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EXHIBIT 10.1
THE NELO/ORCHARD PORTFOLIO
--------------------------
PURCHASE AND SALE AGREEMENT
AMONG
ORCHARD INVESTMENT COMPANY NUMBER 315,
ORCHARD INVESTMENT COMPANY NUMBER 510,
ORCHARD INVESTMENT COMPANY NUMBER 606,
ORCHARD INVESTMENT COMPANY NUMBER 607,
ORCHARD INVESTMENT COMPANY NUMBER 609,
ORCHARD INVESTMENT COMPANY NUMBER 751,
and
ORCHARD INVESTMENT COMPANY NUMBER 901,
each a California general partnership,
AS SELLERS,
AND
CARRAMERICA REALTY CORPORATION,
a Maryland corporation,
AS BUYER
As of August 27, 1996
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into
as of the 27th day of August, 1996 among (i) ORCHARD INVESTMENT COMPANY NUMBER
315, a California general partnership ("OIC 315"), ORCHARD INVESTMENT COMPANY
NUMBER 510, a California general partnership, ("OIC 510"), ORCHARD INVESTMENT
COMPANY NUMBER 606, a California general partnership, ("OIC 606"), ORCHARD
INVESTMENT COMPANY NUMBER 607, a California general partnership, ("OIC 607"),
ORCHARD INVESTMENT COMPANY NUMBER 609, a California general partnership, ("OIC
609"), ORCHARD INVESTMENT COMPANY NUMBER 751, a California general partnership,
("OIC 751"), and ORCHARD INVESTMENT COMPANY NUMBER 901, a California general
partnership, ("OIC 901") (collectively, the "Sellers"), each with an address
c/o New England Mutual Life Insurance Company ("TNE"), 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 and (ii) CARRAMERICA REALTY CORPORATION, a
Maryland corporation with an address of 0000 Xxxxxxxxxxxx Xxxxxx, XX,
Xxxxxxxxxx, XX 00000 ("Buyer") with reference to the following facts:
RECITALS
A. OIC 315 is the owner of certain property commonly referred
to as San Xxxx Xxxxxxx Business Park (Project No. 315) and more particularly
described herein;
B. OIC 510 is the owner of certain property commonly referred
to as San Xxxx Xxxxxxx Business Park (Project No. 510) and more particularly
described herein;
C. OIC 606 is the owner of certain property commonly referred
to as Orchard Centre (Project No. 606) and more particularly described herein;
D. OIC 607 is the owner of certain property commonly referred
to as Orchard Office Centre (Project No. 607/608) and more particularly
described herein;
E. OIC 609 is the owner of certain property commonly referred
to as Orchard Centre II (Project No. 609) and more particularly described
herein;
F. OIC 751 is the owner of certain property commonly referred
to as Orchard Xxxxxx Centre (Project No. 751) and more particularly described
herein;
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G. OIC 901 is the owner of certain property commonly referred to
as Orchard Bayshore Centre (Project No. 901) and more particularly described
herein; and
H. Buyer desires to purchase from the Sellers and the Sellers
desires to sell to Buyer the property described herein on the terms and
conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the mutual
agreements herein set forth, and other valuable consideration, receipt of which
is hereby acknowledged, the Sellers and Buyer agree as follows:
ARTICLE I
The Seller hereby agrees to sell and convey to Buyer, and Buyer
hereby agrees to purchase from the Sellers, subject to the terms and conditions
set forth herein, the following:
1.1 Land. That certain land (the "Land") described in the form
of Grant Deed attached as Exhibit 1.1 hereto (the "Deed") and all rights,
privileges and easements respectively owned by the Sellers and appurtenant
thereto.
1.2 Improvements. All improvements and fixtures located on the
Land (all of which are collectively referred to as (the "Improvements");
1.3 Personal Property. All items of personal property owned by
the Sellers (the "Personal Property") described in the form of Xxxx of Sale
attached as Exhibit 1.3 hereto (the "Xxxx of Sale");
1.4 Service Contracts and Intangibles. All of the agreements
and contracts (the "Service Contracts") and intangibles, including, without
limitation, Seller's right, title and interest in and to (i) all trade names
and marks (in common with any others entitled thereto), (ii) all warranties and
guaranties, and (iii) all permits and licenses (to the extent assignable) (the
"Intangibles"), all as described in the form of Assignment of Contracts and
Intangibles attached as Exhibit 1.4 hereto (the "Assignment of Contracts and
Intangibles"); and
1.5 Leases. All of the right, title and interest of the Sellers
as landlord in and to the rental agreements and other leases of space in the
Improvements, together with any guaranties and/or other security delivered to
landlord thereunder (the "Leases") in effect on the Closing Date pursuant to an
assignment in the form of Exhibit 1.5 hereto (the "Assignment of
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Leases"), provided that the Sellers shall be entitled to delete from the copy
of the Assignment of Leases that will be recorded in Santa Xxxxx County Records
any rent roll information as the Sellers reasonably deem to be confidential.
1.6 "Property" and "Real Property" Defined. All of the items
described in Sections 1.1, 1.2, 1.3, 1.4 and 1.5 above are hereinafter
collectively referred to as the "Property." The items described in Sections
1.1, 1.2 and 1.5 are hereinafter referred to as the "Real Property."
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price; NYLICO Loans. The purchase price (the
"Purchase Price") for the Property shall be the sum of One Hundred Twenty
Million Dollars ($120,000,000.00), it being agreed that the Property is being
conveyed subject to the five outstanding loans held by New York Life Insurance
Company ("NYLICO"), as more particularly set forth on Exhibit 2.1 attached
hereto ("NYLICO Loans"). Sellers have informed Buyer that as of July, 1996 the
NYLICO Loans had an amortized balance of approximately $41,000,000.00.
Accordingly, by way of example, if the same balance were outstanding on the
date of closing, the Purchase Price due to Seller would be Seventy Nine Million
Dollars ($79,000,000.00). Buyer shall be responsible for any transfer or
assignment fee up to 1% of the then outstanding unamortized balance of the
NYLICO Loans as of the Closing Date, plus any title insurance, legal fees and
expenses charged by NYLICO in connection with the transfer.
(a) Allocation of Purchase Price. Buyer and the Sellers
acknowledge that the Purchase Price shall be allocated among the Sellers as
follows:
OIC 315 $ 6,750,000.00
OIC 510 $ 15,900,000.00
OIC 606 $ 11,000,000.00
OIC 607 $ 10,550,000.00
OIC 609 $ 23,900,000.00
OIC 751 $ 21,400,000.00
OIC 901 $ 30,500,000.00
Total: $120,000,000.00
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2.2 Payment of Purchase Price. The Purchase Price shall be paid
as follows:
(a) Upon the execution and delivery of this Agreement,
Buyer shall deliver to Chicago Title Insurance Company, 000 Xxxx Xxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 Attn: Xxxxxxx XxXxxxx, (v) (000-000-0000) (fax)
(000-000-0000) ("Escrow Holder") the sum of One Million Two Hundred Thousand
Dollars ($1,200,000.00) as a deposit towards the Purchase Price (the "First
Deposit"). Buyer and the Sellers acknowledge that Escrow Holder has been
selected by Buyer. Such amount shall be paid by wire transfer or cashier's or
certified check drawn upon a bank whose main office is within the continental
United States.
(b) On the Approval Date, Buyer shall deliver to Escrow
Holder the additional sum of One Million Two Hundred Thousand Dollars
($1,200,000.00) (the "Second Deposit"), such amount shall be paid by wire
transfer or cashier's or certified check drawn upon a bank whose main office is
within the continental United States. The First Deposit and the Second Deposit
in the aggregate amount of Two Million Four Hundred Thousand Dollars
($2,400,000.00) together with any interest thereon are hereinafter referred to
as the "Deposit". From and after the Approval Date, Buyer shall have no right
to withdraw the Deposit under any circumstances whatsoever, and the Deposit may
not be refunded to Buyer under any circumstances whatsoever except as
hereinafter specifically provided in this Agreement, including, without
limitation, the failure of a condition to Closing or the default of Sellers
hereunder.
(c) On the Closing Date, a sum equal to the Purchase Price,
adjusted by payment of the Deposit to Seller, prorations, and costs of escrow
as provided in Sections 7.6, 7.7, 7.8, 7.9 and 7.10 will be paid by Buyer by
wire transfer in immediately available Federal funds as set forth in Section
7.11.
2.3 Investment of Deposit. The Deposit shall be invested in
Permitted Investments (as defined on Exhibit 2.3) having maturities not later
than the Closing Date, in accordance with instructions issued by Buyer. All
interest on the Deposit shall accrue for the benefit of Buyer until the Closing
Date (as defined in Section 7.2); provided, however, that in any event of any
default by Buyer hereunder continuing beyond an applicable period of notice and
cure (if any), all interest earned thereon shall accrue for the benefit of the
Sellers. On and after the Closing Date, all interest on the Deposit shall
accrue for the benefit of the Sellers.
2.4 Deposit as Liquidated Damages. FROM AND AFTER THE DATE
HEREOF, IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER
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IS NOT CONSUMMATED BY REASON OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF
BUYER, THE DEPOSIT (INCLUDING ALL INTEREST EARNED FROM THE INVESTMENT THEREOF)
PLUS ANY SELLERS' ATTORNEYS FEES AND COSTS PURSUANT TO SECTION 12.9 SHALL BE
PAID TO AND RETAINED BY THE SELLERS AS LIQUIDATED DAMAGES. THE PARTIES
ACKNOWLEDGE THAT THE SELLERS' ACTUAL DAMAGES IN THE EVENT THAT THE SALE IS NOT
CONSUMMATED WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 2.4 BELOW, THE PARTIES
ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE
PARTIES REASONABLE ESTIMATE OF THE SELLERS' DAMAGES AND AS THE SELLERS' SOLE
AND EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT THE CLOSING DOES NOT OCCUR BY
REASON OF THE DEFAULT OF BUYER, AND AS THE SELLERS' SOLE AND EXCLUSIVE REMEDY
AGAINST BUYER ARISING FROM SUCH FAILURE OF THE SALE TO CLOSE. THE PAYMENT OF
SUCH DEPOSIT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY
WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3364, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA
CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS
OF CALIFORNIA CIVIL CODE SECTION 3389. NOTWITHSTANDING THE FOREGOING, IN NO
EVENT SHALL THIS SECTION 2.4 LIMIT THE DAMAGES RECOVERABLE BY THE SELLERS
AGAINST BUYER DUE TO BUYER'S OBLIGATION TO INDEMNIFY SUCH PARTY AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, OR THIRD PARTY CLAIMS AGAINST ANY OF THE SELLERS
ARISING OUT OF SECTION 3.2. IN ADDITION, BUYER SHALL PAY ALL TITLE, SURVEY AND
ESCROW CANCELLATION CHARGES. BY THEIR SEPARATELY EXECUTING THIS SECTION 2.4
BELOW, BUYER AND THE SELLERS ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE
ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED
DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED.
