CONTRIBUTION AGREEMENT
by and between
LUDDITE ASSOCIATES
"Contributor"
and
BEACON CAPITAL PARTNERS, L.P., a Delaware limited partnership
"Beacon"
Property Name: 000 Xxxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx (The Xxxxxx Building)
000 Xxxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx (Parking Garage)
Location: Cambridge, Massachusetts
Date: June ___, 1998
TABLE OF CONTENTS
Page
ARTICLE 1 - CONTRIBUTION OF PROPERTY . . . . . . . . . . . . . . . . . . . . 1
1.1 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Personal Property . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Other Property Rights . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 - CONTRIBUTION CONSIDERATION . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 - TITLE MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Title to Real Property. . . . . . . . . . . . . . . . . . . . . 3
3.2 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 4 - BEACON'S DUE DILIGENCE/CONDITION OF THE PROPERTY . . . . . . . . 4
ARTICLE 5 - ADJUSTMENTS AND PRORATIONS . . . . . . . . . . . . . . . . . . . 5
5.1 Lease Rentals . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 Real Estate and Personal Property Taxes . . . . . . . . . . . . 6
5.3 Other Property Operating Expenses . . . . . . . . . . . . . . . 6
5.4 Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.5 Cash Security Deposits. . . . . . . . . . . . . . . . . . . . . 7
5.6 Apportionment Credit. . . . . . . . . . . . . . . . . . . . . . 7
5.7 Closing Statement . . . . . . . . . . . . . . . . . . . . . . . 8
5.8 Delayed Adjustment. . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 6 - CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.2 Title Transfer and Payment of Consideration . . . . . . . . . . 9
6.3 Contributor's Closing Deliveries. . . . . . . . . . . . . . . . 9
6.4 Beacon Closing Deliveries . . . . . . . . . . . . . . . . . . .12
6.5 Delivery of Deed. . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE 7 - CONDITIONS TO CLOSING. . . . . . . . . . . . . . . . . . . . . .13
7.1 Contributor's Obligations . . . . . . . . . . . . . . . . . . .13
7.2 Beacon's Obligations. . . . . . . . . . . . . . . . . . . . . .14
7.3 Waiver of Failure of Conditions Precedent . . . . . . . . . . .14
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . .15
8.1 Beacon's Representations. . . . . . . . . . . . . . . . . . . .15
8.2 Contributor's Representations . . . . . . . . . . . . . . . . .18
8.3 General Provisions. . . . . . . . . . . . . . . . . . . . . . .22
ARTICLE 9 - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .24
9.1 Beacon's Covenants. . . . . . . . . . . . . . . . . . . . . . .24
9.2 Contributor's Covenants . . . . . . . . . . . . . . . . . . . .30
9.3 Mutual Covenants. . . . . . . . . . . . . . . . . . . . . . . .32
ARTICLE 10 - FAILURE OF CONDITIONS . . . . . . . . . . . . . . . . . . . . .35
10.1 To Contributor's Obligations. . . . . . . . . . . . . . . . . .35
10.2 To Beacon's Obligations . . . . . . . . . . . . . . . . . . . .35
ARTICLE 11 - [RESERVED]. . . . . . . . . . . . . . . . . . . . . . . . . . .35
ARTICLE 12 - [RESERVED]. . . . . . . . . . . . . . . . . . . . . . . . . . .35
ARTICLE 13 - [RESERVED]. . . . . . . . . . . . . . . . . . . . . . . . . . .35
ARTICLE 14 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .35
14.1 Beacon's Assignment . . . . . . . . . . . . . . . . . . . . . .35
14.2 Designation Agreement . . . . . . . . . . . . . . . . . . . . .36
14.3 Survival/Merger . . . . . . . . . . . . . . . . . . . . . . . .36
14.4 Integration; Waiver . . . . . . . . . . . . . . . . . . . . . .37
14.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . .37
14.6 Captions Not Binding; Schedules and Exhibits. . . . . . . . . .37
14.7 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . .37
14.8 Severability. . . . . . . . . . . . . . . . . . . . . . . . . .37
14.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
14.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . .39
14.11 No Recordation. . . . . . . . . . . . . . . . . . . . . . . . .39
14.12 Additional Agreements; Further Assurances . . . . . . . . . . .39
14.13 Construction. . . . . . . . . . . . . . . . . . . . . . . . . .39
14.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
14.15 Business Day. . . . . . . . . . . . . . . . . . . . . . . . . .40
14.16 Contributor's Maximum Aggregate Liability . . . . . . . . . . .40
14.17 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . .41
14.18 Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . .41
14.19 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . .41
TABLE OF CONTENTS
(CONTINUED)
Page
----
iii
EXHIBITS
EXHIBIT A, Legal Description
EXHIBIT B, List of Contracts
EXHIBIT C, Title Report
EXHIBIT D, Form of Beacon's As-Is Certificate And Agreement
EXHIBIT E, Form of Deed
EXHIBIT F, Form of Xxxx of Conveyance
EXHIBIT G, Form of Assignment of Leases
EXHIBIT H, Form of Assignment of Contracts
EXHIBIT I, [Intentionally Omitted]
EXHIBIT J, Form of Notice to Tenants
EXHIBIT K, Form of Contributor's FIRPTA Affidavit
EXHIBIT L, Litigation Notices, Contract Defaults and Governmental Violations
EXHIBIT M, List of Tenants
EXHIBIT N, List of Employees and Collective Bargaining Agreements
EXHIBIT O, Leasing Guidelines
EXHIBIT P, Form of Beacon LP Amendment
EXHIBIT Q, Form of Registration Rights Agreement
EXHIBIT R, Form of Prospective Investor Questionnaire
EXHIBIT S, Beacon Capitalization
EXHIBIT T, Company Capitalization
EXHIBIT U, Subsidiaries
iv
DEFINED TERMS
PARAGRAPH
---------
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Assignment of Contracts. . . . . . . . . . . . . . . . . . . . . . . . . 6.3(d)
Assignment of Leases . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(c)
Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.2
Beacon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Beacon LP Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(p)
Beacon's Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
Beacon's Representatives . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2
Built-in Gain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1.9(a)
Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
Closing Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1.9(a)
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.3
Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(d)
Contributor Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1.3
Contributor's Accountants. . . . . . . . . . . . . . . . . . . . . . . . . 5.7
Contributor's knowledge. . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1
Consideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 2
Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(a)
Designated Employees . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1
Due Diligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . .Article 4
Election Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1
Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
Existing Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
Hazardous Material . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1.4
Lease Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2
Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(c)
Leasing Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1
Material Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Material Matter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 2
New Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2(b)
OP Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Other Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1
Other Property Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
v
DEFINED TERMS
(CONTINUED)
PARAGRAPH
---------
Owner's Title Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3
Partnership Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.4
Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
Personal Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Privileged Items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 1
Property Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3(i)
Prudential . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Pru-Partner-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Pru-Partner-2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.1
Realization Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1
Rejected Contracts . . . . . . . . . . . . . . . . . . . . . . . . . Article 4
Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.1
Reporting Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2(a)
Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2
Resale Registration Statement. . . . . . . . . . . . . . . . . . . . . . 8.1.7
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.5
significant portion. . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1.1
Subsequent Period. . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1.9(a)
Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
Tax Protection Period. . . . . . . . . . . . . . . . . . . . . . . . . 9.1.9(a)
Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1.9(a)
Title Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
Title Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
Title Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1
Title Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
Transaction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3
Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.2
vi
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT ("AGREEMENT") is made this ______ day of June,
1998, by and between (i) LUDDITE ASSOCIATES, a general partnership
("CONTRIBUTOR"), and (ii) BEACON CAPITAL PARTNERS, L.P., a Delaware limited
partnership ("BEACON").
WITNESSETH:
WHEREAS, Contributor owns an undivided, fifty percent (50%) interest as
tenant in common in the Property (defined below);
WHEREAS, Contributor desires to transfer and contribute all of its right,
title and interest in the Property to Beacon or its designee as a contribution
in exchange for common units of limited partnership interest in Beacon (the "OP
UNITS"), and Beacon desires to acquire all of Contributor's right, title and
interest in the Property in exchange for such OP Units;
NOW THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein by this reference, and the mutual covenants and agreements
set forth herein the parties hereto do hereby agree as follows:
ARTICLE 1 - CONTRIBUTION OF PROPERTY
Contributor agrees to contribute, transfer and assign and Beacon agrees to
accept and assume, subject to the terms and conditions stated herein, all of
Contributor's undivided, fifty percent (50%) interest as tenant in common in and
to the following (herein collectively called the "PROPERTY"):
1.1 REAL PROPERTY. That certain parcel of real estate located in
Cambridge, Massachusetts, and legally described in EXHIBIT A
attached hereto and incorporated herein by this reference, together
with all buildings, improvements and fixtures located thereon and
all rights, privileges and appurtenances pertaining thereto
including all of Contributor's right, title and interest in and to
all rights-of-way, open or proposed streets, alleys, easements,
strips or gores of land adjacent thereto (herein collectively called
the "REAL PROPERTY"); and
1.2 PERSONAL PROPERTY. All tangible personal property described in
EXHIBIT A to the Xxxx of Conveyance attached hereto as EXHIBIT F
relating to the Real Property (herein collectively called the
"PERSONAL PROPERTY"), which intentionally excludes all (i)
co-partner or co-tenant communications, agreements and other
materials, (ii) materials relating to Contributor's marketing
efforts for the disposition of the Property, including, without
limitation, communications with other potential purchasers, (iii)
projections and other internal memoranda or materials, (iv)
appraisals, budgets, Contributor's strategic plans for the Property,
internal analyses, computer software, submissions relating to
Contributor's obtaining of corporate authorization, and (v) attorney
and accountant work product, and all other materials subject to any
legal privilege in favor of Contributor, The Prudential Insurance
Company of America ("PRUDENTIAL"), PIC Realty Corporation
("PRU-PARTNER-1") and/or Prudential Realty Securities II, Inc.
("PRU-PARTNER-2") (collectively, "PRIVILEGED ITEMS"); and
1.3 OTHER PROPERTY RIGHTS. (a) Contributor's interest as landlord in
all leases encumbering the Real Property on the Closing Date (as
defined in SECTION 6.1); and (b) if and to the extent assignable by
Contributor, (i) except to the extent terminated by Contributor
prior to Closing, all service, supply, maintenance, utility and
commission agreements, all equipment leases, and all contracts,
subcontracts and agreements relating to the construction of any
unfinished tenant improvements described in EXHIBIT B attached
hereto and incorporated herein by this reference (the "EXISTING
CONTRACTS"), and (ii) all licenses, permits and other written
authorizations necessary for the use, operation or ownership of the
Real Property or Personal Property and in Contributor's possession
or control (the rights and interests of Contributor described in
CLAUSES (A) through (B) hereinabove being herein collectively called
the "OTHER PROPERTY RIGHTS").
