MEMORANDUM OF AGREEMENT
April 16, 1997
Beacon Properties L.P. ("Beacon") understands that SSB Realty, Inc. ("State
Street") has received from the owner (the "Seller") of the building commonly
known as and numbered 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the
"Property") a notice pursuant to Subsection 24.1(b) of State Street's lease that
Seller intends to sell the Property. Pursuant to said subsection of the lease,
State Street is entitled to signify its willingness to purchase the Property by
so notifying Seller not later than April 18, 1997.
State Street is willing to provide such notice based upon and in consideration
of the following agreements between State Street and Beacon:
A. Beacon will lend to State Street an amount equal to the purchase price
required to close the transaction, repayment of which shall be secured by a
first mortgage on the Property. Said loan shall be for a period of
thirty-six (36) months calling for monthly payments of interest only, which
interest shall be at an annual rate equal to the rate of interest offered
by State Street Bank and Trust Company, from time to time, to its prime
commercial real estate borrowers. Any accrued interest and all principal
shall be due at maturity.
State Street shall have the right to sell the Property to Beacon and to
require Beacon to purchase same, upon written notice from State Street to
Beacon, subject to the above financing for a purchase price equal to the
amount of the financing to which the Property is then subject, plus an
amount set forth in a separate letter of this date between Beacon and State
Street.
Beacon shall have the right to purchase the Property from State Street and
to require State Street to sell same, upon written notice from Beacon to
State Street, subject to such financing for a purchase price equal to the
amount of the financing to which the Property is then subject, plus an
amount set forth in a separate letter of this date between Beacon and State
Street.
Either of said purchase and sale transactions shall be substantially on the
same terms and conditions as the purchase and sale transaction pursuant to
which State Street acquired title to the Property from Seller, except as
herein modified.
In any event, upon acquisition of title, State Street will take all steps
necessary to be certain that State Street's leasehold estate in a portion
of the Property does not merge with State Street's ownership of the
Property.
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B. After Xxxxxx's receipt of such notice from State Street, Seller and State
Street are to proceed in good faith to finalize the terms and conditions
for the purchase and sale of the Property. Beacon and State Street shall
cooperate with each other such that the terms and conditions to be agreed
upon by Seller and State Street will be acceptable to Beacon. Although
negotiations of the Purchase and Sale Agreement have not commenced, it is
anticipated by Beacon and State Street that the Purchase and Sale Agreement
will afford to the purchaser the opportunity to conduct commercially
reasonable due diligence and to terminate the obligation to consummate the
purchase and sale transaction if the purchaser is dissatisfied with the
results of its investigations.
C. Promptly following the aforesaid notice from State Street to Seller, and as
soon as and to the extent Beacon or State Street is legally able so to do,
Beacon will, on behalf of itself and of State Street, conduct its customary
due diligence of the Property in order to determine whether the Property is
suitable for purchase, using Beacon's own standards of due diligence as
though Beacon were purchasing the Property for its own account. All third
party reports furnished or made available to Beacon shall be similarly
furnished and made available to State Street.
D. Reference is made to that certain Non-Disclosure Agreement dated April 1,
1997, executed by Beacon Properties Acquisition, LLC in favor of SSB Realty
Co., Inc. [sic] and intending to be in favor of State Street (the
"Non-Disclosure Agreement"). The terms and provisions of the Non-Disclosure
Agreement are hereby ratified and confirmed by Beacon and are intended to
survive the execution of this Memorandum of Agreement, regardless whether
the transaction contemplated is closed.
Beacon further agrees that if the transaction contemplated by this
Memorandum of Agreement is not consummated, Beacon will not use the
Material (as defined in the Non-Disturbance Agreement) to Beacon's
advantage in any manner which is adverse to the Seller or any ultimate
purchaser of the Property. The indemnity set forth in the Non-Disclosure
Agreement shall also be considered applicable to the foregoing sentence.
E. State Street agrees that it will not exercise any right which it may have
to terminate the Purchase and Sale Agreement for the Property unless Beacon
shall have consented to such termination. If Beacon elects not to go
forward with the transaction contemplated by this Agreement at a time when
State Street shall have the right to terminate the Purchase and Sale
Agreement without incurring liability for damages to perform, State Street
shall either terminate said Agreement at the request of Beacon or, if State
Street elects to go forward, shall release Beacon from any and all
obligations hereunder except the indemnification obligations and the
obligations set forth in the Non-Disclosure Agreement which expressly
survive the termination of this Memorandum of Agreement. Furthermore,
Beacon hereby indemnifies State Street from any and all loss, cost or
damage arising from
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(i) State Street's failure to enter a Purchase and Sale Agreement upon
request of Beacon or due to requirements imposed by Beacon, or (ii) State
Street's termination of such Purchase and Sale Agreement upon request of
Beacon or due to requirements imposed by Beacon.
Executed on the date set forth above.
SSB Realty, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
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Beacon Properties, L.P.
President
By: Beacon Properties Corporation,
General Partner
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Senior Vice President
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