Exhibit 99.4
CONTRIBUTION AGREEMENT
by and between
The Xxxxxx Parties
and
Boston Properties Limited Partnership
Dated: June 30, 1998
TABLE OF CONTENTS
DEFINITIONS.................................................................................................2
1.1 Contribution and Conveyance....................................................................13
1.2 Closing Date...................................................................................16
1.3 Allocation of Contribution Price and Form of Consideration.....................................17
1.4 Blue Sky Cooperation...........................................................................17
1.5 Initial Unit Distributions.....................................................................17
1.6 Repayment/Assumption of Mortgage Debt..........................................................17
ARTICLE 2 - CERTAIN COVENANTS AND CONDITIONS TO CLOSING....................................................18
2.1 Certain Covenants and Conditions to BPLP's Obligations. ......................................18
2.2 Conditions to the Obligations of the Xxxxxx Parties............................................25
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES.................................................................26
3.1 Representations and Warranties of the Xxxxxx Parties...........................................26
3.2 Representations and Warranties of BPLP. ......................................................34
ARTICLE 4 - DEVELOPMENT AND OPERATION OF THE PROPERTY......................................................38
4.1 Development and Operation......................................................................38
4.2 Insurance......................................................................................38
4.3 Leasing/Estoppels..............................................................................38
4.4 Operating Agreements...........................................................................39
4.5 Damage or Destruction; Condemnation............................................................39
4.6 Tests and Inspections..........................................................................41
4.7 Mortgage Debt..................................................................................41
4.8 Availability of Records........................................................................42
4.9 Title and Survey Defects.......................................................................43
4.10 Cooperation with BPLP..........................................................................43
4.11 Covenants of all Existing Partners.............................................................43
4.12 Tax Appeals....................................................................................44
ARTICLE 5 - CLOSING ADJUSTMENTS............................................................................44
5.1 Taxes, Assessments and Utilities...............................................................44
5.2 Rent...........................................................................................44
5.3 Payments on Permitted Exceptions...............................................................47
5.4 Construction Agreement Payments and Other Expenses.............................................47
5.5 Partners' Elections............................................................................48
5.6 Reimbursement for Deposits.....................................................................48
5.7 Post-Closing Audit.............................................................................48
ARTICLE 6 - DEFAULTS AND REMEDIES..........................................................................49
6.1 Defaults.......................................................................................49
6.2 Remedies of BPLP...............................................................................49
6.3 Option Payments................................................................................49
6.4 TERMINATION RIGHTS.............................................................................50
6.5 Post-Closing Remedies..........................................................................50
ARTICLE 7 - INDEMNIFICATION................................................................................50
7.1 Survival.......................................................................................50
7.3 Limitations on Certain Indemnification Obligations of the Xxxxxx Parties.......................52
7.4 Indemnification By BPLP........................................................................53
7.5 Limitations on Certain Indemnification Obligations of BPLP.....................................53
7.6 Indemnification Procedure......................................................................54
7.7 Cooperation in Defense.........................................................................55
7.8 Pledge of Units................................................................................55
ARTICLE 8 - INTENTIONALLY OMITTED..........................................................................56
ARTICLE 9 - MISCELLANEOUS..................................................................................56
9.1 Brokers........................................................................................56
9.2 Marketing......................................................................................56
9.3 Entire Agreement...............................................................................56
9.4 Certain Expenses...............................................................................57
9.5 Intentionally Omitted..........................................................................57
9.6 Notices........................................................................................57
9.7 No Assignment..................................................................................59
9.8 Governing Law..................................................................................59
9.9 Multiple Counterparts..........................................................................59
9.10 Further Assurances.............................................................................59
9.11 Miscellaneous..................................................................................60
9.12 Invalid Provisions.............................................................................60
9.13 Confidentiality; Publicity.....................................................................60
9.14 Time of Essence................................................................................61
9.15 Xxxxxx Parties' Representative.................................................................61
SCHEDULE AND EXHIBITS
SCHEDULE A - Xxxxxx Parties (Including Schedule of Existing
Partners and Consideration Form and Amount)
SCHEDULE A-1 - List of Existing Partners and Partnership
Interests to be Conveyed by each Existing Partner
SCHEDULE B - Properties
SCHEDULE C - Assigned Value
SCHEDULE D - Assumed Liabilities and Excluded Liabilities
SCHEDULE E - Mortgage Debt
SCHEDULE E-1 - 510 NML Commitment Documents
SCHEDULE E-2 - 510 NML Loan Modifications
SCHEDULE F - NML Closing Costs
SCHEDULE G - Personal Property
SCHEDULE H - Preliminary Reports//Schedule of Endorsements
SCHEDULE I - Real Property
SCHEDULE J - Schedule of Agreements
SCHEDULE K - UCC Search Jurisdictions
SCHEDULE L - Consents
SCHEDULE M - Schedule of Lease Commissions and Tenant
Construction/Allowances
SCHEDULE N - Schedule of Restrictions and Proffers
SCHEDULE O - Intentionally Omitted
SCHEDULE P - Schedule of Warranties
SCHEDULE Q - Schedule of Actions
SCHEDULE R - Disclosure Materials
EXHIBIT 1 - Form of Architect's and Engineer's Certificate
EXHIBIT 2 - Form of Estoppel
EXHIBIT 3 - Covance Lease (Building 206)
EXHIBIT 4 - Raytheon Lease (Building 510)
EXHIBIT 5 - Plans and Specifications (Building 206)
EXHIBIT 6 - Plans and Specifications (Building 510)
EXHIBIT 7 - Intentionally Omitted
EXHIBIT 8 - Form of Registration Rights Agreement
EXHIBIT 9 - Form of Assignment and Assumption of Partnership
Interests
EXHIBIT 10 - Form of Limited Partner Signature Page
EXHIBIT 11 - Forms of Title Affidavits
EXHIBIT 12 - Forms of Opinions
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "AGREEMENT") is entered into as of this
30th day of June, 1998, by and between (A)(i) Xxxx X. Xxxxxx, (ii) 206
Associates Limited Partnership, a New Jersey limited partnership ("206
ASSOCIATES") and Carnegie 510 Associates, L.L.C., a Delaware limited liability
company ("510 ASSOCIATES") (each a "PROPERTY OWNER" and collectively, the
"PROPERTY OWNERS") and (iii) each of the 6 parties identified on Schedule A as
an Existing Partner (individually, an "EXISTING PARTNER" and collectively, the
"EXISTING PARTNERS", and together with Xxxx X. Xxxxxx and the Property Owners,
the "XXXXXX PARTIES") on the one hand, and (B) Boston Properties Limited
Partnership, a Delaware limited partnership ("BPLP"), on the other hand.
WHEREAS, 206 Associates owns that certain property located in West Windsor,
New Jersey and commonly known as 206 Carnegie Center (the "206 PROPERTY"),
which property is currently under development and will, when completed, contain
an office building consisting of approximately 161,763 square feet of net
rentable office space and approximately 514 parking spaces, on approximately
acres of land; and 510 Associates owns that certain property located in West
Windsor, New Jersey and commonly known as 510 Carnegie Center (the "510
PROPERTY") which property is currently under development and will, when
completed, contain an office building consisting of approximately 234,000 square
feet of net rentable office space on approximately acres of land (the 206
Property and the 510 Property are sometimes referred to herein collectively as
the "PROPERTIES" and more particularly described on the attached Schedule B).
WHEREAS, the 206 Property is 100% pre-leased to Covance, Inc. ("COVANCE")
and the 510 Property is 100% pre-leased to Raytheon Engineers & Constructors,
Inc., whose obligations are guaranteed by Raytheon Company (collectively,
"RAYTHEON").
WHEREAS, each Existing Partner is a partner in one or more Property Owners,
as set forth opposite each Property Owner's name on Schedule A attached hereto
and as specified opposite each Existing Partner's name on Schedule A-1 attached
hereto, and the Existing Partners own, in the aggregate, all of the outstanding
partnership interests in the Property Owners (each such interest, a "PARTNERSHIP
INTEREST" and collectively, the "PARTNERSHIP INTERESTS");
WHEREAS, BPLP desires to issue certain Units (as defined herein)
representing limited partnership interests in BPLP to some or all of the
Existing Partners;
WHEREAS, each Existing Partner desires to transfer all of its right, title
and interest in its Partnership Interests to BPLP or its designee as a
contribution in exchange for such limited partnership interests or as a sale for
cash, and BPLP desires to acquire (either directly or through a designee) all of
the Partnership Interests in the Property Owners;
NOW THEREFORE, in consideration of the mutual covenants and agreements,
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, do hereby agree as follows:
DEFINITIONS
The following capitalized terms as used in this Agreement have the meanings
assigned to them below. The terms set forth below do not constitute all defined
terms set forth in this Agreement. Such other defined terms shall have the
meanings assigned to them elsewhere in this Agreement.
"ACCOUNTANTS" has the meaning set forth in Section 4.8.
"ACCREDITED INVESTOR" shall mean a person who qualifies as an "accredited
investor" under Rule 501 of the Securities Act.
"ACTION" shall mean any claim, suit, litigation, labor dispute,
arbitration, investigation or other action or proceeding.
"AFFILIATE" shall mean any entity in which the person in question owns
directly or indirectly more than fifty percent (50%) of the voting stock or
similar interests issued by such entity or any entity controlling, controlled by
or under common control with the person in question.
"ARCHITECT'S AND ENGINEER'S CERTIFICATES" shall have the meaning set forth
in Section 2.1(a).
"ASSIGNED CONTRACTS" shall mean (i) those Terminable Contracts which are
identified on Schedule N as "Assigned Contracts," (ii) the Non-terminable
Contracts and (iii) the Warranties.
"ASSIGNED VALUE" shall mean, with respect to each Property, the portion of
the Contribution Price allocable to such Property as set forth on Schedule C
attached hereto.
"ASSOCIATION ESTOPPELS" shall have the meaning set forth in Section 2.1(l).
"ASSUMED LIABILITIES" shall mean those liabilities of any Property Owner
and/or any Existing Partner identified (and to the maximum extent reasonably
possible, quantified) as "Assumed Liabilities" on the attached Schedule D, which
liabilities are identified on such Schedule by Property Owner and Existing
Partner. Notwithstanding the foregoing, in no event shall Assumed Liabilities
include any liabilities which arise under the Northwestern Mutual Commitment and
which are Excluded Liabilities hereunder.
"AUTHORITY" shall mean a governmental body or agency having or asserting
jurisdiction over BPLP, any Property Owner, any Existing Partner or any
Property.
"BOSTON PROPERTIES" shall mean Boston Properties, Inc., a Delaware
corporation and the sole general partner of BPLP.
"BPLP" has the meaning set forth in the Introductory Paragraph of this
Agreement.
"BPLP'S KNOWLEDGE" or words of similar import, shall mean the actual (and
not constructive or imputed) knowledge of Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx,
Xxxxxxx X. Xxxxx and/or Xxxxxxxxx X. XxXxxxxxx, without any separate obligation
on their part to make any independent investigation of the matters being
represented, warranted or certified.
"BPLP INDEMNIFIED PARTIES" shall mean BPLP, Boston Properties and their
respective officers, directors, employees, agents, consultants, representatives,
subsidiaries, Affiliates, stockholders, partners and attorneys.
"BUSINESS DAY" means any weekday that is not an official holiday in the
Commonwealth of Massachusetts or the State of New Jersey.
"CLOSING" shall have the meaning set forth in Section 1.2.
"CLOSING DATE" shall mean, individually and collectively, the 206 Closing
Date and the 510 Closing Date.
"CLOSING PRICE" shall mean, on each applicable date of determination, the
last reported sale price regular way of Boston Properties Common Shares on the
New York Stock Exchange Composite tape.
"CLOSING TRIGGER EVENTS" shall mean, with respect to each Property, as
applicable, receipt by BPLP of (i) a final Certificate of Occupancy with respect
to such Property, (ii) the Architect's and Engineer's Certificates, (iii)
evidence satisfactory to BPLP of unconditional occupancy and full rent
commencement (without right of set-off or reduction) of such Property by
Covance, with respect to the 206 Property, and by Raytheon, with respect to the
510 Property, (iv) an Estoppel from each of Covance and/or Raytheon, as
applicable, in the form attached hereto as Exhibit 2, without changes or
additional notations (other than as may be reasonably acceptable to BPLP,
provided that such changes or additional notations do not affect a change in the
substance of the applicable Estoppel) and (v) with respect to the 510 Property
only, closing of the 510 NML Loan pursuant to the terms of this Agreement and
the 510 NML Commitment, and subsequent assignment to and assumption by BPLP of
the 510 NML Loan pursuant to the 510 NML Loan Assumption Documents, provided,
however, that for purposes of determining whether or not the Refundable Option
Payment has become a Nonrefundable Option Payment, as provided in Section
6.3 below, "Closing Trigger Events" shall mean, with respect to each Property,
as applicable, receipt by BPLP of (A) a temporary Certificate of Occupancy with
respect to such Property, (B) the Architect's and Engineer's Certificates (with
such changes as are reasonably necessary or appropriate to reflect the temporary
certificate of occupancy as opposed to a final certificate of occupancy and such
other changes as are reasonable and customary to reflect the then current
practices of engineers and/or architects, as applicable, in central New Jersey),
(C) evidence satisfactory to BPLP of unconditional full rent commencement
(without right of set-off or reduction) of such Property by Covance, with
respect to the 206 Property, and by Raytheon, with respect to the 510 Property,
(D) an Estoppel from each of Covance and/or Raytheon, as applicable, in the form
attached hereto as Exhibit 2, without changes or additional notations (other
than (x) as may be reasonably acceptable to BPLP, provided that such changes or
additional notations do not affect a change in the substance of the applicable
Estoppel and (y) such changes as are reasonably nencessary or appropriate to
reflect the temporary certificate of occupancy as opposed to a final certificate
of occupancy, including without limitation, an identification of remaining
landlord work under the applicable lease) and (E) with respect to the 510
Property only, closing of the 510 NML Loan pursuant to the terms of this
Agreement and the 510 NML Commitment, and subsequent assignment to and
assumption by BPLP of the 510 NML Loan pursuant to the 510 NML Loan Assumption
Documents provided, however, that if the NML Loan fails to close for any reason,
or such 510 NML Loan matures and is repaid in connection therewith, such 510 NML
Loan (or the 510 NML Commitment, as applicable) may be refinanced (or replaced,
as applicable) by a comparable loan, with a comparable lender on then prevailing
market terms and conditions, and on terms and conditions otherwise substantially
similar to the 510 NML Loan (the "Replacement Financing") provided, however,
that (X) any such Replacement Financing shall be reasonably satisfactory to BPLP
and (Y) BPLP shall have no obligation to assume or otherwise acquire such 510
Property subject to such Replacement Financing.
"CODE" shall mean the Internal Revenue Code of 1986, as in effect from time
to time, and applicable rules and regulations thereunder. Any reference herein
to a specific section or sections of the Code shall be deemed to include a
reference to any corresponding provision of future law.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMMON SHARES" shall mean the shares of the common stock of Boston
Properties issuable upon exchange of the Units.
"COMMON UNITS" shall mean those certain partnership units in BPLP which are
designated in the Limited Partnership Agreement of BPLP as "Common Units."
"CONDEMNED PROPERTY" shall mean any Property which is the subject of a
Major Condemnation.
"CONSENTS" has the meaning set forth in Section 2.1(c).
"CONSTRUCTION BUDGETS" has the meaning set forth in Section 3.1(t).
"CONTRACTS" shall mean, subject to the terms of this definition below, all
contracts, undertakings, commitments, agreements, obligations, guarantees and
warranties (i) relating to the Property and/or (ii) to which any Property Owner
is a party or by which any Property Owner or any Property is bound, other than
Contracts not involving liabilities exceeding $10,000 per year individually or
$25,000 per year in the aggregate (such contracts, individually and
collectively, "IMMATERIAL CONTRACTS"). "Contracts" includes, without
limitation, management contracts, construction contracts, maintenance and
service contracts, parking contracts, employment contracts,
equipment leases and brokerage and leasing agreements, but excludes the Leases
(as defined below) and Immaterial Contracts.
"CONTRIBUTION AGREEMENT" shall mean that certain Contribution and
Conveyance Agreement dated as of June 30, 1998 by and between the Xxxxxx Parties
(as defined therein) and BPLP and Boston Properties, Inc.
"CONTRIBUTION PRICE" shall mean the 510 Property Contribution Price or the
206 Property Contribution Price, as the context may require.
"COVANCE" has the meaning set forth in the Recitals.
"COVANCE LEASE" has the meaning set forth in Section 3.1(c).
"COVANCE-XXXXXXX LEASE COMMISSION" shall mean, an amount equal to
$242,644.50, pursuant to that certain Commercial Broker's Commission Agreement
dated as of September 8, 1997 between Xxxxxx X. Xxxxxxx, Inc. and 206
Associates, and that certain letter agreement dated September 5, 1997 from
Xxxxxx X. Xxxxxxx, Inc. to and accepted by 206 Associates on September 15, 1997,
setting forth the agreement and obligation of 206 Associates to pay the amount
of $242,644.50 to Covance in satisfaction in full of lease commissions due to
Xxxxxx X. Xxxxxxx, Inc. in connection with the Covance Lease, and the
reimbursement of Covance of amounts advanced by Covance in connection therewith.
"COVANCE TENANT IMPROVEMENT ALLOWANCE" shall mean a tenant improvement
allowance not to exceed $1,488,219.60 in accordance with the Covance Lease.
"DAMAGED PROPERTY" shall mean any Property which is the subject of a Major
Casualty.
"ESTOPPEL" shall have the meaning set forth in Section 2.1(j).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as in effect
from time to time, and applicable rules and regulations thereunder. Any
reference herein to specific section
or sections of the Exchange Act shall be deemed to include a reference to any
corresponding provision of future law.
"EXCLUDED LIABILITIES" shall mean those liabilities of any Property Owner
and/or any Existing Partner which are not Assumed Liabilities, including without
limitation, those liabilities identified as "Excluded Liabilities" on the
attached Schedule D. Notwithstanding anything to the contrary contained in this
Agreement, Excluded Liabilities shall in all events include all costs and
expenses of any kind or nature incurred in connection with the 510 NML
Commitment and the 510 NML Loan which relate to the period ending immediately
after the closing of the loan contemplated by such 510 NML Commitment (except
only NML Closing Costs), including, without limitation, any and all costs,
losses or damages (including all such amounts which are or may be payable to NML
or any other lender under the 510 NML Commitment) of any kind or nature which
may be incurred by BPLP in the event of a breach under the 510 NML Commitment,
or in the event the loan contemplated thereby does not close, for any reason,
other than a willful breach by BPLP.
"EXISTING PARTNERS" has the meaning set forth in the Introductory
Paragraphs hereto.
"FEE PROPERTIES" has the meaning set forth in Section 1.1(d)(iii).
"FINAL FISCAL YEAR" has the meaning set forth in Section 4.8(g).
"510 ASSOCIATES" has the meaning set forth in the Introductory Paragraphs
hereto.
"510 CLOSING DATE" has the meaning set forth in Section 1.2.
"510 CONSTRUCTION FINANCING" shall mean the existing construction loan
mortgage financing secured by the 510 Property from Summit Bank in the maximum
principal amount of $26,250,000, and having an outstanding principal amount of
$14,732,683 as of the date of this Agreement, as more particularly described in
Schedule E hereto.
"510 NML COMMITMENT" shall mean that certain Application for Mortgage Loan
for Carnegie 510 Associates, LLC dated October 22, 1997, (as modified by that
certain letter agreement dated June 30, 1998), from The Northwestern Mutual Life
Insurance Company to provide mortgage financing to the 510 Associates, to be
secured by the 510 Property, in the maximum principal amount of $28,500,000.
All documents relating to the 510 NML Commitment as of the date of this
Agreement are attached hereto as Schedule E-1.
"510 NML LOAN" shall mean that certain mortgage loan to be made by NML
pursuant to the 510 NML Commitment and the terms of this Agreement, to be
secured by the 510 Property.
"510 NML LOAN ASSUMPTION DOCUMENTS" shall have the meaning set forth in
Section 2.1(d).
"510 PROPERTY" has the meaning set forth in the Recitals.
"510 PROPERTY CONTRIBUTION PRICE" shall mean $48,000,000, subject to
adjustment, increase or decrease pursuant to Section 1.1(c).
"510 PROPERTY OPTION PAYMENT" has the meaning set forth in Section 6.3.
"GPH" shall mean Xxxxxxx, Procter & Xxxx LLP.
"HAZARDOUS SUBSTANCES" and "HAZARDOUS WASTES" have the meanings set forth
in Section 3.1(i).
"INDEMNITEE" has the meaning set forth in Section 7.3(a).
"INDEMNITOR" has the meaning set forth in Section 7.3(a).
"IDENTIFIED BREACHES" has the meaning set forth in Section 2.1(e).
