REDEMPTION AGREEMENT
BY AND AMONG
WELLSFORD/WHITEHALL GROUP, L.L.C.,
as the Company
AND
THE INDIVIDUALS NAMED HEREIN
as the Saracen Members
TABLE OF CONTENTS
ARTICLE 1 Definitions.........................................................2
ARTICLE 2 The Agreement.......................................................5
ARTICLE 3 Redemption Consideration............................................5
ARTICLE 4 The Closing.........................................................5
ARTICLE 5 Certain Effects of Redemption.......................................8
ARTICLE 6 Representations and Warranties; Covenants...........................11
ARTICLE 7 Document Deliveries.................................................18
ARTICLE 8 Miscellaneous.......................................................20
EXHIBITS
Exhibit A WASH Properties
Exhibit B 74 Xxxxxx Property
Exhibit C Form of Redeemed Interests Assignment Agreement
Exhibit D Form of FIRPTA Certificate
Exhibit E Form of Assignment of Leases
Exhibit F Form of Assignment of Contracts
Exhibit G Form of Deed
Exhibit H Form of Xxxx of Sale
Exhibit I Form of Title Affidavit
Exhibit J Form of Release Language
SCHEDULES
Schedule I Saracen Members' Interests
Schedule II Non-Saracen Members
Schedule III Section 5.2(a) Breach Damages
Schedule IV Leases
Schedule V Tenant Improvement Allowances; Leasing Commissions
Schedule VI Operating Contracts
Schedule VII Certain Payables
Schedule VIII Operating Payables
Schedule IX Environmental Reports
Schedule X Additional Closing Documents and Deliveries
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REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (this "Agreement") is made and entered into this
2nd day of July, 2004, by and among Wellsford/Whitehall Group, L.L.C., a
Delaware limited liability company (the "Company"), and Xxxxxxx X. Xxxxxxxx,
Xxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx-Xxxxxx, Xxxx X.
Xxxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx X. Xxxxxxxxx, and Xxxxxx
XxXxxxxxxx, III (each , a "Saracen Member", and collectively, the "Saracen
Members").
RECITALS:
WHEREAS, each of the Saracen Members, and each of Wellsford Commercial
Properties Trust, WHWEL Real Estate Limited Partnership, WXI/WWG Realty, L.L.C.,
W/W Group Holdings, L.L.C. and WP Commercial, L.L.C. are members of the Company
and are parties to the Limited Liability Company Operating Agreement of the
Company, dated as of May 28, 1999, as amended by the First Amendment thereto
dated as of December 21, 2000 and as further amended by the Second Amendment
thereto dated as of March 29, 2004 (as so amended, the "Operating Agreement");
WHEREAS, each Saracen Member owns the Membership Units (as defined in the
Operating Agreement) in the Company set forth on Schedule I hereto;
WHEREAS, the Company owns, directly or indirectly, one hundred percent
(100%) of the limited liability company interests in Xxxxx Avenue Senior
Holdings LLC, a Massachusetts limited liability company ("WASH");
WHEREAS, the Company owns one hundred percent (100%) of the limited
liability company interests in WWG 74 Xxxxxx LLC, a Delaware limited liability
company ("74 Xxxxxx");
WHEREAS, WASH owns the properties described in Exhibit A attached hereto
(the "WASH Properties") and 74 Xxxxxx owns the property described in Exhibit B
attached hereto (the "74 Xxxxxx Property");
WHEREAS, each Saracen Member desires that the Company redeem, and the
Company desires to redeem from each Saracen Member, all of such Saracen Member's
Interest in exchange for the WASH Properties, the 74 Xxxxxx Property and the CVS
Payment on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1
Definitions
1.1. Capitalized terms used but not defined in this Agreement shall have
the meanings given to such terms in the Operating Agreement.
1.2. As used in this Agreement, the following terms shall the meanings set
forth below:
"74 Xxxxxx" shall have the meaning set forth in the recitals hereto.
"74 Xxxxxx Deed" shall mean have the meaning set forth in Section 7.2(b).
"74 Xxxxxx Property" shall mean that certain real property owned by 74
Xxxxxx and located at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Affiliate" shall mean with respect to any Person (i) any other Person that
directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such Person, (ii) any other
Person owning or controlling 10% or more of the outstanding voting
securities of, or other ownership interests in, such Person, (iii) any
officer, director or member of such Person and (iv) if such Person is an
officer, director or member of any company, the company for which such
Person acts in any such capacity. For purposes of this definition,
"control," when used with respect to any Person, means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Assignment" shall have the meaning set forth in Section 7.1(a).