ARTICLE 2 - CONTRIBUTION CONSIDERATION
2
The total Consideration to be paid by Beacon for the transfer and
contribution of Contributor's interest in the Property is a number of OP
Units with an aggregate agreed upon value equal to (i) SIXTY ONE MILLION FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($61,500,000.00) (the "CONSIDERATION"),
MINUS (ii) one-half of the aggregate outstanding principal balance,
prepayment premiums and current interest due as of the Closing Date on the
debts secured by (a) the August 31, 1976 mortgage (as amended) to Aetna Life
Insurance Company, shown on the Title Report, and (b) the February 25, 1977
mortgage (as amended) to Teachers Insurance and Annuity Association of
America, shown on the Title Report (collectively, the "Mortgages"), subject
to the terms and conditions of this Agreement (including the terms relating
to the adjustments and prorations of such amounts). The dollar value of the
amount specified in clause (i) of the preceding sentence minus the amount
specified in clause (ii) of the preceding sentence is referred to herein as
the "AGGREGATE OP UNIT VALUE". The number of OP Units required to be
delivered as part of the Consideration at the Closing under the terms of this
Agreement, shall be equal to the sum of (x) the first Forty Million Dollars
($40,000,000.00) of Aggregate OP Unit Value divided by an agreed upon per
unit value equal to $20.00 per OP Unit, PLUS, (y) all portions of the
Aggregate OP Unit Value in excess of Forty Million Dollars ($40,000,000.00)
divided by an agreed upon per unit value equal to $21.50 per OP Unit. By way
of example, if the Aggregate OP Unit Value is equal to $51,500,000.00, then
the number of OP Units required to be delivered as part of the Consideration
will be 2,534,884 (($40,000,000 DIVIDED BY $20) + ($11,500,000 DIVIDED BY
$21.50) = (2,000,000 + 534,884)= 2,534,884 OP Units).
3
ARTICLE 3 - TITLE MATTERS
3.1 TITLE TO REAL PROPERTY. Contributor has previously delivered to
Beacon (a) Xxxxxxx Title Guaranty Company's (the "TITLE COMPANY")
commitment to issue an Owner's Policy of Title Insurance with
respect to the Property (the "TITLE REPORT") identified as Title
Insurance Commitment File No. 59341-C, with an effective date of
December 15, 1997, a copy of which is attached hereto as EXHIBIT C
and incorporated herein by this reference, (b) copies of all
recorded documents referred to on Schedule B of the Title Report as
exceptions to coverage (the "TITLE DOCUMENTS"), and (c) a certified
boundary survey of the Property dated January 13, 1998, prepared by
Foresight Land Services (the "SURVEY"). Beacon hereby confirms its
approval of the Title Report and Survey. Except as provided in
Section 3.2, Contributor shall transfer, contribute and convey and
Beacon shall accept title to the Property, subject to (i) applicable
zoning and building ordinances and land use regulations, (ii) such
exceptions to title as are listed on Schedule B of the Title Report,
including the Title Company's standard printed exceptions, (iii)
such state of facts as disclosed in the Survey, (iv) such state of
facts as would be disclosed by a physical inspection of the
Property, (v) the lien of taxes not yet due and payable, (vi) any
exceptions caused by Beacon, its agents, representatives or
employees, (vii) such other exceptions as the Title Company shall
commit to insure over, without any additional cost to Beacon,
whether such insurance is made available in consideration of
payment, bonding, indemnity of Contributor or otherwise, (viii) the
Leases (as defined in Subsection 6.3(c)) and (ix) the Mortgages (the
foregoing exceptions described in clauses (i) through (ix) being
herein collectively called the "PERMITTED EXCEPTIONS").
3.2 [RESERVED].
3.3 TITLE INSURANCE; SURVEY. At Closing, the Title Company shall issue
to Beacon, at Beacon's sole cost and expense, an ALTA Owner's Form
of title insurance policy in the form of the Title Report (the
"OWNER'S TITLE POLICY"), in the amount of the Consideration,
insuring that fee simple title to the Real Property is vested in
Beacon subject only to the Permitted Exceptions. Beacon shall be
entitled to request that the Title Company provide, at Beacon's sole
cost and expense, such endorsements (or amendments) to the Owner's
Title Policy as Beacon may reasonably require, provided that (a)
such endorsements (or amendments) shall be at no cost or additional
liability to Contributor, (b) Beacon's obligations under this
Agreement shall not be conditioned upon Beacon's ability to obtain
such endorsements and, if Beacon is unable to obtain such
endorsements, Beacon shall nevertheless be obligated to proceed to
close the transaction contemplated by this Agreement (the
"TRANSACTION") without
4
reduction of or set off against the Consideration, and (c) the
Closing shall not be delayed as a result of Beacon's request.
Contributor shall pay one-half of all costs incurred in connection
with the preparation of the initial Survey delivered by Contributor,
and Beacon shall be required to pay all costs incurred in connection
with any update or modification thereof requested by Beacon.
ARTICLE 4 - BEACON'S DUE DILIGENCE/CONDITION OF THE PROPERTY
Beacon acknowledges that prior to the execution of this Agreement, Beacon
has conducted its examinations, inspections, testing, studies and/or
investigations (herein collectively called the "DUE DILIGENCE") of the Property
and information regarding the Property and waives any rights to terminate this
Agreement on account of any Due Diligence matters. Notwithstanding anything to
the contrary set forth herein, Beacon acknowledges that Contributor has informed
Beacon that due to Contributor's numerous reorganizations of its real estate
investment offices over the previous five years, some Property Documents have
been lost or destroyed, and some Property Documents may be mis-labeled in
Contributor's storage facilities and thus not available. In addition,
Contributor has informed Beacon that Prudential's file storage facilities in
Pennsylvania and New Jersey were each the subject of separate fires in early
1997 resulting in many Contributor files relating to the Property not being
complete. Accordingly, notwithstanding anything to the contrary set forth
herein, Contributor cannot, and does not, represent that the files it now has
are complete. Beacon and Contributor each acknowledge and agree that Beacon
shall have no additional period after the date of this Agreement to conduct
further physical Due Diligence or other examinations regarding the Property. At
Closing and as a material inducement for Contributor to consummate the
Transaction, Beacon will deliver a certification in the form of EXHIBIT D
attached hereto and incorporated herein by this reference. Beacon has notified
Contributor that Beacon elects not to assume any of the Existing Contracts. To
the extent such Existing Contracts are terminable without cost under the terms
thereof, Contributor shall terminate all Existing Contracts, effective as of the
Closing Date, or if a termination notice period is required and is not waived by
the contractor, then effective on such later date as may be required under the
terms of such Existing Contract, and Beacon shall be responsible for all costs
and liabilities thereunder from and after the Closing Date until the termination
of such Existing Contract. To the extent any Existing Contracts are not
terminable without cost under the terms thereof, Beacon shall be required to
accept the assignment thereof at Closing. In any event, Contributor shall
terminate as of the Closing Date at no cost to Beacon (i) any management
contracts affecting the Property and, (ii) to the extent terminable at no cost
to Contributor, any leasing contracts affecting the Property.
5
ARTICLE 5 - ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at Closing, all of which
(as to both revenues and expenses) shall be adjusted to reflect that Contributor
is transferring and Beacon is acquiring only a 50% undivided interest in the
Property:
5.1 LEASE RENTALS.
5.1.1 RENTS. All collected rents and other payments from tenants
under the leases shall be prorated between Contributor and
Beacon as of the day prior to the Closing Date. Contributor
shall be entitled to all rents (including any percentage rent,
additional rent and any accrued tax and operating expense
reimbursements and escalations), charges, and other revenue of
any kind attributable to any period under the Leases prior to
but not including the Closing Date. Beacon shall be entitled
to all rents (including any percentage rent, additional rent
and any accrued tax and operating expense reimbursements and
escalations), charges and other revenue of any kind
attributable to any period under the Leases on and after the
Closing Date. Rents and expense escalations or other
reimbursements due landlord under the Leases not collected as
of the Closing Date shall not be prorated at the time of
Closing, but Beacon shall make a good faith effort to collect
the same on Contributor's behalf and to tender the same to
Contributor upon receipt (which obligation of Beacon shall
survive the Closing and not be merged therein); PROVIDED,
HOWEVER, that all rents, escalations and other reimbursements
due landlord under the Leases collected by Beacon on or after
the Closing Date shall first be applied to all amounts due
under the Leases at the time of collection for post-Closing
periods (I.E., current rents and sums due Beacon as the
current owner and landlord) with the balance (if any) payable
to Contributor, but only to the extent of amounts delinquent
and actually due Contributor. Beacon shall not have an
exclusive right to collect the sums due Contributor under the
Leases and Contributor hereby retains its rights to pursue any
tenant under the Leases for sums due Contributor for periods
attributable to Contributor's ownership of the Property;
PROVIDED, HOWEVER, that Contributor shall not be permitted to
commence or pursue any legal proceedings against any tenant
seeking eviction of such tenant or the termination of the
underlying lease. Contributor's rights under the immediately
preceding sentence shall survive the Closing and not be merged
therein. Beacon shall receive a credit against the
Consideration for pre-paid rentals held by Contributor
covering the period post-Closing.
6
5.1.2 [RESERVED].
5.2 REAL ESTATE AND PERSONAL PROPERTY TAXES. Real estate and personal
property taxes shall be prorated on a cash basis for the fiscal year
in which the Closing occurs, regardless of the year for which such
taxes are assessed. Such proration shall be calculated based upon
the actual number of days in such fiscal year, with Contributor
being responsible for that portion of such fiscal year occurring
prior to midnight of the day prior to the Closing Date and Beacon
being responsible for that portion of such fiscal year occurring
after midnight of the day prior to the Closing Date. If the real
estate and/or personal property tax rate and assessments have not
been set for the fiscal year in which the Closing occurs, then the
proration of such taxes shall be based upon the rate and assessments
for the preceding fiscal year, and such proration shall be adjusted
between Contributor and Beacon upon presentation of written evidence
that the actual taxes paid for the fiscal year in which the Closing
occurs differ from the amounts used at Closing and in accordance
with the provisions of SECTION 5.8. Contributor shall pay all
installments of special assessments due and payable prior to the
Closing Date and Beacon shall pay all installments of special
assessments due and payable on and after the Closing Date; PROVIDED,
HOWEVER, that Contributor shall not be responsible for any
installments of special assessments which have not been confirmed or
which relate to projects that have not been completed on the date
hereof. In the event the Property has been assessed for property
tax purposes at such rates as would result in reassessment (I.E.,
"escape assessment" or "roll-back taxes") based upon the change in
land usage or ownership of the Property, Beacon hereby agrees to pay
all such taxes and to indemnify and save Contributor harmless from
and against all claims and liability for such taxes. Such indemnity
shall survive the Closing and not be merged therein.
5.3 OTHER PROPERTY OPERATING EXPENSES. Operating expenses for the
Property shall be prorated as of midnight of the day prior to the
Closing Date. Contributor shall pay all utility charges and other
operating expenses attributable to the Property to, but not
including the Closing Date (except for those utility charges and
operating expenses payable directly by tenants in accordance with
the Leases) and Beacon shall pay all utility charges and other
operating expenses attributable to the Property on or after the
Closing Date. To the extent that the amount of actual consumption
of any utility services is not determined prior to the Closing Date,
a proration shall be made at Closing based on the last available
reading and post-closing adjustments between Beacon and Contributor
shall be made within twenty (20) days of the date that actual
consumption for such pre-closing period is determined, which
obligation shall survive the Closing and not be merged therein.
Contributor shall not assign to Beacon any
7
deposits which Contributor has with any of the utility services or
companies servicing the Property. Beacon shall arrange with such
services and companies to have accounts opened in Beacon's name
beginning at 12:01 a.m. on the Closing Date.
5.4 CLOSING COSTS. Beacon shall pay all premiums and charges of the
Title Company for the Owner's Title Policy (including endorsements)
to be issued pursuant to the Title Report, the cost of any updates
or modifications to the Survey obtained by Beacon, all recording and
filing charges in connection with the instruments by which
Contributor conveys the Property, one-half (1/2) of all escrow or
closing charges, all costs of Beacon's Due Diligence and any other
costs customarily paid by the buyer pursuant to local practice.