"INTANGIBLES" shall mean (i) to the extent transferable, all right, title
and interest, if any, of the Xxxxxx Parties, or any of them, to use the name
"Carnegie Center" or any other trademark, trade names or symbols, if any, under
which either of the Properties (or any part thereof) is to be operated, (ii) to
the extent transferable, any Xxxxxx Parties' rights in, to and under the
Assigned Contracts, (iii) any Property Owner's rights in, to and under the
Leases, all guaranties of the Leases, all security deposits under the Leases
(unless BPLP elects instead to have them credited to BPLP), all other security,
if any, under the Leases and any rent prepaid under the Leases (with respect to
periods after the Closing), and (iv) to the extent transferable, any Xxxxxx
Parties' rights in, to and under all Licenses and any warranties and guaranties
relating to the ownership, use, operation or development of the Properties (or
any part thereof) including, without limitation, all Warranties.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940, as
in effect from time to time, and applicable rules and regulations thereunder.
Any reference herein to a specific section or sections of the Investment Company
Act shall be deemed to include a reference to any corresponding provision of
future law.
"LAND" shall have the meaning set forth in the definition of Real Property.
"XXXXXX INDEMNIFIED PARTIES" shall mean Xxxx X. Xxxxxx, each Existing
Partner and each Property Owner (to the extent its Property is transferred to
BPLP) and their respective officers, directors, employees, agents, consultants,
representatives, subsidiaries, Affiliates, stockholders, partners, members and
attorneys.
"XXXXXX PARTIES" has the meaning set forth in the Introductory Paragraph
hereto.
"XXXXXX PARTIES' KNOWLEDGE" shall mean the actual (and not constructive or
imputed) knowledge of Xxxx X. Xxxxxx, Xxxxxxxx Xxxxxx and/or Xxxx X. Xxxxxxxx,
without any separate obligation on their part to make any independent
investigation of the matters being represented, warranted or certified.
"LAWS" shall mean any law, rule, regulation, order or decree of any
federal, state, local or foreign government.
"LEASES" has the meaning set forth in Section 3.1(c).
"LIABILITIES" shall mean liabilities, indebtedness, obligations,
commitments, expenses, claims or guarantees of any nature (whether absolute,
accrued, contingent or otherwise).
"LICENSES" has the meaning set forth in Section 3.1(d).
"LIMITED PARTNERSHIP AGREEMENT" shall mean the Second Amended and Restated
Agreement of Limited Partnership of Boston Properties Limited Partnership, as
the same has been amended through the applicable date of determination.
"LIMITED SURVIVAL REPRESENTATIONS" has the meaning set forth in Section
7.1(a).
"LIMITED SURVIVAL BPLP REPRESENTATIONS" has the meaning set forth in
Section 7.1(b).
"LOSS" or "LOSSES" shall mean any and all claims, losses, damages, costs,
liabilities and expenses, including, without limitation, reasonable attorney's
fees and disbursements, but excluding in all events, lost profits, consequential
of expectation damages.
"MAJOR CASUALTY" has the meaning set forth in Section 4.5.
"MAJOR CONDEMNATION" has the meaning set forth in Section 4.5.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
financial condition, business, operations, assets or liabilities, including
without limitation, the Partnership Interests, of any Property, any Property
Owner or any Existing Partner, individually or in the aggregate (as the context
may require).
"MINIMUM UNIT VALUE" has the meaning set forth in Section 1.1(d)(v).
"MORTGAGE DEBT" shall mean the 206 Construction Financing and the 510 NML
Loan, individually or collectively, as the context requires.
"MORTGAGE DEBT PREPAYMENT DOCUMENTS" shall have the meaning set forth in
Section 2.1(d).
"NONREFUNDABLE OPTION PAYMENT" shall have the meaning set forth in Section
6.3.
"NON-TERMINABLE CONTRACT" shall mean those Contracts which are not
terminable by a Xxxxxx Party upon less than thirty-one (31) days notice without
cost or penalty.
"NML" shall mean The Northwestern Mutual Life Insurance Company.
"NML CLOSING COSTS" shall mean (i) reasonable attorneys fees and expenses
incurred on behalf of the borrower (in the aggregate amount not to exceed
$25,000.00 minus all amounts actually paid by BPLP, from time to time, with
respect to such attorneys fees and expenses as NML Closing Costs hereunder
and/or pursuant to the Properties Under Development Agreement), (ii) reasonable
attorneys fees and expenses incurred by the lender; in each case in documenting
and closing the 510 NML Loan, and (iii) other third party out-of pocket costs
and expenses of the kind identified on Schedule F incurred in connection with
documenting and closing such loan; provided however, that the Xxxxxx Parties
shall propose an anticipated budget (the "NML CLOSING COST BUDGET"), specifying
by item and amount, all costs which are expected to be included as NML Closing
Costs, and the Xxxxxx Parties shall use reasonable efforts to keep all such
costs, fees and expenses as low as possible, and in line with other similar
mortgage loan transactions, to the extent practicable.
"NML MORTGAGE CREDIT" shall mean an amount equal to $1,237,000.00.
"NOTICE OF CLAIM" has the meaning provided in Section 7.1(c).
"PARTNERSHIP AGREEMENT" has the meaning set forth in Section 3.2(c).
"PARTNERSHIP CLAIM" shall mean any actual or threatened claim or other
action of any Person (including without limitation any direct or indirect owners
of any Partnership Interest and/or Existing Partner) (i) that any Xxxxxx Party
and/or any direct or indirect owner of any Xxxxxx Party has (or may have)
breached its fiduciary obligations or other obligations (including without
limitation obligations arising under any applicable organizational documents or
other contractual agreements or obligations of full and fair disclosure) and
whether arising out of the transactions contemplated by this Agreement or
otherwise, or (ii) that (A) the consideration payable to any Xxxxxx Party and/or
any direct or indirect owner of any Xxxxxx Party in connection with the
transactions contemplated by this Agreement and/or (B) the allocation of any
consideration paid by BPLP under this Agreement or related agreements is
contrary to agreements or improper, or (iii) with respect to or under the terms
of any organizational documents of any Xxxxxx Party and/or any direct or
indirect owner of any Xxxxxx Party.
"PARTNERSHIP INTERESTS" has the meaning set forth in the Introductory
Paragraphs hereto.
"PERMITTED EXCEPTIONS" means, with respect to either Property, those
exceptions to title to such Property and those encumbrances on Personal Property
as are identified in the applicable Preliminary Report (other than, with respect
to the 206 Property, the documents evidencing the 206 Mortgage Debt, which 206
Mortgage Debt is to be repaid in full and discharged in connection with the 206
Property Closing) in the form in which it may have been modified to exist as of
the date of this Agreement and those matters first appearing on the applicable
Preliminary Report following the date of this Agreement as are approved in
writing by BPLP (including without limitation, with respect to the 510 Property,
the documents evidencing the 510 NML Loan which are entered into after the date
of this Agreement in accordance with the terms of the 510 NML Commitment and
this Agreement, but excluding the documents evidencing the 510 Construction
Financing).
"Person" OR "person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, business trust, limited
liability company, trust, unincorporated organization or government or a
political subdivision, agency or instrumentality thereof or other entity or
organization of any kind.
"PERSONAL PROPERTY" shall mean all of either property Owner's right, title
and interest in and to any personal property, including Intangibles, if any, in
and to: (i) all signs, supplies, maintenance equipment, appliances, security
systems, tools, decorations, furniture, fixtures, furnishings, equipment,
machinery, mechanical systems, landscaping and other tangible and intangible
personal property located at and/or currently used or to be used upon completion
of development, in connection with the construction, leasing, management,
operations, maintenance and repair of the Properties, including without
limitation, the items listed on Schedule G attached hereto; (ii) all site plans,
surveys, plans and specifications, marketing materials and floor plans relating
to the Properties; (iii) all warranties and guarantees relating to the
Properties; and (iv) all permits, licenses, certificates of occupancy, and other
governmental approvals, including without limitation Licenses, which relate to
the Properties.
"PLANS AND SPECIFICATIONS" has the meaning set forth in Section 3.1(s).
"POST-CLOSING AUDIT" has the meaning set forth in Section 5.5.
"PREFERRED UNITS" shall mean preferred limited partnership units in BPLP
which, generally, will upon issuance bear a cumulative, preferred, quarterly
distribution right of 7.25% per annum and will be convertible into Common Units,
all as more particularly set forth in the Certificate of Designations of Series
One Preferred Units attached to the Contribution Agreement as Exhibit 2 thereto.
"PREFERRED UNIT VALUE" has the meaning set forth in Section 1.1(d)(v).
"PRELIMINARY REPORT" shall mean a final form, current extended coverage
commitment to issue a title policy with respect to each Property, including
endorsements thereto, in form and substance as contemplated in this Agreement
and attached hereto as Schedule H, issued by the Title Company.
"PROPERTY" or "PROPERTIES" shall mean, individually and collectively, the
206 Property and the 510 Property, including all Real Property, Personal
Property and Intangibles in connection therewith. All references in this
Agreement to the Property shall be deemed to refer to all or any portion of the
Property.
"PROPERTY OWNER" and "PROPERTY OWNERS" have the meaning set forth in the
Introductory Paragraph of this Agreement.
"RAYTHEON" has the meaning set forth in the Recitals.
"RAYTHEON LEASE" has the meaning set forth in Section 3.1(c).
"REAL PROPERTY" shall mean (i) the land more particularly described in
Schedule I hereto (the "LAND"), together with all rights, Licenses, privileges,
and easements appurtenant thereto, including, without limitation, all
development rights and land use entitlements benefitting the Land, (ii) Property
Owner's right, title and interest in and to building permits and other
governmental licenses, permits and certificates, utilities commitments, air
rights, water, water rights, riparian rights and water stock relating to the
Land, used in connection with the beneficial use and enjoyment of the Land,
(iii) all of the Property Owner's right, title and interest in and to all roads,
easements, rights of way, strips or gores, alleys and other appurtenances
adjoining or servicing the Land (collectively, the "APPURTENANCES") and all
improvements and fixtures located on the Land, including, without limitation,
the building(s) currently being constructed on the Land, and (iv) all apparatus,
equipment and appliances owned by the Property Owners and to be used in
connection with the operation or occupancy of the Land, such improvements or the
Appurtenances, including, without limitation, heating and air conditioning
systems and facilities used to provide any utility, refrigeration, ventilation,
garbage disposal, recreation or other services on the Land or the Appurtenances
or for the improvements, and all parking (collectively, the "IMPROVEMENTS").
All references in this Agreement to the Real Property shall be deemed to refer
to all or any portion of the Real Property.
"REFUNDABLE OPTION PAYMENT" shall have the meaning set forth in Section
6.3.
"REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in Section
2.1(l).
"RELATED AGREEMENTS" means, collectively, all documents to be executed and
delivered
pursuant to this Agreement, including, without limitation, the Contribution
Agreement, the Registration Rights Agreement and all other documents referred to
in Section 2.1.
"REPRESENTATION LETTER" means a letter delivered by an Existing Partner
that has elected to receive Units hereunder and in the form of the letter
attached to the Contribution Agreement as Exhibit 4.
"SCHEDULE OF ACTIONS" has the meaning set forth in Section 3.1(r).
"SCHEDULE OF AGREEMENTS" has the meaning set forth in Section 3.1(f).
"SCHEDULE OF PARTNERS" has the meaning set forth in Section 1.3.
"SECURITIES ACT" shall mean the Securities Act of 1933, as in effect from
time to time, and applicable rules and regulations thereunder. Any reference
herein to a specific section or sections of the Securities Act shall be deemed
to include a reference to any corresponding provision of future law.
"SECURITIES LAWS" shall mean the Securities Act, the Exchange Act, the
Investment Company Act or any applicable state or other federal securities Law
or any rule or regulation promulgated thereunder, including without limitation,
any so-called roll-up laws, rules or regulations.
"SPECIFIED REPRESENTATIONS" has the meaning set forth in Section 7.1(a).
"SPECIFIED BPLP REPRESENTATIONS" has the meaning set forth in Section
7.1(b).
"TERMINABLE CONTRACTS" shall mean those Contracts which are terminable by
the Xxxxxx Parties upon not more than thirty (30) days notice without cost or
penalty.
"TITLE COMPANY" shall mean First American Title Insurance Company or such
other national title insurance company as is reasonably satisfactory to BPLP and
the Xxxxxx Parties.
"206 ASSOCIATES" has the meaning set forth in the Introductory Paragraph of
this Agreement.
"206 CLOSING DATE" has the meaning set forth in Section 1.2.
"206 CONSTRUCTION FINANCING" shall mean the existing construction loan
mortgage financing secured by the 206 Property from Summit Bank in the maximum
principal amount of $21,000,000, and having an outstanding principal amount of
$7,463,781 as of the date of this Agreement, as more particularly described in
Schedule E hereto.
"206 PROPERTY" has the meaning set forth in the Recitals.
"206 PROPERTY CONTRIBUTION PRICE" shall mean $27,000,000, subject to
adjustment, increase or decrease pursuant to Section 1.1(b).
"206 PROPERTY OPTION PAYMENT" has the meaning set forth in Section 6.3.
"UNIT" means a unit of limited partnership interest in BPLP (whether a
Common Unit or a Preferred Unit).
"UNIT HOLDER" means any Existing Partner which receives or may receive
Units hereunder.
"UNIT VALUE" has the meaning set forth in Section 1.1(d)(v).
"WARRANTIES" shall mean all presently effective warranties or guaranties
and all warranties or guaranties which will be effective or are anticipated to
be effective upon completion of the construction and development of the
Properties in accordance with the Plans and Specifications, including in any
such event, all construction and building component labor and/or materials
warranties and guarantees from contractors and/or sub-contractors inuring to
either Property Owner's benefit from any contractors, subcontractors, suppliers,
servicemen or materialmen in connection with the Property, including, without
limitation, the construction, renovation, repairs or alterations of any
Improvements, any Personal Property or any tenant improvements.
"Willful Breach" shall mean with respect to the 206 Property or the 510
Property, as the case may be, an intentional breach by the applicable Property
Owners (or their affiliates) of any of their respective obligations under
Sections 4.1, 4.3, 4.4, 4.7 or the first sentence of Section 4.11, with respect
to the 206 Property or the 510 Property, as applicable, provided however, that
if the applicable Property Owner or Xxxx X. Xxxxxx promptly undertakes to cure
each such breach using commercially reasonable efforts and thereafter
continuously and diligently pursues such cure to completion, no such Willful
Breach shall be deemed to have occurred.
ARTICLE 1 - CONTRIBUTION AND CONVEYANCE OF PROPERTY
1.1 CONTRIBUTION AND CONVEYANCE.
(a) Agreement of Existing Partners to Convey Partnership Interests
in the Property Owners. Each Existing Partner agrees, subject to the terms and
conditions of this Agreement, to assign, transfer and otherwise convey on the
applicable Closing Date all of its Partnership Interests in the Property Owners
to BPLP pursuant to an Assignment and Assumption of Partnership Interest(s) in
the form attached hereto as Exhibit 9. Each Existing Partner has
elected to receive for each such Partnership Interest either cash, Common Units
or Preferred Units, as set forth opposite such Existing Partner's name on
Schedule A. In the case of any Existing Partner that has elected to receive
Common Units or Preferred Units, such Existing Partner has previously delivered
a Representation Letter to BPLP.
(b) 206 Property Contribution Price. At the Closing of the 206
Property, subject to the terms and conditions of this Agreement, BPLP shall
accept conveyance of the Partnership Interests, and shall (x) pay by wire
transfer of immediately available funds the cash consideration payable to each
Existing Partner pursuant to instructions to be provided by each such Existing
Partner prior to the Closing, and (y) issue the Units to the Existing Partners
receiving Units hereunder, such Units to be issued free and clear of any claims,
liens, voting agreements, options, charges or encumbrances or restrictions of
any kind, nature or description (other than as may be created pursuant to this
Agreement or by any Xxxxxx Party). The amount of cash or Units paid or issued
pursuant to this Section 1.1(b) shall equal the 206 Property Contribution Price,
subject to adjustment, increase or reduction as more particularly set forth in
this Agreement (including without limitation, Section 1.1(d) below).
Notwithstanding anything to the contrary contained in this Agreement, BPLP shall
receive a credit against and in reduction of the portion of the 206 Property
Contribution Price which is payable to the Property Owner on the 206 Closing
Date in an amount equal to (i) the Covance-Xxxxxxx Lease Commission (except only
to the extent that Covance certifies to BPLP on or before the 206 Closing Date
that such amount has been paid in full by 206 Associates) and (ii) the Covance
Tenant Improvement Allowance (except only to the extent of such allowance that
Covance certifies to BPLP on or before the 206 Closing Date has been paid by 206
Associates). Upon receipt of such credit, BPLP shall agree to pay such Covance-
Xxxxxxx Lease Commission and the Covance Tenant Improvement Allowance up to the
amount of such credit with respect to each item. The 206 Property Contribution
Price shall be reduced or increased, as applicable, by the amount of any
prorations described in Article 5, and other closing adjustments or costs which
are the responsibility of or to be credited to the Property Owner and/or BPLP,
as applicable. Property Owner acknowledges receipt of the 206 Property Option
Payment on the date of this Agreement, which amount shall not, however, be
credited in reduction of the portion of the 206 Property Purchase Price which is
payable to Property Owner on the 206 Closing Date.
(c) 510 Property Contribution Price. At the Closing of the 510
Property, subject to the terms and conditions of this Agreement, BPLP shall
accept conveyance of the Partnership Interests, and shall (x) pay by wire
transfer of immediately available funds the cash consideration payable to each
Existing Partner pursuant to instructions to be provided by each such Existing
Partner prior to the Closing, and (y) issue the Units to the Existing Partners
receiving Units hereunder, such Units to be issued free and clear of any claims,
liens, voting agreements, options, charges or encumbrances or restrictions of
any kind, nature or description (other than as may be created pursuant to this
Agreement or by any Xxxxxx Party). The amount of cash or Units paid or issued
pursuant to this Section 1.1(c) shall equal the 510 Property Contribution Price,
subject to adjustment, increase or reduction as more particularly set forth in
this Agreement
(including without limitation, Section 1.1(d) below). The 510 Property
Contribution Price shall be reduced or increased, as applicable, by the amount
of any prorations described in Article 5 and other closing adjustments or costs
which are the responsibility of or to be credited to the Property Owner and/or
BPLP, as applicable. In addition, at the 510 Closing Date, BPLP shall receive a
credit against and in reduction of the portion of the 510 Property Contribution
Price then payable, in an amount equal to the NML Mortgage Credit. Property
Owner acknowledges receipt of the 510 Property Option Payment on the date of
this Agreement, which amount shall not, however, be credited in reduction of the
portion of the 510 Property Purchase Price which is payable to Property Owner on
the 510 Closing Date.
(d) Certain Provisions Regarding the Consideration to be Delivered
for the Partnership Interests.
(i) Value of Units. For purposes of determining the value of
a Unit to be delivered at each Closing in accordance with the terms of this
Agreement, all Units (Common and Preferred) shall have a value of $34.00 per
Unit.
(ii) Assigned Values. Each Property has an Assigned Value as
set forth on Schedule C. The aggregate amount of the cash and Units that each
Existing Partner in a particular Property Owner has elected to receive, as set
forth on Schedule A, is equal to the Assigned Value for that Property Owner's
Property. Each Existing Partner acknowledges and agrees that the Assigned Value
for each Property is subject to adjustment, proration and other limitations to
the extent provided in this Agreement (for example, pursuant to clause (iv)
below, on account of outstanding Mortgage Debt). In the event of any reduction
in the aggregate consideration to be paid for all of the Partnership Interests
in a Property Owner, such reduction shall be applied pro rata to all of the
Existing Partners of such Property Owners based on the aggregate value of cash
and Units that each has elected to receive prior to such reduction as set forth
on Schedule A, by reducing the cash and Units (pro rata as between cash and
Units) to be received by such Existing Partner at Closing, unless the Xxxxxx
Parties elect for such reduction to be applied to the Existing Partners of such
Property Owners otherwise by giving written notice to BPLP not less than five
(5) business days prior to the Closing.
(iii) Failure to Convey Partnership Interests. The parties
hereto have agreed that it is a material term of this Agreement that the
Properties be acquired by BPLP through the conveyance and assignment to BPLP by
each Existing Partner of 100% of each Existing Partner's Partnership Interests
in each applicable Property Owner such that 100% of the partnership interests in
each applicable Property Owner is conveyed to BPLP, rather than through the
Property Owners' transfer of their respective Property to BPLP. In the event any
Existing Partner fails to or is unable to transfer 100% of such Existing
Partner's Partnership Interests to BPLP pursuant to Section 1.1, such failure
shall be a default under this Agreement, giving rise to BPLP's right to seek
specific performance against such Existing Partner with respect to such
conveyance. Notwithstanding anything to the contrary contained in this
Agreement, in the event
any Existing Partner fails to or is unable to transfer 100% of such Existing
Partner's Partnership Interests to BPLP pursuant to Section 1.1, but subject to
the satisfaction of all other conditions precedent under this Agreement, the
applicable Property Owner in which such Existing Partner owns the Partnership
Interests which are not then being transferred, shall convey the affected
Property directly to BPLP (any such Property, a "FEE PROPERTY") for the
applicable portion of the Contribution Price allocable thereto. In connection
with the conveyance of a Fee Property to BPLP, the applicable Property Owner
shall deliver a Representation Letter and an amount equal to all real estate
transfer taxes and other similar amounts payable with respect to such direct
transfer shall be deducted from the portion of the Contribution Price allocable
to such property to be delivered to the applicable Property Owner (and/or its
constituent Existing Partners) at Closing and BPLP shall assume the Assumed
Liabilities which are attributable to such Fee Property.
