Exhibit 10.1
RE-1385/RE-1427/RE-1432
CONTRACT OF SALE
This Contract of Sale ("Contract" or "Agreement") made as of this
19th day of December, 0000 xxxxxxx XXX PROPERTIES, INC., a Delaware
corporation, with its offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter called "Seller"), and BEACON PROPERTIES, L.P., a
Delaware limited partnership, with an office at 00 Xxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000 (hereinafter called "Purchaser").
W I T N E S S E T H:
1. The Seller agrees to sell and convey and the Purchaser agrees to
purchase certain real properties situated in the following locations (i)
City of Santa Xxxxx, County of Santa Xxxxx, State of California (the
"Lake Marriott Premises") and (ii) City of Mountain View, County of Santa
Xxxxx, State of California (the "Shoreline Premises"), more particularly
described in Exhibits "A-1" through "A-3" attached hereto and made a part
hereof.
TOGETHER WITH the after-acquired title or reversion, if any, in and
to the beds of xxx xxxx, xxxxxxx, xxxxxxx, and alleys adjoining the said
premises;
TOGETHER WITH all and singular the tenements, hereditaments,
easements, appurtenances, passages, waters, water courses, riparian
rights, other rights, liberties and privileges thereof or in any way now
or hereafter appertaining, including any claim at law or in equity as
well as any after-acquired title, franchise or license and the reversion
and reversions, remainder and remainders thereof; and
TOGETHER WITH all buildings and improvements of every kind and
description now erected or placed thereon and all fixtures and articles
of personal property which may be owned by Seller and attached to or
contained in and used in connection with the real properties and the
buildings and improvements thereon (hereinafter collectively called
"Premises" or "the said Premises").
2. The Premises are sold and are to be conveyed subject to:
a) Any restrictions or regulations affecting the
Premises as to building upon or using the Premises by
virtue of any law, ordinance, or other lawful action
of any municipal or other public authority now or
hereafter adopted or in force;
b) All notices of violations of law or municipal
ordinances, orders, or requirements noted in
or issued by the Departments of Building,
Fire, Labor, Health, or other State, County
or Municipal Department as well as by the
Federal or State Environmental Protection
Agency having jurisdiction against or
affecting the Premises on the date hereof;
c) Covenants, restrictions and easements, if
any, contained in prior instruments of record
affecting the Premises;
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d) Rights, if any, acquired by any utility
company to maintain and operate lines, wires,
cables and distribution boxes in, over, and
upon the Premises;
e) Any state of facts which an accurate survey
may show;
f) Rights and options of tenants and lessees set
forth in the rent roll shown in Exhibits "B-1"
and "B-2" II attached hereto and by this
reference made a part hereof as contained in
the leases and agreements with such tenants
and lessees, subject to prorations and
adjustments of tenants security deposits, if
any, as hereinafter provided for;
g) Current taxes not now due and payable;
h) Rights and claims of any subtenants or
sublessees or any other party in possession
on the date hereof; and
i) Those items set forth in Exhibits "C-1"
through "C-3" attached hereto and made a part
hereof.
3. The purchase price is ONE HUNDRED EIGHTY THREE MILLION AND NO/100
($183,000,000.00) DOLLARS all cash, net to Seller (plus or minus any
adjustments as hereinafter provided), payable as follows:
a) FIVE MILLION AND NO/lOOTHS ($5,000,000.00) DOLLARS good faith
deposit, in immediately available federal funds by federal wire transfer
of immediately available funds to the order of Seller for deposit into
Seller's account ("Deposit"), as set forth in Exhibit "D" simultaneously
with the execution of this Contract; and
b) ONE HUNDRED SEVENTY EIGHT MILLION AND NO/lOOTHS ($178,000,000.00)
DOLLARS at Seller's election in immediately available federal funds by
federal wire transfer of immediately available funds to the order of
Seller for deposit into Seller's account, as set forth in Exhibit "D"
simultaneously with the delivery of the hereinafter referred to Deed.
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No interest will be payable by Seller to Purchaser on any Deposit.
The Deposit will not be held in a segregated or special account and may
be commingled with other funds of Seller.