"Business Day" means any day other than Saturday, Sunday, any day that is a
legal holiday in the State of New York or Massachusetts or any other day on
which banking institutions in New York or Massachusetts are authorized to
close.
"Claim" shall mean any suit, action, proceeding, inquiry, investigation,
demand, claim, liability, fine, penalty, lien, judgment, loss, injury,
damage, expense or cost, including attorneys' and experts' fees and costs
of investigation and remediation costs.
"Closing" shall mean the delivery of the Closing Documents and the transfer
of the Redeemed Interests, the WASH Properties, the 74 Xxxxxx Property and
the making of the CVS Payment in accordance with the terms of this
Agreement, which will occur on the Closing Date.
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"Closing Date" shall mean such date as is designated by the Saracen Members
on not less than two (2) Business Days written notice, but in all events no
later than July 9, 2004, as said date may be extended as provided in
Section 4.1.
"Closing Documents" shall mean all documents that are required to be
delivered by the Company or any of the Saracen Members pursuant to the
terms of this Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement.
"Company Parties" shall have the meaning set forth in Section 5.2(b).
"Company's knowledge" or words of similar import, shall mean and refer only
to the actual knowledge of Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxx and Xxxx Arena
and shall not be construed to refer to the knowledge of any other partner,
beneficial owner, officer, employee or agent of the Company, nor shall such
term impose any duty to investigate the matters to which such knowledge, or
absence thereof, pertain. There shall be no personal liability on the part
of Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxx or Xxxx Arena arising out of any
representations or warranties made herein or otherwise.
"CRS Payables" shall mean the payables as to the lease from WASH to Xxxxxxx
River Suites, consisting of the amount of $78,133 owed to such tenant as a
tenant improvement reimbursement and the amount of $53,440 which will be
payable to a leasing broker upon certain conditions as to said lease being
fulfilled, which later amount is not currently due and payable; provided
that, if and to the extent either of the amounts actually owed for either
of said two items is greater than the applicable aforesaid amount, said
excess shall not be included as part of the CRS Payables unless such excess
accrues and becomes due after the Closing Date.
"CVS Payment" shall mean $200,000.
"Definitive Agreements" shall mean this Agreement, each Assignment, the
Deeds, the Lease Assignments and each resignation letter (as referred to
and described in Section 7.1(b)).
"Designee" means the entity designated by the Saracen Members to take title
to the Properties pursuant to Section 7.2(b). Changes in the ownership of
the Designee shall not affect the rights and benefits of the Designee under
this Agreement.
"Due Diligence Materials" shall mean any documents, agreements,
instruments, operating and financial statements and other materials
applicable to the WASH Properties or the 74 Xxxxxx Property that the
Company or any Person on behalf of the Company delivers or makes available
to the Saracen Members.
"Inspection Period" shall mean the period commencing on the date of this
Agreement and expiring on July 7, 2004, or on such earlier date as the
Saracen Members may provide in
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a written notice to the Company that the Inspection Period has ended, as
said period may be extended as provided in Section 4.1.
"Liens" shall mean mortgages, liens, encumbrances, pledges, agreements,
security interests, restrictions, offsets and other matters that could
affect title to the Redeemed Interests.
"Losses" shall mean any and all actual out-of-pocket losses, damages,
liabilities, claims, costs and expenses, interest, penalties, judgments and
settlements (including, without limitation, reasonable attorneys' fees).
"Nomura Loan" shall mean the existing first mortgage debt secured by the
WASH Properties.
"Non Saracen Member" shall mean the members of the Company listed in
Schedule II attached hereto, being all the members of the Company other
than the Saracen Members.
"Operating Agreement" shall have the meaning set forth in the recitals to
this Agreement.
"Operating Contracts" shall have the meaning set forth in Section 6.1(g).
"Operating Payables" shall mean those payables set forth on Schedule VIII
attached hereto.
"Payables Contracts" shall have the meaning set forth in Section 6.1(g).
"Person" shall mean any individual, partnership, corporation, limited
liability company, trust or other legal entity.
"Properties" shall mean all of the WASH Properties and the 74 Xxxxxx
Property, and "Property" shall mean any one of the Properties.
"Redeemed Interests" shall have the meaning set forth in Section 2.1.
"Saracen Member" shall have the meaning set forth in the preamble to this
Agreement.
"Saracen Parties" shall have the meaning set forth in Section 5.2(b).
