or such
other address as a party may hereafter designate for itself by notice to the
other parties as required hereby) of the party for whom such notice or
communication is intended:
10.1. If to Seller:
New England Life Pension Properties II:
A Real Estate Limited Partnership
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c/o AEW Real Estate Advisors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: General Counsel
With a copy to:
New England Life Pension Properties II:
A Real Estate Limited Partnership
c/o AEW Real Estate Advisors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xx. Xxxxx Xxxxxx
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
10.2. If to Buyer:
COPT ACQUISITIONS, INC.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, III
With a copy to:
XXXXXX, XXXXX & BOCKIUS LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esquire
17
Any such notice or communication shall be sufficient if sent by registered or
certified mail, return receipt requested, postage prepaid; by hand delivery; by
nationally recognized overnight courier service; or by telecopy during normal
business hours (with a follow-up telephone call within four (4) hours during
normal business hours), with an original by regular mail. Any such notice or
communication shall be effective when delivered or when delivery is refused.
11. Brokers. Buyer and Seller each represents to the other that it has
not dealt with any broker or agent in connection with this transaction other
than the Manekin Corporation ("Broker"). Seller shall pay Broker a commission
pursuant to a separate agreement, if, as and when the Closing occurs, but not
otherwise. Each party hereby indemnifies and holds harmless the other party from
all loss, cost and expense (including reasonable attorneys' fees) arising out of
a breach of its representation or undertaking set forth in this Section 11. The
provisions of this Section 11 shall survive Closing or the termination of this
Agreement.
12. Title Company. Title Company shall hold the Deposit in accordance
with the terms and provisions of this Agreement, subject to the following:
12.1. Obligations. Title Company undertakes to perform only
such duties as are expressly set forth in this Agreement and no implied duties
or obligations shall be read into this Agreement against Title Company.
12.2. Reliance. Title Company may act in reliance upon any
writing or instrument or signature which it, in good faith, believes, and any
statement or assertion contained in such writing or instrument, and may assume
that any person purporting to give any writing, notice, advice or instrument in
connection with the provisions of this Agreement has been duly authorized to do
so. Title Company shall not be liable in any manner for the sufficiency or
correctness as to form, manner and execution, or validity of any instrument
deposited in escrow, nor as to the identity, authority, or right of any person
executing the same, and Title Company's duties under this Agreement shall be
limited to those provided in this Agreement.
12.3. Disputes. If the parties (including Title Company) shall
be in disagreement about the interpretation of this Agreement, or about their
respective rights and obligations, or the propriety of any action contemplated
by Title Company, or the application of the Deposit, Title Company shall hold
the Deposit until the receipt of written instructions from both Buyer and Seller
or a final order of a court of competent jurisdiction. In addition, in any such
event, Title Company may, but shall not be required to, file an action in
interpleader to resolve the disagreement. Title Company shall be indemnified for
all costs and reasonable attorneys' fees in its capacity as Title Company in
connection with any such interpleader action and shall be fully
18
protected in suspending all or part of its activities under this Agreement until
a final judgment in the interpleader action is received.
12.4. Counsel. Title Company may consult with counsel of its
own choice and have full and complete authorization and protection in accordance
with the opinion of such counsel. Title Company shall otherwise not be liable
for any mistakes of fact or errors of judgment, or for any acts or omissions of
any kind, unless caused by its negligence or willful misconduct.
13. Representations of Buyer. Buyer represents and warrants that:
13.1. Buyer is a corporation duly authorized and validly
existing under Delaware law. The execution and delivery of this Agreement by
Buyer, and the performance of this Agreement by Buyer, has been duly authorized
by Buyer, and, to the best of Buyer's knowledge, this Agreement is binding on
Buyer and enforceable against it in accordance with its terms. No consent of any
creditor, investor, partner, shareholder, judicial or administrative body,
Governmental Authority, or other governmental body or agency, or other party to
such execution, delivery and performance by Buyer is required. Neither the
execution of this Agreement nor the consummation of the transactions
contemplated hereby will (i) result in a breach of, default under, or
acceleration of, any agreement to which Buyer is a party or by which Buyer is
bound; or (ii) violate any restriction, court order, agreement or other legal
obligation to which Buyer is subject.
13.2. Buyer has available to it unrestricted funds which it
may use in its sole discretion to pay the full Cash Component and otherwise
comply with the provisions of this Agreement. Buyer acknowledges and agrees that
its obligations hereunder are not contingent upon Buyer obtaining third party
financing.
The representations and warranties in this Section 13 shall be deemed
remade by Buyer as of the Closing Date with the same force and effect as if in
fact specifically remade at that time. Such representations and warranties shall
survive the Closing for a period of one year; provided, however, that Seller
shall not be entitled to bring a claim with respect to any representation and
warranty during such one year period if, on or prior to the Closing Date, Seller
acquired actual, not imputed or constructive, knowledge that the applicable
representation and warranty was not true in all material respects as of the
Closing Date.