Buyer: Sellers:
CarrAmerica Realty Corporation OIC 315, OIC 510, OIC 606,
OIC 607, OIC 609, OIC 751
and OIC 901
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By: By their sole general partner
--------------------- New England Mutual Life
Its: Insurance Company
-------------------
By:
------------------------
Its:
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ARTICLE III
"AS-IS" SALE: INSPECTION
3.1 "As-Is" Sale. Pursuant to this Agreement, Buyer and its
representatives (including environmental consultants, architects, and
engineers) have been or will be afforded the right and opportunity to enter
upon the Property and to make such inspections of the Property and matters
related thereto, including the conduct of soil, environmental and engineering
tests, as Buyer and its representatives desire. Buyer and the Sellers
acknowledge that notwithstanding any prior or contemporaneous oral or written
representations, statements, documents or understandings, this Agreement
constitutes the entire understanding of the parties with respect to the subject
matter hereof and supersedes any such prior or contemporaneous oral or written
representations, statements, documents or understandings. Buyer further
acknowledges that, except as expressly set forth in this Agreement or in the
documents delivered by Sellers at the Closing, (i) neither any of the Sellers,
nor any principal, agent, attorney, employee, broker or other representative of
any of the Sellers has made any representations or warranties of any kind
whatsoever, either express or implied, with respect to the Property or any of
such related matters, and (ii) Buyer is not relying on any warranty,
representation, or covenant, express or implied, with respect to the Property
except as expressly set forth in this Agreement or in the documents delivered
by Sellers at the Closing, and that Buyer is acquiring the Property in an
"as-is" condition with all faults. In particular, but without limitation,
except as expressly set forth in this Agreement or in the documents delivered
by Sellers at the Closing, none of the Sellers makes any representation or
warranty with respect to the use, condition (including without limitation the
condition of the soils or groundwaters of the Property and the presence or
absence of toxic materials or hazardous substances on or under the Property),
occupation or management of the Property, compliance with applicable statutes,
laws, codes, ordinances, regulations or requirements relating to leasing,
zoning, subdivision, planning, building, fire, safety, health or environmental
matters, compliance with covenants, conditions and restrictions (whether or not
of record), other local,
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municipal, regional, state or federal requirements, or other statutes, laws,
codes, ordinances, regulations or requirements. Buyer acknowledges receipt of
the Work Product, as defined in Section 3.3 below, and fully understands (i)
the contents thereof, and (ii) that the matters disclosed in the Work Product
may affect Buyer's ability to use, sell, lease, finance or otherwise dispose of
or encumber the Property. Buyer acknowledges that it is knowledgeable in real
estate matters, and that having completed the inspections contemplated by this
Article III, Buyer will have made all of the investigations and inspections
Buyer deems necessary in connection with its purchase of the Property, and that
approval by Buyer of such inspections pursuant to this Agreement will be deemed
approval by Buyer without reservation of all aspects of this transaction,
including but not limited to the physical condition of the Property, the use,
the Leases, the NYLICO Loans, the Service Contracts, the title, and the
physical and financial aspects of the operation of the Property. Except for
(i) the warranties, if any, expressly set forth herein, and (ii) the
warranties, if any, expressly set forth in the documents delivered by Seller at
the Closing, Buyer for itself and any assignee permitted by Section 12.3,
hereby waives, relinquishes and releases any and all rights, claims and causes
of action which Buyer may have or may be entitled to assert against the Sellers
under or with respect to the Property or the condition thereof, including
without limitation any and all rights, claims and causes of action under or
with respect to California Health & Safety Code Section 25359.7(a) and Title 42
of the United States Code, Section 9601 et seq., or both. Buyer expressly
understands and acknowledges that it is possible that unknown losses or claims
exist or that present losses may have been underestimated in amount or
severity, and Buyer explicitly took that into account in determining the
consideration for the execution of this Agreement, and a portion of said
consideration, having been bargained for between the parties with the knowledge
of the possibility of such unknown losses or claims, was given in exchange for
a full accord, satisfaction and discharge of all such losses or claims.
Consequently, Buyer expressly waives all rights under California Civil Code
Section 1542, which provides that:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."
Notwithstanding the foregoing, it is understood and agreed that by
virtue of the foregoing release, Buyer has not (i) waived the rights, if any,
against Sellers of any third party (other than its permitted assignee under
Section 12.3) and any other third party controlled by Buyer, including any
third party purchaser of the Property from Buyer in the future, or (ii) agreed
to indemnify Sellers with respect to any of such third party claims against
Sellers with respect to the matters which are the subject of the foregoing
release.
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3.2 Inspection. (a) Upon execution of this Agreement, the
Sellers hereby grant to Buyer and its representatives (including architects,
surveyors and engineers) a license to enter upon, survey and conduct
non-invasive inspections of the Property, but such inspections and tests shall
not damage the Property in any material respect and shall be conducted only
after giving telephonic or written notice to the applicable Seller. Any entry
by Buyer onto the Property shall be subject to and conducted in accordance with
any leases affecting the Property and in such a manner as to minimize
interference with the operation and occupancy of the Property. Buyer shall
promptly restore the Property to its condition prior to any such inspections
and/or tests, and the Sellers reserve the right to accompany Buyer during any
inspection of the Property. Buyer hereby indemnifies and agrees to protect and
hold the Sellers harmless against any and all claims, liability, loss, damage,
costs or expense (including without limitation reasonable attorneys' fees)
which the Sellers may sustain or incur by reason of or in connection with any
such entry, inspections or tests. Buyer shall deliver to the Sellers, without
charge therefor, the results and copies of any and all surveys, reports, tests
or studies made by or for Buyer with respect to the Property, unless
contractually prevented from doing so in accordance with Buyer's ordinary
course of operations, it being understood that Sellers may not rely thereon
without the consent of the person who prepared such survey, report, test or
study. Buyer agrees that prior to the Closing, the Sellers shall make all
legally required notifications to government agencies concerning the Property
and Buyer shall not disclose information concerning the Property to government
agencies or public officials except to the extent reasonably necessary for
Buyer to conduct its investigation of the Property or if required by judicial
order or in connection with an enforceable request for information from a
government agency or otherwise required by law.
(b) Buyer shall be permitted to perform or conduct Tests
only pursuant to the Sellers' standard form of License Agreement. For purposes
of this Agreement, "Tests" shall mean any one or more of the following: (a)
collecting samples of or testing materials contained in the Improvements, (b)
gaining access to portions of the Improvements that are not accessible by
doors, panels, hatches or windows that may be unlocked and opened readily and
without damage to the Improvements, (c) drilling of boring holes, (d)
performance of engineering or structural tests at the Property, or (e)
performing any investigations or tests which are invasive or intrusive with
respect to the Land or the Improvements.
3.3 Work Product. Buyer acknowledges that it has previously
received from the Sellers certain non-privileged and non-confidential
information concerning the Property contained in (i) the marketing package
entitled "The Nelo/Orchard Portfolio" prepared by B.T. Commercial Real Estate
dated July, 1996, and (ii) the materials transmitted with an August 8,
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1996 cover letter from Xxxxxxxx Xxxxxxxx of B.T. Commercial to Xxxxxx X.
Xxxxxxx of CarrAmerica (collectively the "Work Product"). Buyer specifically
acknowledges and agrees that the Sellers make no representations or warranties
of any kind whatsoever, either expressed or implied with respect to any of such
items.
3.4 Permits and Entitlements. Buyer acknowledges that Seller
has no responsibility for obtaining any permits, approvals, zoning clearance
certificates or other authorizations or entitlements required by any federal,
state or local government for Buyer's use of the Property.
ARTICLE IV
TITLE TO PROPERTY
4.1 Title. At the Closing, the Sellers shall convey to Buyer
fee simple title to the Land and the Improvements, by execution and delivery of
the Deeds. Evidence of delivery of fee simple title shall be the issuance by
Chicago Title Insurance Company, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, XX 00000 (v) 000-000-0000, (fax) 000-000-0000 Attention: Xxxxx
Xxxxxx (the "Title Company") of an ALTA Owner's Policy of Title Insurance with
liability in the amount of the Purchase Price (the "Title Policy"). The Title
Policy shall include (i) an extended coverage endorsement and (ii) such other
endorsements as the Title Company may issue at the request of Buyer prior to
the Approval Date, insuring fee simple title to the Land and the Improvements
in Buyer, subject only to those exceptions to title approved by Buyer pursuant
to Section 5.1 below, and with such reinsurance as Buyer may elect. Buyer and
the Sellers acknowledge that Buyer has selected the Title Company.
4.2 Title to Personal Property, Contracts and Leases. At the
Closing, the Sellers shall transfer all of their right, title and interest in
and to (a) the Personal Property pursuant to the Xxxx of Sale, (b) the Service
Contracts and Intangibles pursuant to the Assignment of Contracts, and (c) the
Leases pursuant to the Assignment of Leases.
ARTICLE V
BUYER'S CONDITIONS TO CLOSING
The following conditions are conditions precedent to Buyer's
obligation to purchase the Property, each of which may be waived by Buyer in
its sole discretion:
5.1 Approval of Title.
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5.1.1 General. Buyer shall have until September 26, 1996 (the
"Approval Date") to review and approve the following:
(a) a current preliminary title report on the Real
Property, accompanied by copies of all documents referred to in the report
other than encumbrances to be discharged by the Sellers on or before the
Closing;
(b) copies of the most recent property tax bills for the
Property; and
(c) a survey of the Real Property by a licensed surveyor
or engineer hired by Buyer, and
(d) UCC searches.
5.1.2 Preliminary Title Report.
Buyer shall notify the Sellers as of the Approval Date what
exceptions to title, if any, will not be accepted by Buyer. Without limiting
the foregoing, Buyer shall take title to the Property subject to any and all
assessments and bonds on the Property not due and payable as of Closing set
forth in the preliminary title report issued by the Title Company and any
supplement thereto approved by Buyer (the "Preliminary Title Report").
5.1.2 Unpermitted Exceptions
Any title exceptions arising on or prior to the Closing Date, other
than those approved or deemed approved by Buyer as pursuant to Section 5.1.1
above, shall be "Unpermitted Exceptions" hereunder. Any Unpermitted Exception
voluntarily executed and delivered by a Seller (except for the NYLICO Loans)
shall be a "Voluntary Unpermitted Exception" hereunder and any other
Unpermitted Exception shall be an "Involuntary Unpermitted Exception". The
Sellers covenant and agree to remove, at the cost and expense of Sellers, any
Voluntary Unpermitted Exception, whether occurring before or after the Approval
Date.
5.1.3 Buyer Objections
If Buyer fails to notify the Sellers of its disapproval of any of
the aforesaid items by the Approval Date, Buyer shall be deemed to have
approved the condition of title to the Real Property as shown in the
Preliminary Title Report. If Buyer objects to any exceptions to title, the
Sellers shall have three (3) business days after receipt of Buyer's objections
to notify
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Buyer: (i) that the Sellers will remove any objectionable exceptions from title
and provide Buyer with evidence reasonably satisfactory to Buyer of such
removal, or provide Buyer with evidence reasonably satisfactory to Buyer that
said exceptions will be removed on or before the Closing (in either of which
event, the Sellers may extend the Closing Date for such period as shall be
required to effect such cure, but not beyond thirty (30) days); or (ii) that
the Sellers elects not to cause such exceptions (other than Voluntary
Unpermitted Encumbrances) to be removed. The procurement by the Sellers of a
commitment for the issuance of the Title Policy or an indorsement thereto in
form reasonably acceptable to Buyer insuring Buyer against any title exception
which was disapproved pursuant to this Section 5.1 shall be deemed a cure by
the Sellers of such disapproval, unless such exception is a lien or encumbrance
in an amount greater than $500,000. If the Sellers give Buyer notice under
clause (ii), Buyer shall have three (3) business days in which to notify the
Sellers that Buyer will nevertheless proceed with the purchase and take title
to the Property subject to such exceptions, or that Buyer will terminate this
Agreement. If this Agreement is terminated pursuant to the provisions of this
paragraph, then neither party shall have any further rights or obligations
hereunder except for any indemnity obligations of either party pursuant to the
other provisions of this Agreement, the Deposit shall be returned to Buyer and
each party shall bear its own costs incurred hereunder. All escrow cancellation
charges shall be paid by Buyer and the Sellers equally. If Buyer shall fail to
notify the Sellers of its election within said three (3) business day period,
Buyer shall be deemed not to have elected to proceed with the purchase, in
which event this Agreement will terminate. Notwithstanding any of the
foregoing, Buyer shall be deemed to have approved property taxes, assessments
and bonds not delinquent as of Closing.
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5.1.4 Involuntary Unpermitted Exceptions after Approval Date
If an Involuntary Unpermitted Exception shall arise after the date
of this Agreement, and Buyer objects to such Involuntary Unpermitted Exception,
then Buyer shall, promptly upon becoming aware of such Involuntary Unpermitted
Exception, provide Sellers with notice of such objection pursuant to the
procedures set forth in Section 5.1.3 above, and Buyer and Sellers shall have
the response options and termination rights respecting such Involuntary
Unpermitted Exception as set forth in Section 5.1.3.
5.2 Review of Other Matters. Buyer shall have until the
Approval Date to review and approve the physical condition of the Property in
Buyer's sole discretion, as determined by inspections and tests performed by
Buyer and its representatives in accordance with Section 3.2 herein, and to
review and approve the following items as of the Approval Date in Buyer's sole
discretion: whether the consummation of this transaction will result in a
violation by Buyer of ERISA, as defined in Section 8.1 below, the Leases, a
detailed rent roll, operating statements, delinquency reports, commission
schedules and agreements, lease administration records, maintenance and repair
records, the Service Contracts, an inventory of all furnishings, fixtures,
equipment and other personal property constituting a part of the Property,
certificates of occupancy, strata surveys, architectural renderings, "as-built"
plans and specifications, engineering plans, marketing studies, environmental
studies and reports, floor plans and other similar plans, diagrams and studies,
if any and all other documentation and materials in the Work Product or
otherwise made available to Buyer pursuant hereto.