"Saracen Representative" shall mean either of Xxxx Xxxxxxxx or Xxxxxxx
Xxxxxxx.
"Service Contracts" shall mean any and all service contracts pertaining to
the operation, ownership, management and leasing of the WASH Properties or
the 74 Xxxxxx Property, as amended or modified from time to time.
"Subsidiaries" shall mean all entities owning any direct or indirect
interest in any of the Properties which entity is owned in whole or part,
directly or indirectly, by the Company.
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"WASH" shall have the meaning set forth in the recitals to this Agreement.
"WASH Properties" shall mean all of the Properties owned by WASH, as are
more particularly described in Exhibit A attached hereto, and including
herein all buildings and other improvements thereon or used thereon and all
personal property owned or leased by WASH in connection therewith.
"74 Xxxxxx Property" means the Property owned by 74 Xxxxxx, as more
particularly described in Exhibit B attached hereto, and including herein
all buildings and other improvements thereon or used thereon and all
personal property owned or leased by 74 Xxxxxx in connection therewith.
ARTICLE 2
The Agreement
2.1. Agreement to Convey. For and in consideration of the mutual benefits
enjoyed by one another under this Agreement, upon and subject to the terms and
conditions hereof, each Saracen Member consents to the full redemption and
liquidation of its Interest (including, without limitation, all of such Saracen
Member's Membership Units and Percentage Interest) in the Company, and the
Company agrees on the Closing Date to redeem all of each Saracen Member's
Interest in exchange for a portion of the WASH Properties, the 74 Xxxxxx
Property and the CVS Payment, with the aggregate of all of the Saracen Members'
Interests being redeemed for all of the WASH Properties, the 00 Xxxxxx Xxxxxx
Property and the CVS Payment. The Interests of all of the Saracen Members are
referred to herein collectively as the "Redeemed Interests". It is the intent of
the Saracen Members' to have the WASH Properties and the 74 Xxxxxx Property
deeded to an entity designated by them as hereinafter provided. In addition,
prior to Closing, the Saracen Members shall inform the Company as to portions of
each of the WASH Properties and the 74 Xxxxxx Property attributable to each
Saracen Member, and as to which of the Saracen Members, and in what proportions,
the CVS Payment is to be made payable.
ARTICLE 3
Redemption Consideration
3.1. Redemption Consideration. The aggregate consideration for all of the
Redeemed Interests, collectively, shall be (i) a distribution in kind of the
WASH Properties and the 74 Xxxxxx Property, and (ii) the CVS Payment, and the
payments set forth in Section 6.3(b) below.
ARTICLE 4
The Closing
4.1. Time and Location of the Closing. The Closing will occur on the
Closing Date at the Company's offices or at such other location as the parties
hereto may mutually agree. The Closing Date may not be extended without the
prior written approval of the Company and the
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Saracen Members, provided, however, that the Saracen Members shall have the
right to extend the Closing to a date no later than July 14, 2004 in the event
that prior to July 8, 2004 all required documentation in connection with the
assumption of the Nomura Loan has not been completed. Any extension pursuant to
the preceding sentence shall be exercisable by written notice from the Saracen
Members to the Company given on or before July 8, 2004. The Saracen Members
shall have the right to designate the Closing Date by giving at least two (2)
Business Days prior notice of a date within the limitations otherwise provided
for above. Time shall be of the essence with respect to the parties' obligations
to consummate the Closing on the Closing Date.
4.2. Conditions to Closing.
(a) The Company's obligation to close is contingent only upon (i) the
performance by all of the Saracen Members of their obligations hereunder,
including the delivery of all documents set forth in Section 7.1 hereof, (ii)
the accuracy in all material respects of all representations and warranties of
all of the Saracen Members set forth herein, (iii) the absence of any judicial
order or injunction prohibiting the consummation of the transactions
contemplated hereby and (iv) the receipt by the Company of a release of the
obligations of WASH under the Nomura Loan, which release shall contain the
language set forth in Exhibit J and shall be executed by the holder of the
Nomura Loan.