4. All matters to be performed under this Contract incident to the
sale of the Premises and the payment of the purchase price (the
"Closing") shall be performed at the offices of Purchaser's counsel,
Goulston & Storrs, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000,
or other mutually acceptable location, at 10:00 AM on December 20, 1996
(the "date of closing"). All documents to be delivered at the Closing and
all payments to be made shall be delivered to Chicago Title Insurance
Company ("Chicago Title") as escrow holder on the Closing Date, in
escrow, pending the prompt recording of the Deed and other instruments as
are required to be recorded to effect the transfer and conveyance of the
Premises, upon which recording, all instruments and funds shall then be
delivered out of escrow.
Seller hereby agrees to execute, acknowledge, and deliver to the
Purchaser at Closing, and the obligations of Purchaser to pay the
purchase price are conditioned upon receipt of, the following:
a) A good and sufficient Grant Deed (hereinafter referred to as the
"Deed") in the form annexed hereto as Exhibit "E" so as to convey to the
Purchaser title to the Premises free and clear of all encumbrances except
as permitted herein.
b) An Assignment and Assumption Agreement in the form annexed hereto
as Exhibit "F", together with (i) the original, signed leases for the
tenants listed on Exhibit "B" (the "Leases") and Seller's tenant lease
files related thereto, (ii) the original signed service contracts with
those service
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providers listed on Exhibits "G-1" and "G-2" (the "Service
Contracts").
c) A certification duly executed by Seller under penalty of perjury
stating that Seller is not a "foreign person" in the form annexed hereto
as Exhibit "H." If Seller shall fail or be unable to deliver the same,
then Purchaser shall have the right to withhold such portion of the
Purchase Price as may be necessary, in the opinion of Purchaser or its
counsel, to comply with said Section 1445.
d) Such books and records, plans and surveys of Seller, to the extent
that the same are in Seller's possession and readily accessible, as all
pertain in a material way to the operation of the Premises other than any
management or asset management agreement related thereto or any other
document deemed by Seller to be of a proprietary nature, and any and all
keys, lock and safe combinations, training and instruction manuals in
Seller's or Seller's property manager's possession relating to the
maintenance and operation of the Premises.
e) Such affidavits as Chicago Title may reasonably require in order
to omit from any title insurance policy issued to Purchaser or Purchaser's
mortgagee exceptions for (i) parties in possession (except for tenants
under the Leases) and (ii) mechanic's liens.
f) Evidence of the authority of the incumbency of any individuals to
execute any instruments executed and delivered of by Seller at Closing.
g) Estoppel certificates from Silicon Graphics, Silicon Valley Bank
and Hitachi dated no earlier than twenty (20) days prior to the Closing in
the form attached as Exhibit "I," provided, however that an estoppel
certificate containing only those statements identified with an "*" on
said Exhibit "I" shall nevertheless satisfy the obligation of Seller under
this paragraph 4g.
h) Evidence of the termination of Seller's property manager and any
leasing agent for the Premises.
i) Notice to tenants and service providers in the form attached as
Exhibit "J".
Title to the herein described Premises is not conveyed, but is
reserved in Seller until closing.
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5. Purchaser acknowledges that it has been given the opportunity to
examine the Leases, Service Contracts and other documents affecting the
Premises and understands and accepts the content thereof. It is further
understood that Purchaser has inspected the Premises or caused an
inspection to be made thereof on Purchaser's behalf and is familiar with
the physical condition thereof. Purchaser agrees to take "as is" the
Premises and to accept assignment of the Leases and Service Contracts
except as expressly provided hereunder, and that no representations are
made or responsibilities assumed by Seller as to the condition of the
Premises or any buildings or improvements thereon now or on the Closing
Date or the contents of such Leases or Service Contracts. Without limiting
the generality of the foregoing, Purchaser acknowledges that the
obligations related to the repair of certain wing walls located within the
property known as Shoreline Technology Park, Phase I and referenced as
Exhibit "A-2" will be assumed by Purchaser subject to a credit adjustment
to Purchaser as set forth in paragraph 12, in connection with the
assignment and assumption of the Lease with Silicon Graphics as further
described in Exhibit "B-2". Purchaser agrees to accept the Premises in
the condition existing on the date hereof, usual wear and tear excepted,
subject to all faults of every kind and nature whatsoever whether latent
or patent and whether now or hereafter existing. Purchaser represents that
prior to the execution and delivery of this Contract, Purchaser has made a
complete and independent investigation of all facts and data
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which Purchaser has deemed necessary in its decisions to acquire the
Premises, including, without limitation, all the facts and data
pertaining to environmental conditions at, in, on, under, or affecting
the Premises and does hereby accept the Premises subject to all federal,
state, county, and municipal laws, requirements, rules, orders,
ordinances, regulations relating, in any manner, thereto. Purchaser
further agrees that Seller shall not be liable or bound in any manner by
any express or implied warranties, guarantees, promises, statements,
representations or information pertaining to the Premises made or
furnished by any real estate broker, agent, employee, servant or other
person representing or purporting to represent Seller unless such
warranties, guarantees, promises, statements, representations or other
information pertaining to the Premises are expressly and specifically set
forth in this Contract which alone fully and completely expresses the
agreement between the parties.