If Buyer fails to notify the Sellers by the Approval Date
that Buyer disapproves of the physical condition of the Property or of any of
the items specified above, Buyer shall be deemed to have approved the same. If
Buyer disapproves any items, then this Agreement shall be terminated and
neither party shall have any further rights or obligations hereunder except for
any indemnity obligations of either party pursuant to the other provisions of
this Agreement, the Deposit shall be returned to Buyer and each party shall
bear its own costs incurred hereunder. All escrow cancellation charges shall
be paid by Buyer and the Sellers equally.
5.3 Review of NYLICO Loans. Buyer shall have until the Approval
Date to review and approve the NYLICO loans in Buyer's sole discretion,
including, without limitation, any transferability or prepayment provisions,
outstanding balances, and any other matter deemed relevant by Buyer. Buyer and
the Sellers acknowledge that Buyer may, at Buyer's sole election, or as a
requirement of NYLICO in connection with the transfer, negotiate and enter into
a comfort agreement with NYLICO ("NYLICO Comfort Agreement"), which NYLICO
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Comfort Agreement shall be acceptable to Buyer in its sole discretion.
Buyer and Seller further agree that Buyer may, by written notice to any Seller,
request such Seller's approval of or joinder in the NYLICO Comfort Agreement,
which approval shall be granted or withheld in the sole discretion of such
Seller, it being agreed that unless such approval is confirmed in writing
within five (5) days after request, such approval shall be deemed denied, in
any event, Sellers shall be furnished a copy of the approved form of NYLICO
Comfort Agreement on or before the Approval Date.
If Buyer fails to notify the Sellers by the Approval Date
that Buyer disapproves of the NYLICO Loans or the proposed NYLICO Comfort
Agreement in any respect, then Buyer shall be deemed to have approved the same
in all respects. If Buyer disapproves the NYLICO Loans or proposed NYLICO
Comfort Agreement, then this Agreement shall be terminated and neither party
shall have any further rights or obligations hereunder except for any indemnity
obligations of either party pursuant to the other provisions of this Agreement,
the Deposit shall be returned to Buyer and each party shall bear its own costs
incurred hereunder. All escrow cancellation fees shall be paid by Buyer and
the Sellers equally.
Buyer covenants and agrees to use reasonable efforts to
cause NYLICO to permit the transfer of the Property in accordance with the
terms of the NYLICO Loans.
5.4 Termination of Management and Service Contracts. Seller
shall terminate any and all management, brokerage and/or leasing agent
agreements, and all employees employed at the Property, on or prior to Closing,
without liability to Buyer; and Buyer shall have no liability under any
multi-employer pension plan or otherwise as a result of termination of any such
employees. By not later than the Approval Date, Buyer shall deliver to each of
the Sellers a listing of the service contracts which Buyer desires to be
terminated as of the Closing (the "Service Contract Terminations"), it being
agreed that any costs, fees or expenses arising out of such termination shall
be at the sole cost and expense of the Buyer and such Service Contract
Terminations shall be effected by Seller on or prior to Closing.
5.5 Review of Estoppels. Within five (5) days following the
Approval Date, the Sellers shall deliver to each tenant of the Property an
estoppel certificate in the form of Exhibit 5.5 attached hereto (the "Estoppel
Certificates"), which Estoppel Certificate shall have been prepared by the
Sellers' property manager in consultation with and in a manner reasonably
acceptable to Buyer, and the Sellers shall endeavor in good faith to cause the
tenants to complete and sign the Estoppel Certificates and return them to the
Sellers. Buyer and the Sellers mutually acknowledge that the tenants may not
be obligated under their respective leases to execute the Estoppel Certificates
in the form attached as Exhibit 5.5 and that Estoppel
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Certificates in the form required by each respective tenant's applicable lease
shall be deemed to be a form complying with all requirements of this Agreement.
For purposes of this agreement, an "Qualifying Estoppel
Certificate" shall mean an estoppel certificate which (i) does not indicate a
monetary default by the applicable tenant except as permitted below as to an
aggregate of 30,000 rentable square feet of space, (ii) does not indicate any
other material monetary or non-monetary default by such tenant, and (iii) is
otherwise consistent with the rent roll which was included in the Work Product,
as most recently updated prior to the Approval Date.
It shall be a condition precedent to Buyer's performance that
Seller deliver to Buyer, at Closing, Qualifying Estoppel Certificates from (i)
all the "Major Tenants" (i.e., those tenants leasing more than 50,000 square
feet) and (ii) tenants which, together with the Major Tenants, lease at least
85% of the total square footage in each building comprising the Property; and
(iii) which together with all other estoppel certificates do not indicate
monetary defaults affecting in the aggregate 30,000 rentable square feet of
space.
5.6 Review of Environmental Matters. Buyer shall have until
October 11, 1996 ("Environmental Approval Date") to review and approve the
environmental condition of the Property as determined by inspections and tests
performed by Buyer and its representatives in accordance with Section 3.2
herein. For purposes of this agreement, a "Recognized Environmental Condition"
shall be as defined in the "American Society for Testing and Materials Standard
Practice for Environmental Site Assessments: Phase I Site Assessment Process
(E 1527-93)", as - "the presence or likely presence of any hazardous substances
or petroleum products on a property under conditions that indicate an existing
release, a past release, or a material threat of a release of any hazardous
substances or petroleum products into structures on the property or into the
ground, groundwater, or surface water of the property," including hazardous
substances or petroleum products even under conditions in compliance with laws.
In no event, however, shall the term include de minimis conditions that
generally do not present a material risk of harm to public health or the
environment and that generally would not be the subject of an enforcement
action if brought to the attention of appropriate governmental agencies.
If Buyer fails to notify the Sellers by the Environmental Approval
Date that its environmental consultants have concluded or suspect that a
Recognized Environmental Condition exists (accompanied by copies of any
supporting documentation), Buyer shall be deemed to have approved the
environmental condition of the Property in all respects. If Buyer timely so
notifies Sellers of a Recognized Environmental Condition, then this Agreement
shall
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be terminated and neither party shall have any further rights or obligations
hereunder except for any indemnity obligations of either party pursuant to the
other provisions of this Agreement, the Deposit shall be returned to Buyer and
each party shall bear its own costs incurred hereunder. All escrow
cancellation charges shall be paid by Buyer and the Sellers equally.
5.7 Approval by Committee. Buyer's obligation to acquire the
Property is contingent upon the approval of this Agreement by the Board of
Directors of Buyer by on or before the Approval Date. If Buyer gives the
Sellers written notice, by not later than the Approval Date, that such board
has failed to approve this Agreement, this Agreement shall terminate and
neither party shall have any further rights or obligations hereunder except for
any indemnity obligations of either party pursuant to the other provisions of
this Agreement, the Deposit shall be returned to Buyer, and each party shall
bear its own costs hereunder. All escrow cancellation charges shall be paid by
Buyer and the Sellers equally.
5.8 Compliance by the Sellers. The Sellers shall have complied
with each and every condition and covenant of this Agreement to be kept or
complied with by the Sellers, including, without limitation, the deliveries
required by Section 7.3; and all of Sellers' representations and warranties
hereunder shall be true and correct in all material respects.
5.9 Commitment to Issue Title Policy. The Title Company shall
be unconditionally obligated to issue the Title Policy in form approved or
deemed approved by Buyer containing no closing conditions other than those
consistent with standard industry practice.
5.10 Consent and Compliance by NYLICO. NYLICO shall have
consented to the conveyance of the Property subject to the NYLICO Loans.
5.11 Material Adverse Change in Key Leases. With respect to the
leases to Boston Scientific and Clarify more particularly set forth on Exhibit
7.6 (d) ("Key Leases"), (i) each Key Lease shall be in full force and effect in
accordance with its terms, (ii) there shall be no material default under any
Key Lease and (iii) no event shall have occurred respecting any Key Lease which
would entitle the tenant thereunder to terminate such Key Lease in accordance
with its terms. Sellers may extend the Closing Date up to 30 days in order to
meet this condition.
ARTICLE VI
THE SELLERS' CONDITIONS TO CLOSING
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The following conditions are conditions precedent to the
Sellers' obligation to sell the Property:
6.1 Compliance by Buyer. Buyer shall have complied with each
and every condition of this Agreement to be kept or complied with by Buyer,
including, without limitation, the deliveries required by Section 7.4; and all
of Buyer's representations and warranties hereunder shall be true and correct
in all material respects.
ARTICLE VII
CLOSING
7.1 Deposit With Escrow Holder. Upon execution of this
Agreement by the parties and upon Escrow Holder' execution of the
acknowledgment and agreement set forth at the end of this Agreement, Buyer
shall make the Deposit with Escrow Holder, and this instrument shall serve as
the instructions to Escrow Holder with respect to the Deposit. The Sellers and
Buyer agree (i) to cause the Escrow Holder to comply with the terms of this
Agreement with respect to the Deposit, and (ii) to execute such additional and
supplementary escrow instructions as may be reasonably appropriate to enable
the Escrow Holder to comply with the terms of this Agreement.
7.2 Closing. The closing hereunder (the "Closing") shall be held
and delivery of all items to be made at the Closing under the terms of this
Agreement shall be made through the Escrow Holder by mail or overnight courier,
to the extent possible, but if an "in-person" closing is required, the Closing
shall occur at the offices of the Sellers. The execution and exchange of
documents shall take place at the Closing on November 4, 1996, as may be
extended by Sellers pursuant to Section 5.11, subject to the recording of
documents and disbursement of funds on the next business day (such next
business day shall be the "Closing Date"). All documents shall be deemed
delivered on the date the Deed is recorded. The Closing may occur on such
earlier date as Buyer and the Sellers may agree but such dates may not be
extended without the written approval of both the Sellers and Buyer, except as
otherwise expressly provided herein.
7.3 Delivery by the Sellers. At the Closing, each Seller shall
deliver the following to Escrow Holder or to Buyer outside of Escrow, at such
Seller's election:
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(a) The Deed duly executed and acknowledged by the Seller,
in recordable form, and ready for recordation on the Closing Date;
(b) Four counterparts of the Xxxx of Sale, duly executed
by the Seller;
(c) Four counterparts of the Assignment of Contracts and
Intangibles, duly executed by the Seller;
(d) Five counterparts of the Assignment of Leases duly
executed and acknowledged by the Seller in recordable form and ready for
recordation on the Closing Date;
(e) Notices to the tenants of the respective portions of
the Property in the form of Exhibit 7.3(e) hereto (the "Tenant Notices"), duly
executed by the Sellers;
(f) All executed Estoppel Certificates from tenants;
(g) A fully completed California Franchise Tax Board Form
590;
(h) Termination Notices for each of the property
management contracts and Service Contract Terminations if not previously
delivered;
(i) Such title affidavits and authority documents
supporting the Title Policy and its endorsements as are either required by law
or uniform local custom;
(j) A date down certificate respecting the representations
and warranties of Sellers pursuant to Section 8.2;
(k) A FIRPTA affidavit in customary form;
(l) Lien waivers from any manager or broker, to the extent
required by applicable law;
(m) all original permits, approvals, warranties,
guaranties, Leases and Service Contracts, books and records, but only to the
extent within the possession and control of such Sellers or their agents; and
(n) Any other documents or instruments called for
hereunder which have not previously been delivered.
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Notwithstanding anything to the contrary contained elsewhere
in this Agreement, Buyer, in its sole discretion, may waive the Sellers'
obligation to deliver at the Closing any of the items described above in this
Section 7.3, but such waiver shall only be effective if it is in writing,
executed by Buyer, and delivered to the Sellers at or prior to the Closing.
7.4 Delivery by Buyer.Prior to the Closing Date, Buyer shall
deliver to Escrow Holder the Purchase Price, as adjusted pursuant to Sections
7.6, 7.7, 7.8, 7.9 and 7.10 to close escrow. Prior to the Closing Date, Buyer
shall further deposit with Escrow Holder or to each Seller outside of Escrow,
at such Seller's election, the following:
(a) Four counterparts of Xxxx of Sale, duly executed by
Buyer;
(b) Four counterparts of the Assignment of Contracts and
Intangibles, duly executed by Buyer;
(c) Five counterparts of the Assignment of Leases duly
executed and acknowledged by Buyer, in recordable form and ready for
recordation on the Closing Date;
(d) Any other documents or instruments called for
hereunder which have not been previously delivered.