Contributor shall pay all transfer taxes applicable to the transfer
of the Property to Beacon, one-half (1/2) of all escrow or closing
charges and, except as otherwise provided herein, any other costs
customarily paid by the Contributor pursuant to local practice.
Except as otherwise agreed by the parties, each party shall pay its
own attorneys. The obligations of the parties to pay applicable
escrow or closing charges shall survive the termination of this
Agreement.
5.5 CASH SECURITY DEPOSITS. At Closing, Contributor shall give Beacon a
credit against the Consideration in the aggregate amount of the
unapplied cash security deposits then held by Contributor under the
Leases and any interest thereon LESS, any administrative or similar
charges to which Contributor may be entitled under applicable law.
5.6 APPORTIONMENT CREDIT. In the event the apportionments to be made at
the Closing result in a credit balance:
(i) to Beacon, such sum shall be paid (at Contributor's option) by
Contributor at the Closing by either (a) giving Beacon a
credit against the Consideration and a corresponding reduction
in the number of OP Units to be issued to Contributor in the
amount of such credit balance, or (b) paying the amount
thereof to Beacon at the Closing by wire transfer of
immediately available funds to the account or accounts to be
designated by Beacon; or
(ii) to Contributor, such sum shall be paid (at Contributor's
option) by Beacon at the Closing by either (a) giving
Contributor a credit against the Consideration and a
corresponding increase in the number of OP Units to be issued
to Contributor in the amount of such credit balance, or (b)
paying the amount thereof to Contributor at the Closing by
wire transfer of immediately available funds to the account or
accounts to be designated by Contributor.
8
5.7 CLOSING STATEMENT. Contributor shall cause its accounting staff
("CONTRIBUTOR'S ACCOUNTANTS"), in cooperation with Beacon's
accounting staff ("BEACON'S ACCOUNTANTS"), to make such examinations
and audits of the books and records pertaining to the Property as
may be necessary to make the adjustments and prorations required
under this ARTICLE 5, or under any other provisions of this
Agreement. All such adjustments and prorations shall be made in
accordance with the provisions of this Agreement and otherwise on a
cash basis in accordance with sound accounting practices. Based
upon the results thereof, Contributor's Accountants and Beacon's
Accountants will prepare and deliver to Beacon and Contributor no
later than two (2) business days prior to the Closing a closing
statement (the "CLOSING STATEMENT"), which shall contain the
parties' best estimate of the amounts of the items requiring the
prorations and adjustments in accordance with this Agreement. The
amounts set forth on the Closing Statement shall be the basis upon
which the prorations and adjustments provided for herein shall be
made at the Closing. The Closing Statement shall be binding and
conclusive on all parties hereto to the extent of the items covered
by the Closing Statement, except where this Agreement expressly
provides for further adjustment of such amounts after Closing, and
except as otherwise provided in SECTION 5.8 below.
5.8 DELAYED ADJUSTMENT. If at any time following the Closing Date, the
amount of an item listed in any section of this ARTICLE 5 shall
prove to be incorrect (whether as a result in an error in
calculation or a lack of complete and accurate information as of the
Closing), the party in whose favor the error was made shall promptly
pay to the other party the sum necessary to correct such error upon
receipt of proof of such error, provided that such proof is
delivered to the party from whom payment is requested on or before
one (1) year after Closing. The provisions of this SECTION 5.8
shall survive the Closing and not be merged therein.
9
ARTICLE 6 - CLOSING
Beacon and Contributor hereby agree that the Transaction shall be consummated as
follows:
6.1 CLOSING DATE. The Transaction shall close ("CLOSING") on the date
hereof (the "CLOSING DATE"). Closing may, at Contributor's
election, be either by a so-called "New York style" closing or
through escrow. The Closing shall take place at 10:00 a.m. Eastern
Time in the offices of Contributor's attorneys and Beacon and
Contributor shall conduct a "pre-closing" on the last business day
prior to the Closing Date with title transfer and payment of the
Consideration to be completed on the Closing Date as set forth in
SECTION 6.2. Time is of the essence with respect to the Closing
Date.
6.2 TITLE TRANSFER AND PAYMENT OF CONSIDERATION. Provided all
conditions precedent to Contributor's obligations hereunder have
been satisfied, Contributor agrees to transfer and contribute title
to Contributor's interest in the Real Property to Beacon upon
confirmation of issuance of the OP Units to Contributor and receipt
by Xxxxxxx Title Guaranty Company, whose mailing address is 000 Xxxx
000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, XX 00000 Attention: Xxxxx
Xxxx, as escrow agent ("ESCROW AGENT"), of any closing adjustments
payable to Contributor all as set forth in this Agreement. Provided
all conditions precedent to Beacon's obligations hereunder have been
satisfied, Beacon agrees to issue the OP Units to Contributor and
deliver any such closing adjustments to the Escrow Agent by no later
than 3:00 p.m. Eastern Time on the Closing Date.
6.3 CONTRIBUTOR'S CLOSING DELIVERIES. At the Closing, Contributor shall
deliver or cause to be delivered to the Escrow Agent the following:
(a) DEED. A deed in the form of EXHIBIT E attached hereto and
incorporated herein by this reference, transferring and
contributing to Beacon all of Contributor's right, title and
interest in and to the Real Property, subject only to the
Permitted Exceptions (collectively, "DEED").
(b) XXXX OF CONVEYANCE. A Xxxx of Conveyance from Contributor, in
the form of EXHIBIT F attached hereto and incorporated herein
by this reference transferring and contributing all of
Contributor's right, title and interest in and to the Personal
Property.
(c) ASSIGNMENT OF TENANT LEASES. An assignment and assumption of
tenant leases from Contributor, in the form of EXHIBIT G
attached hereto and incorporated herein by this reference
("ASSIGNMENT OF LEASES") transferring all of Contributor's
interest in the tenant space leases
10
encumbering the Property on the Closing Date and any
amendments, guarantees and other documents relating thereto
(herein collectively called the "LEASES"), together with all
assignable non-cash security deposits deposited by the tenants
thereunder and not applied by Contributor in accordance with
the terms of the Leases.
(d) ASSIGNMENT OF EQUIPMENT LEASES, COMMISSION AGREEMENTS AND
SERVICE CONTRACTS. An assignment and assumption of equipment
leases, commission agreements, service contracts, warranties
and guaranties and the Other Property Rights (to the extent
the same are not transferred by the Deed, Xxxx of Conveyance
or Assignment of Leases) from Contributor, in the form of
EXHIBIT H attached hereto and incorporated herein by this
reference ("ASSIGNMENT OF CONTRACTS"), transferring, to the
extent assignable, without liability or expense to
Contributor, all of Contributor's interest in the equipment
leases and any lease commission agreements in effect at the
Property on the Closing Date, all uncanceled service contracts
encumbering the Property on the Closing Date, all warranties
and guaranties which remain in effect on the Closing Date and
any Other Property Rights not otherwise transferred to Beacon,
excluding all Rejected Contracts which are terminated
effective on or before the Closing Date (all of the foregoing
being herein collectively called the "CONTRACTS").
Contributor shall not assign any existing management agreement
or any contracts or policies of insurance for the Property.
(e) NOTICE TO TENANTS. A single form letter from Contributor, in
the form of EXHIBIT J attached hereto and incorporated herein
by this reference to each tenant under the Leases, duplicate
copies of which would be sent notifying it of the disposition
of the Property to Beacon and advising it that all future
payments of rent and other payments due under the Leases are
to be made to Beacon at an address designated by Beacon.
(f) NON-FOREIGN STATUS AFFIDAVIT. A non-foreign status affidavit
in the form of EXHIBIT K attached hereto and incorporated
herein by this reference, as required by Section 1445 of the
Internal Revenue Code, from Contributor.
(g) EVIDENCE OF AUTHORITY. A certificate of an Assistant
Secretary of Prudential and certificates of authorized
officers of Pru-Partner-1 and Pru-Partner-2, with respect to
the authority to act on behalf of such entity of the
individual executing on behalf of such entity all documents
11
to be executed by such entity on behalf of itself and
Contributor pursuant to this Agreement.
(h) CONTRIBUTOR'S CERTIFICATES. A certificate of Contributor
certifying to the truth and accuracy in all material respects
as of the Closing Date of the matters set forth in SECTION
8.2.1.
(i) PROPERTY DOCUMENTS. (i) To the extent in the possession of
Contributor or the current manager of the Property, other than
Privileged Items, (A) the original (or, if unavailable, a
copy) of the existing certificate or certificates of occupancy
for the Property, and (B) all original (or, if unavailable,
copies of) certificates, licenses, permits, authorizations and
approvals issued for or with respect to the Property by
governmental and quasi-governmental authorities having
jurisdiction; and (ii) all non-proprietary books and records
located at the Property or at the office of Contributor's
building manager relating to the Property and the ownership
and operation thereof (the items described in CLAUSES (I) and
(II) being herein collectively called the "PROPERTY
DOCUMENTS"); it being expressly agreed that Contributor shall
have the right to retain copies of the Property Documents.
(j) OTHER DOCUMENTS. Such other documents as may be reasonably
required by the Title Company or as may be agreed upon by
Contributor and Beacon to consummate the Transaction.
(k) LETTERS OF CREDIT AS TENANT SECURITY DEPOSITS. With respect
to any security deposits which are letters of credit,
Contributor shall, if the same are assignable, (i) deliver to
Beacon at the Closing such letters of credit, (ii) execute and
deliver such other instruments as the issuers of such letters
of credit shall reasonably require, and (iii) cooperate with
Beacon to change the named beneficiary under such letters of
credit to Beacon so long as Contributor does not incur any
additional liability or expense in connection therewith.
(l) KEYS AND ORIGINAL DOCUMENTS. Keys to all locks on the Real
Property (in Contributor's or Contributor's building manager's
possession) and originals or, if originals are not available,
copies, of the Leases and Contracts (unless canceled as set
forth herein) encumbering the Property on the Closing Date.
(m) TRANSFER TAXES. If applicable, duly completed and signed real
estate transfer tax returns.
12
(n) CLOSING STATEMENT. The Closing Statement.
(o) TITLE INSURANCE REQUIREMENTS. Those items required to be
delivered by Contributor pursuant to SECTION 3.2.
(p) BEACON LP AMENDMENT. A First Amendment to Agreement of
Limited Partnership in the form of EXHIBIT P (the "BEACON LP
AMENDMENT") attached hereto and incorporated herein by this
reference, executed by Contributor.
(q) REGISTRATION RIGHTS AGREEMENT. A Registration Rights
Agreement in the form of EXHIBIT Q (the "REGISTRATION RIGHTS
AGREEMENT") attached hereto and incorporated herein by this
reference, executed by Contributor.
(r) PROSPECTIVE SUBSCRIBER QUESTIONNAIRES. A Prospective
Subscriber Questionnaire in substantially the form set forth
in EXHIBIT R hereto.
6.4 BEACON CLOSING DELIVERIES. At the Closing, Beacon shall deliver or
cause to be delivered to Contributor the following:
(a) [Reserved]
(b) ASSIGNMENT OF LEASES. The Assignment of Leases executed and
acknowledged by Beacon.
(c) ASSIGNMENT OF EQUIPMENT LEASES, COMMISSION AGREEMENTS AND
SERVICE CONTRACTS. The Assignment of Contracts executed and
acknowledged by Beacon.