6. In the event Seller shall be unable to convey the Premises in
accordance with the terms of this Contract, Purchaser shall, at
Purchaser's election, have the right to accept such title as Seller is
able to convey without any claim on the part of Purchaser for abatement
in the purchase price for any defects or objections of title; or,
Purchaser shall have the right to rescind this Agreement, and upon such
rescission pursuant to this paragraph, the Purchaser shall be entitled to
a return of the Deposit and upon such payment being made by the Seller to
the Purchaser, the parties hereto shall be deemed released of and
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from all obligations by reason of this Agreement in like manner as if the
Agreement had not been made. Seller may, but shall not be required to,
take any measures of any kind, or bring any action or proceeding, or
incur any expense in order to perfect Seller's title to the Premises or
otherwise convey title in accordance with the terms and provisions of
this Agreement, and if Seller so elects, the date of closing shall be
extended for thirty (30) days within which xxxx Xxxxxx may dispose of
such defects. Purchaser hereby acknowledges and agrees that the
acceptance of the Deed by Purchaser shall be deemed to be full
performance and discharge of every agreement and obligation on the part
of Seller to be performed under this Agreement except those, if any,
which are herein specifically stated to survive delivery of the Deed or
the Closing. Unless so specifically stated, no agreement or
representation made herein by Seller shall survive the delivery of the
Deed.
7. Purchaser shall within at least ten (10) days prior to the date
set for delivery of the Deed notify the attorney for Seller in writing of
any objection to title other than those permitted in accordance with the
terms of this Contract. In the event Purchaser shall notify the attorney
for Seller of such objections to title, Seller shall have a period of
thirty (30) days from the date of closing herein provided, and this
Agreement shall automatically be extended for such thirty (30) day period
within which xxxx Xxxxxx may dispose of such objections, but
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Seller shall be under no obligation to remove or dispose of the same,
except as expressly provided hereunder.
8. The existence of mortgages, liens, or other encumbrances not
permitted hereby shall not be objections to title provided that properly
executed instruments in recordable form necessary to satisfy the same are
delivered to the Purchaser at the Closing together with recording and/or
filing fees (or an appropriate credit against the purchase price given
for such fees), and Purchaser agrees that such mortgages, liens, or
encumbrances may be paid out of the cash consideration to be paid by
Purchaser.
9. If on the date of closing there shall be financing statements
relating to the Premises or any portion thereof which were filed or
refiled on a day less than five (5) years prior to Closing of title,
these shall not be deemed to be an objection to title provided Seller
executes and delivers to Purchaser an affidavit setting forth that the
property covered by such financing statements is no longer on the
Premises or if such property is still on the Premises, that such property
has been fully paid for and a satisfaction is delivered to Purchaser at
the Closing. Without limiting the generality of the foregoing, any
financing statements in favor of Seller as secured party shall be
terminated by Seller at Closing.
10. Franchise taxes against owners in chain of title
shall not be an objection to title provided Seller obtains the
agreement of Chicago Title insuring Purchaser's title to
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eliminate any exception as to franchise taxes or to insure
against collection out of the Premises.