(iv) Certain Adjustments to the Contribution Price for the
Partnership Interests. The applicable portion of the Contribution Price payable
to the Existing Partners for the Partnership Interests of a Property Owner (or
to a Property Owner in the event of a direct conveyance pursuant to Section
1.1(d)(iii) above) shall be reduced by (A) all unpaid principal of and accrued
and unpaid interest on the Mortgage Debt of such Property Owner as of the
Closing Date and (B) in the case of the Partnership Interests in 510 Associates,
the NML Mortgage Credit. In addition, and notwithstanding anything to the
contrary contained herein, in the event that at the 206 Closing Date, a
temporary certificate of occupancy has been issued, but a final certificate of
occupancy has not yet been issued, the 206 Property Contribution Price shall be
reduced by any amount equal to the remaining costs to 206 Associates (and
specifically excluding costs which will be paid for by Covance) necessary to
obtain a final certificate of occupancy with respect to such 206 Property, as
such costs are reasonably agreed to by Xxxx X. Xxxxxx and BPLP. In addition, and
notwithstanding anything to the contrary contained herein, in the event that at
the 510 Closing Date, a temporary certificate of occupancy has been issued, but
a final certificate of occupancy has not yet been issued, the 510 Property
Contribution Price shall be reduced by any amount equal to the remaining costs
to 510 Associates (and specifically excluding costs which will be paid for by
Raytheon) necessary to obtain a final certificate of occupancy with respect to
such 510 Property, as such costs are reasonably agreed to by Xxxx X. Xxxxxx and
BPLP.
(v) Minimum Dollar Value of Units Delivered. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall the
aggregate value, based on the assumed value of $34.00 per Unit (such aggregate
value, the "UNIT VALUE"), of the Common Units and Preferred Units to be
delivered at the Closing to the Existing Partners, if applicable, who have
elected pursuant to Schedule A to receive Units be less than the excess of (x)
(i) One Hundred Million Dollars ($100,000,000) or (ii) Eighty Five Million
Dollars ($85,000,000) in the event the Prohibited Fee Properties (as defined in
the Contribution Agreement) have not then been conveyed to BPLP, over (y) the
aggregate value of the Units which the Xxxxxx Parties (for such purpose only, as
defined in the Contribution Agreement) received in consideration of the
Developed Properties and the Assets pursuant to the Contribution Agreement,
(the "MINIMUM UNIT VALUE"), and to the extent that, due to prorations or
reductions at the Closing, the Unit Value will be less than the Minimum Unit
Value, then the parties hereto agree to negotiate in good faith a reallocation
of the form of aggregate Contribution Price so that the portion of the
Contribution Price which will be paid in cash will be reduced and the portion
which will be paid in Units will be increased.
Notwithstanding anything to the contrary contained in this Agreement, in
no event shall the aggregate value (such aggregate value, the "PREFERRED UNIT
VALUE"), of the Preferred Units to be delivered at the Closing to the Existing
Partners who have elected pursuant to Schedule A to receive Preferred Units be
less than the excess of (x) (i) Forty Million Dollars ($40,000,000) or (ii)
Thirty Four Million Dollars ($34,000,000) in the event the Prohibited Fee
Properties have not then been conveyed to BPLP, over (y) the aggregate value of
the Preferred Units which the Xxxxxx Parties (for such purpose only, as defined
in the Contribution Agreement) received in consideration of the Developed
Properties and the Assets pursuant to the Contribution Agreement (the "MINIMUM
PREFERRED UNIT VALUE"), and if, due to prorations or reductions at the Closing,
the Preferred Unit Value would be less than the Minimum Preferred Unit Value,
then the parties hereto agree to negotiate in good faith a reallocation of the
form of aggregate Contribution Price so that either (A) no Preferred Units will
be issued and in lieu thereof either cash or Common Units will be issued (but
the condition set forth in the preceding paragraph regarding the Minimum Unit
Value must be satisfied after such adjustment) or (B) the portion of the
Contribution Price which will be paid in Preferred Units will be increased to
the Minimum Preferred Unit Value and the portion of the Contribution Price which
will be paid in cash or Common Units will be reduced.
1.2 CLOSING DATE. Unless this Agreement is sooner terminated pursuant to
its terms, if the Closing Trigger Events occur with respect to the 206 Property
or the 510 Property (as the case may be), then either party may, by notice to
the other party, request that a Closing occur with respect to such Property
within fifteen (15) days after delivery of such notice and the closing (each, a
"CLOSING") of the acquisition of each of the 206 Property (the "206 CLOSING
DATE") and the 510 Property (the "510 CLOSING DATE"), respectively, shall take
place on the date designated in such notice by BPLP or Xxxx X. Xxxxxx, as the
case may be, which date shall be not more than thirty (30) days after
satisfaction (or waiver by such party in writing) of the Closing Trigger Events
with respect to such Property. Each Closing shall occur in the offices of BPLP
or its counsel in New York, New York on the applicable Closing Date, unless
otherwise agreed in writing by Xxxx X. Xxxxxx and BPLP. Each Closing shall
occur pursuant to closing arrangements reasonably satisfactory to Xxxx X. Xxxxxx
and BPLP. This Agreement shall terminate automatically if on July 1, 2010 the
Closing Trigger Events shall not have occurred.
1.3 ALLOCATION OF CONTRIBUTION PRICE AND FORM OF CONSIDERATION. Attached
hereto as Schedule A-1 is a schedule (the "SCHEDULE OF PARTNERS") containing (i)
an identification of all Existing Partners, (ii) an allocation of Assigned Value
to the Existing Partners of each Property Owner and (iii) an identification of
which Existing Partners have elected to receive cash, Common Units or Preferred
Units upon the conveyance of their respective Partnership Interests. Neither
BPLP nor Boston Properties shall have any liability or responsibility in any way
with respect to the preparation of the Schedule of Partners or the determination
of the allocations described above and on such Schedule, and BPLP and Boston
Properties shall be entitled to rely on the Schedule of Partners in full and
without inquiry. Each Existing Partner who has elected to receive Units shall
receive such Units (subject to adjustment and limitation as set forth herein)
and shall be admitted as a limited partner in BPLP (if and to the extent not
already a limited partner of BPLP) in accordance with the terms of the Limited
Partnership Agreement upon Closing only if such Existing Partner (i) agrees to
be bound by and comply with the terms of the Limited Partnership Agreement by
executing and delivering to BPLP at Closing a Limited Partner Signature Page in
the form attached hereto as Exhibit 10, (ii) delivers an executed Representation
Letter and (iii) executes the Registration Rights Agreement.
1.4 BLUE SKY COOPERATION. The Property Owners and each Existing Partner
who is to receive Units shall cooperate and do all acts as may be reasonably
required or requested by BPLP to enable BPLP to fulfill any requirement under
state Securities Law to qualify the Units for issuance to such Existing
Partners.
1.5 INITIAL UNIT DISTRIBUTIONS. The Xxxxxx Parties acknowledge and agree
that the first quarterly distribution paid by BPLP on any Units which may be
issued pursuant to this Agreement (i) shall be with respect to the quarter in
which such Units are issued and (ii) shall be prorated based on the number of
days during such quarter for which such Units are outstanding.
1.6 REPAYMENT/ASSUMPTION OF MORTGAGE DEBT. All payments of principal and
interest, and all other amounts of any kind or nature, on the Mortgage Debt and
the 510 Construction Financing shall be the sole cost and expense of the Xxxxxx
Parties and the applicable Existing Partners. At the 206 Closing, BPLP, at the
Xxxxxx Parties sole cost and expense, shall cause the 206 Construction Loan to
be prepaid in full, and shall cause the holder of the 206 Construction Loan to
deliver the Mortgage Debt Prepayment Documents with respect thereto in
accordance with Section 2.1(d) below. At the 510 Closing, 510 Associates, at
its sole cost and expense, shall cause the holder of the 510 NML Loan to execute
and deliver 510 NML Loan Assumption Documents in accordance with Section 2.1(d)
below. In connection with the making of the 510 NML Loan, 510 Associates shall,
at 510 Associates sole cost and expense, cause the 510 Construction Financing to
be repaid in full and all documents evidencing such 510 Construction Financing
to be released and, to the extent applicable, otherwise discharged of record.
The Xxxxxx Parties shall bear all costs and expenses of any kind or nature
incurred in connection with the 510 NML Commitment and the 510 NML Loan which
relate to the period ending immediately after the closing of the loan
contemplated by such 510 NML Commitment and this Agreement (except only the NML
Closing Costs), which loan is anticipated to be entered into after the date
hereof, including, without limitation, any and all costs, losses or damages
(including all such amounts which are or may be payable to NML or any other
lender under the 510 NML Commitment) of any kind or nature which may be incurred
by the Xxxxxx Parties or BPLP in the event of a breach under the 510 NML
Commitment, or in the event the loan contemplated thereby does not close, for
any reason, other than a willful breach by BPLP.
ARTICLE 2 - CERTAIN COVENANTS AND CONDITIONS TO CLOSING
2.1 CERTAIN COVENANTS AND CONDITIONS TO BPLP'S OBLIGATIONS. The
obligation of BPLP to consummate the transactions contemplated hereunder shall
be subject to the satisfaction or waiver by BPLP of each of the conditions set
forth below on or before the Closing Date. BPLP may waive any condition
specified in this Section 2.1 if it executes a writing so stating at or prior to
the applicable Closing with respect to each applicable Property or if it elects
to close with respect to such Property, notwithstanding non-fulfillment.
Notwithstanding anything to the contrary contained herein, all conditions to
closing and other matters under this Agreement which relate solely to either the
206 Property or the 510 Property shall not be a precondition to the closing of
the other Property.
(a) Closing Trigger Events; Architect's and Engineer's Certificate.
(i) The Closing Trigger Events shall have occurred (x) with
respect to the 206 Property, on or before July 1, 2010 or such later date as
BPLP may agree to in writing in its sole discretion and (y) with respect to the
510 Property, on or before July 1, 2010 or such later date as BPLP may agree to
in writing in its sole discretion.
(ii) BPLP shall have received a certification ("ARCHITECT'S AND
ENGINEER'S CERTIFICATE"), in the form attached hereto as Exhibit 1, from one (1)
or more of the architects and engineers responsible for overseeing the
development and construction on each Property (excluding, however, all portions
of such construction and development which are undertaken by tenants pursuant to
leases). Notwithstanding the foregoing, in the event that the applicable
Property Owner is unable, despite its good faith efforts (but without the
obligation to spend amounts in excess of de minimis amounts) to obtain
Architect's and Engineer's Certificates which include numbered items 3, 5, 6, 7
and/or 8, the applicable Property Owner shall so notify BPLP, in writing, not
less than twenty (20) days prior to the applicable Closing. In such event, the
substantive matters contained in such numbered items which are not so certified
shall become preconditions to BPLP's obligation to close hereunder, as if fully
set forth in this Section 2.1.
(b) Title/Survey. On the applicable Closing Date, the Title Company
shall irrevocably commit, subject only to the payment by BPLP of all applicable
title insurance premiums related thereto, to issue its title insurance policy in
form customary in New Jersey and containing the endorsements and affirmative
insurance listed on Schedule H or as identified on the Preliminary Report, and
subject only to the exceptions and other matters contained in the Preliminary
Report or otherwise agreed to by BPLP. The applicable Xxxxxx Parties, on or
before the Closing Date, shall have executed and delivered to the Title Company
their certifications and
affidavits which are attached hereto as Exhibit 11. On or before the applicable
Closing Date, the applicable Property Owner shall provide to BPLP an "as-built"
survey of the applicable Real Property, made in accordance with standards
reasonably agreed to by the applicable Property Owner and BPLP, by one or more
surveyors reasonably satisfactory to BPLP, and certified to BPLP, the Title
Company and any lenders requested by BPLP.
(c) Consents. It shall be a condition to BPLP's obligation to close
that, on or before the date of this Agreement, Property Owners and the Existing
Partners shall have obtained and delivered to BPLP all authorizations, consents,
approvals and waivers from all partners and all material authorizations,
consents, approvals and waivers from all other Persons (as approved by BPLP
pursuant to the terms of this Section, collectively, the "CONSENTS", provided
that Consents shall not include any such authorization, consent or approval
required to be obtained by BPLP or Boston Properties), including without
limitation Consents from each of the Existing Partners and all applicable
Authorities, necessary (i) to enable each Property Owner to convey the
Properties to BPLP directly or through the sale or other conveyance of 100% of
the Partnership Interests in each Property Owner, and to enable the Existing
Partners to convey their interests in Property Owners to BPLP, all in accordance
with the terms of this Agreement and all other agreements by which the Property
Owners or the Properties are bound or to which the Property Owners or the
Properties are subject, (ii) to enable the Property Owners and the Existing
Partners to perform all of their respective obligations under this Agreement and
the Related Agreements, including without limitation, the right to enter into
and perform their respective obligations under the Contribution Agreement, and
(iii) to permit issuance of the Units and the payment of cash, if applicable, to
the Existing Partners in accordance with all applicable Securities Laws and the
organizational documents of each Property Owner and each Existing Partner (and
to approve any necessary amendments to such organizational documents in order to
enable the contemplated transactions to occur). The form and substance of the
Consents shall be reasonably satisfactory to BPLP, and duly authorized, executed
and delivered copies thereof, (x) from each Existing Partner in form and
substance reasonably satisfactory to BPLP, shall have been delivered to BPLP on
or before the date of this Agreement and (y) from each other Person in form and
substance reasonably satisfactory to BPLP, shall have been delivered to BPLP on
or before the applicable Closing Date it being agreed by the parties that such
Consents may be in substantially the same form as utilized in connection with
the conveyance of the Developed Properties pursuant to the Contribution
Agreement.
(d) Mortgage Lender's Pay-Off Letters/Assumption Documents - 510 NML
Loan. With respect to the 206 Property, 206 Associates shall have obtained and
delivered to BPLP on or before the 206 Closing Date a binding pay-off letter
from the holder of the 206 Construction Financing, permitting a full payoff of
such 206 Construction Financing held by it on or after the 206 Closing Date for
a sum certain, together with any other documents required to evidence the
release or discharge of such indebtedness (as reasonably approved by BPLP
pursuant to the terms of this Section below, collectively, the "MORTGAGE DEBT
PREPAYMENT DOCUMENTS"), which documents shall be approved if they are
substantially similar to the Mortgage Debt
Prepayment Documents delivered on the date of this Agreement pursuant to the
Contribution Agreement. With respect to the 510 Property, the 510 Construction
Financing encumbering such 510 Property shall be refinanced on or before the 510
Closing Date in accordance with and pursuant to the 510 NML Commitment. The loan
documents evidencing such refinanced mortgage loan shall be substantially
similar to the mortgage documents (the "NML COMPARISON DOCUMENTS") evidencing
the loan from NML to an affiliate of BPLP secured by certain real property
located in Reston, Virginia, as such documents exist on the date of this
Agreement, with only such changes as are necessary to reflect the terms and
conditions of the 510 NML Commitment which differ from the terms of such loan
(such changes, in both form and substance, to be reasonably acceptable to BPLP)
and such other changes as may be reasonably acceptable to both 510 Associates
and BPLP (including, without limitation, such changes as may be necessary in
order to reflect New Jersey specific remedies customarily included in mortgage
loan documents comparable to the NML Comparison Documents). The loan documents
evidencing the refinanced mortgage loan from NML pursuant to the 510 NML
Commitment shall be subject to the prior written approval of BPLP, such approval
not to be unreasonably withheld or delayed; and deemed granted if such loan
documents are not disapproved by BPLP within five (5) Business Days after
receipt by BPLP of the loan documents in the form to be executed by all parties
thereto (and subsequently thereafter executed in such form. Notwithstanding the
foregoing, BPLP shall not disapprove any such loan documents based solely upon
provisions which are included in the NML Comparison Documents or in the loan
documents evidencing the mortgage loan from NML executed and delivered pursuant
to and in accordance with the 500 Series NML Commitment (as defined in the
Contribution Agreement) and the Contribution Agreement (but only if and to the
extent that the 500 Series Properties have then been acquired by BPLP), to the
extent that such matters are not required to be modified in accordance with this
provision and are otherwise consistent with the 510 NML Commitment. Each
Property Owner shall obtain and deliver to BPLP on or before the applicable
Closing Date, and BPLP shall cooperate to the extent reasonably necessary in
connection therewith, all applicable approvals, consents, acknowledgments,
agreements and authorizations from the holder of the 510 NML Loan in order (i)
to permit the 510 NML Loan to be assumed by BPLP in connection with the Closing
of the 510 Property or (ii) to permit the 510 Property to be acquired by BPLP
subject to the 510 NML Loan (all documents in connection therewith, the "510 NML
LOAN ASSUMPTION DOCUMENTS"). The parties hereto acknowledge and agree that the
documents evidencing the 510 NML Loan may, if reasonably agreed to by BPLP and
510 Associates, be entered into directly between NML and BPLP. The 510 NML Loan
Assumption Documents shall contain such amendments or modifications to the
existing documents evidencing the 510 NML Loan as BPLP may reasonably request
with such modifications and as the lenders may reasonably request and as be
reasonably satisfactory to BPLP , which documents shall be approved if they are
substantially similar to the Mortgage Debt Assumption Documents delivered on the
date of this Agreement pursuant to the Contribution Agreement. It shall be a
condition to BPLP's obligations under this Agreement that the Mortgage Debt
Prepayment Documents and the 510 NML Loan Assumption Documents shall be in form
and substance reasonably satisfactory to BPLP.
(e) Accuracy of Representations and Warranties. The representations
and warranties of Xxxx X. Xxxxxx and the Existing Partners contained herein
shall be true and correct as and to the extent made as of the date of this
Agreement and as of the applicable Closing Date (except with respect to any
representations or warranties made as of a specific date, which representations
and warranties shall continue to be true and correct as of such specified date
and except further for any breaches of representations and warranties identified
on the Confirmation Certificate), and a certificate to such effect shall have
been executed and delivered by Xxxx X. Xxxxxx and the Existing Partners as of
the applicable Closing Date (such certificate, the "CONFIRMATION CERTIFICATE");
provided, however, that the Confirmation Certificate may identify breaches of or
other changes in the representations and warranties ("IDENTIFIED BREACHES"), and
shall include a description of each such breach in reasonable detail, together
with such person's good faith estimate of the Losses attributable to or expected
to be incurred in connection with such breaches and the basis for the amount of
the Losses attributable to or expected to be incurred in connection with each
such breach.
(f) Opinion of Counsel. The Property Owners shall have delivered to
BPLP an opinion of Xxxxxx Klar & Xxxxxxxx, LLP in form attached hereto as
Exhibit 12, dated as of each applicable Closing Date.
(g) Absence of Litigation. No Action shall be pending or overtly
(whether orally or in writing) threatened against the Property Owners, the
Existing Partners, BPLP, Boston Properties, or the Property, which (i) questions
the validity or legality of the transaction contemplated under this Agreement or
the Related Agreements or (ii) would have a Material Adverse Effect. At each
Closing, the applicable Property Owner shall certify as to the foregoing items
(i) and (ii) to the extent they (A) regard such Property Owner, the Existing
Partners or the Property being conveyed by such Property Owner or (B) regard
BPLP, which certification pursuant to item (B) shall be to the Xxxxxx Parties'
Knowledge and shall relate solely to Actions which are pending or overtly
(whether orally or in writing) threatened by the Existing Partners and/or the
direct or indirect owners of the Existing Partners.
(h) Contracts. Neither Property Owner shall have entered into any
Contract with respect to the Property (other than Assigned Contracts) that will
survive the Closing Date for such Property and be binding on BPLP, except as
disclosed on the Schedule of Agreements attached hereto as Schedule J.
(i) Estoppel Certificates. BPLP shall have received an estoppel
certificate from each of Covance with respect to the 206 Property) and Raytheon
(with respect to the 510 Property) under the Leases (each, an "ESTOPPEL") in the
form attached hereto as Exhibit 2, or as otherwise agreed upon by BPLP and the
Xxxxxx Parties, without changes or additional notations (other than as may be
reasonably acceptable to BPLP, provided that such changes or additional
notations do not effect a change in the substance of the applicable Estoppel),
dated not earlier than thirty (30)
days prior to the Closing Date, confirming the accuracy of the information set
forth on such Estoppel.