(d) BEACON'S CERTIFICATES. The certificate of Beacon required
under ARTICLE 4 hereof and a certificate of Beacon certifying
as to the truth and accuracy in all material respects as of
the Closing Date of the matters set forth in SECTION 8.1.
(e) EVIDENCE OF AUTHORITY. Documentation to establish to
Contributor's reasonable satisfaction the due authorization of
Beacon's acquisition of the Property and Beacon's delivery of
the documents required to be delivered by Beacon pursuant to
this Agreement (including, but not limited to, the
organizational documents of Beacon, as they may have been
amended from time to time, and resolutions and incumbency
certificates of Beacon).
13
(f) OTHER DOCUMENTS. Such other documents as may be reasonably
required by the Title Company or may be agreed upon by
Contributor and Beacon to consummate the Transaction.
(g) TRANSFER TAXES. If applicable, duly completed and signed real
estate transfer tax returns.
(h) CLOSING STATEMENT. The Closing Statement.
(i) BEACON LP AMENDMENT. The Beacon LP Amendment executed by
Beacon, and evidencing the issuance to Contributor of the OP
Units comprising Contributor's Consideration, which OP Units
shall be free and clear of any claims, liens, voting
agreements, options, charges or encumbrances or restrictions
of any kind, nature or description.
(j) REGISTRATION RIGHTS AGREEMENT. The Registration Rights
Agreement executed by Beacon and Beacon Capital Partners, Inc.
6.5 DELIVERY OF DEED. Effective upon delivery of the Deed, actual and
exclusive possession (subject only to the Permitted Exceptions) and
risk of loss to the Property shall pass from Contributor to Beacon.
ARTICLE 7 - CONDITIONS TO CLOSING
7.1 CONTRIBUTOR'S OBLIGATIONS. Contributor's obligation to close the
Transaction is conditioned on all of the following, any or all of
which may be waived by Contributor by an express written waiver, at
its sole option:
(a) [Reserved].
(b) REPRESENTATIONS TRUE. All representations and warranties made
by Beacon in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, as if made on
and as of such date except to the extent they expressly relate
to an earlier date;
(c) BEACON'S FINANCIAL CONDITION. Beacon's financial condition
has not materially changed at any time since the date of any
of Beacon's financial statements submitted to Contributor; and
(d) BEACON'S DELIVERIES COMPLETE. Beacon shall have delivered the
funds required hereunder and all of the documents to be
executed by Beacon
14
set forth in SECTION 6.4 and shall have performed in all
material respects all other covenants, undertakings and
obligations, and complied in all material respects with all
conditions required by this Agreement, to be performed or
complied with by Beacon at or prior to the Closing.
7.2 BEACON'S OBLIGATIONS. Beacon's obligation to close the Transaction
is conditioned on all of the following, any or all of which may be
expressly waived by Beacon in writing, at its sole option:
(a) REPRESENTATIONS TRUE. All representations and warranties made
by Contributor in this Agreement shall be true and correct in
all material respects on and as of the Closing Date, as if
made on and as of such date except to the extent that they
expressly relate to an earlier date.
(b) TITLE CONDITIONS SATISFIED. At the time of the Closing, title
to the Property shall be as provided in ARTICLE 3 of this
Agreement.
(c) ESTOPPEL LETTERS. Executed estoppel letters from Polaroid
Corporation, The Xxxxxxx Xxxxx Xxxxxx Laboratory, Inc. and
Massachusetts Institute of Technology have previously been
delivered by Contributor to Beacon. Beacon hereby approves of
all of the estoppel letters received by Beacon, in full
satisfaction of the condition set forth in this SECTION
7.2(C).
(d) CONTRIBUTOR'S DELIVERIES COMPLETE. Contributor shall have
delivered all of the documents and other items required
pursuant to SECTION 6.3 and shall have performed all other
covenants, undertakings and obligations, and complied with all
conditions required by this Agreement, to be performed or
complied with by Contributor at or prior to the Closing.
7.3 WAIVER OF FAILURE OF CONDITIONS PRECEDENT. At any time or times on
or before the date specified for the satisfaction of any condition,
Beacon or Contributor may elect in writing to waive the benefit of
any such condition set forth in SECTION 7.1 or SECTION 7.2,
respectively. By closing the Transaction, Beacon shall be
conclusively deemed to have waived the benefit of any remaining
unfulfilled conditions set forth in SECTION 7.2. In the event any
of the conditions set forth in SECTIONS 7.1 or 7.2 are neither
waived nor fulfilled, Beacon or Contributor (as appropriate) may
terminate their obligations to perform at the Closing and otherwise
under this Agreement in accordance with the provisions of ARTICLE
10.
15
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES
8.1 BEACON'S REPRESENTATIONS. Beacon represents and warrants to, and
covenants with, Contributor as follows:
8.1.1 BEACON'S AUTHORIZATION. Beacon is duly organized (or formed),
validly existing and in good standing under the laws of its
State of organization and the Commonwealth of Massachusetts,
and is authorized to consummate the Transaction and fulfill
all of its obligations hereunder and under all documents
contemplated hereunder to be executed by Beacon, and has all
necessary power to execute and deliver this Agreement and all
documents contemplated hereunder to be executed by Beacon, and
to perform all of its obligations hereunder and thereunder.
This Agreement and all documents contemplated hereunder to be
executed by Beacon, have been duly authorized by all requisite
corporate action on the part of Beacon and are the valid and
legally binding obligation of Beacon, enforceable in
accordance with their respective terms. Neither the execution
and delivery of this Agreement and all documents contemplated
hereunder to be executed by Beacon, nor the performance of the
obligations of Beacon hereunder or thereunder will result in
the violation of any law or any provision of the articles of
incorporation and by-laws of Beacon or will conflict with any
order or decree of any court or governmental instrumentality
of any nature by which Beacon is bound.
8.1.2 BEACON'S FINANCIAL CONDITION. Beacon's financial condition is
as is represented to Contributor on any financial statements
previously submitted to Contributor by Beacon.
8.1.3 THE COMPANY'S AUTHORIZATION. Beacon Capital Partners, Inc.,
Beacon's sole general partner (the "COMPANY") has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Maryland, and is duly
qualified to transact business and is in good standing under
the laws of all jurisdictions where the ownership or leasing
of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified
does not amount to a material liability or disability to the
Company. The Company has full right, authority, power and
capacity: (i) to enter into this Agreement and each
agreement, document and instrument to be executed and
delivered by or on behalf of the Company pursuant to this
Agreement; and (ii) to carry out the transactions contemplated
hereby and thereby. This Agreement and each agreement,
document and
16
instrument executed and delivered by or on behalf of the
Company pursuant to this Agreement constitutes, or when
executed and delivered will constitute, the legal, valid and
binding obligation of the Company, each enforceable in
accordance with their respective terms. The execution,
delivery and performance of this Agreement and each such
agreement, document and instrument by or on behalf of the
Company: (x) does not and will not violate the Company's
organizational documents; and (y) does not and will not
violate any foreign, federal, state, local or other laws
applicable to the Company or require the Company to obtain any
approval, consent or waiver of, or make any filing with, any
person or authority (governmental or otherwise) that has not
been obtained or made or which does not remain in effect.
8.1.4 ISSUANCE OF UNITS AND COMMON STOCK. The OP Units to be issued
upon consummation of the Transaction have been duly authorized
and validly issued, free and clear of all mortgages, pledges,
liens, security interests, encumbrances and restrictions of
every nature, except as provided in this Agreement, that
certain Agreement of Limited Partnership of Beacon, dated as
of March 16, 1998, as amended to date (the "PARTNERSHIP
AGREEMENT"), and the Registration Rights Agreement. The
shares of common stock of the Company that may be issued upon
conversion of the OP Units under the terms of the Partnership
Agreement will have been duly authorized and when issued in
accordance with the terms of the Partnership Agreement, will
be validly issued and fully paid and nonassessable.
8.1.5 CAPITALIZATION; STATUS OF INTERESTS.
(a) Beacon has an authorized, issued and outstanding
capitalization as set forth on EXHIBIT S attached
hereto. All of the partnership interests of Beacon
shown on such EXHIBIT S have been duly authorized and
validly issued and are fully paid and nonassessable.
(b) The Company has an authorized, issued and outstanding
capitalization as set forth on EXHIBIT T attached
hereto. All of the capital stock of the Company has
been duly authorized, and the capital stock of the
Company outstanding is validly issued, fully paid and
nonassessable. The subsidiaries of the Company are as
set forth on EXHIBIT U hereto.
17
(c) Except for the interests owned by the Company in Beacon
or owned by the Company or Beacon in any of the
subsidiaries, neither the Company nor Beacon owns any
shares of stock or any other equity securities of any
corporation or has any equity interest in any firm,
partnership, association or other entity.
(d) Except as disclosed on EXHIBITS S AND T, there are no
outstanding (i) securities or obligations of Beacon or
the Company convertible into or exchangeable for any
capital stock of the Company or any equity interest in
Beacon, (ii) warrants, rights or options to subscribe
for or purchase from the Company or Beacon any such
capital stock or equity interests or any such
convertible or exchangeable securities or obligations,
(iii) obligations of the Company or Beacon to issue any
shares of capital stock, any partnership interests, any
such convertible or exchangeable securities or
obligations, or any such warrants, rights or options,
and (iv) agreements or arrangements restricting the
voting or transfer of the capital stock of the Company
or the equity interests in Beacon.
8.1.6 COMPLIANCE WITH LAWS.
(a) Beacon and the Company have complied with all laws,
regulations and orders applicable to it or its
respective business and properties except where the
failure to so comply would not result in a material
adverse change in the financial condition or results of
operations of the Company and Beacon, taken as a whole.
Beacon and the Company possess all certificates,
authorizations and permits issued by the appropriate
federal, state, municipal or foreign regulatory
authorities necessary to conduct their respective
businesses, except where the failure to possess the
same would not result in a material adverse change in
the financial condition or results of operations of the
Company and Beacon, taken as a whole. Neither Beacon
nor the Company has received any notice of proceedings
relating to the revocation or modification of any such
certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a material
adverse change in the financial condition or results of
operations of the Company and Partnership, taken as a
whole.
18
(b) (i) Neither Partnership nor the Company is in violation
of any federal or state law or regulation relating to
occupational safety and health, (ii) Beacon and the
Company have received all permits, licenses or other
approvals required of them under applicable federal and
state occupational safety and health and environmental
laws and regulations to conduct their respective
businesses, and (iii) Beacon and the Company are in
compliance with all terms and conditions of any such
permit, license or approval, except with respect to
each of (i), (ii), and (iii) any such violation of law
or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate,
result in a material adverse change in the financial
condition or results of operations of the Company and
Beacon, taken as a whole.
8.1.7 DISCLOSURE. Beacon has provided Contributor with a true,
correct and complete copy of that certain Registration
Statement on Form S-11 of the Company, dated as of June 16,
1998 (the "RESALE REGISTRATION STATEMENT"). As of the date it
was originally filed with the Securities and Exchange
Commission, the Resale Registration Statement did not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein necessary in order
to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
8.1.8 SURVIVAL. Notwithstanding anything herein to the contrary,
the provisions of this SECTION 8.1 shall survive the Closing.