11. Work performed or to be performed by and on behalf of a tenant
or subtenant in the Premises under Leases to which this Contract is
subject shall not be Seller's responsibility. Accordingly, notices of
commencement of work to be performed by contractors or subcontractors
engaged by such tenants or subtenants shall not constitute objections to
title. Additionally, mechanic's liens filed against the Premises shall
not constitute objections to title (a) if said mechanic's liens are for
work performed by or on behalf of any such tenant or subtenant as long as
the lease is not terminated and Seller has caused the tenant or caused
tenant to cause its subtenant to remove the lien; or (b) if said
mechanic's liens are filed for work performed for any other reason and
Seller posts a bond or gives other assurances to the Chicago Title so as
to enable the Chicago Title to insure title to the Premises against
enforcement of the lien.
12. The following are to be apportioned on a pro-rata basis as to
ownership the date of the closing of this transaction (provided, however,
that in the event that any of the leases or subleases, if any, covering
all or part of the Premises provided that the tenants or subtenants
thereunder are responsible for payment of any of the expenses, such
expenses shall not be apportioned as between Seller and Purchaser, but
such lessees and sublessees shall continue to make such payments):
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a) Taxes in accordance with the practice prevailing
in the city, county and state where the Premises
are located;
b) Rents as and when collected;
c) Water, gas and electric and service contracts; and
d) Sewer charges and water waste charges and any
other charges assessed against the Premises.
13. If a search of the title discloses judgments, bankruptcies or
other returns against other persons having names the same as or similar
to that of Seller, Seller will, on request, deliver to Purchaser an
affidavit showing that such judgments, bankruptcies or other returns are
not against Seller.
14. If at Closing there are past due rents owed by tenants to Seller
not exceeding a one (1) month period, Purchaser agrees to allow Seller a
credit at Closing for the past due rentals. Purchaser shall receive a
credit for all prepaid rents and security deposits, if any, paid by any
lessees.
15. In the event the closing does not occur because of any default
by Purchaser in the terms of this Agreement, Seller shall retain the
Deposit as liquidated damages, and not as a penalty, and this shall be
Seller's sole and exclusive remedy, and neither party shall have any
further rights hereunder against the other. The parties agree that
Seller's actual damages would be difficult or impossible to determine if
Buyer defaults, and the Deposit is the best estimate of the amount of
damages Seller would suffer.
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16. If a condemnation or eminent domain proceeding shall have been
commenced against the Premises, then either party shall have the right to
terminate this agreement. If Purchaser and Seller elect to proceed with
the transaction in such event, Purchaser shall complete the transaction
contemplated hereby without abatement or reduction in the purchase price,
and Seller shall assign to Purchaser all rights to receive the award
payable as a result of such proceedings.
17. No contracts will be entered into by Seller for the making of
leasehold improvements between the date of this Agreement and the date of
Closing unless for usual and customary leasehold improvements without the
same first being submitted to Purchaser for its approval, which may be
given or withheld in Purchaser's sole discretion.
18. Seller agrees that it shall not enter into any lease from and
after the date hereof prior to closing without first obtaining the
consent of Purchaser, which may be given or withheld at Purchaser's sole
discretion. Purchaser shall be deemed to have approved and consented to
such lease unless objections are received by Seller specifically setting
forth the areas of objections within five (5) days following receipt by
Purchaser of the lease. Purchaser shall acquire the Premises subject to
the executory obligations of the landlord under any such approved or
deemed approved lease.
19. If at the date of closing the Premises or any part
thereof shall be or shall have been affected by an assessment or
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assessments which are payable in annual installments, of which any such
annual installment covers a fiscal period which commenced less than (1)
year prior to the date of closing, such annual installment shall be
apportioned pro-rata between Seller and Purchaser as of the date of
closing of this transaction and shall be paid and discharged at that
time.
20. Purchaser hereby agrees to indemnify and hold Seller harmless
against any liability incurred by Seller because of non-payment of any
tax which may be imposed by any governmental agency upon the sale of any
items of personal property owned by Seller and included in this
transaction. This paragraph shall survive Closing.
21. Seller and Purchaser agree that Eastdil Realty Company, L.L.C.
("Eastdil") was the sole broker with whom the parties negotiated in
connection with the sale and purchase of the Premises. Seller agrees to
pay Eastdil a commission in accordance with the terms of a separate
agreement, if, as, and when the Closing shall occur, but not otherwise.