(j) Delivery of Sellers' Documents. At each Closing, the Property
Owner shall deliver to BPLP the following with respect to the applicable
Property, and in the case of documents, such deliveries shall be in form and
substance reasonably satisfactory to BPLP and Property Owner:
(i) Intentionally Omitted;
(ii) Intentionally Omitted;
(iii) Original Documents and Files. To the extent not previously
delivered to BPLP and in Property Owner's possession or under its control,
originals of any of the Assigned Contracts, Leases, Plans and Specifications,
Construction Budgets and Licenses, or if the originals are not in Property
Owner's possession or control, certified copies thereof, or a certificate of the
general partner of the applicable Property Owner which certifies that originals
or copies of all such documents are located at the offices of the Property
Owners;
(iv) Tax Bills. Copies of the most currently available tax
bills for the Property and materials relating to any pending real estate tax
assessment protests and proceedings;
(v) Management and Service Agreement(s). Evidence of
termination or assignment, as applicable and at BPLP's election, of all
management and other service agreement(s) in effect with respect to the
Properties, as of the applicable Closing Date;
(vi) Payoff of 206 Construction Financing/Assumption of 510 NML
Loan. As applicable, the 510 NML Loan Assumption Documents with respect to the
510 Property and the Mortgage Debt Prepayment Documents with respect to the 206
Property;
(vii) Assignment of Warranties, Etc. An assignment of all
Warranties and Plans and Specifications, if applicable;
(viii) Fee Property and/or Partnership Interest Conveyancing
Documents. If and to the extent applicable (x) in connection with each Fee
Property, a deed for such Fee Property, a xxxx of sale, an assignment and
assumption of Leases, an assignment of Intangibles and an assignment and
assumption of the Assigned Contracts and the Assumed Liabilities and/or (y) an
Assignment and Assumption of Partnership Interests in form attached hereto as
Exhibit 9 and other conveyancing documents, in form and substance reasonably
satisfactory to BPLP, as are necessary or appropriate to transfer the applicable
Property to BPLP free and clear of all liens, claims and encumbrances, except
for the Permitted Exceptions (collectively, the "CONVEYANCING DOCUMENTS"); the
Property Owners and the Existing Partners shall have also delivered true and
complete copies of all organizational documents relating to the Property Owners
and the Existing Partners, certified as true and complete by a general partner
or executive officer of each such Person.
(ix) Entity Transfer Certificates. For each Property Owner and
each Existing Partner, an entity transfer certification confirming that such
Property Owner and Existing Partners are not "foreign persons" as defined in
Section 1445(f)(3) of the Code, provided, that if such certificate is not
delivered, BPLP shall make such withholding as is required by law;
(x) Intentionally Omitted;
(xi) UCC Searches. UCC searches from the jurisdictions listed on
Schedule K hereto showing any and all filings against Property Owners and
Existing Partners, if any, as debtor or lessor. There shall exist no filings
evidencing a lien, encumbrance, claim, security interest or other encumbrance in
the relevant real property and other UCC filing offices for the applicable State
(or county or other locality where the relevant property is located or where the
Existing Partners are domiciled) against Property Owners that pertain to the
Property, the Partnership Interests or the Property Owners as of the applicable
Closing Date, except only with respect to the 510 NML Loan; and
(xii) Other. Such other documents, instruments, consents,
authorizations or approvals as may be reasonably requested by BPLP, its counsel
or the Title Company, and that may be reasonably necessary to consummate the
transaction that is the subject of this Agreement and the Related Agreements and
to otherwise effect the agreements of the parties hereto, including, without
limitation, as required under this Section except that the Xxxxxx Parties shall
have no obligation to deliver any document, instrument, certificate, consent,
authorization or approval which is not otherwise contemplated under this
Agreement or the Related Agreements which increase the liabilities of the Xxxxxx
Parties hereunder or under the Related Agreements other than de minimis amounts.
(k) Proceedings. All corporate and other proceedings regarding the
Xxxxxx Parties in connection with the transactions contemplated by this
Agreement and any other agreement, instrument or document required to be
executed and delivered by the Xxxxxx Parties hereunder, and all documents
incident thereto, shall be in form and substance reasonably satisfactory to BPLP
and its counsel, and BPLP shall have received all such originals or certified or
other copies of such documents as BPLP or its counsel may reasonably request.
(l) Delivery of the Unit Holder Documents. At Closing, each of the
Unit Holders who is to receive Units shall have delivered to BPLP (i) a
signature page to the Limited Partnership Agreement and an executed copy of the
Registration Rights Agreement and Lock-Up Agreement in the form attached hereto
as Exhibit 8 (the "REGISTRATION RIGHTS AGREEMENT"), each dated as of the Closing
Date, duly executed and delivered and (ii) to the extent not previously
delivered to BPLP or dated more than thirty (30) days prior to Closing, a
Representation Letter.
(m) Association Estoppels. The applicable Property Owners shall have
delivered to BPLP estoppel certificates from all parties under any associations,
if any, as shall be identified by BPLP in the exercise of its reasonable
business judgment affecting the Property, dated no earlier than fifteen (15)
days prior to the Closing Date, each in form and substance reasonably
satisfactory to BPLP (each, an "ASSOCIATION ESTOPPEL"), which shall be
satisfactory if and to the extent such estoppels are in substantially similar
form to those delivered to BPLP in connection with the acquisition of the
Developed Properties pursuant to the Contribution Agreement.
(n) Absence of Material Adverse Change. Since the date of this
Agreement there shall not have been any material adverse change in or to the
condition, financial or otherwise, earnings, business affairs, properties or
results of operations of Covance or Raytheon that would have a Material Adverse
Effect on the Properties, individually or taken as a whole.
(o) Material Adverse Effect. BPLP shall have the right to terminate
this Agreement in its entirety if, as of either Closing Date, there exist
breaches of representations and warranties of the applicable Xxxxxx Parties
(whether or not such breaches are Identified Breaches) which are reasonably
expected to result in Losses which have a Material Adverse Effect on the
Partnership Interests or either of the Properties, in each case taken as a
whole.
(p) Ownership. A fully completed Schedule A-1 shall have been
delivered to BPLP, such Schedule A-1 shall have been certified by each Existing
Partner as being true and correct in all respects with respect to such Existing
Partner, and Transferee shall have received copies of documentation that enable
it to reasonably verify the information set forth in such Schedule A-1.
2.2 CONDITIONS TO THE OBLIGATIONS OF THE XXXXXX PARTIES. The obligation
of the Xxxxxx Parties to consummate the transactions contemplated hereunder
shall be subject to the satisfaction or waiver by the Xxxxxx Parties of each of
the conditions set forth below on or before the Closing Date. The Xxxxxx
Parties agree that Xxxx X. Xxxxxx may waive (on behalf of all Xxxxxx Parties)
any condition specified in this Section 2.2 if he executes a writing so stating
at or prior to Closing or such condition will be waived if the Xxxxxx Parties
elect to close notwithstanding non-fulfillment.
(a) Accuracy of Representations and Warranties. All representations
and warranties of BPLP hereunder shall be true and correct as and to the extent
made as of the date of this Agreement and as of the applicable Closing Date
(except with respect to any representations or warranties made as of a specific
date, which representations and warranties shall continue to be true and correct
as of such specified date), and a certificate to such effect shall be executed
and delivered by BPLP as of the Closing Date.
(b) Execution of Limited Partnership Agreement. BPLP shall have
executed and delivered to the Unit Holders an executed copy of an amendment to
the Partnership Agreement
admitting such persons as limited partners thereto with the applicable number of
Common Units or Preferred Units together with a certificate of Boston
Properties, as general partner of BPLP, certifying the issuance of the
applicable number and type of Units to such persons and further certifying that
the Certificate of Designations of Series One Preferred Units shall then be
effective.
(c) Registration Rights Agreement. BPLP shall have executed and
delivered to the Unit Holders the Registration Rights Agreement.
(d) Opinion of Counsel. BPLP shall have delivered to the Xxxxxx
Parties an opinion of GPH, dated as of the Closing Date, in form attached hereto
as Exhibit 12.
(e) Mortgage Debt. BPLP shall have executed and delivered the 510
NML Loan Assumption Documents.
(f) Delivery of Consideration. BPLP shall have paid the consideration
(including, if applicable, the repayment of the 206 Construction Financing) for
the contribution, conveyance, assignment or other transfer of the Partnership
Interests (or the fee interest, as applicable) in accordance with Sections
1.1(b) and 1.1(c) of this Agreement.
(g) Proceedings. All corporate and other proceedings regarding BPLP
in connection with the transactions contemplated by this Agreement and any other
agreement, instrument or document required to be executed and delivered by BPLP
hereunder and all documents incident thereto, shall be in form and substance
reasonably satisfactory to the Xxxxxx Parties and its counsel, and the Xxxxxx
Parties shall have received all such originals or certified or other copies of
such documents as the Xxxxxx Parties or its counsel may reasonably request.
(h) Absence of Litigation. No Action shall be pending or overtly
(whether orally or in writing) threatened against BPLP or Boston Properties,
which (i) questions the validity or legality of the transaction contemplated
under this Agreement or the Related Agreements as it relates to BPLP or Boston
Properties or (ii) would have a material adverse effect on BPLP or Boston
Properties. At each Closing, BPLP shall certify as to the foregoing and shall
further certify that, except as may have been previously disclosed in writing to
the Xxxxxx Parties (or otherwise disclosed by the Xxxxxx Parties to BPLP), to
BPLP's Knowledge, there are no Actions which are pending or overtly (whether
orally or in writing) threatened by the Existing Partners and/or the direct or
indirect owners of the Existing Partners in connection with the transactions
contemplated by this Agreement.
(i) Other. Such other documents, instruments, consents,
authorizations or approvals as may be reasonably requested by the Xxxxxx
Parties, its counsel or the Title Company, and that may be reasonably necessary
to consummate the transaction that is the subject of this Agreement and the
Related Agreements and to otherwise effect the agreements of the parties hereto,
including, without limitation, as required under this Section except that BPLP
shall have
no obligation to deliver any document, instrument, certificate, consent,
authorization or approval which is not otherwise contemplated under this
Agreement or the Related Agreements which increase the liabilities of BPLP
hereunder or under the Related Agreements other than de minimis amounts.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE XXXXXX PARTIES. Xxxx X. Xxxxxx
and the Existing Partners hereby represent and warrant to BPLP as of the date of
this Agreement and as of the applicable Closing Date except with respect to any
representations and warranties made as of a specific date, which shall be remade
on the applicable Closing Date as of such specific date (but, in all such
events, with respect to each Existing Partner only, severally (and not jointly)
with respect to matters relating to itself, to its Partnership Interests and the
Property Owners of which it is a partner and such Property Owners' Property), in
each case as follows:
(a) Existence and Power. 206 Associates has been duly formed and is a
validly existing limited partnership under the Laws of the State of New Jersey,
and 510 Associates has been duly organized and is a validly existing limited
liability company under the Laws of the State of New Jersey. Each Property
Owner and each Existing Partner has all power and authority under its respective
organizational documents to enter into and deliver this Agreement and all other
documents to be executed and delivered in connection with the transaction that
is the subject of this Agreement, including, without limitation, all Related
Agreements to the extent they are to be executed by such Property Owner or
Existing Partner, and to perform their respective obligations under this
Agreement and such Related Agreements. Each Property Owner and Existing Partner
has delivered to BPLP a true and complete copy of its limited partnership
agreement or limited liability company agreement, as applicable, its certificate
of limited partnership or certificate of formation, as applicable. The Existing
Partners in the aggregate hold 100% of the Partnership Interests in the Property
Owners; Schedule A-1 as attached hereto is true and correct in all respects
except for the omission of percentages identifying each Existing Partners'
Partnership Interest in each Property Owner. Schedule A-1, as completed and
delivered to BPLP at Closing pursuant to Section 2.1(p) shall accurately
identify each Existing Partner's Percentage Interest in each Property Owner.
(b) Authorization; No Contravention. The execution and delivery of
this Agreement and the Related Agreements by the Property Owners and the
Existing Partners and the performance of their respective obligations under all
of the foregoing have been duly authorized by all requisite organizational
action on the part of the Property Owners and the Existing Partners. This
Agreement constitutes and, upon execution thereof, the Related Agreements
executed by the Property Owners and the Existing Partners will constitute, the
valid, legal and binding obligations of the Property Owners and the Existing
Partners. None of this Agreement or the Related Agreements executed by the
Property Owners and the Existing Partners will violate, in any
material manner, any term of any material agreement, order or decree to which
the Property Owners or the Existing Partners are parties or by which they are
bound. Except for the consents and other approvals which have been obtained on
or before the date of this Agreement, including without limitation, the consents
of the Existing Partners of the Property Owners, the holders of the Mortgage
Debt, and the other consents set forth on the attached Schedule L, no consent of
any lender, partner, shareholder, beneficiary, tenant, creditor, investor,
Authority or other person is required in order for the Xxxxxx Parties to enter
into this Agreement or the Related Agreements or for the consummation of the
transactions contemplated by this Agreement; other than such consents where the
failure to obtain would not have a Material Adverse Effect or a material adverse
effect on any Xxxxxx Parties' ability to consummate the transactions
contemplated hereby.
(c) Descriptive Information; Diligence. True, correct and complete
copies of all documents identified on Schedule R attached hereto, including,
without limitation, (i) the lease entered into between 206 Associates as Lessor
and Covance as Lessee (the "COVANCE LEASE"), pursuant to which Covance Inc. will
lease 100% of the rentable space in the building being constructed on the 206
Property, and (ii) the Lease entered into between 510 Associates as Lessor and
Raytheon as Lessee (the "RAYTHEON LEASE"), pursuant to which Raytheon will lease
100% of the rentable space in the building being constructed on the 510 Property
(the Covance Lease and the Raytheon Lease being referred to herein collectively
as the "LEASES"), (iii) all corporate, partnership and other or organizational
documents relating to the Property Owners and the Existing Partners, and (iv)
all other materials identified on Schedule T attached to the Contribution
Agreement; have been delivered by or on behalf of the Property Owners to BPLP,
or made available to BPLP for review in connection with the transaction
contemplated by this Agreement and the Related Documents, and, to the Xxxxxx
Parties' Knowledge, there are no other material agreements relating to the
subject matter thereof in such Property Owner's possession or under its control.
Attached hereto as Schedule M is a true, correct and complete list of all
leasing commissions and tenant construction, as well as any tenant improvement
allowances provided for under the Leases (including, without limitation all such
amounts which may be payable by or payable to any Xxxxxx Party and/or any
affiliates of the Xxxxxx Parties). Except only for the Covance-Xxxxxxx Lease
Commissions, all brokerage commissions or compensation in respect of either of
the Leases have been, or prior to Closing will be, paid by the applicable
Property Owner.
(d) Mortgage Debt. Schedule E attached hereto contains a list of all
material documents relating to the Mortgage Debt and the 510 Construction
Financing, including without limitation all material documents evidencing,
securing or otherwise executed in connection with the Mortgage Debt. Except as
set forth in Schedule E, there are no material or binding agreements with any
person to provide or obtain any mortgage or other debt relating to the
Properties. The Xxxxxx Parties have delivered to Transferee true, complete and
accurate copies of all of the documents identified on Schedule E. Except only
as and to the extent set forth on the attached Schedule E and in the
Northwestern Mutual Commitment with respect to the 510 Property, no Xxxxxx Party
has any obligation of any kind or nature, to NML or any affiliate thereof,
whether current, accrued or contingent and whether in connection with any prior
commitment or other agreement to provide financing or otherwise. As of the 510
Closing Date, the 510 NML Loan shall be in full force and effect and no event of
default or other default or matter which, with the passage of time or the giving
of notice or both, could become any event of default thereunder shall exist,
including, without limitation, any matters with respect to the Raytheon Lease
and the status of construction and development of the 510 Property.
Notwithstanding anything to the contrary contained in this Agreement, to the
extent Transferee receives a binding estoppel certificate from a holder of any
Mortgage Debt which estoppel certificate specifically confirms information set
forth on Schedule E with respect to such Mortgage Debt, the applicable Xxxxxx
Parties shall be released from all liability hereunder with respect to such
confirmed information (including without limitation, any indemnification
obligation under Article 7 hereof with respect to such confirmed information),
but shall not be released with respect to any other or any unconfirmed
information set forth on Schedule E.
(e) Compliance with Law. To the Xxxxxx Parties' Knowledge, the
Property Owners have not received (x) any written notice alleging that the
Property violates any law, rule, regulation, ordinance, code, or interpretation
of any Authority (collectively, "LAWS"), including without limitation, Laws
relating to zoning, subdivision and land-use matters and the Americans with
Disabilities Act or (y) any written notice from any insurer or board of fire
underwriters or similar entity that the Property violates, in any material
respect, any requirement under any insurance policy issued by such a person;
except, in either such event, for violations which have previously been cured.
To the Xxxxxx Parties' Knowledge, except as disclosed in writing to BPLP prior
to Closing, Property Owners have not received any notice from the Architect and
Engineer who will issue the Architect's and Engineer's Certificates hereunder
that the Property is not, and/or upon completion of the construction and
development of the Properties in accordance with the Plans and Specifications
will not be, in compliance with all Laws, including without limitation, Laws
relating to zoning and land-use matters, the Americans with Disabilities Act and
wetlands. To the Xxxxxx Parties' Knowledge, Property Owners have not received
notice of any special assessment proceedings affecting the Property, in any
material respect, and, to the Xxxxxx Parties' Knowledge, there is no such
assessment, other than immaterial assessments. To the Xxxxxx Parties'
Knowledge, all licenses, permits, approvals, variances, easements and rights of
way, including, without limitation, proof of dedication and authorizations
(collectively, the "LICENSES") required for the construction, development,
ownership, use or operation of the Properties as anticipated to be used and
operated have been validly issued and are in full force and effect, except with
respect to those Licenses which, in the ordinary course of business, are not
issued until the completion of construction, without the requirement of any
additional payment of other obligations or restrictions of or on the Property
Owners or the Property, and neither Property Owner has received any written
notice, nor otherwise to the Xxxxxx Parties' Knowledge, are there any
proceedings relating to the revocation or modification of any License. As of
the applicable Closing Date, the Property Owner shall have paid all applicable
so-called TID (Transportation Improvement District Ordinance) and COAH (Counsel
on Affordable Housing) fees, charges and costs and all other fees, charges or
costs of any similar nature in connection with the development and/or
construction of the Properties, including all off-site road and other
improvement costs.
Except as set forth on Schedule N attached hereto, to the Xxxxxx Parties'
Knowledge, there are no agreements, proffers, and other non-public documents to
which any Xxxxxx Party or Xxxx X. Xxxxxx or their affiliates is a party relating
to land-use restrictions or other conditions limiting or otherwise affecting, in
any material respect, the development, construction or operation of the
Properties.
(f) (A) Leases. The Leases are in full force and effect. Attached
hereto as Exhibit 3 and Exhibit 4, respectively, are true correct and complete
copies of the Covance Lease and the Raytheon Lease (including all amendments,
side letters, option exercise letters, work letters, guarantees and any other
documents, certificates or instruments which may create or affect any current or
future obligations of any party under either of the Leases). The Leases,
including any applicable guarantees or similar agreements related thereto, have
been duly authorized, executed and delivered by all parties thereto. As of the
date hereof, occupancy of the Properties and rent commencement by Covance and
Raytheon in accordance with the Covance Lease and the Raytheon Lease,
respectively, are expected to occur, with respect to the Covance Lease, in
November, 1998, and with respect to the Raytheon Lease (as to rent commencement
only), in September, 1998. No person or entity has any option or right of first
refusal or first opportunity to acquire any interest in the Property or any
portion thereof. The Leases identified in this Agreement are the only leases or
other rights or grants of occupancy made by Property Owners with respect to all
or any part of either of the Properties. As of the 510 Closing Date, the No
Pass Through Period under the Raytheon Lease shall have been terminated. As of
the 206 Closing Date, Covance shall have unconditionally and irrevocably taken
occupancy of the 206 Property and 206 Associates shall have paid and/or
performed all obligations of landlord with respect to the Covance Lease which
relate to the period ending on the date of such occupancy and rent commencement
as provided in the 206 Lease (or, if later, the actual date of such occupancy
and rent commencement); including in any such event, without limitation, the
completion of all landlord work (on or prior to any specified substantial
completion date) and the payment of all tenant allowances and lease commissions
in connection therewith. As of the 510 Closing Date, Raytheon shall have
unconditionally and irrevocably taken occupancy of the 510 Property and 510
Associates shall have paid and/or performed all obligations of landlord with
respect to the Raytheon Lease which relate to the period ending on the date of
such occupancy and rent commencement as provided in the 510 Lease (or, if later,
the actual date of such occupancy and rent commencement); including in any such
event, without limitation, the completion of all landlord work (on or prior to
any specified substantial completion date) and the payment of all tenant
allowances and lease commissions in connection therewith.
(B) Rent Roll. On or before the applicable Closing Date, a Rent
Roll (the "RENT ROLL"), which is a true, complete and correct statement of the
information contained therein as of such date (in a manner similar to that set
forth on the Rent Roll attached to the Contribution Agreement) shall be
delivered to BPLP. As of the applicable Closing Date, there are no monetary, or
to the Xxxxxx Parties' Knowledge, other material defaults under any of the
Leases which have not been cured. Except as set forth on the Rent Roll, there
are no "free" or "reduced" rent periods (other than, with respect to "reduced"
rent periods, increases in the base
rent payable under the applicable lease based solely on the passage of time, and
regardless of whether such increases are in a fixed amount or are based upon a
calculation (e.g., consumer price index based increases)), concessions or
rebates (whether oral or written) of any kind whatsoever under any of the Leases
which would have an effect on or after the Closing Date. Except as set forth in
the Rent Roll (but excluding tenant improvement or refurbishment allowances
which are set forth in the Leases), no tenant under any lease is entitled to any
rebate, concession, deduction or (if based on landlord's actions on or prior to
the Closing Date ) offset under its lease. Except for security deposits placed
with Property Owners, a true and correct list of which is identified on the Rent
Roll, none of the Tenants has paid to Property Owners any rent or other charge
of any nature under its Lease or otherwise relating to any Property for a period
of more than thirty (30) days in advance. Notwithstanding anything to the
contrary contained in this Agreement, to the extent BPLP receives an Estoppel
from Covance or Raytheon, as applicable, which Estoppel specifically confirms
information contained in the Rent Roll with respect to the applicable Lease, the
applicable Xxxxxx Parties shall be released from all liability hereunder with
respect to such confirmed information (including without limitation, any
indemnification obligation under Article 7 hereof with respect to such confirmed
information), but shall not be released with respect to any other or any
unconfirmed information contained in the Rent Roll.