8.2 CONTRIBUTOR'S REPRESENTATIONS.
8.2.1 CONTRIBUTOR'S AUTHORIZATION. Contributor represents and
warrants to Beacon as follows: Contributor is (a) duly
organized (or formed), validly existing and in good standing
under the laws of its State of organization, (b) authorized to
consummate the Transaction and fulfill all of its obligations
hereunder and under all documents contemplated hereunder to be
executed by Contributor, and (c) has all necessary power to
execute and deliver this Agreement and all documents
contemplated hereunder to be executed by Contributor and to
perform its obligations hereunder and thereunder. This
Agreement and all documents contemplated hereunder to be
executed by Contributor have been duly authorized by all
requisite partnership and corporate action on the part of
19
Contributor and its constituent partners and are the valid and
legally binding obligation of Contributor enforceable in
accordance with their respective terms. Neither the execution
and delivery of this Agreement and all documents contemplated
hereunder to be executed by Contributor nor the performance of
the obligations of Contributor hereunder or thereunder will
result in the violation of any law or any provision of the
joint venture agreement, articles of incorporation and by-laws
of Prudential or any of its constituent partners or will
conflict with any order or decree of any court or governmental
instrumentality of any nature by which Contributor is bound.
8.2.2 [RESERVED].
8.2.3 [RESERVED].
8.2.4 CONTRIBUTOR'S REPRESENTATIONS REGARDING THE PROPERTY.
Contributor represents and warrants to Beacon that, to
Contributor's knowledge (as such term is hereinafter defined):
(a) Except as listed in EXHIBIT L attached hereto and
incorporated herein by this reference, Contributor has
not received any written notice of pending litigation
against Contributor which would, if determined
adversely to Contributor, adversely affect the
Property.
(b) Contributor has not entered into any service, supply,
maintenance or utility contracts affecting the Property
which will be binding upon Beacon after the Closing
other than the Contracts listed in EXHIBIT B attached
hereto. Contributor has delivered to Beacon true and
complete copies of the Contracts.
(c) Contributor has not received any written notice of
default under the terms of any of the Contracts except
as listed in EXHIBIT L attached hereto.
(d) As of the date of this Agreement, the only tenants of
the Property are the tenants listed in EXHIBIT M
attached hereto and incorporated herein by this
reference, under the leases described in EXHIBIT M.
True and complete copies of the Leases have been
furnished to Beacon.
20
(e) Except as listed in EXHIBIT L attached hereto,
Contributor has not received any written notice from
any governmental authority of any violation of any
zoning, building, fire, or health code, statute,
ordinance, rule or regulation applicable to the
Property.
(f) Contributor has not entered into any currently
effective agreement to sell or dispose of all of its
interest in and to the Property (except for this
Agreement).
(g) Except as listed on EXHIBIT M, Contributor has no
obligation to perform any tenant improvement work under
any of the leases listed in EXHIBIT M.
(h) Except for brokerage or leasing commissions which may
become due under the leasing agreement described on
EXHIBIT B upon renewals, extensions or expansions of
the Leases listed on EXHIBIT M, there are no brokerage
or leasing commissions due with respect to any of the
Leases listed on EXHIBIT M or any renewals, extensions
or expansions thereof.
8.2.5 INVESTMENT REPRESENTATIONS AND WARRANTIES. Contributor
represents and warrants as follows:
(a) It is an "accredited investor" within the meaning of
Rule 501(a) promulgated under the Securities Act of
1933, as amended (the "Securities Act"). It
understands the risks of, and other considerations
relating to, the purchase of the OP Units. It, by
reason of its business and financial experience,
together with the business and financial experience of
those persons, if any, retained by it to represent or
advise it with respect to its investment in the OP
Units, (i) has such knowledge, sophistication and
experience in financial and business matters and in
making investment decisions of this type that it is
capable of evaluating the merits and risks of an
investment in Beacon and of making an informed
investment decision, (ii) is capable of protecting its
own interest or has engaged representatives or advisors
to assist it in protecting its interests and (iii) is
capable of bearing the economic risk of such
investment.
(b) The OP Units to be issued to Contributor will be
acquired by Contributor for its own account for
investment only and not with a view to, or with any
intention of, a distribution or resale
21
thereof, in whole or in part, or the grant of any
participation therein although (x) under the terms of
the Partnership Agreement, the OP Units may be redeemed
at the request of the holder thereof at any time
following the expiration of the period described in
SUBSECTION 9.3.4 of this Agreement for cash or (at the
option of the Company) for common stock of the Company
and (y) the holder of any such common stock issued upon
presentation of OP Units for redemption will be
afforded certain rights to have either the issuance or
resale of such common stock registered under the
Securities Act or applicable state securities laws
under the Registration Rights Agreement.
(c) Contributor acknowledges that (i) the OP Units to be
issued to it have not been registered under the
Securities Act or state securities laws by reason of a
specific exemption or exemptions from registration
under the Securities Act and applicable state
securities laws, (ii) Beacon's reliance on such
exemptions is predicated in part on the accuracy and
completeness of the representations and warranties of
Contributor contained herein, (iii) such OP Units,
therefore, cannot be resold unless registered under the
Securities Act and applicable state securities laws, or
unless an exemption from registration is available,
(iv) there is no public market for such OP Units, and
(v) Beacon has no obligation or intention to register
such OP Units for resale under the Securities Act or
any state securities laws or to take any action that
would make available any exemption from the
registration requirements of such laws. Contributor
hereby acknowledges that because of the restrictions on
transfer or assignment of such OP Units to be issued
hereunder which are set forth in this Agreement and in
the Partnership Agreement, such person may have to bear
the economic risk of the investment commitment
evidenced by this Agreement and any OP Units obtained
hereunder for an indefinite period of time, although
(x) under the terms of the Partnership Agreement, OP
Units may be redeemed at the request of the holder
thereof at any time following the expiration of the
period described in SUBSECTION 9.3.4 of this Agreement
for cash or (at the option of the Company) for common
stock of the Company and (y) the holder of any such
common stock issued upon a presentation of OP Units for
redemption will be afforded certain rights to have the
issuance or subsequent resale of such common stock
22
registered under the Securities Act or applicable state
securities laws under the Registration Rights
Agreement.
8.3 GENERAL PROVISIONS.
8.3.1 DEFINITION OF "CONTRIBUTOR'S KNOWLEDGE". All references in
this Agreement to "CONTRIBUTOR'S KNOWLEDGE" or words of
similar import shall refer only to the actual knowledge of
Xxxxx Xxx of Prudential (the "DESIGNATED EMPLOYEE"), after
making inquiry of Contributor's property manager, and shall
not be construed to refer to the knowledge of any other
officer, agent or employee of Contributor, its partners or any
affiliate thereof or to impose or have imposed upon the
Designated Employee any duty to investigate the matters to
which such knowledge, or the absence thereof, pertains,
including, but not limited to, the contents of the files,
documents and materials made available to or disclosed to
Beacon or the contents of files maintained by the Designated
Employee. There shall be no personal liability on the part of
the Designated Employee arising out of any representations or
warranties made herein.
8.3.2 CONTRIBUTOR'S REPRESENTATIONS DEEMED MODIFIED. To the extent
that Beacon knows prior to the date of this Agreement that
Contributor's representations and warranties are inaccurate,
untrue or incorrect in any way, such representations and
warranties shall be deemed modified to reflect Beacon's
knowledge.
8.3.3 NOTICE OF BREACH; CONTRIBUTOR'S RIGHT TO CURE. If prior to
the Closing, Beacon or any of its employees, agents,
representatives or attorneys (all of the foregoing being
herein collectively called the "BEACON'S REPRESENTATIVES")
obtains actual knowledge that any of the representations or
warranties made herein by Contributor are untrue, inaccurate
or incorrect in any material respect, Beacon shall give
Contributor written notice thereof within five (5) business
days of obtaining such knowledge (but, in any event, prior to
the Closing). If at or prior to the Closing, Contributor
obtains knowledge that any of the representations or
warranties made herein by Contributor are untrue, inaccurate
or incorrect in any material respect, Contributor shall give
Beacon written notice thereof within five (5) business days of
obtaining such knowledge (but, in any event, prior to the
Closing). In either such event, Contributor shall have the
right to cure such misrepresentation or breach and shall be
entitled to a reasonable adjournment of the Closing (not to
exceed ninety (90) days) for the purpose of such cure. If
23
Contributor is unable to so cure any misrepresentation or
breach, then Beacon, as its sole remedy for any and all such
materially untrue, inaccurate or incorrect material
representations or warranties, shall elect either (a) to waive
such misrepresentations or breaches of warranties and
consummate the Transaction without any reduction of or credit
against the Consideration, or (b) to terminate this Agreement
by written notice given to Contributor on the Closing Date, in
which event this Agreement shall be terminated and,
thereafter, neither party shall have any further rights or
obligations hereunder except as provided in any section hereof
that by its terms expressly provides that it survives any
termination of this Agreement. If any such representation or
warranty is untrue, inaccurate or incorrect but is not untrue,
inaccurate or incorrect in any material respect, Beacon shall
be deemed to waive such misrepresentation or breach of
warranty, and Beacon shall be required to consummate the
Transaction without any reduction of or credit against the
Consideration. The untruth, inaccuracy or incorrectness of a
representation or warranty shall be deemed material only if
Beacon's aggregate damages resulting from the untruth,
inaccuracy or incorrectness of any of the representations or
warranties are reasonably estimated by Beacon to exceed Two
Hundred Fifty Thousand Dollars ($250,000).
8.3.4 SURVIVAL; LIMITATION ON CONTRIBUTOR'S LIABILITY. The
representations and warranties made by Prudential,
Pru-Partner-1, Pru-Partner-2 and Contributor in SECTION 8.2
shall survive the Closing and not be merged therein for a
period of one hundred eighty (180) days and Contributor shall
only be liable to Beacon hereunder for a breach of a
representation and warranty made herein or in any of the
documents executed by Contributor at the Closing with respect
to which a claim is made by Beacon against Contributor on or
before the one hundred eightieth (180th) day after the date of
the Closing. Anything in this Agreement to the contrary
notwithstanding, the maximum aggregate liability of
Contributor for Contributor's breaches of representations and
warranties herein or in any documents executed by Contributor
at Closing (including, but not limited to, any landlord
estoppel letters delivered pursuant to SECTION 7.2(C)) shall
be limited as set forth in SECTION 14.16 hereof.
Notwithstanding the foregoing, however, if the Closing occurs,
Beacon hereby expressly waives, relinquishes and releases any
right or remedy available to it at law, in equity or under
this Agreement to make a claim against Contributor for damages
that Beacon may incur, or to rescind this Agreement and the
Transaction, as the result of any of Contributor's
representations or warranties being untrue, inaccurate or
24
incorrect if (a) Beacon knew that such representation or
warranty was untrue, inaccurate or incorrect at the time of
the Closing, or (b) Beacon's damages as a result of such
representations or warranties being untrue, inaccurate or
incorrect are reasonably estimated to aggregate less than Two
Hundred Fifty Thousand Dollars ($250,000).
ARTICLE 9 - COVENANTS
9.1 BEACON'S COVENANTS. Beacon hereby covenants as follows:
9.1.1 CONFIDENTIALITY. Beacon acknowledges that any information
furnished to Beacon with respect to the Property is and has
been so furnished on the condition that Beacon maintain the
confidentiality thereof. Accordingly, Beacon shall hold, and
shall cause its directors, officers and other personnel and
the other Beacon's Representatives to hold, in strict
confidence, and not disclose to any other person without the
prior written consent of Contributor until the Closing shall
have been consummated, any of the information in respect of
the Property delivered to or for the benefit of Beacon whether
by agents, consultants, employees or representatives of Beacon
or by Contributor or any of its agents, representatives or
employees, including, but not limited to, any information
obtained by Beacon or any of Beacon's Representatives in
connection with any studies, inspections, testings or analyses
conducted by Beacon as part of its Due Diligence. In the
event the Closing does not occur and this Agreement is
terminated, Beacon shall promptly return to Contributor all
copies of documents containing any of such information without
retaining any copy thereof or extract therefrom.