Notwithstanding anything to the contrary elsewhere in this
Agreement, each Seller, in its sole discretion, may waive Buyer's obligation to
deliver at the Closing any of the items described above in this Section 7.4,
but such waiver shall only be effective if it is in writing, executed by such
Seller, and delivered to Buyer at or prior to the Closing.
7.5 Other Instruments.The Sellers and Buyer shall each deposit
such other instruments as are reasonably required by Escrow Holder or otherwise
required to close the escrow and consummate the purchase of the property in
accordance with the terms hereof.
7.6 Prorations and Apportionments.
(a) All revenues and all expenses of the Property shall be
prorated and apportioned as of 12:01 a.m. on the Closing Date, so that the
Sellers bear all expenses with respect to the Property and shall have the
benefit of all income with respect to the Property through and including the
period preceding the Closing Date. Any revenue or expense amount
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which is not otherwise specified herein and cannot be ascertained with
certainty as of Closing shall be prorated on the basis of the parties'
reasonable estimates of such amount, and shall be the subject of a final
proration ninety (90) days after Closing and with respect to taxes when final
tax bills are available. A statement setting forth such agreed prorations
shall be delivered to Escrow Holder. Escrow Holder shall not be required to
calculate any prorations.
(b) Rents under Leases shall be prorated on a per diem
basis to the extent collected from tenants for the month in which the Closing
occurs. Prepaid rents under the Leases shall be credited to Buyer. All other
accrued rent in arrears as of the Closing Date will be paid to the Sellers only
if collected by Buyer and if the applicable Lease is then current and only net
of Buyer's actual out-of-pocket costs of collection. The Sellers shall have
the right to pursue any amounts owing to the Sellers by tenants (and Buyer
shall have no obligation to do so), but in doing so the Sellers shall not cause
any such tenant to terminate its Lease, nor shall the Sellers cause any such
tenant to be evicted from the Property.
(c) Expenses to be prorated on a per diem basis shall
include taxes for the applicable tax period in which the Closing falls
regardless of when such taxes are due and payable (including personal property
taxes on Personal Property), water rates and sewer rents, if any, payments
under any Service Contracts assumed by Buyer, gas, electricity and other
utility charges, any unfixed meter charges (apportioned on the basis of the
last meter reading), license and permit fees and other expenses customarily
prorated.
(d) Buyer and the Sellers acknowledge that certain of the
brokerage expenses and tenant fit up costs in connection with the leases set
forth on Exhibit 7.6(d) hereto ("Sellers' Lease Up Costs") will remain
outstanding at the time of Closing. Not less than ten (10) days prior to the
time of Closing, Buyer and the Sellers shall meet to reasonably estimate the
outstanding amount of Sellers' Lease Up Costs as of the Closing Date. Buyer
shall receive a credit against the Purchase Price at the Closing in the amount
of such Sellers' Lease Up Costs, after which all responsibility for such
Sellers' Lease Up Costs, shall be borne by Buyer, except that, notwithstanding
the foregoing, the Sellers' Lease Up Costs under the Boston Scientific and
Clarify leases shall not be subject to a final proration ninety (90) days after
Closing.
(e) The costs of any Service Contract Terminations shall
be credited to the Sellers to the extent paid by the Sellers on or prior to
Closing.
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(f) Interest under the NYLICO loans shall be prorated on a
per diem basis. Sellers shall receive a credit for any tax and/or insurance
escrow deposits held by NYLICO (and any such deposits shall be assigned to
Buyer at Closing).
7.7 Computation of Certain Prorations.
(a) Final proration of percentage rents, operation cost
pass-throughs, other expenses, additional rents, rent escalations and similar
apportionable items which are estimated at Closing shall be accomplished as
follows: the parties shall await the expiration of the specified interval to
determine the items and then prorate the item on an accrual basis over the
applicable period and any appropriate adjusting payment shall be made between
the parties. The Sellers shall have the right to pursue any such amounts owing
to the Sellers by tenants, but in doing so the Sellers shall not cause any such
tenant to terminate its lease, nor shall the Sellers cause any such tenant to
be evicted from the Property.
(b) If the Sellers collected estimated prepayments of
operation cost pass-throughs in excess of any tenant's (tenants under leases in
place as of Closing) share of such expenses, then if the excess can be
determined by the Closing, Buyer shall receive a credit for the excess. The
Sellers shall receive a credit at Closing for estimated underpayments by
tenants with respect to Operation Cost Pass-throughs for those tenants under
leases in place and free of default as of Closing. If the excess payment or
under-payment cannot be determined at Closing, Buyer or the Sellers, as
applicable, shall receive a credit based upon an estimate, and the parties
shall make an adjusting payment between them when the correct amount can be
determined. In either event, Buyer shall be responsible for crediting or
repaying those amounts to the appropriate tenants. If the Sellers collected
estimated prepayments of Operating Cost Pass-throughs attributable to any
period after Closing, the Sellers shall pay or credit any such amounts to Buyer
at Closing.
7.8 Payment of Adjustments to Proration. Either party owing the
other party a sum of money based on adjustments made to prorations after the
Closing Date shall promptly pay that sum to the other party, together with
interest thereon at the rate of twelve percent (12%) per annum (or, if less,
the maximum rate then permitted by law to be contracted for by the parties)
from the date of demand therefor to the date of payment, if payment is not made
within ten (10) days after delivery of a statement therefor.
7.9 Costs and Expenses. Buyer shall receive a credit against
the Purchase Price for the total sum of any security deposits paid to the
Sellers by tenants under any Leases less any security deposits applied by the
Sellers in accordance with Seller's standard practices to rents
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in arrears or other sums due the Sellers. The cost of Santa Xxxxx County
transfer taxes applicable to the sale shall be paid by each Seller, and the
cost of City of San Xxxx transfer taxes shall be shared equally by Buyer and
each Seller. The premium for a ALTA title policy, to the extent it exceeds the
cost of a comparable CLTA policy, shall be borne by the Buyer, and the
remaining balance of the premium for the title policy shall be borne by the
Sellers. Buyer shall pay a reasonable work charge to Santa Xxxxx Title Company
in connection with its work on the issuance of a preliminary title report prior
to the date hereof (except to the extent that Chicago Title agrees to reduce
its premium by such amount) and the cost of all surveying work contracted for
by Buyer and all costs of inspecting the Property, and fees and costs related
to any financing obtained by Buyer in connection with the purchase (subject to
Section 2.1 above). Buyer and the Sellers shall share equally the Escrow
Holder's fee, and all other costs and charges of the escrow for the sale;
provided, however that Buyer and the Sellers shall each pay their own legal
(including attorneys' fees and costs) and accounting fees.
7.10 Insurance; Utilities. Buyer acknowledges that the Sellers
will cause its policies of casualty and liability insurance to be terminated as
of the end of business on the Closing Date, and Buyer shall be responsible for
obtaining its own insurance as of the Closing Date and thereafter. In the
alternative, Buyer may elect to assume the Sellers' insurance policies by
giving the Sellers' notice of such election by the Approval Date. Any deposits
for utilities made by the Sellers shall be refunded to the Sellers and Buyer
shall arrange for any required replacements thereof. In the alternative, Buyer
may elect to keep the utility deposits in place for Buyers' benefit and the
Sellers shall be given a credit adjustment on the Purchase Price.
7.11 Close of Escrow. Provided that all conditions precedent
have been met or waived, and Buyer and the Sellers deliver to Escrow Holder the
documents and funds described in Sections 7.3, 7.4, and 7.5 hereof, and the
Title Company has issued or is unconditionally prepared and committed to issue
to Buyer the Title Policy, the parties shall instruct Escrow Holder by 11:00
a.m. (P.S.T.) on the Closing Date to:
(a) Deliver the Purchase Price (less the Sellers' share of
prorations and costs of escrow) to the Sellers by internal bank transfer to the
bank account or accounts to be designated by the Sellers not less than ten (10)
days prior to the Closing Date, and advise the Sellers by telephone of the
transfer number or numbers provided,
(b) Record the Deed and the Assignment of Leases and
immediately thereafter Escrow Holder shall record such documents with the Santa
Xxxxx County Office Records;
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(c) Assemble and deliver at least one fully executed
counterpart of the Xxxx of Sale, the Assignment of Contracts and the Assignment
of Leases to both Buyer and the Sellers; and
(d) Deliver the Tenant Notices and all Estoppel
Certificates to Buyer.
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 Buyer's Representations. Buyer represents and warrants to the
Sellers as follows:
(a) Buyer is a corporation duly organized, validly existing
and in good standing under the laws of Maryland and is qualified in California
with full power and authority to enter into and comply with the terms of this
Agreement;
(b) Subject to Section 5.7, this Agreement and all
documents executed by Buyer which are to be delivered to the Sellers at the
Closing are or at the time of Closing will be duly authorized, executed, and
delivered by Buyer and this Agreement and such documents are or will be valid
binding obligations of Buyer, and do not and at the time of Closing will not
violate any provisions of any agreement or judicial order to which Buyer is a
party or to which Buyer is subject;
(c) Neither Buyer's execution and delivery of this
Agreement nor Buyer's performance of all obligations hereunder require the
consent or approval of any person other than Buyer. Such execution, delivery
and performance will not result in a breach of or constitute a default under
any indenture, loan or credit agreement, deed of trust, mortgage or other
agreement; and
(d) (1) As of the date of sale, (i) Buyer will not be an
employee benefit plan, as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA, nor a plan as defined in Section 4975 of the Internal Revenue Code of
1986, as amended (each of the foregoing are hereinafter referred to
collectively as "Plan"), and (ii) the assets of Buyer used to purchase the
Property will not constitute plan assets of one or more such Plans within the
meaning of Department of Labor ("DOL") Regulation Section 2510.3-101.
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(2) As of the date of sale, if Buyer is a
"governmental plan" as defined in Section 3(32) of ERISA, the Closing will not
constitute or result in a violation of state or local statutes regulating
investments of fiduciary obligations with respect to governmental plans.
(3) As of the date of sale, Buyer will be acting on
its own behalf and not on account of or for the benefit of any Plan.
(4) Buyer has no present intent to transfer the
Property to any entity, person or Plan which will cause a violation of ERISA.
(5) Buyer shall not assign its interest under this
Agreement to any entity, person or Plan which will cause a violation of ERISA.
8.2 The Sellers' Representations. The Sellers represent and
warrant to Buyer as follows:
(a) the Sellers are general partnerships duly organized,
validly existing and in good standing under the laws of the State of
California. TNE is the sole general partner and 99% owner of each the Sellers.
Sellers have informed Buyer that (i) TNE has entered into a certain Agreement
and Plan of Merger dated as of August 16, 1995 (as amended) with Metropolitan
Life Insurance Company, a New York corporation ("MetLife") pursuant to which
TNE will be merged with and into MetLife as of the Effective Date (as defined
in the Merger Agreement), and MetLife will by operation of law succeed to all
assets and liabilities of TNE ("Metlife Merger), and (ii) accordingly the
documents attached hereto as exhibits and to be delivered pursuant to Section
7.3 may, if the Closing occurs after the Effective Date, be executed by MetLife
instead of TNE;
(b) This Agreement and all documents executed by the
Sellers which are to be delivered to Buyer at the Closing are or shall have
been duly authorized, executed and delivered by the Sellers and this Agreement
and such documents are valid and binding obligations of the Sellers;
(c) Each of the accounts to which the Property is allocated
by Sellers either (i) does not hold assets of any "employee benefit plan" as
defined in Section 3(3) of ERISA which is subject to Title I of ERISA or any
"plan" as defined in Section 4975(c)(1) of the Internal Revenue Code of 1986,
as amended; (ii) is an insurance company general account with respect to which
the requirements of the Prohibited Transaction Class Exemption 95-60, 60 Fed.
Reg.