Seller and Purchaser represent to each other that no broker or finder
other than Eastdil can properly claim a right to a commission or
finder's fee based upon contacts between the claimant and the warranting
party with respect to the other party or the Premises. Seller and
Purchaser shall indemnify, defend and hold the other party harmless from
and against any loss, cost or expense, including, but not limited to,
attorneys' fees and court costs, resulting from any claim for a fee or
commission by any broker or
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finder in connection with the Premises and this Agreement resulting from
the indemnifying party's actions. The foregoing indemnities shall survive
the Closing.
22. Other than Seller's legal fees and Eastdil's brokerage
commission and any apportionment that may be made pursuant to paragraph
12, Purchaser agrees to pay for any and all costs and expenses in
connection with this transaction including, but not limited to, all state
and local documentary stamps, transfer taxes, recording and filing fees,
title and survey costs, title examination costs, title insurance
premiums, escrow charges and expenses, and all other expenses in
connection with this Closing (other than those for counsel engaged by
Seller and expenses that Seller might incur in connection with its
election to remove any objections to title). Purchaser understands,
acknowledges and agrees that the purchase price is absolutely net to
Seller except as otherwise provided in this Contract, including without
limitation prorations required hereunder.
23. This Contract may not be modified in any respect except by an
instrument in writing and duly signed by the parties hereto. The parties
agree that this Contract contains all of the terms and conditions of the
understanding between the parties hereto and that there are no oral
understandings whatsoever between them.
24. All notices required or permitted hereunder shall
be in writing and shall be sent:
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To Seller: Teachers Insurance and Annuity
Association of America
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Senior Counsel.
Teachers Insurance and Annuity
Association of America
000 Xxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
To Purchaser: Beacon Properties, L.P.
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. X'Xxxxxx
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
Goulston & Storrs
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Such notice shall be deposited in the United States mails, certified or
return receipt requested and shall be deemed received by the party to
whom addressed three (3) days following the post-marking of same.
25. Purchaser shall not assign this Contract or its rights hereunder
without Seller's prior written consent. Any assignment by Purchaser shall
be conditioned in any and all events upon Purchaser's assignee executing
an assumption agreement in form satisfactory to Seller.
26. Purchaser and Seller hereby agree to complete, execute and
deliver to the appropriate governmental authorities any returns,
affidavits or other instruments that may be required with respect to any
transfer, gains, sales, stamps and similar
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taxes, if any, arising out of this transaction. The provisions
of this paragraph shall survive Closing.
27. All security deposits made by any of the tenants now held by
Seller shall be turned over to the Purchaser at the time of Closing, and
the Purchaser shall sign an agreement in form reasonably satisfactory to
Seller holding Seller harmless and free from any liability in reference
thereto.
28. Upon the closing, Purchaser shall assume and agree to perform for
the unexpired term those contracts more particularly described on Exhibits
"G-1" and "G-2" attached hereto and by this reference made a part hereof.
29. Purchaser shall pay for the cost of fuel and supplies, if any,
on the Premises purchased by Seller.
30. This Contract shall be governed by and construed in accordance
with the laws of the State of New York.
31. Time is of the essence concerning the fulfillment of all
obligations of the parties hereunder.
32. This Contract shall not constitute a binding agreement by and
between the parties hereto until such time as this Contract has been duly
executed and delivered by each of the respective parties to the other.
33. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Contract has been duly executed by
the parties hereto.
WRC PROPERTIES, INC.,
Seller
By: /s/Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
BEACON PROPERTIES, L.P.,
Purchaser
By: Beacon Properties Corporation,
general partner
By: _________________________
Name: _________________________
Title: _________________________
Federal Tax Identification No:
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IN WITNESS WHEREOF, this Contract has been duly executed by
the parties hereto.
WRC PROPERTIES, INC.,
Seller
By: ____________________________
Name: ____________________________
Title: ____________________________
BEACON PROPERTIES, L.P.,
Purchaser
By: Beacon Properties Corporation,
general partner
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Federal Tax Identification No: 00-000-0000
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