Notwithstanding anything to the contrary hereinabove set
forth, Beacon may disclose such information (i) on a
need-to-know basis to its employees or members of professional
firms serving it, and (ii) as any governmental agency may
require in order to comply with applicable laws or
regulations. The provisions of this SUBSECTION 9.1.1 shall
survive the Closing (and not be merged therein) or earlier
termination of this Agreement.
9.1.2 APPROVALS NOT A CONDITION TO BEACON'S PERFORMANCE. Beacon
acknowledges and agrees that Beacon's obligation to perform
under this Agreement is not contingent upon Beacon's ability
to obtain any (a) governmental or quasi-governmental approval
of changes or modifications in use or zoning, or (b)
modification of any existing land use restriction, or (c)
consents to assignments of any service contracts,
25
management agreements or other agreements which Beacon
requests, or (d) endorsements to the Title Policy.
9.1.3 BEACON'S INDEMNITY; DELIVERY OF REPORTS. Beacon hereby agrees
to indemnify, defend, and hold Contributor, its counsel,
Broker (as defined below), Broker's sales agents, and all
partners, officers, directors, employees, agents and attorneys
of Contributor, its counsel, Broker, and Broker's sales
agents, and any other party related in any way to any of the
foregoing (all of which parties are herein collectively called
the "CONTRIBUTOR PARTIES"), and the Property free and harmless
from and against any and all costs, loss, damages and
expenses, of any kind or nature whatsoever (including
attorneys fees and costs), arising out of or resulting from
the entry and/or the conduct of activities upon the Property
by Beacon, its agents, contractors, subcontractors and/or
other Beacon's Representatives in connection with the
inspections, examinations, testings and investigations of the
Property conducted at any time prior to the Closing, which
indemnity shall survive the Closing (and not be merged
therein) or any earlier termination of this Agreement. Beacon
shall deliver promptly to Contributor copies of all third
party reports commissioned by Beacon evidencing the results of
tests, studies or inspections of the Property.
9.1.4 LIMIT ON GOVERNMENT CONTACTS. Notwithstanding any provision
in this Agreement to the contrary, except in connection with
the preparation of a so-called "Phase I" environmental report
with respect to the Property, Beacon shall not contact any
governmental official or representative regarding Hazardous
Materials (as defined below) on or the environmental condition
of the Property without Contributor's prior written consent
thereto, which consent shall not be unreasonably withheld. In
addition, if Contributor's consent is obtained by Beacon,
Contributor shall be entitled to receive at least five (5)
days prior written notice of the intended contact and to have
a representative present when Beacon has any such contact with
any governmental official or representative. For purposes of
this Agreement, the term "HAZARDOUS MATERIAL" shall mean any
substance, chemical, waste or material that is or becomes
regulated by any federal, state or local governmental
authority because of its toxicity, infectiousness,
radioactivity, explosiveness, ignitability, corrosiveness or
reactivity, including, without limitation, asbestos or any
substance containing more than 0.1 percent asbestos, the group
of compounds known as polychlorinated biphenyls, flammable
explosives, oil, petroleum or any refined petroleum product.
26
9.1.5 ASSUMPTION OF CBA OBLIGATIONS. In the event that Contributor
or Contributor's managing agent employs any employees at the
Property who are subject to any collective bargaining
agreement (any such employees and collective bargaining
agreements being listed on EXHIBIT N attached hereto and
incorporated herein by this reference), Beacon shall, on or
before the Closing Date, become, or retain a managing agent
for the Property who is, a member of any required union or
other association and shall assume, or cause such managing
agent to assume, all of the obligations of Contributor or its
managing agent in accordance with such collective bargaining
agreements with respect to such employees or any replacements
of such employees.
9.1.6 ENVIRONMENTAL INSURANCE POLICIES. In the event Beacon at any
time obtains any insurance policy insuring Beacon against
liabilities relating to Hazardous Materials at, near, under or
about the Property, Beacon agrees at its sole cost to arrange
for the insurer to name Contributor, Prudential, Pru-Partner-1
and Pru-Partner-2 as additional insureds thereunder. The
provisions of this SUBSECTION 9.1.6 shall survive the Closing
(and not be merged therein).
9.1.7 DEVELOPMENT PREMIUM. In the event at any time before the
fifth (5th) anniversary of the Closing Date, Beacon obtains a
building permit allowing a development in excess of Two
Hundred Thousand (200,000) rentable square feet of space on
the Building 549 site (as shown on the site plan approved by
the applicable authority at that time), (i) Beacon shall
provide Contributor with written notice thereof, accompanied
by copies of the approved site plan and the building permit,
and shall provide Contributor with any other relevant items
reasonably requested by Contributor, and (ii) Beacon shall pay
to Contributor not later than ten (10) business days after the
date such building permit is issued, an amount determined by
multiplying Five Dollars ($5.00) by the number of rentable
square feet approved by the applicable authority in excess of
Two Hundred Thousand (200,000) rentable square feet. The
provisions of this SUBSECTION 9.1.7 shall survive the Closing
(and not be merged therein).
9.1.8 POLAROID RESTORATION PAYMENT. Under the terms of the Lease to
Polaroid Corporation ("POLAROID"), after Closing Polaroid will
be obligated to pay to the landlord under the Lease an amount
(the "POLAROID RESTORATION AMOUNT"), which has not yet been
determined, relating to the restoration of Polaroid's premises
following the expiration of its Lease. Beacon shall be
responsible for the negotiation of the Polaroid Restoration
27
Amount, shall advise Contributor of any material decisions
made in connection therewith, and shall provide Contributor
with copies of any documentation executed in connection
therewith and any other relevant information reasonably
requested by Contributor. Contributor and Beacon agree to
share the Polaroid Restoration Amount as follows: (i)
Contributor and Asahi International Ltd. shall be entitled to
the first Five Hundred Thousand Dollars ($500,000.00) thereof
paid by Polaroid, (ii) (a) Beacon shall be entitled to retain
50% of, and (b) Contributor and Asahi International Ltd. shall
be entitled to retain 50% of, all amounts paid by Polaroid in
excess of Five Hundred Thousand Dollars ($500,000.00), (iii)
in the event Polaroid pays a total Polaroid Restoration Amount
less than Three Hundred Fifty Thousand Dollars ($350,000.00),
then not later than ten (10) business days after Polaroid
makes such payment of the Polaroid Restoration Amount, Beacon
shall remit the full Polaroid Restoration Amount to
Contributor and Asahi International Ltd. and Beacon shall pay
to Contributor and Asahi International Ltd. an amount equal to
Three Hundred Fifty Thousand Dollars ($350,000.00), minus the
amount of the Polaroid Restoration Amount paid by Polaroid and
remitted to Contributor and Asahi International Ltd., and (iv)
if Polaroid pays no Polaroid Restoration Amount, then not
later than ten (10) business days after the earlier of (a) the
date upon which Beacon agrees to accept no Polaroid
Restoration Amount, or (b) December 1, 1999, Beacon shall pay
to Contributor and Asahi International Ltd. the sum of Three
Hundred Fifty Thousand Dollars ($350,000.00). The provisions
of this SUBSECTION 9.1.8 shall survive the Closing (and not be
merged therein).
9.1.9 RESTRICTIONS ON SALE OF PROPERTY.
(a) Beacon covenants and agrees that during the period
between the Closing Date and March 31, 1999 (the "TAX
PROTECTION PERIOD"), neither Beacon nor any designee,
successor or assign of Beacon with respect to the
Property will transfer, exchange or otherwise dispose
of (including pursuant to an involuntary foreclosure or
similar event) all or any portion of the Property
unless such disposition is structured as a tax-deferred
like-kind exchange under Section 1031 of the Internal
Revenue Code of 1986, as amended (the "CODE") (which
exchange will not include any cash consideration to
Beacon or its affiliates in excess of the customary
costs and expenses incurred by Beacon or its affiliates
in connection with negotiating and closing the
acquisition of replacement property effecting such
exchange) or otherwise does
28
not trigger any Section 704(c) gain or Section
704(c)-type gain under the Code.
(b) If Beacon breaches its obligation under subsection
9.1.9(a) of this Agreement during the Tax Protection
Period and thereby causes the recognition of taxable
income under the Code by Contributor on account of
Built-in Gain, Beacon shall pay Contributor an amount
equal to the Federal, state and local income taxes,
including interest and penalties except to the extent
such interest and penalties accrue as a result of a
failure by Contributor to timely file its return
("TAXES"), paid by Contributor on account of the
Built-in Gain recognized under the Code as a result of
such breach, without duplication of such amounts, at
the time or times such Taxes are due to the taxing
authorities. The measure of the amount of Taxes
payable as a result of a breach of the provisions of
SUBSECTION 9.1.1(A) above by Beacon shall be the
excess, if any, of (i) the aggregate amount of Taxes
deemed payable for the relevant taxable year by
Contributor or holders of direct or indirect interests
in Contributor computed using the highest marginal tax
rate applicable to Contributor or such holders, during
such year, over (ii) the aggregate amount of deemed
Taxes that would be payable for such year by
Contributor or such holders at such rate determined
without including any Built-in Gain recognized by
Contributor or such holders as a result of the breach
by Beacon of the provisions of SUBSECTION 9.1.9(A)
above.
For purposes of this Agreement, "BUILT-IN GAIN" means
Contributor's interest in the excess of the gross fair
market value of the Property over such Property's
adjusted tax basis for Federal income tax purposes, as
determined as of the Closing Date, reduced from time to
time by: (i) the amortization of such excess on
account of reductions in the so-called "book-tax"
disparity of the Property due to Code Section 704(c)
and Code Section 704(c) type allocations described in
Treasury Regulations Section 1.704-1(b)(4)(i), (ii) any
increase in the basis of the Property due to any
adjustments under Code Section 734(b), (iii) any
Built-in Gain recognized by Contributor with respect to
the Property under the Code during the Tax Protection
Period as a result of a prior breach by Beacon of the
provisions of SUBSECTION 9.1.9(A) and (iv) any Built-in
Gain recognized with respect to the Property by
Contributor upon a sale or disposition of OP Units.
29
(c) Beacon further agrees, during the period from the end
of the Tax Protection Period to the date that is seven
and one-half years from the Closing Date (the
"SUBSEQUENT PERIOD"), to use reasonable efforts to
structure any disposition of all or any portion of the
Property as a tax-deferred like-kind exchange under
Section 1031 of the Code (which exchange will not
include any cash consideration to Beacon or its
affiliates in excess of the customary costs and
expenses incurred by Beacon or its affiliates in
connection with negotiating and closing the acquisition
of replacement property effecting such exchange) or is
otherwise 100% tax deferred under the Code.
Notwithstanding anything herein to the contrary, Beacon
shall give Contributor notice of any disposition of
all or any portion of the Property as soon as
practicable prior to completion and in any event within
ten (10) days following, any such disposition.
(d) Neither Beacon, the Company, nor any of their
subsidiaries or affiliates shall be liable to
Contributor for any damages or any other remedy if all
or any portions of the Property is disposed of during
the Subsequent Period in a taxable manner.
(e) The provisions of this SUBSECTION 9.1.9 shall survive
the Closing (and not be merged therein).