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35925 (1995), will be satisfied with respect to acquisition of the property by
the Buyer; or (iii) is an insurance company separate account with respect to
which the requirements of either Prohibited Transaction Class Exemption 84-14,
49 Fed. Reg. 9494 (1984), or 90-1, 55 Fed. Reg. 2891 (1990), will be satisfied
with respect to the acquisition of the Property by the Buyer;
(d) the execution and delivery of this Agreement does not,
and the performance by Sellers of their obligations hereunder will not,
conflict with or result in a breach of or constitute a default under any of the
material terms, conditions or provisions of any material agreement or
instrument to which such Seller is a party or by which such Seller is bound, or
any order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over such Seller;
(e) no consent, approval, order or authorization of or
declaration or filing with any governmental authority remains to be obtained in
connection with the execution and delivery of this Agreement or for the
performance of the transaction herein contemplated by the respective parties
hereto, and no further consents or authorizations are required, except pursuant
to the NYLICO Loans;
(f) there is no litigation ongoing or threatened that would
interfere with the Sellers' ability to carry out the terms of this Agreement or
result in a lien against the Property; and
(g) Sellers represent and warrant to Buyer that Sellers
have expressly directed their asset and property managers to deliver or
otherwise make available to Buyer upon request all materials relating to the
Property in (or hereafter coming into) their possession (whether prior to or
after the Approval Date).
ARTICLE IX
POSSESSION
Possession of the Property shall be delivered to Buyer on
the Closing Date, subject to the rights of any tenants under written Leases.
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ARTICLE X
OPERATION OF THE PROPERTY
The Sellers shall not, after the date hereof and prior to the Closing
Date or any earlier termination of this Agreement, enter into or terminate any
lease or amendment of lease pertaining to the Property or any service contract
or amendment thereto extending beyond the Closing Date without in each case
obtaining Buyer's prior written consent thereto, which consent Buyer shall not
withhold or delay except in the exercise of sound business judgment and which
shall be deemed given unless denied in writing within three (3) business days
after request therefor. After the date hereof and prior to the Closing Date,
the Sellers shall operate the Property substantially in the manner in which
property operations have been administered by the Sellers during the six (6)
months preceding the date hereof, and make all payments due under the NYLICO
Loans. Sellers shall reasonably cooperate with the efforts of Buyer to obtain
updated or additional property information respecting the subject matter of the
Work Product, but in no event shall any Seller be deemed in default of this
Agreement in any respect whatsoever for failure to deliver such additional
information. After the date hereof and prior to the Closing Date the Sellers
shall not directly or indirectly list any portion of the Property for sale, and
none of the Property shall be conveyed, disposed of, or removed without the
prior written consent of Buyer, except for immaterial items of tangible
personal property in the ordinary course of operations.
Buyer and the Sellers mutually covenant and agree to reasonably
cooperate with each other to cause their commercial general liability insurers
to add the other party, respectively, as an additional insured for incidents
occurring during the time of ownership of the named insured, provided, however,
that no party shall be obligated to expend additional funds for endorsement
cost or insurer indemnity in connection therewith.
ARTICLE XI
LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION
11.1 Damage or Destruction.
(a) In the event that the Improvements are damaged or
destroyed by fire or other casualty prior to the Closing Date and such damage
or destruction is estimated to cost $500,000 or less in the aggregate to repair
or replace (as verified by an architect or contractor reasonably selected by
Buyer and the Sellers) then the Closing Date shall occur as scheduled
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without any reduction in the Purchase Price notwithstanding such damage or
destruction, and all proceeds of insurance payable to the Sellers by reason of
such damage or destruction shall be paid or assigned to Buyer along with a
payment to Buyer from the Sellers in the amount of the Sellers' deductible, it
being agreed that in such event the Sellers shall have no obligation to repair
or restore the Property.
(b) In the event that any of the Improvements are damaged
or destroyed by fire or other casualty prior to the Closing Date, and such
damage or destruction is estimated to cost more than $500,000 in the aggregate
to repair or replace (as verified by an architect or contractor reasonably
selected by Buyer and the Sellers), then Buyer shall have the option to
terminate this Agreement by written notice to the other within five (5) days
after receipt of notice of the cost of the repair of the damage or destruction.
In the event of such termination, then neither Buyer nor the Sellers shall
thereafter have any obligations or liabilities hereunder except for any
indemnity obligations of either party pursuant to the other provisions of this
Agreement, the Deposit shall be returned to Buyer and each party shall bear its
own costs incurred hereunder. All escrow cancellation charges shall be paid by
Buyer and the Sellers equally. In the event Buyer does not terminate this
Agreement in accordance with this Section 11.1(b), the Closing Date shall occur
as scheduled without any reduction in the Purchase Price notwithstanding such
damage or destruction, and all proceeds of insurance payable to the Sellers by
reason of such damage or destruction shall be paid or assigned to Buyer along
with a payment to Buyer from the Sellers in the amount of the Sellers'
deductible, it being agreed that in such event the Sellers shall have no
obligation to repair or restore the Property.
(c) The Sellers agree to reasonably cooperate with Buyer in
obtaining insurance proceeds from the insurance carrier under Sections 11.1 (a)
and (b) above.
11.2 Condemnation. In the event that prior to the Closing Date, a
governmental entity shall commence any eminent domain proceeding to take any
material portion of the Property, then Buyer shall have the option to elect
either of the following:
(a) Terminate this Agreement by written notice to the Sellers
within five (5) days after its receiving notice of such action of condemnation,
in which event, neither Buyer nor the Sellers shall thereafter have any
obligations or liabilities hereunder except for any indemnity obligations of
either party pursuant to the other provisions of this Agreement, the Deposit
shall be returned to Buyer and each party shall bear its own costs incurred
hereunder. All escrow cancellation charges shall be paid by Buyer and the
Sellers equally; or
(b) Elect to proceed with the transaction, in which case the
Purchase Price shall not be reduced and Buyer shall be entitled to the net
award paid to the Sellers for such taking,
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if any, and the Sellers shall assign and transfer to Buyer all right, title and
interest in and to any awards, it being expressly agreed that in such event the
Sellers shall have no obligation to repair or restore the Property or any
portion thereof. In the event Buyer and the Sellers agree to proceed with the
transaction, the Sellers shall reasonably cooperate with Buyer so as to
optimize the net award to be paid to Buyer.
If prior to the Closing Date any eminent domain proceeding is commenced
to take any portion of the Property which is not material, then Buyer shall be
entitled to any net award with respect thereto, and Sellers shall assign and
transfer to Buyer all right, title and interest in and to any such awards at
Closing.
ARTICLE XII
DEFAULTS AND REMEDIES
12.1 BUYER'S DEFAULTS AND SELLERS' REMEDIES.
(a) It shall be a default by Buyer under this Agreement (a "Buyer's
Default") if Buyer shall fail to perform its obligations at Closing in
accordance herewith.
(b) If a Buyer's Default with respect to Section 12.1(a) occurs then
the Sellers may, as their sole and exclusive remedy, by giving notice to Buyer,
terminate this Agreement, in which event Buyer shall return all Work Product
materials and any updates thereto to the Sellers and the Sellers shall have the
right to retain the Deposit and all earnings thereon, as liquidated damages
hereunder in accordance with Section 2.4 above. In such event, except as
expressly provided otherwise herein, this Agreement shall be of no further
force and effect and neither Buyer nor the Sellers shall have any further
rights, obligations or liabilities hereunder.
12.2 THE SELLERS' DEFAULT AND BUYER'S REMEDIES.
(a) It shall be a default by Sellers under this Agreement (a "Sellers'
Default") if the Sellers shall fail to perform their obligations at
Closing in accordance herewith.
(b) Buyer's Remedies for the Sellers' Default. If a Sellers' Default
occurs then Buyer may either (as its sole and exclusive remedy in either
case) by giving notice to the Sellers:
28
29
(x) terminate this Agreement, in which event Buyer shall
return all work product materials and any updates
thereto to the Sellers and Buyer shall be entitled to
the immediate return of the Deposit and all earnings
thereon. In such event, this Agreement shall be of no
further force and effect and neither Buyer nor the
Sellers shall have any further rights, obligations or
liabilities hereunder; or in lieu of the foregoing
right of termination,
(y) the right to bring an action in specific performance
to compel the Sellers to perform this Agreement.
Under no circumstances shall Buyer be entitled to
recover any damages, whether direct, indirect or
consequential unless specific performance is not
available to Buyer because of the intentional conduct
of the Sellers.
ARTICLE XIII
MISCELLANEOUS
13.1 Notices. Any notice required or permitted hereunder shall be in
writing and shall be deemed delivered when sent by a recognized private courier
company or by United States registered or certified mail, one (1) day after
deposit with such courier, postage prepaid, return receipt requested, or if
sent by telecopy shall be deemed delivered when a confirmation of receipt is
received by, and shall be addressed as follows:
If to the Sellers: New England Life Insurance Company
----------------- 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Asset Manager
with a copy to: Metropolitan Life Insurance Company
000 Xxxxxxxxx Xxxxxx X
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Assistant Vice President
Real Estate Investments
29
30
and to: Xxxxxxx X. Xxxxx, Esq.
Rackemann, Xxxxxx & Xxxxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
If to Buyer: Xxxxxx X. Xxxxxxx
----------- Vice President - Due Diligence
CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxx, Esq.
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xx.
Xxxxxxx, XX 00000-0000
or such other address as either party may from time to time specify in writing
to the other in the manner aforesaid.
13.2 Brokers and Finders. In connection with the transaction
contemplated by this Agreement, the Sellers have agreed to pay and shall pay a
brokerage commission to Xxxxxxxx Xxxxxxxx of BT Commercial Real Estate pursuant
to separate agreement. In the event of a claim for broker's fee, finder's fee,
commission or other similar compensation in connection herewith other than as
set forth above, Buyer, if such claim is based upon any agreement alleged to
have been made by Buyer, hereby agrees to protect and indemnify the Sellers
against and hold the Sellers harmless from any and all damages, liabilities,
costs, expenses and losses (including, without limitation, reasonable
attorneys' fees and costs) which the Sellers may sustain or incur by reason of
such claim, and the Sellers, if such claim is based upon any agreement alleged
to have been made by the Sellers, hereby agrees to protect and indemnify Buyer
against and hold Buyer harmless from any and all damages, liabilities, costs,
expenses and losses (including, without limitation, reasonable attorneys' fees
and costs) which Buyer may sustain or incur by reason of such claim. The
provisions of this Section shall survive the termination of this Agreement or
the Closing.
30
31
13.3 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors,
heirs, administrators and assigns, except that (i) Buyer's interest under this
Agreement may be assigned, encumbered or otherwise transferred, whether
voluntarily, involuntarily, by operation of law or otherwise, only to an entity
controlled by or under common control with Buyer and (ii) Sellers' interest
hereunder may not be assigned, encumbered or otherwise transferred whether
voluntary, involuntarily, by operation of law, or otherwise, except pursuant to
the MetLife Merger.
13.4 Amendments. This Agreement may be amended or modified only by a
written instrument executed by the party asserted to be bound thereby.
13.5 Continuation and Survival of Representations and Warranties. All
indemnifications, representations and warranties by the respective parties
contained herein shall survive the execution and delivery of this Agreement,
the delivery of the Deed and transfer of title, or the termination of this
Agreement for a period of one year.
13.6 Interpretation. Words used in the singular number shall include
the plural, and vice-versa, and any gender shall be deemed to include each
other gender. The captions and headings of the Articles and Sections of this
Agreement are for convenience of reference only, and shall not be deemed to
define or limit the provisions hereof.
13.7 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
13.8 Merger of Prior Agreements. This Agreement and the exhibits
hereto constitute the entire agreement between the parties with respect to the
purchase and sale of the Property and supersedes all prior and contemporaneous
agreements and understandings between the parties hereto relating to the
subject matter hereof.
13.9 Attorneys' Fees. In the event either Buyer or the Sellers brings
any suit or other proceeding with respect to the subject matter or enforcement
of this Agreement, the prevailing party (as determined by the court, agency or
other authority before which such suit or proceeding is commenced) shall, in
addition to such other relief as may be awarded, be entitled to recover
attorneys' fees, expenses and costs of investigation as actually incurred
(including without limitation court costs, expert witness fees, costs and
expenses of investigation, and all attorneys' fees, costs and expenses in any
such suit or proceeding, including without limitation in any action or
participation in or in connection with any case or proceeding under Chapters 7,
11, or 13 of the Bankruptcy Code, 11 United States Code
31
32
Sections 101 et seq., or any successor statutes, in establishing or enforcing
the right to indemnification, in appellate proceedings, or in connection with
the enforcement or collection of any judgment obtained in any such suit or
proceeding). The parties hereto expressly agree that (i) all fees, costs and
expenses, including without limitation, attorneys' fees, costs and expenses, as
actually incurred in connection with the enforcement or collection of any
judgment obtained in any such suit or proceeding shall be recoverable as a
separate item and such right of recovery shall be severable from the right to
recover other items under this Section, and (ii) the provisions of this
sentence shall survive the entry of any judgment in any such suit or proceeding
or the termination of this Agreement and shall not merge or be deemed to have
merged into any such judgment.