(b) The Saracen Member's obligation to close is contingent only upon (i)
the performance by the Company of its obligations hereunder, including the
delivery of all documents, payments and other matters set forth in Section 7.2
hereof, (ii) the accuracy in all material respects of all representations and
warranties of all of the Company set forth herein, (iii) the absence of any
judicial order or injunction prohibiting the consummation of the transactions
contemplated hereby, (iv) the obtaining of the requisite consents under, and
necessary amendments to, the Nomura Loan, (v) title to the Properties being as
shown on the title commitment obtained by the Saracen Members or the Designee as
of the end of the Inspection Period and delivered to the Company, other than any
lien for mechanics' and materialmen's liens which are bonded over by the Company
or for which discharges are provided, in either event to the satisfaction of the
Saracen Members' title company, and for real estate taxes, (vi) there has been
no material condemnation or material casualty (as such terms are defined in
Section 6.3) after the date hereof, and (vii) the expiration of the Inspection
Period (provided that the Saracen Members have not terminated this Agreement
prior to the expiration of the Inspection Period pursuant to Section 4.3(g)
below).
4.3. Inspection Period.
(a) During the Inspection Period, the Saracen Members may review the Due
Diligence Materials, examine, inspect, and investigate the WASH Properties and
the 74 Xxxxxx Property, review the Estoppel Certificates received from the
tenants in the Properties as to the status of their Leases and discuss such
Estoppel Certificates with such tenants, to determine whether, in the Saracen
Members' sole judgment and discretion, the Saracen Members wish to
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proceed with the redemption of the Redeemed Interests and the acquisition of the
WASH Properties and the 74 Xxxxxx Property.
(b) The Saracen Members shall have reasonable access to the WASH Properties
and the 74 Xxxxxx Property (subject to and consistent with the rights of the
tenants under any leases affecting the properties) for the purpose of conducting
surveys, architectural, engineering, geotechnical and environmental inspections
and tests, and any other inspections, studies, or tests reasonably required by
the Saracen Members ("Inspections"). The Saracen Members shall give the Company
not less than 24 hours' prior notice before entering onto the WASH Properties or
the 74 Xxxxxx Property to perform inspections or tests, and in the case of tests
(1) the Saracen Members shall specify to the Company the precise nature of the
test to be performed, (2) invasive testing shall require the prior advance
written consent of the Company, which can be withheld in its sole discretion,
and (3) as a condition precedent to the Saracen Members' right to perform any
such test, that the Saracen Members deliver the Company evidence of public
liability and other appropriate insurance maintained by the Saracen Members or
the Saracen Members' contractor naming the Company as an additional insured
thereunder. Any inspections and testing shall be performed in accordance with
law and only by appropriately qualified and, where applicable, licensed
personnel. If any inspection or test disturbs any of the WASH Properties or the
74 Xxxxxx Property, the Saracen Members will restore the affected Property to
substantially the same condition as existed prior to any such inspection or
test. The obligations of the Saracen Members under this section shall survive
the termination of this Agreement.
(c) The Saracen Members and their agents, employees, and representatives
may, upon not less than 24 hours' prior notice to the Company, examine all books
and records and other materials relating to the WASH Properties and the 74
Xxxxxx Property and the financial condition and operations of WASH and 74 Xxxxxx
in the possession of the Company or the Company's property manager at the office
of the Company where such records are maintained; provided the Saracen Members
shall to the extent practicable keep all such information and materials
confidential and shall use such information and materials solely for the purpose
of evaluating its participation in the transaction contemplated hereby.
(d) The Company has previously sent Estoppel Certificates (in form and
substance as were previously agreed upon between the Company and the Saracen
Members) to all the tenants in the Properties. The Company agrees that the
Saracen Members and its representatives may discuss (for purposes of making
factual inquiries only) directly with tenants any matter raised by the tenant as
to the matters contained in the Estoppel Certificate for such tenant or
otherwise as to the Lease for such tenant. The Company shall cooperate with the
Saracen Members in any discussion with, and in attempting to obtain Estoppel
Certificates from, any tenants.
(e) During the Inspection Period the Saracen Members shall have the right
to contact the vendor under any Operating Contract and, provided only that the
obligations and liabilities of the Company and its Subsidiaries are not
affected, to enter into agreements with any such vendor effective as of, and
only upon the Closing.
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(f) The Saracen Members shall indemnify and defend the Company against and
hold the Company harmless from any and all Claims and Losses (including
reasonable attorneys' fees) arising out of the Saracen Members' activities on
the WASH Properties or the 74 Xxxxxx Property or relating to the Saracen
Members' Inspections during the term of this Agreement. The Saracen Members'
obligations under this Section shall expressly survive the Closing or
termination of this Agreement.
(g) Prior to the end of the Inspection Period, the Saracen Members, at
their sole cost and expense, may (but shall not be obligated to) obtain a Phase
1 environmental report for the WASH Properties and the 74 Xxxxxx Property. The
Saracen Members may not conduct a Phase 2 assessment of the property without the
prior written consent of the Company, which can be withheld in its sole
discretion.