9.1.10 WAIVER OF OWNERSHIP LIMITATIONS.
(a) Beacon, and by joining this Agreement for purposes of
this SUBSECTION 9.1.10, the Company, covenant and agree
that, following the expiration of the limitation on
Contributor's right to redeem OP Units as set forth in
SUBSECTION 9.3.4, Beacon and the Company shall cause to
be issued to Contributor a waiver of the ownership
limitations set forth in Article IX of the Articles of
Incorporation of the Company, to the extent necessary
to permit any proposed redemption by Contributor of OP
Units received pursuant to this Agreement; PROVIDED,
HOWEVER, that as a condition to delivering any such
required waiver of ownership limitations, Beacon and
the Company shall be entitled to receive a
representation and warranty from Contributor confirming
that such redemption request is not being made by
Contributor in connection with an actual or
anticipated sale of all or any of the capital stock
of the Company received in connection with such
redemption
30
("REDEMPTION SHARES") to any person or "group" (as
used in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended), which would to Contributor's
knowledge, in the aggregate, own more than 9.8% of the
Company's common stock as a result of the acquisition
of such Redemption Shares.
(b) Notwithstanding anything in this Agreement to the
contrary but in addition to (and in limitation of) the
rights of Beacon and the Company under Section 8.6 of
the Partnership Agreement, to the extent any proposed
redemption by Contributor of OP Units acquired pursuant
to this Agreement would cause Contributor's ownership
interests in the Company and/or Beacon to exceed any
ownership limitations applicable to Contributor under
the terms of the Company's Articles of Incorporation,
then in lieu of granting the waiver of ownership
limitations required under SUBSECTION 9.1.10(A) above,
the Company shall have the right, in its discretion, to
elect to purchase directly and acquire a portion of the
OP Units owned by Contributor equal to the amount of
such OP Units which if converted into common stock of
the Company would cause Contributor's ownership
interests in the Company to be in excess of the
applicable ownership limitations. The purchase price
payable by the Company to Contributor for such OP Units
shall be the Cash Amount (as defined in the Partnership
Agreement) with respect to such OP Units.
(c) The provisions of this SUBSECTION 9.1.10 shall survive
the Closing (and not be merged therein).
9.2 CONTRIBUTOR'S COVENANTS. Contributor hereby covenants as follows:
9.2.1 SERVICE CONTRACTS. Without Beacon's prior consent, which
consent shall not be unreasonably withheld, between the date
hereof and the Closing Date Contributor shall not extend,
renew, replace or modify any Contract unless such contract (as
so extended, renewed, replaced or modified) can be terminated
by the owner of the Property without penalty on not more than
thirty (30) days' notice.
9.2.2 MAINTENANCE OF PROPERTY. Beacon acknowledges that in
contemplation of the disposition of the Property, Contributor
may have altered or suspended certain maintenance programs and
capital improvement projects, and Beacon hereby agrees that it
31
shall accept the Property subject to, and Contributor shall
have no obligation to cure, (i) all violations of law or
municipal ordinances, orders or requirements and (ii) all
physical conditions which would give rise to violations
existing (collectively, "VIOLATIONS"), which, with respect to
both CLAUSES (I) and (II), exist on the date of this
Agreement.
9.2.3 ACCESS TO PROPERTY. Between the date hereof and the Closing
Contributor shall allow Beacon or Beacon's Representatives
access to the Property upon reasonable prior notice at
reasonable times provided (a) such access does not interfere
with the operation of the Property or the rights of tenants;
(b) Beacon shall not contact any tenant without Contributor's
prior written consent; and (c) Beacon shall not be permitted
to perform any further testing or other physical evaluation of
the Property prior to Closing. Prior to such time as Beacon
or any of Beacon's Representatives enter the Property, Beacon
shall obtain policies of general liability insurance which
name Contributor as an additional insured and which are with
such insurance companies, provide such coverages and carry
such limits as Contributor shall reasonably require. Promptly
after Contributor's request therefor, Beacon shall provide
Contributor with certificates of insurance evidencing that
Beacon has obtained the aforementioned policies of insurance.
9.2.4 BEACON'S AUDIT. Contributor shall provide Beacon's
accountants information, to the extent available to
Contributor, sufficient to prepare audited financial
statements and an audit letter for the Property for the past
three (3) years, which information shall include books and
records for the Property, property and operating statements,
current insurance policies, real estate tax records, capital
expenditure records and maintenance records of the Property.
Contributor shall have no liability to Beacon, the accountants
or any third parties, and Beacon shall defend and indemnify
Contributor against any costs or damages in connection with
any claims asserted by any person or entity, arising out of
Contributor providing such information. The provisions of
this subsection shall survive the Closing.
32
9.2.5 COOPERATION ON TAX MATTERS. In connection with the issuance
of the OP Units to Contributor, Contributor shall provide
reasonable assistance to Beacon to enable Beacon to prepare
its information and/or tax returns, including historical
financial and other information relating to Contributor. In
addition, upon the reasonable request of Beacon, as part of
the final tax return for Contributor, Contributor shall make
or shall cause to be made an election under Section 754 of the
Code as part of the final tax return for the Contributor. The
provisions of this subsection shall survive the Closing.
9.3 MUTUAL COVENANTS.
9.3.1 PUBLICITY. Contributor and Beacon each hereby covenant that
(a) prior to the Closing neither Contributor nor Beacon shall
issue any press release or public statement (a "RELEASE") with
respect to the Transaction without the prior consent of the
other, except to the extent required by law, and (b) after the
Closing, any Release issued by either Contributor or Beacon
shall be subject to the review and approval of both parties
(which approval shall not be unreasonably withheld). If
either Contributor or Beacon is required by law to issue a
Release, such party shall, at least five (5) business days
prior to the issuance of the same, deliver a copy of the
proposed Release to the other party for its review.
9.3.2 BROKER. Contributor and Beacon expressly acknowledge that
Xxxxx Xxxx Xxxxxxx USA, Inc. ("BROKER") has acted as the
exclusive broker with respect to the Transaction and with
respect to this Agreement, and that Contributor shall pay any
brokerage commission due to Broker in accordance with the
separate agreement between Contributor and Broker.
Contributor and Beacon each represents and warrants to the
other that it has not dealt with any other broker, finder or
similar person or entity in connection with the Transaction
and each agrees to hold harmless the other and indemnify the
other from and against any and all damages, costs or expenses
(including, but not limited to, reasonable attorneys' fees and
disbursements) suffered by the indemnified party as a result
of acts of the indemnifying party that would constitute a
breach of its representation and warranty in this section.
33
9.3.3 TAX CONTESTS; TAX REFUNDS AND CREDITS. Contributor shall have
the right to continue and control the progress of and to make
all decisions with respect to any contest of the real estate
taxes for the Property due and payable for the calendar year
in which the Closing occurs and all prior calendar years.
Beacon shall have the right to control the progress of and to
make all decisions with respect to any contest of the real
estate taxes for the Property due and payable for any calendar
year subsequent to the calendar year in which the Closing
occurs. All real estate and personal property tax refunds and
credits received after Closing with respect to the Property
shall be applied in the following order of priority: FIRST,
to pay the costs and expenses (including reasonable attorneys'
fees and expenses) incurred in connection with obtaining such
tax refund or credit; SECOND, to pay any amounts due to any
tenant of the Property as a result of such tax refund or
credit to the extent required pursuant to the terms of the
Leases; and THIRD, to be apportioned between Beacon and
Contributor as follows:
(a) with respect to any refunds or credits attributable to
real estate and personal property taxes due and payable
in the fiscal year in which the Closing occurs
(regardless of the year for which such taxes are
assessed), such refunds and credits shall be
apportioned between Beacon and Contributor in
proportion to the number of days in such fiscal year
that each party owned the Property (with title to the
Property being deemed to have passed as of 12:01 a.m.
on the Closing Date);
(b) with respect to any refunds or credits attributable to
real estate and personal property taxes due and payable
during any period prior to the fiscal year in which the
Closing occurs (regardless of the year for which such
taxes are assessed), Contributor shall be entitled to
the entire refunds and credits; and
(c) with respect to any refunds or credits attributable to
real estate and personal property taxes due and payable
during any period after the fiscal year in which the
Closing occurs (regardless of the year for which such
taxes are assessed), Beacon shall be entitled to the
entire refunds and credits.
34
9.3.4 RESTRICTED TRANSFERS OF OP UNITS. Contributor agrees that,
during the ninety (90) day period from the Closing Date, it
will not, directly or indirectly, sell, offer or contract to
sell, grant an option to purchase, pledge, distribute or
otherwise dispose of the OP Units received by it pursuant to
this Agreement. Additionally, Contributor agrees, that,
during the one year period immediately following the date of
this Agreement, it will not, directly or indirectly, redeem or
convert the OP Units received by it pursuant to this
Agreement. Any transaction entered into in contravention of
the restrictions contained in this SUBSECTION 9.3.4 shall be
null and void and shall not be binding upon or recognized by
Beacon.
9.3.5 CERTAIN PERMITTED TRANSFERS OF OP UNITS. Subject to
SUBSECTION 9.3.4 above, Beacon agrees that, notwithstanding
anything to the contrary contained in this Agreement or in
SUBSECTIONS 11.3(A), (D)(II) or (D)(III), SECTIONS 11.4, 11.5
or 11.6 of the Partnership Agreement, following the ninety
(90) day period after the Closing Date, Contributor shall be
permitted to sell, assign, transfer and otherwise dispose of
all or any portion of the OP Units received by it pursuant to
this Agreement to (a) any direct, or indirect, wholly owned
subsidiary of Prudential ("PERMITTED TRANSFEREES"), in which
case such transferee shall be admitted as a substitute
"Limited Partner" under the terms of SECTION 11.4 of the
Partnership Agreement, and (b) to any other person or entity,
provided however, that unless the Holder obtains the prior
approval of the Company with respect to any transfer pursuant
to this SUBSECTION 9.3.5, which approval may be granted or
withheld in the sole discretion of the Company, such
transferee shall not be deemed to be a substitute "Limited
Partner" under the terms of SECTION 11.4 of the Partnership
Agreement and instead shall be considered an "Assignee" under
the terms of SECTION 11.5 of the Partnership Agreement.
9.3.6 SURVIVAL. The provisions of this SECTION 9.3 shall survive
the Closing (and not be merged therein) or earlier termination
of this Agreement.
35
ARTICLE 10 - FAILURE OF CONDITIONS
10.1 TO CONTRIBUTOR'S OBLIGATIONS. If, on or before the Closing Date,
(i) Beacon is in default of any of its obligations hereunder, or
(ii) any of Beacon's material representations or warranties are
untrue in any material respect, or (iii) the Closing otherwise fails
to occur by reason of Beacon's failure or refusal to perform its
obligations hereunder in a prompt and timely manner, then
Contributor may elect to (a) terminate this Agreement by written
notice to Beacon; or (b) proceed to close the Transaction. If this
Agreement is so terminated, then thereafter neither party to this
Agreement shall have any further rights or obligations hereunder
other than any arising under any section herein which expressly
provides that it survives the termination of this Agreement.
10.2 TO BEACON'S OBLIGATIONS. If, at the Closing, (i) Contributor is in
default of any of its obligations hereunder, or (ii) any of
Contributor's material representations or warranties are untrue in
any material respect, or (iii) the Closing otherwise fails to occur
by reason of Contributor's failure or refusal to perform its
obligations hereunder in a prompt and timely manner, Beacon shall
have the right, to elect, as its sole and exclusive remedy, to (a)
terminate this Agreement by written notice to Contributor, or (b)
waive the condition and proceed to close the Transaction, or
(c) seek specific performance of this Agreement by Contributor.