13.10 Time of the Essence. Time is of the essence of this Agreement.
13.11 Confidentiality. All information, studies and reports relating
to the Property obtained by Buyer, either by the observations and examinations
of its agents and representatives or as disclosed to it by the Sellers, shall
remain confidential and if the transaction contemplated herein fails to close
for any reason, Buyer shall deliver to the Sellers, at Buyer's actual and
reasonable cost of duplication, all such information, reports and studies and
Buyer shall make no further distributions or disclosures of any such
information, reports and studies. Buyer and the Sellers agree that, to the
extent reasonably practical, they shall keep the contents of this Agreement
confidential and that no publicity or press release to the general public with
respect to this transaction shall be made prior to the Closing by either party
without the prior written consent of the other party. Buyer may disclose the
aforesaid information to its affiliates, advisors, consultants and permitted
assigns and may make such disclosures as required by law. Notwithstanding the
foregoing, after the Closing, Buyer may issue a press release regarding the
transaction, provided that no disclosure will be made of the economic terms of
the transaction or the identity of the Sellers, except as expressly required by
law.
13.12 No Waiver. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provisions, whether
or not similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the waiver.
13.13 Further Acts. Each party shall, at the request of the other,
execute, acknowledge (if appropriate) and deliver whatever additional
documents, and do such other acts, as may be reasonably required in order to
accomplish the intent and purposes of this Agreement.
32
33
13.14 Agreement Not to Benefit Third Parties. This Agreement is made
for the sole benefit of the Sellers and Buyer, and no other person shall be
deemed to have any privity of contract under this Agreement nor any right to
rely on this Agreement to any extent for any purpose whatsoever, nor have any
right of action of any kind on this Agreement nor be deemed to be a third party
beneficiary under this Agreement.
13.15 Severability. If any provision of this Agreement or its
application to any person or circumstance shall be invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provisions to other persons or circumstances, other than those to which it is
held invalid, shall not be affected thereby and shall be enforced to the
furthest extent permitted by law; provided, that the invalidity of such
provision does not materially adversely affect the benefits accruing to any
party hereunder.
13.16 Facsimile Signatures. Buyer and the Sellers each (i) has agreed
to permit the use, from time to time and where appropriate, of telecopied
signatures in order to expedite the transaction contemplated by this Agreement,
(ii) intends to be bound by its respective telecopied signature, (iii) is aware
that the other will rely on the telecopied signature, and (iv) acknowledges
such reliance and waives any defenses to the enforcement of the documents
affecting the transaction contemplated by this Agreement based on the fact that
a signature was sent by telecopy.
13.17 Form 1099-S. For the purpose of complying with Section 6045 of
the Internal Revenue Code of 1986, as amended, Escrow Holder shall be deemed
the "person responsible for closing the transaction," and shall be responsible
for obtaining information necessary to file with the Internal Revenue Service
Form 1099-S (Statement for Recipients of Proceeds From Real Estate, Broker and
Barter Exchange Transactions.)
13.18 Audits. The Sellers covenant and agree to reasonably cooperate,
at the expense of Buyer, with the efforts of Buyer and Buyer's auditors in
connection with audits conducted not later than one year after the Closing
Date, provided, however, that all such information shall be expressly subject
to the disclaimers of Article III above, which shall survive the Closing.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
33
34
Buyer:
------
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By /s/ Xxxxxx Xxxxxxx
-------------------------------
Its
--------------------------
Escrow Holder: CHICAGO TITLE INSURANCE COMPANY
-------------
By /s/
-------------------------------
Its
----------------------------
Sellers: ORCHARD INVESTMENT COMPANY
-------- NUMBER 315, a California
general partnership, by its general
partners:
NELO, L.P., a California limited partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
00
00
Second Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Asset Manager
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Asset Manager
ORCHARD INVESTMENT COMPANY
NUMBER 510, a California
general partnership, by its general
partners:
NELO, L.P., a California limited partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
35
36
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Asset Manager
CONSOLIDATED ORCHARD INVESTORS, a
California general partnership, by its general
partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X.Xxxxx
-------------------
Xxxxxx X. Xxxxx
Asset Manager
ORCHARD INVESTMENT COMPANY
NUMBER 606, a California
general partnership, by its general
partners:
NELO, L.P., a California limited partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
36
37
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Asset Manager
CONSOLIDATED ORCHARD INVESTORS, a
California general partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X.Xxxxx
-------------------
Xxxxxx X. Xxxxx
Asset Manager
ORCHARD INVESTMENT COMPANY
NUMBER 607, a California
general partnership, by its general
partners:
NELO, L.P., a California limited partnership,
37
38
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X.Xxxxx
-------------------
Xxxxxx X. Xxxxx
Asset Manager
CONSOLIDATED ORCHARD INVESTORS, a
California general partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X.Xxxxx
-------------------
Xxxxxx X. Xxxxx
Asset Manager
ORCHARD INVESTMENT COMPANY
NUMBER 609, a California
general partnership, by its general
38
39
partners:
NELO, L.P., a California limited partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Asset Manager
CONSOLIDATED ORCHARD INVESTORS,a
California general partnership, by its general
partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Asset Manager
39
40
ORCHARD INVESTMENT COMPANY
NUMBER 751, a California
general partnership, by its general
partners:
NELO, L.P., a California limited partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X.Xxxxx
-------------------
Xxxxxx X. Xxxxx
Asset Manager
CONSOLIDATED ORCHARD INVESTORS, a
California general partnership, by its general
partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X.Xxxxx
-------------------
40
41
Xxxxxx X. Xxxxx
Asset Manager
ORCHARD INVESTMENT COMPANY
NUMBER 901, a California
general partnership, by its general
partners:
NELO, L.P., a California limited partnership,
by its general partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
By: /s/ Xxxxxx X.Xxxxx
-------------------
Xxxxxx X. Xxxxx
Asset Manager
CONSOLIDATED ORCHARD INVESTORS, a
California general partnership, by its general
partner:
NEW ENGLAND MUTUAL LIFE
INSURANCE COMPANY, a
Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------
Xxxxxx X. Xxxxx
Second Vice President
41
42
42
43
EXHIBITS INTENTIONALLY OMITTED
43
44
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("First
Amendment") is made and entered into as of this __th day of September, 1996
among (i) ORCHARD INVESTMENT COMPANY NUMBER 315, a California general
partnership ("OIC 315"), ORCHARD INVESTMENT COMPANY NUMBER 510, a California
general partnership, ("OIC 510"), ORCHARD INVESTMENT COMPANY NUMBER 606, a
California general partnership, ("OIC 606"), ORCHARD INVESTMENT COMPANY NUMBER
607, a California General partnership ("OIC 607"), ORCHARD INVESTMENT COMPANY
NUMBER 609, a California general partnership, ("OIC 609"), ORCHARD INVESTMENT
COMPANY NUMBER 751, a California general partnership, ("OIC 751"), and ORCHARD
INVESTMENT COMPANY NUMBER 901, a California general partnership, ("OIC 901")
(collectively, the "Sellers"), each with an address c/o New England Life
Insurance Company, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 and
(ii) CARRAMERICA REALTY CORPORATION, a Maryland corporation with an address of
0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000 ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into a certain Purchase and Sale
Agreement dated as of August 27, 1996 ("Purchase and Sale Agreement"); and
WHEREAS, Seller and Buyer mutually desire to modify and amend the
Purchase and Sale Agreement as set forth below.
AGREEMENT:
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:
1. All capitalized words and phrases in this Amendment not otherwise
defined herein, shall have the same meanings herein as defined in the
Purchase and Sale Agreement.
2. Section 8.1(d)(3) of the Purchase and Sale Agreement is hereby deleted
and replaced by the following:
(d)(3) As of the date of sale, Buyer will be acting on
its own behalf and for its own accounts.
45
Except as expressly modified hereby, all of the terms, conditions and
provisions of the Purchase and Sale Agreement remain unchanged and are hereby
ratified and confirmed as being in full force and effect.
WITNESS the execution hereof under seal as of the date above first
written.
Buyer: CARRAMERICA REALTY CORPORATION,
-----
a Maryland corporation
By /s/ Xxxxxx Xxxxxxx
----------------------------------------
Its
--------------------------------------
Sellers: ORCHARD INVESTMENT COMPANY
------- NUMBER 315, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
2
46
Sellers: ORCHARD INVESTMENT COMPANY
------- NUMBER 510, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 606, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
3
47
Sellers: CONSOLIDATED ORCHARD INVESTORS,
------- a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 607, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
4
48
Sellers: ORCHARD INVESTMENT COMPANY
------- NUMBER 609, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
Sellers: ORCHARD INVESTMENT COMPANY
------- NUMBER 751, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
5
49
Sellers: CONSOLIDATED ORCHARD INVESTORS,
------- a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 901, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
6
50
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Second
Amendment") is made and entered into as of this 26th day of September, 1996
among (i) ORCHARD INVESTMENT COMPANY NUMBER 315, a California general
partnership ("OIC 315"), ORCHARD INVESTMENT COMPANY NUMBER 510, a California
general partnership, ("OIC 510"), ORCHARD INVESTMENT COMPANY NUMBER 606, a
California general partnership, ("OIC 606"), ORCHARD INVESTMENT COMPANY NUMBER
607, a California General partnership ("OIC 607"), ORCHARD INVESTMENT COMPANY
NUMBER 609, a California general partnership, ("OIC 609"), ORCHARD INVESTMENT
COMPANY NUMBER 751, a California general partnership, ("OIC 751"), and ORCHARD
INVESTMENT COMPANY NUMBER 901, a California general partnership, ("OIC 901")
(collectively, the "Sellers"), each with an address c/o New England Life
Insurance Company, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 and
(ii) CARRAMERICA REALTY CORPORATION, a Maryland corporation with an address of
0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000 ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into a certain Purchase and Sale
Agreement dated as of August 27, 1996 ("August Purchase and Sale Agreement");
WHEREAS, Seller and Buyer entered into a certain First Amendment to
Purchase and Sale Agreement dated as of September __, 1996 ("First Amendment")
amending the August Purchase and Sale Agreement ( as so amended, the "Purchase
and Sale Agreement");
WHEREAS, the Purchase and Sale Agreement established September 26,
1996 as the Approval Date (as defined in the Purchase and Sale Agreement);
WHEREAS, Buyer has (i) not yet completed certain items of due
diligence ("Extended Due Diligence Items") expressly set forth in a certain
letter from Xxxxxx X. Xxxxxxx to Xxxxxx X. Xxxxx dated September 25, 1996
(excluding items 17 and 18), a copy of which is attached hereto ("Xxxxxxx
Letter") and (ii) raised with the Sellers the possibility of a Recognized
Environmental Condition (as defined in the Purchase and Sale Agreement) having
occurred with respect to the portion of the Land owned by OIC 609 located at
0000-0000 Xxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx ("Kaiser Parcel") and
WHEREAS, Seller and Buyer mutually desire to further modify and amend
the Purchase and Sale Agreement as set forth below.
51
AGREEMENT:
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:
3. All capitalized words and phrases in this Amendment not otherwise
defined herein, shall have the same meanings as defined in the
Purchase and Sale Agreement.
4. Solely for the purposes of defining the date for making the Second
Deposit under Section 2.2(b) of the Purchase and Sale Agreement, the
Approval Date shall be October 4, 1996.
5. Solely as to the Extended Due Diligence Items, each of which shall be
satisfactory to and approved by Buyer in its sole discretion (it being
agreed that such discretion shall in no event encompass disapproval
based on items other than Extended Due Diligence Items ("Regular Due
Diligence Items")), the Approval Date shall be October 4, 1996, it
being agreed that the Approval Date for all Regular Due Diligence
Items shall be September 26, 1996 (except as expressly otherwise set
forth in the Purchase and Sale Agreement or herein), with all rights
of termination on account of such Regular Due Diligence Items being
irrevocably waived by Buyer simultaneously with the execution and
delivery hereof. To the extent that certain of the Extended Due
Diligence Items constitute title matters ("Extended Title Matters")
which would otherwise be the subject of a title notice under Section
5.1.2 of the Purchase and Sale Agreement, the Approval Date for such
Extended Title Matters shall be October 4, 1996 and the title notice
and response provisions of Article V shall be applicable thereto.