(g) Contracts. Attached hereto as Schedule J is a schedule (the
"SCHEDULE OF AGREEMENTS") setting forth a list of all of the Contracts other
than Contracts which will be terminated or expire and will be fully satisfied by
Property Owner on or prior to the applicable Closing, including in all events,
the names of the contracting party, the dates of the Contracts and a listing of
all amendments to such Contracts, and identifying each such Contract as a
Terminable Contract or a Non-terminable Contract (and, with respect to each Non-
terminable Contract, whether or not such Non-terminable Contract is with an
Affiliate of any Xxxxxx Party). True, complete and correct copies of all
Contracts have been provided to BPLP. To the Xxxxxx Parties' Knowledge, the
Contracts are in full force and effect, and the Terminable Contracts are
terminable on not more than thirty (30) days' prior written notice and without
payment or penalty of any kind. To the Xxxxxx Parties' Knowledge, all Warranties
with respect to the Property are listed on Schedule P.
(h) Utilities. As of the applicable Closing Date, all water, sewer,
gas, electric, telephone and drainage facilities and all other utilities
required by Law and sufficient for the contemplated use and operation of the
Property will be installed to the property lines of the Land and will be
connected pursuant to valid Licenses and all assessments, fees and other charges
related thereto have been paid in full. To the Xxxxxx Parties' Knowledge,
neither Property Owner has received written notice or otherwise has knowledge
that any of the foregoing facilities or utilities are inadequate to service the
Property or that they do not meet the requirements of applicable Laws.
(i) Hazardous Substances. To the Xxxxxx Parties' Knowledge, the
Property Owners have not generated, stored, released, discharged or disposed of,
used or handled
Hazardous Substances or Hazardous Wastes (as those terms are defined below) at,
upon or from the Properties in material violation of any Law or in connection
with which remedial action would be prudent or required under any Law. As used
in this Agreement, the terms "HAZARDOUS SUBSTANCES" and "HAZARDOUS WASTES" shall
have the meanings set forth in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and the regulations thereunder, the
Resource Conservation and Recovery Act, as amended, and the regulations
thereunder, and the Federal Clean Water Act, as amended, and the regulations
thereunder, and such terms shall also include asbestos, petroleum products
(except in a naturally occurring state), radon, radioactive materials, lead
paint, Urea Formaldehyde Foam Insulation and any other regulated substances
under any Law relating to the protection of the environment. To the Xxxxxx
Parties' Knowledge, except as contained in the environmental reports listed on
Schedule Y to the Contribution Agreement, no Hazardous Substances or Hazardous
Wastes are located on the Property in material violation of any Law. To the
Xxxxxx Parties' Knowledge, except as contained in the environmental reports
listed on Schedule Y to the Contribution Agreement, no underground storage tanks
are located at either of the Properties.
(j) Absence of Undisclosed Liabilities. Between the date of the
financial statements listed on Schedule Z to the Contribution Agreement
pertaining to Property Owners, true, complete and correct copies of which have
been delivered to BPLP prior to the date of this Agreement (which are the most
recently prepared operating statements prior to the date of this Agreement) and
the date of this Agreement no events or circumstances have occurred or arisen
which, individually or taken together, would have a Material Adverse Effect, or
would result in any material increase in the indebtedness or other liabilities
of the Property Owners or the Properties. To the Xxxxxx Parties' Knowledge,
there are no Liabilities, including material contingent liabilities, of the
Property Owners which are not shown or provided for in the operating statements
listed on the referenced Schedule Z, other than (i) liabilities incurred in the
ordinary course of business and in accordance with established operating
policies and procedures and past practice of the applicable Xxxxxx Parties, (ii)
liabilities specifically disclosed in this Agreement or the Schedules hereto,
including without limitation liabilities under Assigned Contracts and Leases,
(iii) liabilities identified on the attached Schedule Q which are covered by
insurance, (iv) liabilities arising under Immaterial Contracts and (v)
liabilities which are the specific subject of any other representation or
warranty in this Section 3.1, which other representations and warranties shall
be the sole and exclusive representations with respect to such subject matter
(e.g., liabilities relating to non-material violations of Law relating to
Hazardous Substances, the existence of which would not be a breach of the
applicable representation and warranty under Section 3.1(i) above).
(k) Taxes. All tax returns required to be filed on or before the date
hereof by or on behalf of or with respect to the liabilities of the Property
Owners (or the properties or assets thereof) have been filed through the date
hereof or will be filed on or before the date when due in accordance with all
applicable Laws, and there is no Action pending against or with respect to
either Property Owner or the Property in respect of any tax (or against any
Existing Partner with respect to any of the tax liabilities of or assessed
against the Properties or the Property Owners),
nor is any claim for additional tax asserted by any Authority against either
Property Owner or the Property (or against any Existing Partner with respect to
any of the tax liabilities of or assessed against the Properties or the Property
Owners). All taxes of or assessed against the Properties or the Property Owners
have been timely paid when due in accordance with applicable laws. All real
estate taxes and assessments relating to the Property that are due and payable
have been paid and copies of most recent tax bills have been delivered to BPLP.
(l) Insurance. Property Owners currently have in place appropriate
public liability, builder's risk and other insurance coverage with respect to
the Property and the development thereof, and each of such insurance policies is
in full force and effect and all premiums due and payable thereunder have been
fully paid when due.
(m) Capital Structure. All of the partnership interests of each
Property Owner have been duly and validly issued. Except as set forth on
Schedule A-1 (as completed pursuant to Section 2.1(p)), there are no equity
interests of any Property Owner outstanding or issuable upon conversion or
exchange of any security of any Property Owner or any other Person. No holder
of any equity interest of any Property Owner nor any other Person is entitled
(i) to any preemptive or other right to subscribe for any equity interests of
any Property Owner or (ii) to any right of first refusal or similar right with
respect to or as a result of any of the transactions contemplated hereby. The
organizational charts attached hereto as Schedule A-2 are true, complete and
correct in all respects and set forth all of the Existing Partners and all of
the partners, members, shareholders and other beneficial owners of such Existing
Partners, and as of the Closing Date, the organizational charts attached hereto
as Schedule A-2 shall be revised to identify the percentage interest of each
such Existing Partner in the Property Owners.
(n) Title to Partnership Interests. Each Existing Partner owns
beneficially and on the records of the applicable Property Owner, and is
transferring free and clear of any liability claim, lien, pledge, voting
agreement, option, charge, security interest, mortgage, deed of trust,
encumbrance, right of assignment, purchase right or other restriction of any
kind, nature or description (other than as may be created in writing by Boston
Properties or BPLP), its Partnership Interests. Such Existing Partner's
Partnership Interests were validly issued. There is no agreement, instrument or
understanding with respect to such Existing Partner's Partnership Interests,
except the partnership agreement of the applicable Property Owner, to which
BPLP, as successor, will be bound.
(o) Structural. Neither Property Owner has received any written
notice from any tenant, consultant, architect, engineer, insurance company or
Authority of any defect or inadequacy in connection with the structure or
systems on the Properties that has not heretofore been cured.
(p) Zoning/Violations. To the Xxxxxx Parties' Knowledge, neither
Property Owner has received any written notice that there is now pending,
proposed or threatened any
proceeding for the rezoning of either of the Properties or any portion thereof.
To the Xxxxxx Parties' Knowledge, neither Property Owner has received any
written notice from any Authority that any zoning, subdivision, environmental,
hazardous waste, building code, health, fire, safety or other law, order,
ordinance or regulation is violated by the development, construction or use of
the Properties, including, without limitation, any Improvements located thereon
or any parking areas.
(q) Condemnation. To the Xxxxxx Parties' Knowledge, neither Property
Owner has received any written notice of any pending or contemplated
condemnation proceedings affecting all or any part of the Property.
(r) Permitted Exceptions. No Property Owner is in monetary default
and, to the Xxxxxx Parties' Knowledge, each Property Owner has performed all
material obligations under and is not in material non-monetary default, in
complying with the terms and provisions of any of the covenants, conditions,
restrictions, rights-of-way or easements constituting one or more of the
Permitted Exceptions for the Property.
(s) Actions. Attached hereto as Schedule Q is a schedule (the
"SCHEDULE OF ACTIONS") setting forth all Actions pending or, to the Xxxxxx
Parties' Knowledge, overtly (whether orally or in writing) threatened against
either Property Owner, any Existing Partner or the Property, which (y) question
the validity of, or the ability of the Xxxxxx Parties to consummate, the
transactions contemplated hereunder or (z) affect the Property, the Property
Owners, the Existing Partners or any interests therein, in a materially adverse
way or have a Material Adverse Effect.
(t) Plans and Specifications; Budgets. True, correct and complete
plans and specifications and other related drawings and documents (collectively,
the "PLANS AND SPECIFICATIONS") for the 206 Property and the 510 Property are
listed on Exhibit 5 and Exhibit 6, respectively. True, complete and correct
copies of the development and construction budgets (collectively, the
"CONSTRUCTION BUDGETS") for each of the Properties have been delivered to BPLP
prior to the date of this Agreement. As of the applicable Closing Date, all
amounts set forth in the Construction Budgets and all other amounts due or to
become due in connection with the development and construction of the Properties
shall have been paid in full by the Property Owners except items not capable of
being complete or for which bills were not yet rendered (all of which shall
remain the obligation of the Existing Partners of the applicable Property
Owner).
(u) Tax Treatment. To the extent that Units are delivered hereunder
in consideration for the transfer of partnership interests in the Property
Owners or any other assets (i) the Existing Partners will treat the transfer as
a contribution subject to Section 721 of the Code and (ii) the Existing Partners
will treat the Units for all tax and other financial reporting purposes as
equity interests in BPLP, except in each case as otherwise required by
applicable Law (not
including any tax Law except to the extent required by any adjustment proposed
by the Internal Revenue Service in a 90-day letter) or contractual obligations
(such as loan agreements) of BPLP.
3.2 REPRESENTATIONS AND WARRANTIES OF BPLP. BPLP hereby represents and
warrants to the Xxxxxx Parties as of the date of this Agreement and as of the
Closing Date as follows:
(a) Existence and Power. Boston Properties and BPLP have been duly
formed and are validly existing as a Delaware corporation and a Delaware limited
partnership, respectively. Each of Boston Properties and BPLP has all power and
authority under their respective organizational documents to carry on its
business as presently conducted and to execute, deliver and perform its
obligations under this Agreement and the Related Agreements executed by such
party. Boston Properties and BPLP are each duly qualified to do business in all
jurisdictions where such qualification is necessary to carry on its business as
now conducted and, on the Closing Date, will be duly qualified in the
jurisdiction in which the Property is located.
(b) Authorization; No Contravention. The execution and delivery of
this Agreement and the performance of their respective obligations under this
Agreement, has been duly authorized by all requisite organizational action on
the part of Boston Properties and BPLP. This Agreement has been and each Related
Agreement to which BPLP is a party will on the Closing Date have been, duly
executed and delivered by BPLP and Boston Properties. None of the foregoing
will require any action by or in respect of, or filing with, any Authority or
contravene or constitute a default under any provision of applicable Law, any
organizational document of Boston Properties or BPLP or any agreement, judgment,
injunction, order, decree or other instrument binding upon Boston Properties or
BPLP. This Agreement constitutes and, upon the execution thereof the
Registration Rights Agreement and the other Related Agreements executed by
Boston Properties or BPLP, as applicable, will constitute, the valid, legal and
binding obligations of Boston Properties or BPLP, as applicable, enforceable in
accordance with their respective terms, subject to bankruptcy and similar laws
affecting the remedies or resources of creditors generally and principles of
equity. Except for the consents and other approvals which have been obtained on
or before the date of this Agreement, no consent of any lender, partner,
shareholder, beneficiary, tenant, creditor, investor, Authority or other person
is required in order for Boston Properties and BPLP to enter into this Agreement
or for the consummation of the transactions contemplated by this Agreement,
other than such consents where the failure to obtain would not have a material
adverse effect on Boston Properties or BPLP or on their ability to consummate
the transactions contemplated hereby.
(c) Partnership Agreement. BPLP has provided the Xxxxxx Parties with
correct and complete copies of the limited partnership agreement of BPLP (the
"PARTNERSHIP AGREEMENT") as in effect on the date of this Agreement. Between
the date of this Agreement and the Closing Date there will be no amendments or
modifications to, supplements to, or waivers with respect to, the Partnership
Agreement other than (x) as contemplated by this Agreement, including without
limitation, by the Certificate of Designation establishing the terms of the
Series One
Preferred Units and as set forth on the Exhibit 2 attached to the Contribution
Agreement and (y) amendments, modifications, supplements and waivers in the
ordinary course of business and which do not have a material adverse effect on
the Xxxxxx Parties' interest in BPLP (including, without limitation, amendments
for the purpose of issuing Common Units and/ or Preferred Units and/or admitting
limited partners to BPLP). As of the Closing Date, the Certificate of
Designation establishing the terms of the Series One Preferred Units has been
duly adopted and will be effective as an amendment to the Partnership Agreement.
As of the date of this Agreement there are no outstanding Preferred Units and
there are no options, warrants, rights or other agreements to issue Series One
Preferred Units to any person other than pursuant to this Agreement and the
Related Agreements. BPLP qualifies as a partnership for Federal income tax
purposes.
(d) Units and Common Shares. The Units to be issued hereunder have
been duly authorized for issuance and, upon such issuance, will be validly
issued, fully paid and non-assessable and will not be subject to any preemptive
rights or rights of first refusal upon their issuance. The Common Shares to be
issued upon exchange of the Units, and the Common Units to be issued upon
exchange of the Preferred Units have been duly authorized for issuance and, upon
such issuance will be validly issued, fully paid and non-assessable and will not
be subject to any preemptive rights or rights of first refusal upon their
issuance. At the Closing each Xxxxxx Party receiving Units will receive such
Units free and clear of any claims, liens, voting agreements, options, charges,
or encumbrances or restrictions of any kind, nature or description (other than
as may be created pursuant to this Agreement (including under the Registration
Rights Agreement), the Partnership Agreement and other organizational documents
of BPLP, or by any Xxxxxx Party, and other than restrictions on transfer that
may be applicable under Securities Laws). Boston Properties has reserved for
issuance out of its authorized common stock, a number of Common Shares
sufficient to provide for the exchange of Units into Common Shares. If
applicable, BPLP is authorized to issue Common Units sufficient for the exchange
of Preferred Units into Common Units.
(e) Pending Actions. There is no existing or, to the best of BPLP's
knowledge, overtly (whether orally or in writing) threatened Action involving
Boston Properties or BPLP, any of their respective assets or the operation of
any of the foregoing, which, if determined adversely to either Boston Properties
or BPLP or their respective assets, would have a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations or
business of either Boston Properties or BPLP or their respective assets or which
would interfere with the ability of either Boston Properties or BPLP to execute
or deliver, or perform their respective obligations under this Agreement or any
of the Related Agreements executed by it.
(f) Taxes. Boston Properties and BPLP have filed all federal, state
and local income and franchise tax returns required to be filed through the date
hereof and have paid all taxes due thereon, and no tax deficiency has been
determined adversely to Boston Properties or BPLP which has had (nor does Boston
Properties of BPLP have any knowledge of any tax deficiency which, if determined
adversely to Boston Properties or BPLP might have) a material
adverse effect on the consolidated financial position, stockholders' equity,
results of operations or business of Boston Properties or BPLP. There is no
material tax controversy pending with respect to Boston Properties or BPLP for
which Boston Properties or BPLP, as applicable, has not made reasonable
provision.
(g) No Assignment. Neither Boston Properties nor BPLP nor any of their
subsidiaries has (i) made a general assignment for the benefit of the creditors,
(ii) filed any voluntary petition in bankruptcy or suffered the filing of an
involuntary petition by BPLP's or Boston Properties' creditors, (iii) suffered
the appointment of a receiver to take possession of all or substantially all of
BPLP's or Boston Properties' assets, (iv) suffered the attachment, or other
judicial seizure of all, or substantially all, of BPLP's or Boston Properties'
assets, (v) admitted in writing its inability to pay its debts as they come due,
or (vi) made an offer of settlement, extension or compromise to its creditors
generally.
(h) Private Placement. Assuming the accuracy of, and in reliance
upon, the representations and warranties of the Xxxxxx Parties set forth in
Section 3.1 hereof, Section 3.1 of the Contribution Agreement, and in the
Representation Letters delivered by each applicable Xxxxxx Party, (x) neither
BPLP nor Boston Properties nor any agent or other person acting on its behalf,
directly or indirectly, has done or caused to be done (or has omitted to do or
to cause to be done) any act which act (or which omission) would result in
bringing the issuance or sale of the Common Shares or Units within the
provisions of Section 5 of the Securities Act and (y) the granting and the sale
of the Units hereunder and the issuance and delivery of the Common Shares upon
the exchange of the Units by any person that has delivered a Representation
Letter, are exempt from registration under the Securities Act and under
applicable state securities and "blue sky" laws.
(i) Investment Company Act. Neither Boston Properties nor BPLP is an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined under the Investment Company Act.
(j) Boston Properties' Qualification. Boston Properties is organized
and operates, and intends to continue to operate, in a manner so as to qualify
as a "real estate investment trust" under Sections 856 through 860 of the Code.
To BPLP's Knowledge, Boston Properties has not received any written notice from
the Internal Revenue Service which specifically calls into question Boston
Properties' qualification as a "real estate investment trust" under Sections 856
through 860 of the Code and Boston Properties has taken no action that would
reasonably be expected to cause Boston Properties to cease to so qualify.
(k) Filings. Boston Properties has made all filings required by the
Securities Act and the Exchange Act (excepting only those filings the failure to
make of which will not render Boston Properties ineligible to file a
registration statement on Form S-11). All such filings made by Boston
Properties fairly present the financial condition of Boston Properties as of the
date
of any balance sheet or similar financial statement contained therein and the
results of Boston Properties's operations for the period covered by any income
statement or similar financial statement contained therein, and none of such
filings contains, as of the date of such filing, any untrue statement of a
material fact or omits any information necessary to make the statements
contained therein not materially misleading, and since the date of the last such
filing, there has not occurred any material adverse change in the financial
condition, business, operations, assets or liabilities of Boston Properties or
BPLP.
(l) Tax Treatment. To the extent that Units are delivered hereunder
in consideration for the transfer of partnership interests in the Property
Owners or any other assets (i) BPLP will treat the transfer as a contribution
subject to Section 721 of the Code and (ii) BPLP will treat the Units for all
tax and other financial reporting purposes as equity interests in BPLP, except
in each case as otherwise required by applicable Law (not including any tax Law
except to the extent required by any adjustment proposed by the Internal Revenue
Service in a 90-day letter, provided, however, that BPLP shall have no
obligation to spend more than de minimis amounts of time or money in connection
therewith) or contractual obligations (such as loan agreements) of BPLP.
ARTICLE 4 - DEVELOPMENT AND OPERATION OF THE PROPERTY
4.1 DEVELOPMENT AND OPERATION. At all times prior to the Closing Date,
Property Owners shall cause the development and construction of the Properties
to be diligently and continuously undertaken in compliance with the Plans and
Specifications and Construction Budgets for each of the Properties, as set forth
in Exhibit 5, Exhibit 6 and Exhibit 7 hereto. Property Owners shall not modify,
amend or otherwise change in any material respect (including, without
limitation, change orders or similar actions) any of the Plans and
Specifications and the Construction Budgets without the prior written consent of
BPLP (which consent shall not be unreasonably withheld, and which consent, if
required to be given by Property Owner pursuant to the Leases as in existence on
the date of this Agreement, shall not be withheld, it being agreed that if BPLP
fails to deny such consent with respect to any such modification within ten (10)
business days after written request therefore, BPLP shall be deemed to have
granted such consent hereunder). Each Property Owner shall: (i) use its
reasonable efforts to preserve its relations with tenants and other entities
with which future business dealings are contemplated; (ii) not mortgage (except
only with respect to the 510 NML Loan, in accordance with this Agreement) or
encumber any part of the Property or take or suffer any other action affecting
title to the Property without the prior written consent of BPLP such consent not
to be unreasonably withheld or delayed (it being agreed that if BPLP fails to
deny such consent or approval with respect to any non-material, non-monetary
encumbrance within five (5) business days after written request therefore, BPLP
shall be deemed to have granted such consent or approval hereunder); (iii) not
make any commitment or incur any liability to any labor union, through
negotiations or otherwise, with respect to the Property not discharged at
Closing; (iv) not become a party to any new licenses, equipment leases,
contracts or agreements of any kind relating to the Property, except such
contracts or agreements as will be terminated at or prior to Closing without
cost or expense to BPLP or contracts which BPLP agrees to assume at Closing such
consent not to be unreasonably withheld or delayed (it being agreed that if BPLP
fails to deny such consent or approval with respect to any such contract within
five (5) business days after written request therefore, BPLP shall be deemed to
have granted such consent or approval hereunder).