14. Miscellaneous.
-------------
14.1. Assignability. The terms, conditions and covenants of
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective nominees, successors, beneficiaries and assigns;
provided, however, no direct or indirect conveyance, assignment or transfer of
any interest whatsoever of, in or to the Property or of this Agreement shall be
made by Seller during the term of this Agreement. Buyer may assign all or any of
its right, title and interest under this Agreement to any corporate or
partnership entity affiliated with,
19
or related to, the Buyer ("Affiliate") without Seller's approval, but any other
assignment by Buyer shall require Seller's prior approval, which approval shall
not be unreasonably withheld or delayed. For purposes of this Agreement, an
Affiliate shall, without limitation, include any entity having common ownership
or management with Buyer. No such assignee shall accrue any obligations or
liabilities hereunder until the effective date of such assignment. In addition
to its right of assignment, Buyer shall also have the right, exercisable prior
to the Closing, to designate any Affiliate, as the grantee or transferee of any
or all of the conveyances, transfers and assignments to be made by Seller at the
Closing hereunder, independent of, or in addition to, any assignment of this
Agreement. In the event of an assignment of this Agreement by Buyer (but not in
the event of the designation of any Affiliate), its assignee shall be deemed to
be the Buyer hereunder for all purposes hereof, and shall have all rights of
Buyer hereunder (including but not limited to, the right of further assignment
in accordance with the terms hereof), and the assignor shall be released from
all liability hereunder. In the event that an Affiliate shall be designated as a
transferee hereunder, that transferee shall have the benefit of all of the
representations and rights which, by the terms of this Agreement, are
incorporated in or related to the conveyance in question.
14.2. Expenses. Except and to the extent as otherwise
expressly provided to the contrary herein, Buyer and Seller shall each bear its
own respective costs and expenses relating to the transactions contemplated
hereby, including, without limitation, fees and expenses of legal counsel or
other representatives for the services used, hired or connected with the
proposed transactions mentioned above.
14.3. Litigation. In the event of litigation between the
parties with respect to the Property, this Agreement, the performance of their
respective obligations hereunder or the effect of a termination under this
Agreement, the losing party shall pay all costs and expenses incurred by the
prevailing party in connection with such litigation, including, but not limited
to, reasonable attorneys' fees of counsel selected by the prevailing party. The
parties hereby further acknowledge and agree that in the event of litigation
between them, as contemplated above, and the resolution of that litigation
through compromise, settlement, or partial judgment, the court before which such
litigation is initially brought shall have the right to allocate responsibility,
between Seller and Buyer, for all costs and expenses (including, but not limited
to, attorneys' reasonable fees) incurred by both Seller and Buyer in the pursuit
of that litigation resolved through compromise, settlement or partial judgment.
Notwithstanding any provision of this Agreement to the contrary, the obligations
of the parties under this Section 14.3 shall survive termination of this
Agreement and the Closing, if applicable.
14.4. Limitation of Liability. All liabilities and obligations
of Buyer under this Agreement shall be those of Buyer only. Subject to the
consummation of an assignment, Seller shall not, under any circumstances, look
to any person or entity other than Buyer, including, but not limited to, any
Affiliate of Buyer, for performance or satisfaction of Buyer's obligations and
liabilities in connection with this Agreement. Without limiting the foregoing,
none of Buyer or any Affiliate of Buyer or their respective members, partners
and shareholders shall incur any liability under any document or agreement
required in connection with this
20
Agreement, and Buyer shall not be required (in connection with this Agreement)
to execute any document or agreement. that does not expressly exculpate and
release such parties and theirs respective successors, assigns, affiliates,
officers, shareholders, partners, employees, agents and representatives from any
liability or obligation arising out of, or in connection with, this Agreement.
Except as otherwise specifically provided in this Agreement, neither Buyer nor
any Affiliate of Buyer shall assume or discharge any debts, obligations,
liabilities or commitments of Seller or M.O.R., whether accrued now or
hereafter, fixed or contingent, known or unknown.
14.5. Reasonable Efforts. Seller and Buyer shall use their
reasonable, diligent and good faith efforts, and shall cooperate with and assist
each other in their efforts, to obtain any and all consents and approvals of
third parties (including, but not limited to, governmental authorities) to the
transaction contemplated hereby, and to otherwise perform as may be necessary or
otherwise reasonably requested by the other party to effectuate the transfer of
the Property to Buyer in accordance with, and to otherwise carry out the
purposes of, this Agreement.
14.6. Governing Law; Bind and Inure. This Agreement shall be
governed by the law of the State of Maryland and shall bind and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors, assigns and personal representatives.