4. Solely as to the Kaiser Parcel, the Environmental Approval Date under
Section 5.6 of the Purchase and Sale Agreement shall be October 17,
1996, it being expressly agreed that (i) the standard for
environmental approval or disapproval of the Kaiser Parcel shall be
approval in the sole discretion (it being agreed that such discretion
shall in no event encompass disapproval based on items other than the
environmental condition of the Kaiser Parcel) of Buyer, regardless of
the existence of a Recognized Environmental Condition, and (ii) the
standard for environmental approval for all portions of the Land other
than the Kaiser Parcel shall be a Recognized Environmental Condition
(as more particularly set forth in said Section 5.6) with an
Environmental Approval Date of October 11, 1996.
5. If Buyer disapproves the Extended Due Diligence Items or the
environmental condition of the Kaiser Parcel in accordance with
paragraph 3 or 4 above, respectively, then the Purchase and Sale
Agreement shall be terminated and neither party shall have any further
rights or obligations hereunder except for any indemnity obligations
of either party pursuant to the other provisions of the Purchase and
Sale Agreement, the Deposit shall be returned to Buyer and each party
shall bear its own costs incurred hereunder. All escrow cancellation
fees shall be paid by Buyer and the Sellers equally.
2
52
6. This Agreement may be executed in multiple counterparts, all of which
will constitute one (1) original document.
Except as expressly modified hereby, all of the terms, conditions and
provisions of the Purchase and Sale Agreement remain unchanged and are hereby
ratified and confirmed as being in full force and effect.
WITNESS the execution hereof under seal as of the date above first
written.
Buyer: CARRAMERICA REALTY CORPORATION,
----- a Maryland corporation
By /s/ Xxxxxx Xxxxxxx
---------------------------
Its
-----------------------------
Sellers: ORCHARD INVESTMENT COMPANY
------- NUMBER 315, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
3
53
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 510, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 606, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
4
54
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 607, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
5
55
ORCHARD INVESTMENT COMPANY
NUMBER 609, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 751, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
6
56
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
ORCHARD INVESTMENT COMPANY
NUMBER 901, a California general
partnership, by its general partners:
NELO, L.P., a California limited
partnership, by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
CONSOLIDATED ORCHARD INVESTORS,
a California general partnership,
by its general partner:
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxxxx
Its Assistant Vice President
7
57
CARRAMERICA REALTY CORPORATION
0000 XXXXXXXXXXXX XXXXXX
XXXXXXXXXX, X.X. 00000
October 0, 0000
XXX XXXXXXXXX
Xxx Xxxxxxx Life Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Asset Manager
RE: THE NELO/ORCHARD PORTFOLIO
Dear Xx. Xxxxx:
Reference is made to that certain Purchase and Sale Agreement dated as
of August 27, 1996 (as amended, the "Agreement"), among (i) Orchard Investment
Company Number 315 ("OIC 315"), Orchard Investment Company Number 510 ("OIC
510"), Orchard Investment Company Number 606 ("OIC 606"), Orchard Investment
Company Number 607 ("OIC 607"), Orchard Investment Company Number 609 ("OIC
609"), Orchard Investment Company Number 751 ("OIC 751"), and Orchard
Investment Company Number 901 ("OIC 901") (collectively, the "Sellers"), and
(ii) CarrAmerica Realty Corporation ("Buyer"). All defined terms used herein
not otherwise defined herein shall have the same meanings as they have in the
Agreement.
The Agreement established September 26, 1996 as the Approval Date.
The Approval Date was extended with respect to certain items (the "Extended Due
Diligence Items") to October 4, 1996, pursuant to that certain Second Amendment
to Purchase and Sale Agreement dated September 26, 1996 (the "Second
Amendment"). This letter sets forth below certain agreements of Sellers and
Buyer amending and modifying the Agreement.
It is Buyer's understanding that the Agreement shall be modified and
amended as follows, upon execution by Sellers as aforesaid:
1. Solely as to the Extended Due Diligence Items set forth as
Item Nos. 2, 3 and 8 in the "Xxxxxxx Letter" (as defined in the Second
Amendment), which shall be satisfactory and approved by Buyer in its sole
discretion (it being agreed that such discretion shall in no event encompass
disapproval based on the other Extended Due Diligence Items), the Approval Date
58
shall be October 11, 1996, it being agreed that the Approval Date for all other
Extended Due Diligence Items shall be October 4, 1996 (except as expressly
otherwise set forth in Agreement or herein), with all rights of termination on
account of such other Extended Due Diligence Items being waived by Buyer
simultaneously with the execution and delivery of this letter by Sellers and
expressly in consideration of the Purchase Price adjustment in paragraph 2
below. To the extent that title matters may arise in connection with the
remaining due diligence items, as set forth above, the Approval Date for such
title matters shall be October 11, 1996, and the title notice and response
provisions of Article V shall be applicable thereto. The approval dates with
respect to environmental matters shall not be affected hereby.
2. In consideration of all of the agreements of Sellers herein,
the Purchase Price for the Property shall be reduced by the sum of $655,000
(which shall be allocated among the Projects in a manner reasonably acceptable
to Sellers and Buyer) to $119,345,000. Further, with respect to that certain
Lease dated May 17, 1996 between OIC 609 and Boston Scientific Corporation (the
"Boston Scientific Lease"), if the parties reasonably determine that the tenant
thereunder likely will not commence the payment of rent on (i) Phase I as of
November 15, 1996 and (ii) Phase II as of January 7, 1997, as a result of the
acts or omissions of sellers or their agents, an amount equal to $69,418 for
Phase I and $55,854 for Phase II under the Boston Scientific Lease shall be
withheld from the Purchase Price and deposited in escrow with the Escrow
Holder, to be disbursed to satisfy any such non-payment (or less than full
payment) of rent by such tenant. The parties agree to (i) meet no later than
five days prior to Closing to make the foregoing determination and (ii) execute
and deliver to the Escrow Holder at Closing such supplemental escrow
instructions as may be reasonably necessary to effectuate the foregoing. To
the extent that such holdback amount is not disbursed or required to be
disbursed to pay rent to Buyer as aforesaid, it shall be disbursed to Sellers
by not later than (i) for Phase I, the earlier of the day after the rent
commencement date or December 16, 1996, or (ii) for Phase II, the earlier of
the day after the rent commencement date or February 8, 1997.
3. At the Closing, Sellers shall execute and deliver (i) an
Owner's Declaration substantially in the form attached to the Memorandum dated
October 1, 1996 of Xxxxx X. Xxxxxx to Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx, as
supplemented as provided herein, and a Statement of transfer tax due and
request that transfer tax declaration not be made a part of the permanent
record in the office of the county recorded (pursuant to section 11932 R&T)
code, substantially in the form submitted to Xx. Xxxxx in Xx. Xxxxxx'x
September 20, 1996 letter. Buyer also will execute the foregoing Statement of
transfer tax due.
4. It shall be a mutual condition to the respective closing
obligations of Buyer and the Sellers that at the Closing, the other shall
execute and deliver an Assignment and Assumption of Construction Contract, in
substantially the form submitted to Xx. Xxxxx in Xxxxx, Xxxxx & Xxxxx'x
September 27, 1996 letter (but incorporating disclaimer provisions similar to
those contained in Paragraph 1 of Exhibit 1.4 to the Agreement), for the
construction contracts for the construction under the Boston Scientific Lease
and the Lease dated August 8, 1996 with Clarify, Inc. (the "Clarify Lease"),
and any other construction contracts entered into (and approved by Buyer
pursuant to the Agreement) which are to be assigned to and assumed by Buyer at
Closing, in connection with the leases (the Other Leases") with Solitron and
Silicon Valley Shelving, It shall be a further condition of Buyer's obligation
to close that Buyer receive (i) a Consent and
2
59
Acknowledgement (substantially in the form attached to the foregoing
Assignment) from each such contractor, provided, however, that Buyer's
obligation to close shall not be conditioned (except with respect to the Boston
Scientific leasehold work) upon receipt of a contractor's consent to such
assignment if the applicable contract is assignable by its terms, and (ii) a
proper lien waiver from the contractor performing construction work in
connection with the Boston Scientific Lease, evidencing payment through
Closing. The Sellers agree to use reasonable efforts to obtain such consents
and waivers.
5. It shall be a mutual condition to the respective closing
obligations of Buyer and the Sellers that at the Closing, the other shall
execute and deliver to Buyer an Assignment and Assumption of Consulting
Contract, substantially in the form submitted to Xx. Xxxxx in Xxxxx Xxxxx &
Xxxxx'x September 27, 1996 letter (but incorporating disclaimer provisions
similar to those contained in Paragraph 1 of Exhibit 1.4 to the Agreement), for
the architect's agreements in connection with the construction under the Boston
Scientific Lease and the Clarify Lease, together with any architect's or
consulting contracts entered into (and approved by Buyer pursuant to the
Agreement), which are to be assigned to and assumed by Buyer at Closing, in
connection with the Other Leases referred to above. It shall be a further
condition of Buyer's obligation to close that Buyer receive a Consent and
Acknowledgement (substantially in the form attached to the foregoing
Assignment) from each such architect or consultant, provided, however, that
Buyer's obligation to close shall not be conditioned upon receipt of an
architect's or consultant's consent to such assignment if the applicable
contract is assignable by its terms. The Sellers agree to use reasonable
efforts to obtain such consents.
6. It shall be a condition to Buyer's obligation to close that at
the Closing, Sellers shall cause to be executed and delivered to Buyer (i)
assignments of the declarant and/or developer rights under or pursuant to the
Declarations of Restrictions affecting Project Nos. 510, 606, 607/608, 609 and
901, each assignment to be substantially in the form attached and (ii)
Certificates of Compliance from the declarants under the Declarations of
Restrictions affecting Project No. 510, 606, 607/608, 609 and 901,
substantially in the forms attached (but modified such that any certification
made by Sellers or their constituent partners shall be limited to the actual
knowledge of Xxxxxx X. Xxxxx). Further, it shall be a condition to Buyer's
obligation to close that at the Closing, Sellers cause Xxxxxxx Xxxxxxxxxx, Inc.
("Orchard") to be removed as "Approving Agent" under the Declarations of
Restrictions applicable to Project Nos. 606, 607/608, 609 and 901, and further
shall cause to be dissolved the "Novell Property Committee" established under
the Declarations of Restrictions applicable to Project No. 901. Sellers will
use their reasonable efforts to cause Orchard to execute the Certificates of
Compliance as "Declarant" or "Approving Agent" substantially in the forms
attached hereto, and to obtain the other Estoppel Certificates and Certificates
of Compliance from third parties substantially in the form attached hereto. It
shall be a condition of Buyer's obligation to close that Buyer shall receive
Certificate of Compliance from each of the declarants, and executed by the
"Approving Agent" where applicable, under the Declarations of Restrictions
applicable to all of the Projects (other than Project 751).
7. Sellers will use their reasonable efforts obtain written
confirmation from Orchard of its approval as "Approving Agent" of the Boston
Scientific Lease and the Clarify Lease. It
3
60
shall be a condition to Buyer's obligation to close that such confirmation is
received on or before the Closing.
8. Sellers agree to deliver to Buyer no later than five (5)
business days prior to Closing all information necessary to permit Sellers and
Buyer to agree on a proration adjustment for CAM charges in accordance with the
Agreement. The parties agree that Sellers will give a credit to Buyer at
Closing for an amount representing the difference, if any, between (i) the
recoverable capital expenditures set forth in the projections previously
submitted by Sellers to Buyer and (ii) the actual expenditures so made.
9. With respect to the "Kaiser Parcel" (as defined in the Second
Amendment), in the event that certain monitoring xxxxx located on said parcel
are not closed by the Closing, the Sellers shall assign to the Buyer all of
their rights to cause Kaiser to complete such closure. Sellers agree to
reasonably cooperate to permit the former tenant to have access to the Kaiser
Parcel to perform such work.
10. Sellers acknowledge that in the original Agreement (and first
and second amendments thereto), on of the general partners of each of the
Sellers is referred to as Consolidated Orchard Investors, a California general
partnership, rather than COI, Ltd., a California limited partnership ("COI").