If, to the Xxxxxx Parties' Knowledge, it is probable that there will be an
Identified Breach on the Confirmation Certificate to be delivered on any Closing
Date, then Xxxx X. Xxxxxx shall notify BPLP in writing of such fact a reasonable
period of time prior to the scheduled Closing Date or, if earlier, as soon as
practicable after such determination by the Xxxxxx Parties. If there is or will
be an Identified Breach, the Xxxxxx Parties' will cooperate in providing such
information as BPLP reasonably requests with respect thereto.
4.2 INSURANCE. Through the Closing Date, Property Owners shall maintain
at their sole cost and expense all insurance referred to in Section 3.1(l) or
similar replacement coverage.
4.3 LEASING/ESTOPPELS. Each Property Owner agrees that from and after the
date of this Agreement to the Closing Date, such Property Owner (i) will not,
with respect to the Property, cancel or terminate, modify or amend the Leases,
enter into any new leases, or consent to the assignment, subletting or
mortgaging of any lease or space, without in each instance having obtained the
prior written consent of BPLP except as may be required under the terms of any
such lease; (ii) will comply with and perform all provisions and obligations to
be complied with and/or performed by such Property Owner under the applicable
Lease; (iii) will, promptly upon receipt, provide BPLP with copies of all
written notices delivered or received under the Leases, correspondence received
from architects, engineers, contractors, tenants, neighboring property owners,
any insurance company which carries insurance on the Property, from any
Authorities or from any other person or entity with respect to the Property or
any portion thereof. BPLP shall grant or deny all consents or approvals
requested by the Property Owners under this Section 4.3 within five (5) business
days after request therefore (it being agreed that if BPLP fails to deny such
consent or approval within such five (5) business day period, BPLP shall be
deemed to have granted such consent or approval hereunder). Property Owners
shall send to the tenants of the Properties a letter (in form reasonably
acceptable to BPLP and the Xxxxxx Parties) and an estoppel certificate in the
form attached hereto as Exhibit 2. Property Owners shall, promptly upon
receipt, deliver to BPLP copies of all correspondence or other matters received
by Property Owners in connection with such estoppel certificates. Property
Owners shall use good faith efforts (without the obligation to expend any
amounts in connection therewith, other than de minimis amounts) to obtain all
such certificates.
4.4 OPERATING AGREEMENTS. Except as set forth in Section 4.1 or Section
4.3 above, Property Owners shall not enter into any Contract affecting the
Property, or any amendment of any Contract, that will be binding on the Property
or BPLP. Notwithstanding provision (i) of the foregoing sentence, either
Property Owner may enter into a Contract which by its own terms shall
terminate prior to the Closing Date or is terminable by such Property Owner
prior to the Closing Date (which shall be terminated by such Property Owner
unless such Contract has been designated as an Assigned Contract by BPLP) and
which shall not create any liability for or be binding on the Property or BPLP
on or after the Closing Date, provided however, that any such Contract shall not
violate the provisions of clause (ii) of the preceding sentence. Property Owners
shall not waive, compromise or settle any rights of Property Owners under any
Assigned Contract, without in each case obtaining BPLP's prior written consent
thereto, such consent not to be unreasonably withheld or delayed and to be based
upon then prevailing market terms and conditions. Notwithstanding anything to
the contrary contained herein, BPLP shall grant or deny all consents requested
by the Property Owners under this Section 4.4 within five (5) business days
after request therefore (it being agreed that if BPLP fails to deny such consent
or approval within such five (5) business day period, BPLP shall be deemed to
have granted such consent or approval hereunder).
4.5 DAMAGE OR DESTRUCTION; CONDEMNATION. Property Owners shall deliver to
BPLP written notice of any casualty involving in excess of $50,000 to repair or
any taking involving the Property promptly upon learning of such casualty or
taking. If, prior to the Closing, either of the Properties (each a "DAMAGED
PROPERTY") is damaged or destroyed by casualty such that the cost to repair
and/or restore such damage and/or destruction (which cost, for purposes of this
Section, shall be deemed to include reasonably anticipated post-Closing rental
loss not covered by rental loss insurance through completion of such repair
and/or restoration) would exceed Five Million Dollars ($5,000,000) with respect
to any one of the Properties, or Seven Million Five Hundred Thousand Dollars
($7,500,000) in the aggregate with respect to both Properties, and the Damaged
Property cannot be repaired and/or restored to substantially the same condition
as immediately prior to such casualty without termination, amendment or
modification of the applicable Lease or other material agreement relating to the
Damaged Property (any such event, a "MAJOR CASUALTY"), within twelve (12) months
after the Closing Date, then BPLP shall have the right to terminate its
obligation to complete the transaction contemplated under this Agreement with
respect to such Damaged Property by delivery of written notice thereof to
Property Owners within ten (10) Business Days after BPLP's first learning of the
occurrence of such casualty and Property Owners' good faith estimate of the cost
of such repair and/or restoration, timing for completion of such repair and/or
restoration and confirmation that no Leases or other material agreements will be
terminated, amended or modified as a result of such casualty. If all or any
part of the Property is damaged and/or destroyed by fire or other casualty prior
to the Closing but (i) the event is not a Major Casualty or (ii) the event is a
Major Casualty but BPLP does not terminate its obligation to complete the
transaction contemplated under this Agreement with respect to such Damaged
Property (or the Agreement in its entirety, as applicable) pursuant to this
Section 4.5 as a result thereof, then the Closing Date shall occur as scheduled
with respect to such Property notwithstanding such damage or destruction, and
Property Owners' interest in all proceeds of insurance payable by reason of such
casualty, including, without limitation, for rental loss to the extent allocable
to the period after the Closing Date, shall be assigned to BPLP as of the
Closing Date or credited to BPLP if previously received by Property Owners, and
Property Owners shall be responsible for the amount of any deductible under such
insurance (and such amount shall be
credited to BPLP at the Closing). If, prior to Closing, an Authority commences
any eminent domain or condemnation proceeding to take any portion of the
Property or either Property Owner enters into an agreement in lieu thereof, and
the portion of the Property lost thereby would have a material adverse effect on
the operations of the Property (a "MAJOR CONDEMNATION," and the effected
Property, a "CONDEMNED PROPERTY"), then BPLP shall have the option to terminate
its obligation to complete the transaction contemplated under this Agreement
with respect to such Condemned Property by delivery of written notice thereof to
Property Owners within ten (10) Business Days after BPLP first learns of such
commencement or entry. If, prior to the Closing Date, an Authority commences any
eminent domain or condemnation proceeding to take any portion of the Property or
either Property Owner enters into an agreement in lieu thereof but (i) such
event does not constitute a Major Condemnation or (ii) the event is a Major
Condemnation, but BPLP does not terminate its obligation to complete the
transaction contemplated under this Agreement with respect to such Condemned
Property pursuant to this Section 4.5 as a result thereof, then the Closing Date
shall occur as scheduled notwithstanding such proceeding or entry, and Property
Owners' interest in all awards or payments arising out of such proceedings or
agreement shall be assigned to BPLP as of the Closing Date or credited to BPLP
if previously received by Property Owners. Property Owners' obligations under
this Section shall survive the Closing.
4.6 TESTS AND INSPECTIONS.
(a) Property Owners hereby authorize BPLP, its authorized
representatives, agents and employees to enter upon the Properties on reasonable
prior notice and in coordination with the applicable Property Owner so that the
timing thereof does not materially interfere with the construction of the
Property, from time to time to perform such tests and inspections as BPLP deems
necessary or appropriate in its reasonable discretion, including, without
limitation, such soil boring and compacting tests, test well and water table,
soil porosity and liquid absorption tests, other environmental inspections and
tests and engineering tests. Any entry by BPLP onto the Properties in
connection with its due diligence shall not unreasonably interfere with
construction work being performed on the Properties. BPLP hereby agrees to
repair any damage to the Properties resulting from the conduct of any test or
inspection performed by BPLP and to indemnify and hold Xxxxxx Indemnified
Partners harmless from and against any and all Losses arising on account of any
test or inspection performed by BPLP, including, without limitation, for
mechanic's liens to the extent attributable to any test or inspection performed
by BPLP. This provision shall survive a termination of the obligations to
complete the transaction contemplated under this Agreement or Closing.
(b) BPLP, its authorized representatives, its agents and its
employees shall have the right to conduct, from the date hereof until each
Closing Date, any and all due diligence relative to the Property as may be
deemed necessary or appropriate by BPLP in its sole discretion, provided,
however, that BPLP shall not unreasonably interfere with the operations of the
Properties. Without limiting the foregoing, Property Owners shall make
available to BPLP for
review and copying at BPLP's election, in a manner which does not unreasonably
interfere with the operations of the Properties, all of its materials, files,
books, records, information and documents relating to the Property, including,
without limitation, all construction contracts, construction management
contracts, architectural contracts, architectural, mechanical and engineering
plans and specifications, the original development budget, construction
financing documentation, contractors' invoices received to date, change
requests, the original construction schedule, management's analysis of whether
the Properties are expected to be completed within their original budgets, site
plan approvals, Leases, management agreements entered into or expected to be
entered into, maintenance files, tenant correspondence, certificates of
occupancy, plans and other construction records for the Improvements, existing
surveys, permits and other similar or dissimilar materials, to the extent not
previously delivered to BPLP. BPLP shall have the right to talk with third-
parties selected by BPLP in the performance of its due diligence on the
Properties.
4.7 MORTGAGE DEBT. Prior to each Closing, the Property Owner will
endeavor to keep all debt service payments and other payments owed in connection
with the Mortgage Debt and 510 Construction Financing current on the Property
and will endeavor not permit or suffer to exist any monetary or material non-
monetary default under any document evidencing the Mortgage Debt. All costs,
fees and charges required to be paid to a holder of Mortgage Debt or on behalf
of such holder in connection with the repayment or assumption (or other
continued existence) and amendment of the Mortgage Debt shall be paid by the
Property Owner at or prior to the Closing (except only, with respect to the 510
NML Loan, the NML Closing Costs as and to the extent set forth in Section 1.6
above). Prior to the 510 Closing Date, 510 Associates shall diligently and in
good faith undertake to completion the refinancing of the 510 Construction
Financing encumbering the 510 Property in accordance with the 510 NML Commitment
and the terms and conditions of this Agreement.
4.8 AVAILABILITY OF RECORDS. Property Owners and the Existing Partners
agree to cooperate with BPLP to permit BPLP to obtain any information needed
from Property Owners and Existing Partners to enable BPLP to file any necessary
tax returns. Upon written request of BPLP, for a period of two (2) years after
the Closing, Property Owners and the Existing Partners shall (i) make their
respective records relating to the Properties, the Property Owners and the
Partnership Interests, available to BPLP for inspection, copying and audit by
BPLP's designated accountants at BPLP's sole cost and expense, and (ii)
cooperate with BPLP to the extent reasonably necessary to obtain any applicable
Licenses not in existence on the Closing Date and necessary for the operation of
the Properties. Without limiting the foregoing and in addition thereto, for the
period of time commencing on the date of this Agreement and continuing through
the second (2nd) anniversary of the Closing Date, Property Owners and Existing
Partners shall, from time to time, upon reasonable advance notice from BPLP,
provide BPLP and its representatives, agents and employees with access to all
financial and other information in its possession relating to the Properties,
the Property Owners and the Partnership Interests pertaining to the period of
Property Owners ownership and operation of the Properties, which information
is relevant and reasonably necessary, in the opinion of BPLP's outside, third
party accountants (the "ACCOUNTANTS"), to enable BPLP and its Accountants to
prepare financial statements in compliance with any or all requirements of (a)
Rule 3-14 of Regulation S-X of the Commission; (b) any other rule issued by the
Commission and applicable to BPLP; and (c) any registration statement, report or
disclosure statement filed with the Commission by or on behalf of BPLP. Property
Owners and Existing Partners acknowledge and agree that the following is a
representative description of the information and documentation that BPLP and
the Accountants may require in order to comply with (a), (b) and (c) above.
Property Owners and the Existing Partners shall provide such information and
documentation in existence as of the date of this Agreement. Obligations of
Property Owners and the Existing Partners under this Section 4.8 shall survive
the Closing.
(a) Property Owners' internally-prepared operating statements;
(b) Access to the Leases;
(c) Property Owners' budgeted annual and monthly income and expenses,
and actual annual and monthly income and expenses;
(d) Access to Property Owners' cash receipt journal(s) and bank
statements for the Properties;
(e) Property Owners' general ledgers with respect to the Properties;
(f) Property Owners' schedule, if one exists, of expense
reimbursements required under the Leases;
(g) Schedule, if one exists, of those items of construction and
development performed and capital expenditure and fixed asset additions made by
or at the direction of Property Owners, during Property Owners' final fiscal
year in which Property Owners owned their respective Property (the "FINAL FISCAL
YEAR").
(h) Access to Property Owners' invoices with respect to expenditures
made during the Final Fiscal Year;
(i) Access (during normal and customary business hours) to
responsible personnel to answer accounting questions; and
(j) A representation letter, signed by the individual(s) responsible
for Property Owners' financial reporting, as prescribed by generally accepted
auditing standards promulgated by the Auditing Standards Division of the
American Institute of Certified Public Accountants,
which representation letter may be reasonably required to assist the Accountants
in rendering an opinion on such financial statements.
4.9 TITLE AND SURVEY DEFECTS. Property Owners shall not knowingly and
voluntarily encumber or create any exception to title to the Properties that is
not removed on or before Closing.
4.10 COOPERATION WITH BPLP. Property Owners and BPLP shall cooperate with
each other and do all acts as may be reasonably required or requested by the
other with regard to the fulfillment of any condition to Property Owners' or
BPLP's, as the case may be, obligations hereunder, provided, however, in no
event shall the obligations of Property Owners and BPLP which arise exclusively
as a result of this Section 4.10 increase the liability on the part of each such
person under this Agreement other than de minimis amounts.
4.11 COVENANTS OF ALL EXISTING PARTNERS. Each Existing Partner agrees that
from the date of this Agreement to the Closing Date, it will not voluntarily
encumber, assign, transfer or convey any of the Partnership Interests which are
the subject of this Agreement (except only to another Xxxxxx Party and only
after written notice of such transfer or other action has been given to BPLP).
Each Existing Partner shall cooperate and do all acts (including executing and
delivering a copy of the completed Schedule A-1 as contemplated by Section
2.1(s)) as may be reasonably required or requested by BPLP or the Properties
Owners to fulfill any condition to BPLP's obligations hereunder.
4.12 TAX APPEALS. Property Owners agree that they will not, without the
prior written consent of BPLP, such consent not to be unreasonably withheld or
delayed (it being agreed that if BPLP fails to deny such consent within ten (10)
business days after request therefore, BPLP shall be deemed to have granted such
consent hereunder), settle prior to the Closing Date, any proceeding or
application for a reduction in the real estate tax assessment of the Property
for the current tax year unless required by a tenant pursuant to such tenant's
Lease.
4.13 TAX TREATMENT NOTIFICATION. If, to BPLP's Knowledge, BPLP receives
written notice of any challenge or examination by the Internal Revenue Service
with respect to the treatment of the Units as equity interests in BPLP for
federal income tax purposes, BPLP shall promptly thereafter notify Xxxx X.
Xxxxxx of the existence of any such challenge or examination.
ARTICLE 5 - CLOSING ADJUSTMENTS
All apportionments with respect to each Property shall be made in
accordance with customary practice in the county in which the Property is
located, except as expressly provided herein.
5.1 TAXES, ASSESSMENTS AND UTILITIES. All real estate taxes, charges and
assessments affecting the Properties, to the extent not paid by tenants, and all
charges for water, sewer, electricity, gas, telephone and all other utilities
with respect to the Properties, shall be apportioned on a per diem basis as
provided below. General real estate taxes payable for the fiscal year in which
the applicable Closing occurs shall be prorated by Property Owners and BPLP as
of the applicable Closing Date. The full amount of any bonds or assessments
against the Property, including, without limitation, interest payable therewith,
including, without limitation, any bonds or assessments that may be payable
after the applicable Closing Date as a result of or in relation to the
construction of any improvements on the Land or any public improvements that
took place or for which any assessment was levied prior to the applicable
Closing Date shall be pro rated by Property Owners and BPLP as of the applicable
Closing Date. If any prorations under this Section cannot be calculated finally
on the applicable Closing Date, then they shall be estimated at the Closing and
calculated finally as soon after the applicable Closing Date as feasible. The
parties' obligations under this Section 5.1 shall survive the Closing.
5.2 RENT. All rights of Property Owners with respect to any amounts held
by Property Owners under the Leases (including, without limitation, security
deposits and prepaid rent, together with interest thereon) shall be assigned or
otherwise transferred to BPLP under the Conveyancing Documents, and Property
Owners shall not have any rights to or in future rental income realized with
respect to the Properties, under the Leases or otherwise. Promptly following
the Closing Date, the applicable Existing Partners shall request any tenants who
have posted letters of credit as security deposits to have such security
deposits amended or re-issued, if necessary, so that they run to the benefit of
BPLP, if applicable, as landlord under the Leases. If any prorations under this
Section cannot be calculated finally on the Closing Date, then they shall be
estimated at the Closing and calculated finally as soon after the Closing Date
as feasible. This Section 5.2 shall survive the Closing.
(a) Monthly rent and Additional Rent (as defined below) payable by
tenants shall be adjusted as of 11:59 p.m. on the day immediately preceding the
Closing Date, and any such rent and tenant charges paid for the month in which
the Closing occurs) and other credits for the account of tenants shall be paid
by or credited to BPLP by adjustment to the Contribution Price. Estimated
adjustments will be made on the applicable Closing Date on a reasonable basis
for estimated operating expenses paid by tenants as additional rent.
Notwithstanding anything to the contrary contained in Section 5.1 above or in
this Section 5.2, it is the intent of the Xxxxxx Parties and BPLP that
prorations of all operating expenses and Additional Rent shall be allocated as
between the Xxxxxx Parties and BPLP on the basis of full year 1998 amounts as
follows: all operating expenses and Additional Rent received by the Xxxxxx
Parties and/or BPLP which relate to the calendar year 1998 (or calendar year
1999, if the closing occurs in such year) shall be remitted or credited to BPLP
either at the Closing or, if later, when received, and all operating expenses
incurred by the Xxxxxx Parties with respect to calendar year 1998 (or calendar
year 1999, if the closing occurs in such year) shall be reimbursed or credited
to the Xxxxxx Parties at Closing, by agreement of the parties hereto. It is the
intention of the parties hereto that neither the Xxxxxx
Parties nor BPLP will benefit from the pro-rating of operating expenses
inequitably during calendar year 1998.
(b) (i) Any of the following charges and/or rents provided for by any
Lease (but without duplication), if any exist: (A) the payment of additional
rent based upon a percentage of the tenant's business during a specified annual
or other period (sometimes referred to as "percentage rent"), (B) common area
maintenance or "CAM" charges, (C) "escalation rent" or additional rent based
upon real estate taxes, insurance, operating expenses, labor costs, cost of
living, or other index including the consumer price index or otherwise, or (D)
any other items of additional rent, however determined, e.g., charges for
electricity, water, utilities, cleaning, overtime services, sundries and/or
miscellaneous charges and building expenses, shall be adjusted and prorated on
an if, as and when collected basis (such percentage rent, CAM charges,
escalation rent and other additional rent being collectively called "ADDITIONAL
RENT").
(ii) BPLP agrees that as to any Additional Rent for accounting
periods prior to the Closing that are to be paid to BPLP after the Closing,
after payment of all expenses and other amounts attributable thereto (e.g.,
after payment of any operating expenses attributable to the period prior to
Closing which are not paid by the applicable Property Owner prior to Closing),
to pay all remaining amounts over to the applicable Existing Partners who are
partners of the Property Owner which owns the Real Property which is the subject
of the payment of such Additional Rent, upon receipt thereof. BPLP agrees that
it will (x) promptly render bills for any such Additional Rent, (y) xxxx tenants
such Additional Rent on a monthly basis for a period of six (6) consecutive
months thereafter, and (z) use commercially reasonable efforts to collect such
Additional Rent; provided, however, that BPLP shall have no obligation to expend
any amounts other than de minimis amounts in connection therewith, declare a
default under the applicable Lease or commence any actions or proceedings to
collect any such Additional Rent.
(iii) Additional Rent for an accounting period in which the Closing
Date occurs shall be apportioned between the applicable Existing Partners and
BPLP as of the Closing Date, with the applicable Existing Partners being
entitled to receive the proportion of such Additional Rent that the portion of
such accounting period prior to the Closing Date bears to such entire accounting
period, and BPLP being entitled to receive the proportion of such Additional
Rent that the portion of such accounting period from and after the Closing Date
bears to such entire accounting period. If, prior to the Closing, the applicable
Existing Partners (or the Property Owner in which such Existing Partners are
partners) shall receive any installments of Additional Rent attributable to
Additional Rent for periods from and after the Closing Date, such sum shall be
apportioned at the Closing. If, after the Closing, BPLP shall receive any
installments of Additional Rent attributable to Additional Rent for periods
prior to the Closing, such Additional Rent shall be paid by BPLP to the
applicable Existing Partners in accordance with paragraph (ii)(A) above.