(h) From and after the date hereof until the Closing or the earlier
termination of this Agreement for any reason, the Company agrees that it will
cause its Subsidiaries (i) not to voluntarily encumber any of the Properties,
(ii) not to enter into any new lease or other occupancy agreement or any
construction, operating or any other contract as to any of the Properties
without the prior written consent of the Saracen Members, (iii) not to authorize
any construction on any of the Properties, even if otherwise currently required
under any Lease, without the prior written consent of the Saracen Members, and
(iv) not incur or authorize any expenditures of any of the types described in
the second sentence of Section 6.1(g).
(i) Notwithstanding anything contained herein to the contrary, the Company
shall have the right, in its sole discretion, to have a representative of the
Company or any other party designated by the Company (including the Company's
property manager) present during any such Inspection or any review conducted by
the Saracen Members pursuant to Section 4.3(c) hereof.
(j) The Saracen Members may terminate this Agreement for any reason (or no
reason) at any time on or before the expiration of the Inspection Period. Unless
the Saracen Members deliver to the Company written notice of the Saracen
Members' election to terminate this Agreement before the expiration of the
Inspection Period, the Saracen Members shall be deemed to have waived their
right to terminate this Agreement and shall be obligated to consummate the
Closing of the transaction. Upon any such termination of this Agreement, neither
party shall have any further liability or obligation to the other except for (i)
the provisions of this Agreement that expressly survive Closing or early
termination and (ii) the Saracen Members' reimbursement obligations under
Section 6.3(d) hereof.
ARTICLE 5
Certain Effects of Redemption
5.1. Certain Effects of the Redemption. Effective upon Closing, if the
Closing occurs, and without any further action by the Company or any Member
(including any Saracen Member):
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(a) each Saracen Member shall no longer be a Member of the Company or have
any interest in the Company;
(b) the Committee Representatives appointed by the Saracen Members to the
Management Committee shall be deemed to have resigned from the Management
Committee;
(c) none of the Saracen Members shall have any further right to designate
any Committee Representative;
(d) no Saracen Member or Committee Representative designated by the Saracen
Members shall be entitled to attend (or to designate any person to attend) any
meeting of the Management Committee or to receive any further information
concerning the Company;
(e) no Saracen Member or Committee Representative designated by the Saracen
Members shall be entitled to any rights or privileges under or relating to the
Operating Agreement or under any side agreements, including, without limitation,
any notice or consent rights, any right to make Capital Contributions to the
Company, any preemptive right or any right to limit the activities of the
Company or of any other Member or their Affiliates;
(f) the "tax indemnity" provisions of Section 8.2A of the Operating
Agreement shall be modified so that they are and shall be of no further force or
effect;
(g) all provisions of the Operating Agreement granting any rights to the
Saracen Members (or that were added to the Operating Agreement in connection
with the original admission of the Saracen Members) shall be deleted and deemed
to be void and of no further force or effect.
5.2. Non-Triggering Saracen Transfer; Release.
(a) Each of the Saracen Members hereby acknowledges and agrees that (i) the
redemption of the Redeemed Interests by the Company and the transfer of the
Redeemed Interests by such Saracen Members is a "Non-Triggering Saracen
Transfer" and (ii) the Company shall have no liability or obligations under
Section 8.2A of the Operating Agreement for any actions taken by the Company,
the Manager or any Member in connection with the redemption of the Redeemed
Interests and any actions taken by the Company, the Manager or any Member,
whether prior to, on or after the Closing. The Company hereby covenants and
agrees that (w) the income tax filings and the K-1's required to be made by the
Company for calendar year 2004 shall be made consistent with the methodology by
which the debt allocations were made to the Saracen Members for calendar years
2002 and 2003, (x) except as the Company is legally required to do so, it shall
not initiate nor otherwise voluntarily make any amendment to the 2002 or 2003
income tax returns to reduce the debt allocations of any Saracen Member, and (y)
in the event the debt allocations to the Saracen Members are subject to any
assessment or proceeding or are otherwise challenged by the Internal Revenue
Service or any other Person, the Company shall use commercially reasonable
efforts to notify the Saracen Members of any such matter and shall allow the
Saracen Members the right, at their own cost and expense, to participate in any
such matter so as to defend the debt allocations previously
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made. In the event of a breach by the Company of the provisions of the
immediately preceding sentence (and only in such event), the rights of the
Saracen Members and the measure of damages shall be as set forth in Schedule
III. For the sake of clarity, unless the Company has breached the covenants
contained in the second sentence of this Section 5.2(a), the Company shall have
no liability to the Saracen Members or any other Person under Schedule III and
the Saracen Members shall not have any of the rights or remedies described in
Schedule III.