By its execution hereof, COI, in its capacity as general partner of each
Seller, hereby confirms and ratifies, and agrees to be bound by, the Agreement,
as heretofore amended.
11. Sellers hereby acknowledge and agree that, in order to satisfy
certain legal requirements in connection with a filing with the Securities and
Exchange Commission, consistent with Section 13.11 of the Agreement, Buyer may
disclose information and documentation relating to the transaction contemplated
by the Agreement, including, without limitation, the terms of the Agreement,
the identity of the Sellers, and rental and operating information, to the
extent Buyer may be required to make such disclosure.
12. For purposes hereof, the "reasonable efforts" of Sellers shall
mean the timely exercise of diligent efforts, including the assertion of
contractual rights possessed by the Sellers, but only to the extent Xxxxxx X.
Xxxxx is now aware or subsequently becomes informed of such rights. The term
shall not, however, include any obligation of any seller to incur any current
or future liability, expend any monies, or waive or surrender any right or
privilege deemed (in the sole discretion of the applicable Seller) desirable or
valuable.
13. With respect to those conditions to buyer's obligations to
close referenced in Paragraphs 4, 5 and 6 above, which contemplate the
execution and delivery of documents by Sellers or its constituent partners at
Closing, Sellers shall have no liability to Buyer if such deliveries are not
made, and Buyer's sole recourse shall be to terminate the Agreement and recover
its Deposit, unless Sellers or its constituent partners willfully and in bad
faith refuse to execute and deliver such documents at Closing.
14. For purposes of Section 2.2(b) of the Agreement, the Second
Deposit shall be timely made if received by the Escrow Holder on October 7,
1996.
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61
15. It shall be a condition to Buyer's obligation to close that
the Title Company not have taken any exception with respect to any rights of
Xxxxx X. Xxxxx ("Xxxxx") or Golden Triangle Acquisition Co., L.L.C. ("Golden
Triangle").
[Signature Page Follows]
5
62
If you are in agreement with the foregoing, please sign this letter below.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By:
---------------------------
cc: Xxxx Xxxxxxxx (via facsimile)
Xxxxxxx X. Xxxxx (via facsimile)
Xxxxxxx X. Xxxx (via facsimile)
AGREED TO AND ACCEPTED
this ______ day of October, 1996
OIC 315, OIC 51O, OIC 606, OIC 607,
OIC 609, OIC 751 and OIC 901
By: NELO, L.P., a California limited
partnership, its general partner
By: Metropolitan Life Insurance
Company, a New York
corporation
By:
--------------------------
Its:
-------------------------
By: COI, Ltd., a California limited partnership
By: Metropolitan Life Insurance
Company, a New York
corporation
By:
--------------------------
Its:
-------------------------
6
63
NEW ENGLAND LIFE INSURANCE COMPANY
000 XXXXXXXX XXXXXX
XXXXXX, XX 00000
October 11, 0000
XXX XXXXXXXXX
XxxxXxxxxxx Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Vice President
RE: THE NELO/ORCHARD PORTFOLIO: NYLICO CONSENT AND SIGN EASEMENT
Dear Xx. Xxxxxxx:
Reference is made to that certain Purchase and Sale Agreement dated as
of August 27, 1996 (as amended, the "Agreement"), among (i) Orchard Investment
Company Number 315 ("OIC 315"), Orchard Investment Company Number 510 ("OIC
510"), Orchard Investment Company Number 606 ("OIC 606"), Orchard Investment
Company Number 607 ("OIC 607"), Orchard Investment Company Number 609 ("OIC
609"), Orchard Investment Company Number 751 ("OIC 751"), and Orchard
Investment Company Number 901 ("OIC 901") (collectively, the "Sellers"), and
(ii) CarrAmerica Realty Corporation ("Buyer"). All defined terms used herein
not otherwise defined herein shall have the same meanings as they have in the
Agreement.
The Agreement established September 26, 1996 as the Approval Date.
The Approval Date was extended with respect to certain items (the "Extended Due
Diligence Items") to October 4, 1996, pursuant to that certain Second Amendment
to Purchase and Sale Agreement dated September 26, 1996 (the "Second
Amendment"). The Approval Date for the Extended Due Diligence Items set forth
as Item Nos. 2, 3 and 8 in the "Xxxxxxx Letter" (as defined in the Second
Amendment) (the "October 11 Items") was further extended to October 11, 1996,
pursuant to that certain letter agreement between the Buyer and the Sellers
dated October 4, 1996 ("October 4 Letter").
The Sellers have agreed with the Buyer as follows:
64
1. WAIVER OF EXTENDED DUE DILIGENCE ITEMS. Subject to the items
expressly set forth in the Agreement (as amended through the Second Amendment)
and the October 4 Letter, Buyer hereby approves and waives the Extended Due
Diligence Items and all items to be reviewed and approved under Agreement other
than (i) as expressly set forth in paragraph 4 of Second Amendment and (ii) as
to the follow up environmental testing reports by ATC Environmental, Inc. for
OIC 510 (dated September 23, 1996) and OIC 609 dated (October 10 1996)
("510/609 Follow Up Reports"). The Environmental Approval Date for the 510/609
Follow Up Reports shall be October 17, 1996, it being expressly agreed that (i)
the standard for disapproval of the 510/609 Follow Up Reports shall be whether
such reports are consistent in all material respects with the prior
environmental reports for such properties and (ii) such disapproval shall in no
event encompass disapproval based on items other than the 510/609 Follow Up
Reports.
2. SIGN EASEMENT. If so requested by Buyer and Xxxxxxx
Xxxxxxxxxx, Sellers shall execute and deliver to Buyer at the Closing an
amendment to the sign easement referred to in the October 11 Items (in the form
attached hereto as Exhibit A), and at the Closing Sellers shall pay the
consideration payable to Xxxxxxx Xxxxxxxxxx in respect of its execution of the
Amendment up to, but not more than, the amount of Forty Thousand Dollars
($40,000).
3. NYLICO LOANS The Buyer has obtained from NYLICO a letter
dated October 11, 1996, ("NYLICO Consent"). Conditioned upon the Buyer making
all payments referred to in the NYLICO Consent as set forth in Section 2.1 of
the Agreement or reimbursing Sellers for any such payments made by Sellers, the
Sellers hereby agree to (i) deliver an acceptance of the NYLICO Consent
substantially in the form attached hereto as Exhibit B, provided that such
acceptance shall expressly disclaim any obligation of any Seller to incur any
current or future liability, expend any monies, or waive or surrender any right
or privilege deemed (in the sole discretion of the applicable Seller) desirable
or valuable and (ii) to use reasonable efforts, as defined herein to assist
Buyer in consummating the transactions contemplated by the NYLICO Consent. For
purposes hereof, the "reasonable efforts" of Sellers shall mean the timely
exercise of diligent efforts, including the assertion of contractual rights
possessed by the Sellers, but only to the extent Xxxxxx X. Xxxxx is now aware
or subsequently becomes informed of such rights. The term shall not, however,
include any obligation of any seller to incur any current or future liability,
expend any monies, or waive or surrender any right or privilege deemed (in the
sole discretion of the applicable Seller) desirable or valuable.
2
65
Your continued cooperation in connection with this matter is appreciated.
Very truly yours,
OIC 315, OIC 51O, OIC 606, OIC 607,
OIC 609, OIC 751 and OIC 901
By: NELO, L.P., a California limited
partnership, its general partner
By: Metropolitan Life Insurance
Company, a New York
corporation
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Its: Assistant Vice President
-----------------------------
By: COI, Ltd., a California
limited partnership
By: Metropolitan Life Insurance
Company, a New York
corporation
By/s/ Xxxx Xxxxxxxx
--------------------------------
Its:Assistant Vice President
3
66
NEW ENGLAND LIFE INSURANCE COMPANY
000 XXXXXXXX XXXXXX
XXXXXX, XX 00000
November 4, 0000
XXX XXXXXXXXX
XxxxXxxxxxx Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Vice President
RE: THE NELO/ORCHARD PORTFOLIO: EXTENSION OF CLOSING DATE TO
NOVEMBER 5, 1996
Dear Xx. Xxxxxxx:
Reference is made to that certain Purchase and Sale Agreement dated as
of August 27, 1996 (as amended, the "Agreement"), among (i) Orchard Investment
Company Number 315 ("OIC 315"), Orchard Investment Company Number 510 ("OIC
510"), Orchard Investment Company Number 606 ("OIC 606"), Orchard Investment
Company Number 607 ("OIC 607"), Orchard Investment Company Number 609 ("OIC
609"), Orchard Investment Company Number 751 ("OIC 751"), and Orchard
Investment Company Number 901 ("OIC 901") (collectively, the "Sellers"), and
(ii) CarrAmerica Realty Corporation ("Buyer"). All defined terms used herein
not otherwise defined herein shall have the same meanings as they have in the
Agreement.
The Agreement establishes November 4, 1996 as the Closing Date.
Notwithstanding the efforts of the Sellers and Buyer, however, a number of
outstanding closing conditions remain unresolved as of the date hereof.
Accordingly, the Buyer and the Sellers mutually hereby extend the
Closing Date from November 4, 1996 to November 5, 1996. In all other respects,
the Agreement is ratified and confirmed as being in full force and effect.
If this letter accurately reflects the understanding between us,
please execute a counterpart where indicated below.
Very truly yours,
67
OIC 315, OIC 51O, OIC 606, OIC 607,
OIC 609, OIC 751 and OIC 901
By: NELO, L.P., a California limited
partnership, its general partner
By: Metropolitan Life Insurance
Company, a New York
corporation
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Its:Assistant Vice President
-------------------------------
By: COI, Ltd., a California
limited partnership
By: Metropolitan Life Insurance
Company, a New York
corporation
ACCEPTED AND AGREED TO By: /s/ Xxxx Xxxxxxxx
this 4th day of November, 1996 -------------------------------
CARRAMERICA REALTY CORPORATION Its: Assistant Vice President
------------------------------
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Its:
------------------------------
2
68
NEW ENGLAND LIFE INSURANCE COMPANY
000 XXXXXXXX XXXXXX
XXXXXX, XX 00000
November 5, 0000
XXX XXXXXXXXX
XxxxXxxxxxx Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Vice President
RE: THE NELO/ORCHARD PORTFOLIO: EXTENSION OF CLOSING DATE TO
NOVEMBER 6, 1996
Dear Xx. Xxxxxxx:
Reference is made to that certain Purchase and Sale Agreement dated as
of August 27, 1996 (as amended, the "Agreement"), among (i) Orchard Investment
Company Number 315 ("OIC 315"), Orchard Investment Company Number 510 ("OIC
510"), Orchard Investment Company Number 606 ("OIC 606"), Orchard Investment
Company Number 607 ("OIC 607"), Orchard Investment Company Number 609 ("OIC
609"), Orchard Investment Company Number 751 ("OIC 751"), and Orchard
Investment Company Number 901 ("OIC 901") (collectively, the "Sellers"), and
(ii) CarrAmerica Realty Corporation ("Buyer"). All defined terms used herein
not otherwise defined herein shall have the same meanings as they have in the
Agreement.
The Agreement establishes November 5, 1996 as the Closing Date.
Notwithstanding the efforts of the Sellers and Buyer, however, a number of
outstanding closing conditions remain unresolved as of the date hereof.
Accordingly, the Buyer and the Sellers mutually hereby extend the
Closing Date from November 5, 1996 to November 6, 1996. In all other respects,
the Agreement is ratified and confirmed as being in full force and effect.
If this letter accurately reflects the understanding between us,
please execute a counterpart where indicated below.
Very truly yours,
69
OIC 315, OIC 51O, OIC 606, OIC 607,
OIC 609, OIC 751 and OIC 901
By: NELO, L.P., a California limited
partnership, its general partner
By: Metropolitan Life Insurance
Company, a New York
corporation
By: /s/ Xxxx Xxxxxxxx
----------------------------
Its: Assistant Vice President
--------------------------
By: COI, Ltd., a California
limited partnership
By: Metropolitan Life Insurance
Company, a New York
corporation
ACCEPTED AND AGREED TO By: /s/ Xxxx Xxxxxxxx
this 5th day of November, 1996 ----------------------------
Its:Assistant Vice President
---------------------------
CARRAMERICA REALTY CORPORATION
By:/s/ Xxxxxx Xxxxxxx
-------------------------------
Its
-------------------------------
2