(iv) Any payment by a tenant on account of Additional Rent (but only
after the payment of all base or fixed rent under the applicable Lease) shall be
applied to Additional Rent then due in the following order of priority: (A)
first, in payment of Additional Rent for the accounting period in which the
Closing Date occurs; (B) second, in payment of Additional Rent for all
accounting periods succeeding the accounting period in which the Closing Date
occurs; and (C) third, in payment of Additional Rent for all accounting period
preceding the accounting period in which the Closing Date occurs.
(v) To the extent that any portion of Additional Rent is required to
be paid monthly by tenants, on account of estimated amounts for any calendar
year (or, if applicable, any Lease year or any other applicable accounting
period), and at the end of such calendar year (or Lease year or other applicable
accounting period, as the case may be), such estimated amounts are to be
recalculated based upon the actual expenses, taxes and other relevant factors
for that calendar year, Lease year or other applicable accounting period, with
the appropriate adjustments being made with such tenants, then such portion of
the Additional Rent shall be prorated between the applicable Existing Partners
and BPLP at the Closing based on such estimated payments (i.e., with the
applicable Existing Partners entitled to retain all monthly or other periodic
installments of such amounts paid with respect to periods prior to the calendar
month or other applicable installment period in which the Closing occurs; the
applicable Existing Partners to pay to BPLP at the Closing all monthly or other
periodic installments of such amounts theretofore received by such Existing
Partners (or the Property Owner in which such Existing Partners are partners)
with respect to periods following the calendar month or other applicable
installment period in which the Closing occurs, and the applicable Existing
Partners and BPLP to apportion as of the Closing Date all monthly or other
periodic installments of such amounts with respect to the calendar month or
other applicable installment period in which the Closing occurs).
(vi) At the time(s) of final calculation and collection from (or
refund to) each tenant of the amounts in reconciliation of actual Additional
Rent for a period for which estimated amounts paid by such tenant have been
prorated, there shall be a re-proration between the applicable Existing Partners
and BPLP. If, with respect to any tenant, the recalculated Additional Rent
exceeds the estimated amount paid by such tenant, (i) the entire excess (but
only to the extent of the amounts actually paid by such tenant and received by
BPLP, and net of all applicable expenses attributable thereto) shall be paid by
BPLP to the applicable Existing Partners, if the accounting period for which
such recalculation was made expired prior to the Closing, and (ii) such excess
shall be apportioned between the applicable Existing Partners and BPLP as of the
Closing Date (on the basis described in paragraph (a) above), if the Closing
occurred during the accounting period for which such recalculation was made,
with BPLP paying to the applicable Existing Partners the portion of such excess
which such Existing Partners are so entitled to receive (but only to the extent
of the amounts actually paid by such tenant and received by BPLP, and net of all
applicable expenses attributable thereto), and with the applicable Existing
Partners paying to BPLP the portion of such excess which BPLP is entitled to
receive (but only to the extent of the amounts actually paid by such tenant and
received by the Existing Partners). If, with respect to
any tenant, the recalculated Additional Rent is less than the estimated amount
paid by such tenant, (1) the entire shortfall shall be paid by the applicable
Existing Partners to BPLP, if the accounting period for which such recalculation
was made expired prior to the Closing, and (2) such shortfall shall be
apportioned between the applicable Existing Partners and BPLP as of the Closing
Date (on the basis described in paragraph (a) above), if the Closing occurred
during the accounting period for which such recalculation was made, with the
applicable Existing Partners paying to BPLP the portion of such shortfall so
allocable to such Existing Partners.
(c) Rent and such tenant charges (including Additional Rent) which are due
but uncollected as of the Closing Date shall not be adjusted.
5.3 PAYMENTS ON PERMITTED EXCEPTIONS. All payments of principal and
interest, and all other amounts of any kind or nature on the Mortgage Debt
(including amounts related to repayment or assumption of the Mortgage Debt
according to the terms hereof, except only the NML Closing Costs) shall be the
sole cost and expense of Property Owners. Payments, if any, owing under and any
Permitted Exceptions shall be apportioned on a per diem basis as of 11:59 p.m.
on the date immediately preceding the applicable Closing Date.
5.4 CONSTRUCTION AGREEMENT PAYMENTS AND OTHER EXPENSES. Payments under
all Assigned Contracts shall be apportioned on a per diem basis as of 11:59 p.m.
on the date immediately preceding the applicable Closing Date to the extent
possible. All such expenses accruing prior to such Closing Date shall be deemed
to be the responsibility of the applicable Existing Partners and all such
expenses accruing as of such Closing Date and thereafter shall be expenses of
BPLP. If final bills are not available as of the applicable Closing, amounts to
be prorated under this Section shall be prorated on the basis of the most
current bills then available and promptly re-prorated on receipt of final bills.
All such expenses for the period preceding the applicable Closing Date shall be
the responsibility of the applicable Existing Partners, and all such expenses
commencing as of such Closing Date shall be deemed to be expenses of BPLP. This
Section 5.4 shall survive the Closing.
5.5 PARTNERS' ELECTIONS. All costs and expenses associated with
preparing, printing, distributing and collecting the Consents, including,
without limitation, all federal and state securities filings associated
therewith (excluding, however state and federal "blue sky" filings), shall be
the responsibility of the Existing Partners.
5.6 REIMBURSEMENT FOR DEPOSITS. At the Closing, (a) all cash balances
maintained by the Property Owners in unrestricted bank accounts may be withdrawn
and retained by the Existing Partners, (b) all receivables of the applicable
Property Owners set forth on Schedule DD of the Contribution Agreement (as they
relate to the Properties) shall be treated as a credit to the Existing Partners
for the purposes of adjustments made pursuant to this Article 5 and (c) BPLP
shall replace all letters of credit, bond deposits, sinking funds, escrows,
similar funds and other amounts relating to the Properties as set forth on
Schedule DD of the Contribution Agreement. All of the
foregoing payments shall be made in cash at the Closing and none of the
foregoing shall have any effect on the calculation of the Contribution Price
under this Agreement.
5.7 POST-CLOSING AUDIT. On or before March 31, 1999 (or March 31, 2000 if
with respect to a Property which is acquired during 1999), BPLP shall cause a
post-Closing audit to be conducted by Coopers & Xxxxxxx, LLP (or such other
accounting firms as may be selected by BPLP and reasonably satisfactory to the
Xxxxxx Parties) to determine the accuracy of all prorations made under this
Article (the "POST-CLOSING AUDIT"). The Xxxxxx Parties shall have the right to
review and reasonably approve the results of such Post-Closing Audit. In the
event the Xxxxxx Parties do not so approve the results of such Post-Closing
Audit, BPLP and the Xxxxxx Parties shall jointly retain another accounting firm
(which accounting firm shall be reasonably satisfactory to BPLP and the Xxxxxx
Partners) to review such Post-Closing Audit. Any decision of such other
accounting firm with respect to such Post-Closing Audit shall be binding upon
BPLP and the Xxxxxx Parties. Any party owing another party a sum of money based
on post-Closing prorations required under this Article or the Post-Closing
Audit, as reasonably approved by BPLP and the Property Owners, shall promptly
pay such sum to the other party, together with interest thereon at twelve
percent (12%) per annum from the Closing Date to the date of payment if payment
is not made within ten (10) days after delivery of a xxxx therefor. This
Section 5.7 shall survive Closing.
ARTICLE 6 - DEFAULTS AND REMEDIES
6.1 DEFAULTS. In the event of (i) any conditions precedent set forth in
Article 2 above, to the obligations of a party have not been satisfied (or
waived in writing by the other party) on or before the Closing Date (as the same
may be extended pursuant to this Agreement or by agreement of the parties), and
any such conditions precedent remains unsatisfied for more than fifteen (15)
days following receipt of notice thereof from the other party or (ii) of a
failure by a party to perform any of its obligations hereunder in any material
respect, which failure continues for more than thirty (30) days following
receipt of notice thereof from the other party, then the other party shall have
the right to terminate its obligation to complete the transaction contemplated
under this Agreement by delivery of notice thereof to the other party; provided
that with respect to any Willful Breach, such thirty (30) day cure period shall
extend for so long as the applicable Property Owner or Xxxx X. Xxxxxx is curing
such Willful Breach, as described in the definition of "Willful Breach." This
Agreement may also be terminated in accordance with Section 1.2 above. In the
event of a failure of a condition to a party's obligations under this Agreement,
such party shall, as its sole and exclusive remedy (except as set forth in this
Article below), either elect to terminate its obligation to complete the
transaction contemplated under this Agreement or to waive satisfaction of such
condition, each by delivery of notice thereof to the other party. Subject to the
terms of this Article set forth below, upon any such termination or any
termination otherwise permitted under this Agreement, all rights and obligations
of the parties under this Agreement, other than those that by their terms
survive termination, shall terminate without recourse, and this Agreement shall
be of no further force or effect.
6.2 REMEDIES OF BPLP. In addition to its right to terminate this
Agreement, as provided elsewhere in this Agreement, upon the occurrence on or
before the second Closing Date hereunder of a willful breach by a Property Owner
and/or any Existing Partner in the performance of any of their respective
obligations under this Agreement, which willful breach continues for more than
fifteen (15) days following receipt of notice thereof, BPLP shall also have the
right, as its sole and exclusive remedy other than termination, to seek and
obtain specific performance of the terms of this Agreement, including, without
limitation the right to seek and obtain specific performance of the conveyance
to BPLP (in accordance with the terms and procedures contained in this
Agreement) of the Partnership Interests and/or Fee Properties.
6.3 OPTION PAYMENTS.
(a) Simultaneously with the execution and delivery of this Agreement, and
as consideration for the Property Owners entering into this Agreement, BPLP
shall pay to the applicable Property Owner the amount of $5,854,000 with respect
to the 206 Property (the "206 PROPERTY OPTION PAYMENT") and $1,385,000 with
respect to the 510 Property (the "510 PROPERTY OPTION PAYMENT" and, together
with the 206 Property Option Payment, the "OPTION PAYMENTS"), in cash. BPLP
acknowledges that Property Owners shall be entitled to receive and retain the
Option Payments prior to Closing or earlier termination of this Agreement, and
that BPLP shall not be entitled to the return of the Option Payments under any
circumstance hereunder. Upon any termination of its obligation to complete the
transaction contemplated by this Agreement by Property Owners under Section 6.1
or otherwise, the Xxxxxx Parties, as their sole and exclusive remedy under this
Agreement, and in consideration of the payment by BPLP of the Option Payments,
shall have the right to terminate this Agreement and the Xxxxxx Parties
obligations hereunder.
(b) Simultaneously with the execution and delivery of this Agreement, BPLP
shall deposit with 510 Associates the amount of $5,360,400 and shall deposit
with 206 Associates the amount of $3,573,600 (collectively, the "REFUNDABLE
OPTION PAYMENT"), in cash, with respect to the 206 Property and the 510
Property, respectively. BPLP acknowledges that the Xxxxxx Parties shall have
use of the Refundable Option Payments prior to Closing or earlier termination of
this Agreement. Notwithstanding anything to the contrary contained in this
Section 6.3, or elsewhere in this Agreement, upon the satisfaction of all
Closing Trigger Events, the Refundable Option Payment shall become, for all
purposes hereunder, a "NONREFUNDABLE OPTION PAYMENT", and shall, upon such
satisfaction, be fully earned and nonrefundable by the Xxxxxx Parties hereunder.
Upon any termination by BPLP of its obligation to complete the transaction
contemplated under this Agreement as a result of a Willful Breach or, in
accordance with its terms on July 1, 2010 BPLP shall be entitled to return of
the Refundable Option Payment (except only if and to the extent that such
Refundable Option Payment has become a Nonrefundable Option Payment hereunder)
and the Xxxxxx Parties shall promptly return and repay such Refundable Option
Payment (except only if and to the extent that such Refundable Option Payment
has become a Nonrefundable Option Payment hereunder) to BPLP. Upon any
termination of this Agreement
by the Xxxxxx Parties pursuant to the terms of this Agreement (other than as a
result of the termination of this Agreement on July 1, 2010), the Xxxxxx Parties
shall be entitled to retain the Refundable Option Payment (or the Nonrefundable
Option Payment, as applicable) as its sole and exclusive remedy.
6.4 LIQUIDATED DAMAGES. THE XXXXXX PARTIES HEREBY AGREE THAT THEY SHALL
NOT BE ENTITLED TO ACTUAL DAMAGES UPON A TERMINATION OF THIS AGREEMENT AND THAT
IF THE XXXXXX PARTIES TERMINATE THIS AGREEMENT WHEN PERMITTED HEREUNDER PURSUANT
TO SECTION 6.1, THE XXXXXX PARTIES SHALL ONLY BE ENTITLED TO THE REFUNDABLE
OPTION PAYMENT (OR THE NONREFUNDABLE OPTION PAYMENT, AS APPLICABLE), AS
DESCRIBED ABOVE IN THIS ARTICLE. THE XXXXXX PARTIES AGREE THAT IT IS IMPOSSIBLE
TO CALCULATE WHAT THEIR ACTUAL DAMAGES WOULD BE IN THE EVENT OF SUCH A
TERMINATION, AND THE XXXXXX PARTIES AGREE THAT THE SUM OF THE REFUNDABLE OPTION
PAYMENT (OR THE NONREFUNDABLE OPTION PAYMENT, AS APPLICBLE) IS A REASONABLE
ESTIMATION THEREOF. THEREFORE, THE XXXXXX PARTIES ACKNOWLEDGE THAT THEIR RIGHT
TO RETAIN THE REFUNDABLE OPTION PAYMENT (OR THE NONREFUNDABLE OPTION PAYMENT, AS
APPLICABLE) SHALL CONSTITUTE LIQUIDATED DAMAGES AND THEIR SOLE RIGHT AND REMEDY
UPON A TERMINATION BY THEM OF THIS AGREEMENT PURSUANT TO SECTION 6.1.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION, NOTHING
CONTAINED IN THIS SECTION SHALL BE DEEMED TO LIMIT BPLP'S LIABILITY UNDER ITS
INDEMNITY CONTAINED IN SECTION 7.2.
6.5 POST-CLOSING REMEDIES. The parties hereto acknowledge and agree that
the limitations on remedies contained in this Article only apply in the event
that the transactions contemplated under this Agreement do not occur and do not,
subject to the terms of Article 7, apply post-Closing. As to Properties which
have been acquired by BPLP, the sole remedies from and after the applicable
Closing Date with respect to such Properties shall be as set forth in Article 7.
ARTICLE 7 - INDEMNIFICATION
7.1 SURVIVAL.
(a) All representations and warranties of Xxxx X. Xxxxxx and the
Existing Partners contained in this Agreement or in the Representation Letter
shall survive the Closing regardless of any investigation made as follows: (x)
the representations and warranties set forth in Section 3.1(a), the first
sentence of Section 3.1(b), Section 3.1(m), Section 3.1(n) and Section 9.1 of
this Agreement and in the Representation Letter, shall survive the Closing
indefinitely (the "SPECIFIED REPRESENTATIONS") and (y) (i) the representations
and warranties set forth in Section
3.1(j), shall survive only until (but excluding) the date which is the second
anniversary of the Closing) and (ii) the representations and warranties set
forth in Section 3.1(u), shall survive only until (but including) the expiration
of the statute of limitations with respect to the contribution of Partnership
Interests as contemplated by this Agreement and (z) all other representations
and warranties shall survive only until (but excluding) the date which is the
first anniversary of the Closing (such representations and warranties in clauses
(y) and (z), the "LIMITED SURVIVAL REPRESENTATIONS") provided that, if a Notice
of Claim asserting a claim for breach of any such Limited Survival
Representations or a claim for indemnification under this Article 7 with respect
to any such Limited Survival Representations shall have been given prior to the
expiration of such Limited Survival Representations, such Limited Survival
Representations shall survive, to the extent of the claim only, until such claim
is resolved.
(b) All representations and warranties of BPLP contained in this
Agreement shall survive the Closing regardless of any investigation made as
follows: (x) the representations and warranties set forth in Section 3.2(a),
the first sentence of Section 3.2(b), Section 3.2(d), the first sentence of
Section 3.2(j) and Section 9.1 of this Agreement shall survive the Closing
indefinitely (the "SPECIFIED TRANSFEREE REPRESENTATIONS") and (y) the
representations and warranties set forth in Section 3.2(l), shall survive only
until (but including) the expiration of the statute of limitations with respect
to the contribution of Partnership Interests as contemplated by this Agreement
and (z) all other representations and warranties shall survive only until (but
excluding) the date which is the first anniversary of the Closing (such
representations and warranties in clauses (y) and (z), the "LIMITED SURVIVAL
TRANSFEREE REPRESENTATIONS") provided that, if a Notice of Claim asserting a
claim for breach of any such Limited Survival Transferee Representations or a
claim for indemnification under this Article 7 with respect to any such Limited
Survival Transferee Representations shall have been given prior to the
expiration of such Limited Survival Transferee Representations, such Limited
Survival Transferee Representations shall survive, to the extent of the claim
only, until such claim is resolved.
(c) With respect to any claim by a party hereto for indemnification
for a Loss resulting from the breach of the representations or warranties
contained in this Agreement (or, with respect to the applicable Xxxxxx Parties,
the Representation Letters), notice of such claim ("NOTICE OF CLAIM") must be
given to the relevant other party within the survival period for the relevant
representation or warranty. Notwithstanding the foregoing, claims brought by
(i) any Transferee Indemnified Party in connection with any Limited Survival
Representation which is untrue as a result of fraud by the party making it or
(ii) any Xxxxxx Indemnified Party in connection with any Limited Survival
Transferee Representation which is untrue as a result of fraud by the party
making it, may be brought at any time, without regard to the limitations on
survival set forth in this Section 7.1 above.
7.2 INDEMNIFICATION BY THE XXXXXX PARTIES. Subject to the limitations on
the indemnification obligations set forth in this Article 7, if the Closing
occurs, from and after the Closing Date, (i) Xxxx X. Xxxxxx agrees to indemnify,
defend and hold harmless the BPLP
Indemnified Parties from and against all Losses which are incurred or suffered
by any one or more of them based upon, arising out of, in connection with or by
reason of (A) the breach by Xxxx X. Xxxxxx of the representations and warranties
in his Representation Letter or the breach by any Xxxxxx Party of the Limited
Survival Representations and/or the Specified Representations under this
Agreement (except that, with respect to the Limited Survival Representations
only, Xxxx X. Xxxxxx' liability under this Article 7 shall be limited to the
Units pledged or other collateral provided to Transferee pursuant to Section 7.8
below) or (B) any Excluded Liability or (C) any Partnership Claim and (ii) each
Existing Partner (severally and not jointly) agrees to indemnify, defend and
hold harmless the BPLP Indemnified Parties from and against all Losses which are
incurred or suffered by any one or more of them based upon or arising out of (A)
any breach of representation or warranty made by such person in this Agreement
or in such person's Representation Letter or (B) any Excluded Liability which is
or was a liability of such Existing Partner of Assignor.
7.3 LIMITATIONS ON CERTAIN INDEMNIFICATION OBLIGATIONS OF THE XXXXXX
PARTIES. With respect to the indemnification obligations under Section 7.2, the
following provisions, if and to the extent applicable, shall apply:
(a) Time Limit Regarding Limited Survival Representations. The
indemnity obligations shall not apply to any Loss based upon a breach of the
Limited Survival Representations as to which the BPLP Indemnified Party did not
give a timely Notice of Claim in accordance with Section 7.1(c).
(b) Minimum Threshold for Claims for Losses: Credit. Xxxx X. Xxxxxx
and the Existing Partners shall have no liability to the BPLP Indemnified
Parties under this Agreement for the first $500,000 of Losses incurred by the
BPLP Indemnified Parties under this Agreement and Article 7 of the Contribution
Agreement (i.e. the $500,000 threshold hereunder shall be reduced both for
losses incurred by the BPLP Indemnified Parties under this Agreement and under
the Contribution Agreement). Notwithstanding the foregoing limitation on
liability, Xxxx X. Xxxxxx and the Existing Partners shall have liability for all
Losses incurred by the BPLP Indemnified Parties which relate to or arise from
(i) Excluded Liabilities which relate to the Northwestern Mutual Commitment,
(ii) obligations with respect to lease commissions and tenant allowances
(including without limitation, the Covance-Xxxxxxx Lease Commission and the
Covance Tenant Improvement Allowance), except to the extent BPLP has received a
credit for such amounts pursuant to this Agreement. In addition, the BPLP
Indemnified Parties shall, upon the applicable Closing, be deemed to have waived
any right to indemnification with respect to Losses which relate solely to an
Identified Breach, if such Identified Breach was a Material Adverse Effect, and
BPLP nevertheless elected to consummate the transactions contemplated by this
Agreement on the applicable Closing Date hereunder, notwithstanding the
existence of such Material Adverse Effect.
(c) Maximum Liability for Breaches of Limited Survival
Representations: Cap. Except in the case of fraudulent conduct, the aggregate
liability of Xxxx X. Xxxxxx and the Existing
Partners for Losses incurred with respect to Limited Survival Representations
shall not exceed $15,000,000 minus the aggregate liability actually paid by Xxxx
X. Xxxxxx, the Existing Partners and the Assignors (other than with respect to
the AT&T Obligations) (all such terms as defined in the Contribution Agreement)
with respect to Limited Survival Representations (as defined in the Contribution
Agreement) pursuant to Article 7 of the Contribution Agreement (i.e., the
$15,000,000 maximum hereunder shall be reduce both for claims paid with respect
to Limited Survival Representations under Article 7 of this Agreement and under
Article 7 of the Contribution Agreement, other than with respect to AT&T
Obligations).