ARTICLE 11 - [RESERVED]
ARTICLE 12 - [RESERVED]
ARTICLE 13 - [RESERVED]
ARTICLE 14 - MISCELLANEOUS
36
14.1 BEACON'S ASSIGNMENT. Other than an assignment to a limited
partnership in which Beacon is the general partner, or to a limited
liability company in which Beacon or such limited partnership is a
member, Beacon shall not assign this Agreement or its rights
hereunder to any individual or entity without the prior written
consent of Contributor, which consent Contributor may grant or
withhold in its sole discretion, and any such assignment shall be
null and void. Notwithstanding the foregoing, in sufficient time
prior to Closing to allow preparation of the applicable Closing
documents, Beacon may by written notice to Contributor designate an
entity affiliated with Beacon to take title to the Property at
Closing.
14.2 DESIGNATION AGREEMENT. Section 6045(e) of the United States
Internal Revenue Code and the regulations promulgated thereunder
(herein collectively called the "REPORTING REQUIREMENTS") require an
information return to be made to the United States Internal Revenue
Service, and a statement to be furnished to Contributor, in
connection with the Transaction. Title Company ("AGENT") is either
(i) the person responsible for closing the Transaction (as described
in the Reporting Requirements) or (ii) the disbursing title or
escrow company that is most significant in terms of gross proceeds
disbursed in connection with the Transaction (as described in the
Reporting Requirements). Accordingly:
(a) Agent is hereby designated as the "REPORTING PERSON" (as
defined in the Reporting Requirements) for the Transaction.
Agent shall perform all duties that are required by the
Reporting Requirements to be performed by the Reporting Person
for the Transaction.
(b) Contributor and Beacon shall furnish to Agent, in a timely
manner, any information requested by Agent and necessary for
Agent to perform its duties as Reporting Person for the
Transaction.
(c) Agent hereby requests Contributor to furnish to Agent
Contributor's correct taxpayer identification number.
Contributor acknowledges that any failure by Contributor to
provide Agent with Contributor's correct taxpayer
identification number may subject Contributor to civil or
criminal penalties imposed by law. Accordingly, (i)
Contributor hereby certifies to
37
Agent, under penalties of perjury, that Contributor's correct
taxpayer identification number is 00-0000000.
(d) Each of the parties hereto shall retain this Agreement for a
period of four (4) years following the calendar year during
which Closing occurs.
14.3 SURVIVAL/MERGER. Except for the provisions of this Agreement which
are explicitly stated to survive the Closing, (a) none of the terms
of this Agreement shall survive the Closing, and (b) the delivery of
the Deed and any other documents and instruments by Contributor and
the acceptance thereof by Beacon shall effect a merger, and be
deemed the full performance and discharge of every obligation on the
part of Beacon and Contributor to be performed hereunder.
14.4 INTEGRATION; WAIVER. This Agreement, together with the Schedules
and Exhibits hereto, embodies and constitutes the entire
understanding between the parties with respect to the Transaction
and all prior agreements, understandings, representations and
statements, oral or written, are merged into this Agreement.
Neither this Agreement nor any provision hereof may be waived,
modified, amended, discharged or terminated except by an instrument
signed by the party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and
then only to the extent set forth in such instrument. No waiver by
either party hereto of any failure or refusal by the other party to
comply with its obligations hereunder shall be deemed a waiver of
any other or subsequent failure or refusal to so comply.
14.5 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Massachusetts
except to the extent its conflict of law principles would direct the
application of the law of a different state or forum.
14.6 CAPTIONS NOT BINDING; SCHEDULES AND EXHIBITS. The captions in this
Agreement are inserted for reference only and in no way define,
describe or limit the scope or intent of this Agreement or of any of
the provisions hereof. All Schedules and Exhibits attached hereto
shall be incorporated by reference as if set out herein in full.
14.7 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and
38
permitted assigns, including without limitation, the Permitted
Transferees.
14.8 SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any persons or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement
or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
14.9 NOTICES. Any notice, request, demand, consent, approval and other
communications under this Agreement shall be in writing, and shall
be deemed duly given or made at the time and on the date when
personally delivered as shown on a receipt therefor (which shall
include delivery by a nationally recognized overnight delivery
service) or three (3) business days after being mailed by prepaid
registered or certified mail, return receipt requested, to the
address for each party set forth below. Any party, by written
notice to the other in the manner herein provided, may designate an
address different from that set forth below.
IF TO BEACON:
c/o Beacon Capital Partners, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X'Xxxxx, Senior Vice President
COPY TO:
Goulston & Storrs, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Jordan X. Xxxxxxx, Esq.
39
IF TO CONTRIBUTOR:
The Prudential Insurance Company of America
8 Campus Drive, 0xx Xxxxx
Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxxxxx
COPY TO:
The Prudential Insurance Company of America
8 Campus Drive, 0xx Xxxxx
Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxx, Esq.
AND COPY TO:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
14.10 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be an original and all of which counterparts taken
together shall constitute one and the same agreement.
14.11 NO RECORDATION. Contributor and Beacon each agrees that neither
this Agreement nor any memorandum or notice hereof shall be recorded
and Beacon agrees (a) not to file any notice of pendency or other
instrument (other than a judgment) against the Property or any
portion thereof in connection herewith and (b) to indemnify
Contributor against all costs, expenses and damages, including,
without limitation, reasonable attorneys' fees and disbursements,
incurred by Contributor by reason of the filing by Beacon of such
notice of pendency or other instrument.
14.12 ADDITIONAL AGREEMENTS; FURTHER ASSURANCES. Subject to the terms and
conditions herein provided, each of the parties hereto shall execute
and deliver such documents as the other party shall reasonably
request in order to consummate and make effective the Transaction;
PROVIDED, HOWEVER, that the execution and delivery of such documents
by such party shall not result in any additional liability or cost
to such party.
40
14.13 CONSTRUCTION. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal
rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendment, Schedule or
Exhibit hereto. Whenever Beacon agrees, in this Agreement or in any
document executed and delivered by Beacon in connection with the
Transaction, to defend, indemnify and/or hold Contributor harmless,
Prudential, Pru-Partner-1 and Pru-Partner-2 together, and each of
Prudential, Pru-Partner-1 and Pru-Partner-2 separately, shall have
the right to enforce such obligation against Beacon.
14.14 ERISA. To satisfy compliance with ERISA, Beacon represents and
warrants to Contributor that, as of the date hereof and as of the
Closing Date:
(a) Beacon's rights under this Agreement do not, and upon its
acquisition by Beacon the Property shall not, constitute "plan
assets" within the meaning of 29 C.F.R. Section 2510.3-101, because
one or more of the following circumstances is true:
(i) Equity interests in Beacon are publicly offered securities,
within the meaning of 29 C.F.R. Section 2510.3-101(b)(2); or
(ii) Less than twenty-five (25%) percent of all equity interests in
Beacon are held by "benefit plan investors" within the meaning
of 29 C.F.R. Section 2510.3-101(f)(2); or
(iii) Beacon qualifies as an "operating company", "venture capital
operating company", or a "real estate operating company"
within the meaning of 29 C.F.R. Section 2510.3-101(c), (d) or
(e).
(b) Beacon is not a "governmental plan" within the meaning of Section
3(32) of ERISA and the execution of this Agreement and the
acquisition of the Property by Beacon is not subject to state
statutes regulating investments of and fiduciary obligations with
respect to governmental plans.
Beacon hereby agrees to execute such documents or provide such
information as Contributor may require in connection with the
Transaction or to otherwise assure Contributor that: (i) this is not
a prohibited transaction under ERISA, (ii) that the Transaction is
41
otherwise in full compliance with ERISA and (iii) that Contributor
is not in violation of ERISA by compliance with this Agreement and
by closing the Transaction. Contributor shall not be obligated to
consummate the Transaction unless and until the Transaction complies
with ERISA and Contributor is satisfied that the Transaction
complies in all respects with ERISA. The obligations of Beacon
under this section shall survive the Closing and shall not be merged
therein.
14.15 BUSINESS DAY. As used herein, the term "business day" shall mean
any day other than a Saturday, Sunday, or any Federal, State of New
Jersey, or State of New York holiday. If any period provided for
herein should expire on a non-Business Day, then such period shall
be extended to the next Business Day.
14.16 CONTRIBUTOR'S MAXIMUM AGGREGATE LIABILITY. Notwithstanding any
provision to the contrary contained in this Agreement or any
documents executed by Contributor pursuant hereto or in connection
herewith, the maximum aggregate liability of Contributor, and the
maximum aggregate amount which may be awarded to and collected by
Beacon, in any way relating to the Transaction, including, without
limitation, under this Agreement (including, without limitation, the
breach of any representations and warranties contained herein), that
certain Redemption Agreement of even date herewith, between
Contributor and Technology Square LLC (including, without
limitation, the breach of any representations and warranties
contained therein) and any and all documents executed pursuant
hereto or in connection herewith (including, without limitation, any
landlord estoppel letter provided by Contributor in accordance with
the terms of SECTION 7.2(C) hereof), for which a claim is timely
made by Beacon and Technology Square LLC shall not exceed One
Million Dollars ($1,000,000). The provisions of this section shall
survive the Closing and shall not be merged therein.
14.17 [RESERVED].
14.18 JURISDICTION. With respect to any suit, action or proceedings
relating to this Agreement or the Property ("Proceedings") each
party irrevocably (a) submits to the exclusive jurisdiction of the
state and federal courts located in the state where the Property is
located and (b) waives any objection which it may have at any time
to the laying of venue of any proceedings brought in any such court,
waives any claim that such Proceedings have been brought in an
inconvenient forum and further
42
waives the right to object, with respect to such Proceedings, that
such court does not have jurisdiction over such party.
14.19 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY THE OTHER PARTY
IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT OR THE RELATIONSHIP OF BEACON AND CONTRIBUTOR
HEREUNDER.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
43
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed on its behalf on the day and year first above written.
CONTRIBUTOR: LUDDITE ASSOCIATES
BY: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:
-------------------------------------------------
Name:
-----------------------------------------------
Its:
------------------------------------------------
Date:
-----------------------------------------------
BY: PIC REALTY CORPORATION
By:
-------------------------------------------------
Name:
-----------------------------------------------
Its:
------------------------------------------------
Date:
-----------------------------------------------
BY: PRUDENTIAL REALTY SECURITIES II, INC.
By:
-------------------------------------------------
Name:
-----------------------------------------------
Its:
------------------------------------------------
Date:
-----------------------------------------------
44
BEACON: BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its general partner
By:
-------------------------------------------------
Name:
-----------------------------------------------
Its:
------------------------------------------------
Date:
-----------------------------------------------
ACKNOWLEDGED AND AGREED TO
FOR PURPOSES OF SUBSECTION 9.1.10:
BEACON CAPITAL PARTNERS, INC.
By:
----------------------------
Name:
--------------------------
Its:
---------------------------
Date:
--------------------------
ACKNOWLEDGED AND AGREED TO
FOR PURPOSES OF SECTION 14.16:
TECHNOLOGY SQUARE LLC, a Delaware limited liability company
By: Beacon Capital Partners, L.P., its sole member
By: Beacon Capital Partners, Inc., its general partner
By:
----------------------------
Name:
--------------------------
Its:
---------------------------
Date:
--------------------------
45