14.7. Recording. This Agreement or any notice or memorandum
hereof shall not be recorded in any public record. A violation of this
prohibition shall constitute a material breach of Buyer, entitling Seller to
terminate this Agreement.
14.8. Time of the Essence. Time is of the essence of this
Agreement.
14.9. Headings. The headings preceding the text of the
paragraphs and subparagraphs hereof are inserted solely for convenience of
reference and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect.
14.10. Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
14.11. Exhibits. All Exhibits which are referred to herein and
which are attached hereto or bound separately and initialed by the parties are
expressly made and constitute a part of this Agreement.
14.12. Submission not an Offer or Option. The submission of
this Agreement or a summary of some or all of its provisions for examination or
negotiation by Buyer or Seller does not constitute an offer by Seller or Buyer
to enter into an
21
agreement to sell or purchase the Property, and neither party shall be bound to
the other with respect to any such purchase and sale until a definitive
agreement satisfactory to the Buyer and Seller in their sole discretion is
executed and delivered by both Seller and Buyer.
14.13. Entire Agreement; Amendments. This Agreement and the
Exhibits hereto set forth all of the promises, covenants, agreements, conditions
and undertakings between the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as contained herein. This Agreement may not be changed orally but only by
an agreement in writing, duly executed by or on behalf of the party or parties
against whom enforcement of any waiver, change, modification, consent or
discharge is sought.
22
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
SELLER: NEW ENGLAND LIFE PENSION PROPERTIES II: A
REAL ESTATE LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: Xxxxxx Properties Company II, Inc.,
its managing general partner
By: ______________________________
Name:
Its:
BUYER: COPT ACQUISITIONS, INC., a Delaware corporation
By: _______________________________
Xxxxxxx X. Xxxxxxx, President
23
Exhibit "A"
Legal Description
BEING known and designated as Parcel A, as shown on Plat entitled,
"Columbia, Rivers Corporate Park, Xxxxxxx 0, Xxxx 0, Xxxxxx X, X, X, X and
Lot 1, Sheets 3 and 4 of 6", and recorded among the Land Records of Xxxxxx
County, Maryland, as Plat Nos. 6017 and 6018, which Parcel A is more
particularly described as follows, according to a survey by KCI Technologies,
Inc. dated September 23, 1998;
BEGINNING for the same at a point on the northwesterly right of way of
Xxxxxxxxx Xxxxx, 00 feet wide, said point being known as point number 1307,
as shown on a plat entitled "Rivers Corporate Park, Section, Area 2,
Parcels A, B, C, D, and Lot 1", sheet 3 of 6 and recorded among the Plat
Records of Xxxxxx County as Plat Number 6017; thence binding on said right of
way line and also running along the outline of Parcel A, as shown on said
plat and also shown on a plat entitled "Rivers Xxxxxxxxx Xxxx, Xxxxxxx 0,
Xxxx 0 Parcels A, B, C, D, and Lot 1", sheet 4 of 6 and recorded among the
Plat Records of Xxxxxx County as Plat Number 6018.
1. South 47 degrees 54 minutes 07 seconds West 425.20 feet; thence
2. By a curve to the right, with a radius 25.00 feet an arc length of
21.42 feet, said curve having a chord bearing South 72 degrees 26
minutes 51 seconds West 20.77 feet, thence
3. By a curve to the left, with a radius 59.00 feet and an arc length
256.28 feet, said curve having a chord bearing South 27 degrees 26
minutes 44 seconds East 97.32 feet, thence leaving said right of way
line and still running along the outline of said Parcel A as shown on
Plat Number 6018
4. Due South 381.74 feet, thence
5. South 56 degrees 31 minutes 45 seconds East 315.00 feet, thence
6. South 26 degrees 57 minutes 27 seconds West 320.00 feet, thence
7. South 87 degrees 41 minutes 59 seconds West 280.09 feet, thence
8. North 56 degrees 31 minutes 45 seconds West 290.11 feet, thence
9. North 24 degrees 58 minutes 08 seconds East 289.01 feet, thence
10. North 42 degrees 08 minutes 15 seconds West 84.96 feet, thence
11. Xxx Xxxx 365.00 feet, thence
12. North 08 degrees 20 minutes 55 seconds West 482.11 feet, thence
13. North 30 degrees 51 minutes 28 seconds East 370.44 feet, thence
14. Due East 210.00 feet, thence
15. North 62 degrees 07 minutes 19 seconds East 156.12 feet, thence
16. North 76 degrees 16 minutes 58 seconds East 261.46 feet, thence
17. South 55 degrees 47 minutes 01 seconds East 329.67 feet to the point
of beginning.
CONTAINING 20.3011 acres or land more of less.
Exhibit B
Specimen Title Policy
B-2