(d) Third Party Recoveries. There shall be netted from any payment
for a Loss required under Section 7.2: (i) the amount of any indemnification
received by the indemnified party from an unrelated party with respect to such
Loss and (ii) the amount of any insurance proceeds or other cash receipts paid
to the indemnified party against any such Loss provided, however, that any such
recoveries from unrelated parties and/or insurers shall not reduce the maximum
aggregate liability of the applicable Xxxxxx Parties under Section 7.3(c) above.
(e) Pledged Units. The indemnity obligations of the Xxxxxx Parties
under this Article 7 shall be satisfied by any BPLP Indemnified Party in all
cases first against Units pledged or other collateral provided under Section 7.8
below. In the event that notwithstanding such requirement, for any reason an
indemnification claim is paid by any Xxxxxx Party Indemnitor under Section 7.2
hereof (whether by judgment, arbitration award, settlement or otherwise) to any
BPLP Indemnified Party then BPLP shall release Units or other collateral, if
applicable, from the pledge under Section 7.8 having a value equal to the amount
so paid.
7.4 INDEMNIFICATION BY BPLP. Subject to the limitations on the
indemnification obligations set forth in this Article 7, if the Closing occurs,
from and after the Closing Date, BPLP agrees to indemnify, defend and hold
harmless the Xxxxxx Indemnified Parties from and against all Losses which are
incurred or suffered by any one or more of them (A) based upon, arising out of,
in connection with or by reason of the breach of any of the representations or
warranties of BPLP in this Agreement, (B) based upon, arising out of, in
connection with or by reason of any Assumed Liability, (C) based upon, arising
out of, in connection with or by reason of any claim for personal liability
brought by any holder of the 510 NML Loan against any Xxxxxx Indemnified Party
pursuant to guaranty or other provisions contained in the documents evidencing
such 510 NML Loan as of the Closing Date, but only if and to the extent such
liability arises and relates solely to the period from and after the Closing
Date, or (D) based upon or arising out of BPLP's operation or ownership of the
Property Owners (or their successors and assigns) or their respective assets
after the Closing Date, but only if and to the extent such liability arises and
relates solely to the period from and after the Closing Date (and further, only
to the extent that the BPLP Indemnified Parties are not entitled to
indemnification by any Xxxxxx Party under this Article 7).
7.5 LIMITATIONS ON CERTAIN INDEMNIFICATION OBLIGATIONS OF BPLP. With
respect to the indemnification obligations under Section 7.4, the following
provisions, if and to the extent applicable, shall apply:
(a) Time Limit. The indemnity obligations shall not apply to any Loss
based upon a breach of the Limited Survival Transferee Representations as to
which the Xxxxxx Indemnified Parties did not give a timely Notice of Claim in
accordance with Section 7.1(c).
(b) Third Party Recoveries. There shall be netted from any payment
for a Loss required under Section 7.4: (i) the amount of any indemnification
received by the indemnified party from an unrelated party with respect to such
Loss and (ii) the amount of any insurance proceeds or other cash receipts paid
to the indemnified party against any such Loss.
7.6 INDEMNIFICATION PROCEDURE.
(a) Notice of Claim: In the event that any party shall incur or
suffer any Losses in respect of which indemnification may be sought by such
party pursuant to the provisions of this Article 7, the party seeking to be
indemnified hereunder (the "INDEMNITEE") shall promptly provide a Notice of
Claim to the party from whom indemnification is sought (the "INDEMNITOR")
stating the nature and basis of such claim, and the estimated amount of the
claim, to the extent specified or otherwise known or reasonably estimated. In
the case of Losses arising by reason of any third party claim, the Notice of
Claim shall be given promptly after the filing of any such claim against the
Indemnitee or the determination by Indemnitee that a claim will ripen into a
claim for which indemnification will be sought, but the failure of the
Indemnitee to give the Notice of Claim within such time period shall not relieve
the Indemnitor of any liability that the Indemnitor may have to the Indemnitee
except to the extent that the Indemnitor is prejudiced thereby and then only to
the extent of such prejudice.
(b) Information: The Indemnitee shall provide to the Indemnitor on
request all information and documentation in the possession or under the control
of the Indemnitee reasonably necessary to support and verify any Losses which
the Indemnitee believes give rise to a claim for indemnification hereunder and
shall give the Indemnitor reasonable access to all books, records and personnel
in the possession or under the control of the Indemnitee which would have
bearing on such claim.
(c) Third Party/Other Claims: In the case of third party claims for
which indemnification is sought, the Indemnitor shall have the option (x) to
conduct any proceedings or negotiations in connection therewith, (y) to take all
other steps to settle or defend any such claim (provided that the Indemnitor
shall not, without the consent of the Indemnitee, settle any such claim on terms
which provide for (a) a criminal sanction or fine, (B) injunctive relief or (C)
monetary damages in excess of the amount that the Indemnitor is required to pay
hereunder) and (z) to employ counsel, which counsel shall be reasonably
acceptable to the Indemnitee, to contest
any such claim or liability in the name of the Indemnitee or otherwise. In any
event, the Indemnitee shall be entitled to participate at its own expense and by
its own counsel in any proceedings relating to any third party claim; provided,
however, that if the defendants in any such action or claim include both the
Indemnitee and the Indemnitor and the Indemnitee shall have reasonably concluded
that there would be a conflict of interest under DR 5-105 of the Code of
Professional Responsibility or other applicable federal or state law were the
same counsel to represent the Indemnitee and the Indemnitor, the Indemnitee
shall be entitled to be represented by separate counsel at the Indemnitor's
expense (provided, however, that Indemnitor shall only be obligated to pay for
one (1) additional counsel with respect to all Indemnitees). So long as the
Indemnitor has assumed defense of an action or claim, such action or claim shall
not be settled without the Indemnitor's consent, which shall not unreasonably be
withheld. The Indemnitor shall, within thirty (30) days of receipt of the Notice
of Claim, notify the Indemnitee of its intention to assume the defense of such
claim. Until the Indemnitee has received notice of the Indemnitor's election
whether to defend any claim, the Indemnitee shall take reasonable steps to
defend (but may not settle) such claim. If the Indemnitor shall decline to
assume the defense of any such claim, or shall fail to notify the Indemnitee
within thirty (30) days after receipt of the Notice of Claim of the Indemnitor's
election to defend such claim, the Indemnitee may defend against and/or settle
such claim. The expenses of all proceedings, contests or lawsuits in respect of
the claims described in the preceding sentence shall be borne by the Indemnitor
but only if the Indemnitor is responsible pursuant hereto to indemnify the
Indemnitee in respect of the third party claim and, if applicable, only as
required within the limitations set forth in Sections 7.2 or 7.4 as the case may
be. Regardless of which party shall assume the defense of the claim, the parties
agree to cooperate fully with one another in connection therewith.
(d) Payment of Losses: In the case of a claim for indemnification
made under Section 7.2 or 7.4, (i) if (and to the extent) the Indemnitor is
responsible pursuant hereto to indemnify the Indemnitee in respect of the third
party claim, then within five (5) Business Days after the occurrence of a final
non-appealable determination with respect to such third party claim (or sooner
if required by such determination), the Indemnitor shall pay the Indemnitee (or
sooner if required by such determination) and delivery of notice from the
Indemnities to the Indemnitor thereof, in immediately available funds, the
amount of any Losses (or such portion thereof as the Indemnitor shall be
responsible for pursuant to the provisions hereof) and (ii) in the event that
any Losses incurred by the Indemnitee do not involve payment by the Indemnitee
of a third party claim, then, if (and to the extent) the Indemnitor is
responsible pursuant hereto to indemnify the Indemnitee against such Losses, the
Indemnitor shall within five (5) Business Days after agreement on the amount of
Losses or the occurrence of a final non-appealable determination of such amount
pay to the Indemnitee, in immediately available funds, the amount of such Losses
(or such portion thereof as the Indemnitor shall be responsible for pursuant to
the provisions hereof) (such notices under clauses (i) or (ii),a "DEMAND FOR
PAYMENT").
7.7 COOPERATION IN DEFENSE. Each party indemnified under any indemnity
contained in this Agreement shall cooperate in all reasonable respects in the
defense of the third-party claim pursuant to which the indemnifying party is
alleged to have liability.
7.8 PLEDGE OF UNITS. Simultaneously with the execution and delivery of
this Agreement, and upon the first Closing Date under the Contribution
Agreement, Xxxx X. Xxxxxx and Xxxxx Xxxxxx executed and delivered a Pledge and
Security Agreement pursuant to which Xxxx X. Xxxxxx and Xxxxx Xxxxxx pledged a
portion of the Units received by them upon such first Closing Date, which Pledge
and Security Agreement provides security for certain obligations of the Xxxxxx
Parties (as defined in the Contribution Agreement), including without
limitation, the indemnification obligations of such Xxxxxx Parties under Article
7 of the Contribution Agreement. Notwithstanding anything to the contrary
contained in the Contribution Agreement or in this Agreement, such Pledge and
Security Agreement shall also, from and after the date of this Agreement,
provide security for the Xxxxxx Parties' (as defined in this Agreement)
obligations under this Article 7, including, without limitation, to satisfy any
Losses incurred by BPLP as a result of any breach of a representation, warranty,
covenant or indemnification of the Xxxxxx Parties under this Agreement.
ARTICLE 8 - INTENTIONALLY OMITTED
ARTICLE 9 - MISCELLANEOUS
9.1 BROKERS. Each party to this Agreement represents and warrants that
neither it nor any of its Affiliates has had any contact or dealings regarding
the Properties, or any communication in connection with the subject matter of
the transaction contemplated by this Agreement, through any real estate broker
or other person who can claim a right to a commission or finder's fee in
connection therewith (other than Eastdil Realty Company, L.L.C. and Bear,
Xxxxxxx & Co., Inc., who shall be paid by Property Owners on or prior to the
applicable Closing). In the event that any broker or finder claims a commission
or finder's fee based upon any contact, dealings or communication, the party
through whom or through whose Affiliate such broker or finder makes its claim
shall be responsible for the commission or fee and all costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by the other party and its Affiliates in defending against the same.
The party through whom or through whose Affiliate such broker or finder makes a
claim shall hold harmless, indemnify and defend the other party hereto and its
Affiliates and their respective, agents, employees, officers and directors, and
the Properties from and against any and all Losses, arising out of, based on, or
incurred as a result of such claim. The provisions of this Section shall survive
the Closing or termination of the parties' obligations to complete the
transaction contemplated by this Agreement.
9.2 MARKETING. During the term of this Agreement, the Xxxxxx Parties
agree not to market the Properties for sale or entertain or discuss any offer to
purchase or acquire the Properties with any Person other than BPLP and its
Affiliates.
9.3 ENTIRE AGREEMENT; NO AMENDMENT. This Agreement (together with the
Related Agreements) represents the entire agreement among each of the parties
hereto with respect to the subject matter hereof. It is expressly understood
that no representations, warranties, guarantees or other statements with respect
to the subject matter hereof shall be valid or binding upon a party unless
expressly set forth in this Agreement. It is further understood that any prior
agreements or understandings between the parties with respect to the subject
matter hereof have merged in this Agreement, which alone fully expresses all
agreements of the parties hereto as to the subject matter hereof and supersedes
all such prior agreements and understandings. This Agreement may not be amended,
modified or otherwise altered except by a written agreement signed by the party
hereto against whom enforcement is sought. It is agreed that no obligation under
this Agreement which by its terms is to be performed or continue to be performed
after Closing and no provision of this Agreement which is expressly to survive
Closing shall merge upon Closing, but shall survive Closing.
9.4 CERTAIN EXPENSES. Each party hereto will pay all of its own expenses
incurred in connection with this Agreement and the transaction contemplated
hereby (whether or not the Closing shall take place), including, without
limitation, all costs and expenses herein stated to be borne by such party and
all of its respective accounting, legal, investigatory and appraisal fees.
Property Owners shall be responsible for paying (i) all amounts required to be
paid to the holders of the Mortgage Debt in connection with the repayment and/or
assumption of the Mortgage Debt, as applicable (except only the NML Closing
Costs, as set forth in Section 1.6 above), (ii) all applicable State, County and
City transfer taxes and/or transfer fees due in connection with transfer of the
Properties to BPLP, (iii) all costs associated with obtaining an "as-built"
survey required under Section 2.1(b) and (iv) all costs associated with the
applicable UCC searches required under Section 2.1(j)(xi). Any escrow fees
incurred in connection with the transfer of title to the Properties as
contemplated by this Agreement shall be split evenly between BPLP and Property
Owners. All other costs and charges in connection with the conveyance of the
Properties contemplated by this Agreement not otherwise provided for in this
Agreement shall be allocated by standard accounting and conveyancing practices
in the relevant jurisdiction where the Properties are located. The cost of
recording any deeds or other documents of conveyance (but excluding any transfer
taxes and/or transfer fees or other similar taxes, fees or charges) shall be
paid by BPLP. All sales taxes incurred in connection with the sale of personal
property hereunder shall be paid by BPLP. This provision shall survive Closing.
9.5 INTENTIONALLY OMITTED.
9.6 NOTICES. Any notice or communication required under or otherwise
delivered in connection with this Agreement to any of the parties hereto shall
be written and shall be delivered to such party at the following address:
If to any Xxxxxx Party:
The Xxxxxx Group
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxx and
Xxxxxxxx Xxxxxx
Fax: (000) 000-0000
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Mechanic, Esq.
Fax: (000) 000-0000
And
Xxxxxx Xxxx & Dinowitz, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to BPLP to:
Boston Properties Limited Partnership
c/o Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Vice President and
Xxxxxxxxx X. XxXxxxxxx, Esq., General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000 and
(000) 000-0000
Each notice shall be in writing and shall be sent to the party to receive it,
postage prepaid by certified mail, return receipt requested, or by a nationally
recognized overnight courier service that provides tracking and proof of
receipt. Inclusion of fax numbers is for conveniences only, and notice by fax
shall neither be sufficient nor required. Notices shall be deemed delivered
upon receipt. Each party may change its address for notice by giving notice to
all other parties in the manner required under this Section 9.6.
9.7 NO ASSIGNMENT. Except as provided in this Section below, neither this
Agreement nor any of the rights or obligations hereunder may be assigned by any
party hereto without the prior written consent of the other parties. Transferee
may, without such consent, assign all or any portion of its rights and
obligations hereunder to an Affiliate provided such Affiliate assumes all
obligations and liabilities of Transferee hereunder effective as of the date of
any such assignment. An assignment by Transferee shall not release Transferee
from responsibility for performance of its obligations hereunder. Each Existing
Partner (other than Xxxx X. Xxxxxx) may, without such consent, transfer all or
any portion of its Partnership Interests to any other Xxxxxx Party provided such
Xxxxxx Party assumes all obligations and liabilities of such Existing Partner
with respect to such transferred Partnership Interests hereunder effective as of
the date of any such transfer. A transfer by an Existing Partner shall not
release such Existing Partner from responsibility for performance of its
obligations hereunder.
9.8 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (without regard, to the
fullest extent permitted by law, to any conflict of laws rules which might
result in the application of the laws of any other jurisdiction).
9.9 MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
counterparts. If so executed, all of such counterparts shall constitute but one
agreement, and, in proving this Agreement, it shall not be necessary to produce
or account for more than one such counterpart.
9.10 FURTHER ASSURANCES. From and after the date of this Agreement and
after the Closing, the parties hereto shall take such further actions and
execute and deliver such further documents and instruments as may be reasonably
requested by the other party and are necessary to provide to the respective
parties hereto the benefits intended to be afforded hereby.
9.11 MISCELLANEOUS. Whenever herein the singular number is used, the same
shall include the plural, and the plural shall include the singular where
appropriate, and words of any gender shall include the other gender when
appropriate. The headings of the Articles and the Sections contained in this
Agreement are for convenience only and shall not be taken into account in
determining the meaning of any provision of this Agreement. The words "hereof"
and "herein" refer to this entire Agreement and not merely the Section in which
such words appear. If the last day for performance of any obligation hereunder
is not a Business Day, then the deadline for such performance or the expiration
of the applicable period or date shall be extended to the next Business Day.
9.12 INVALID PROVISIONS. If any provision of this Agreement (except the
provisions relating to the Property Owners' and Assignors' obligations to
contribute or cause the contribution of the Property and the transfer of the
Assets or BPLP's obligation to issue the Units, the invalidity of which shall
cause this Agreement to be null and void) is held to be illegal, invalid or
unenforceable under present or future laws, such provision shall be fully
severable, this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Agreement,
and the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement.
9.13 CONFIDENTIALITY; PUBLICITY. The Property Owners agree that this
Agreement shall not be recorded in any public real estate registry. Transferee
agrees to maintain in confidence through Closing, unless otherwise required by
applicable Law, reporting requirements or accounting or auditing standards to
disclose, all material and information received from the Property Owners or
otherwise regarding the Property. In the event the parties' obligations to
complete the transaction contemplated by this Agreement are terminated, upon
Property Owners' written request, Transferee shall promptly return to the
Property Owners, or destroy, all materials delivered to Transferee by the
Property Owners and all copies thereof. The Property Owners and Transferee
agree that, prior to the Closing Date, none of them, without the prior written
consent of the other, shall publicly or privately reveal any information
relating to the existence or terms and conditions of the transaction
contemplated hereby, except as permitted below in this Section or in any other
Confidentiality Agreement entered into by of the parties hereto. The parties
agree that nothing in this Section shall prevent a party from disclosing any
information otherwise deemed confidential under this Section (i) in connection
with its enforcement of its rights hereunder, or (ii) pursuant to any legal
requirement, including, without limitation, any Securities Laws, any reporting
requirement or any accounting or auditing standard or any court order. The
Property Owners and Transferee further agree that nothing in this Section shall
prevent any of them from disclosing any information otherwise deemed
confidential under this Section to its respective agents, employees, counsel and
other third parties to the extent reasonably necessary to perform due diligence
and complete the transaction contemplated hereby. Notwithstanding anything to
the contrary contained herein, all publicity concerning the transaction
contemplated by this Agreement shall be subject to the reasonable approval of
Transferee and the Property Owners. This provision shall survive termination of
this Agreement.
9.14 TIME OF ESSENCE. Time is of the essence with respect to this
Agreement.
9.15 XXXXXX PARTIES' REPRESENTATIVE. Notwithstanding anything to the
contrary contained in this Agreement, the Xxxxxx Parties hereby agree that Xxxx
X. Xxxxxx shall have the power and authority to act on behalf of the Xxxxxx
Parties, including without limitation to grant any consent, waiver or approval
or make any decision or take any action, including receiving or giving notices
hereunder or terminating this Agreement in accordance with Section 6.1 above, on
behalf of and as the duly authorized agent and representative of the Xxxxxx
Parties. The Existing Partners and the Assignors, acknowledging that the
Transferee will rely on such appointment, hereby irrevocably and unconditionally
appoint Xxxx X. Xxxxxx as their authorized agent and representative to act in
connection with and to settle and otherwise agree to any adjustment, proration
or other reduction in the aggregate consideration to be paid to each such
Existing Partner and Assignor in accordance with this Agreement.
[The remainder of this page is left blank intentionally]
IN WITNESS WHEREOF, the parties hereto have executed this Contribution
Agreement as an instrument under seal as of the date and year first above
written.
BOSTON PROPERTIES LIMITED PARTNERSHIP
By: Boston Properties, Inc., its general partner
/s/ Xxxxxxx X. Xxxxx
By:__________________________________
Xxxxxxx X. Xxxxx
Senior Vice President
PROPERTY OWNERS
206 ASSOCIATES LIMITED PARTNERSHIP
By: ABL Capital Corp., its general partner
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title:
CARNEGIE 510 ASSOCIATES, L.L.C.
By: 510 Associates Limited Partnership, its
managing member
By: 500 Capital Corp., its general partner
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title:
CONTRIBUTION AGREEMENT
ASSIGNOR SIGNATURE PAGE
Reference is made to that certain Contribution Agreement (the "CONTRIBUTION
AGREEMENT") entered into as of June 30, 1998 by and among Boston Properties
Limited Partnership and the Xxxxxx Parties named therein, pursuant to which
properties and assets (or indirect interests therein) located in Xxxxxx County,
New Jersey are to be contributed and conveyed to Boston Properties Limited
Partnership and/or its subsidiaries. The undersigned, by its execution hereof,
becomes a signatory to and agrees to be bound by and under the Contribution
Agreement as an "Existing Partner" (therein defined) and as party thereto.
Signature Line for Individual: ___________________________________
Name (print):______________________________
State of Residence:________________________
Signature Line for Entity:
Name of Entity (print):____________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
AGREED TO WITH RESPECT
TO THE OBLIGATIONS SET
FORTH IN SECTION 6.3 AND
SECTION 7.8
/s/ Xxxx X. Xxxxxx
----------------------
Xxxx X. Xxxxxx
AGREED TO WITH RESPECT
TO THE OBLIGATIONS SET
FORTH IN SECTION 7.8
/s/ Xxxxx Xxxxxx
----------------------
Xxxxx Xxxxxx