(b) Effective upon the Closing, each of the Saracen Members and their
respective Affiliates and each of the past and present employees, agents,
representatives, attorneys, consultants, accountants, successors and assigns of
any of the Saracen Members, their Affiliates and/or subsidiaries (collectively,
the "Saracen Parties") hereby releases the Company, each of the Non-Saracen
Members, and their respective parents, Affiliates, subsidiaries and each of the
past and present officers, directors, employees, agents, representatives,
attorneys, consultants, accountants, successors and assigns of any of the
Non-Saracen Members, their parents, Affiliates and/or subsidiaries
(collectively, the "Company Parties") of and from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, acts or omissions,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands (including attorneys' fees and costs) of any nature
whatsoever (whether known or unknown, accrued or contingent), in law or equity,
against the Company Parties that the Saracen Parties ever had, now have or
hereafter can, shall or may have, for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the date hereof, relating
to or arising under the Operating Agreement, including any amendments or
modifications thereto or any side letters or other agreements or arrangements,
oral or written, with respect thereto, or any assets or operations of the
Company or any of the Company Parties as to the assets and operations of the
Company, and the Saracen Parties further agree not to voluntarily institute,
instigate, urge, support, encourage, voluntarily participate in or profit from
any lawsuit, complaint or other action or proceeding of any kind relating to any
matter to which this paragraph (b) pertains; provided, however, that the
provisions of this paragraph (b) shall not apply to the duties or obligations of
the Company under this Agreement or any of the other Definitive Agreements
(subject to the limitations set forth herein). Without limiting the foregoing,
effective upon the Closing Date, Section 8.2A of the Operating Agreement shall
become null and void retroactively to the date the Saracen Members first became
Members of the Company such that any and all claims arising thereunder shall be
released and forever barred.
(c) Effective upon the Closing, each of the Company Parties hereby releases
each of the Saracen Parties of and from all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, claims, and demands
(including attorneys' fees and costs) of any nature whatsoever (whether known or
unknown, accrued or contingent), in law or equity, against the Saracen Parties
that the Company Parties ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the date hereof, relating to or arising under the
Operating Agreement, including any amendments or modifications thereto or any
side letters or other agreements or arrangements, oral or written, with respect
thereto, or any
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acts or omissions of the Saracen Members or any of the Saracen Parties, and the
Company Parties further agree not to voluntarily institute, instigate, urge,
support, encourage, voluntarily participate in or profit from any lawsuit,
complaint or other action or proceeding of any kind relating to any matter to
which this paragraph (c) pertains; provided, however, that the provisions of
this paragraph (c) shall not apply to the duties or obligations of any of the
Saracen Members under this Agreement or the Assignment (subject to the
limitations set forth herein).
ARTICLE 6
Representations and Warranties; Covenants
6.1. Representations by the Company. The Company hereby represents and
warrants to the Saracen Members that each and every one of the following
statements is true, correct and complete in every material respect as of the
date of this Agreement, and shall be true as of the Closing Date:
(a) The Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
formed, and, has full right, power and authority to enter into this Agreement
and to assume and perform all of its obligations; and the execution and delivery
of this Agreement and the performance by the Company of its obligations under
this Agreement requires no further action or approval of any other individuals
or entities in order to constitute this Agreement as a binding and enforceable
obligation of the Company. The individuals and/or entities signing below in the
indicated representative capacities are fully authorized so to act, subject as
aforesaid. This Agreement is the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws affecting the enforcement thereof or
relating to creditors' rights generally.
(b) The entry into, performance of, or compliance with this Agreement by
the Company has not resulted, and will not result, in any violation of, default
under, or acceleration of any obligation under any existing corporate charter,
certificate of incorporation, bylaw, articles of organization, mortgage,
indenture, loan agreement, note, contract, permit, judgment, decree, order,
restrictive covenant, statute, rule or regulation applicable to the Company,
other than the Nomura Loan.
(c) The Company (i) has not made an assignment for the benefit of creditors
or admitted in writing its inability to pay its debts as they mature, and (ii)
has not been adjudicated a bankrupt or filed a petition in voluntary bankruptcy
or a petition or answer seeking reorganization or an arrangement with creditors
under the Federal bankruptcy law or any other similar law or statute of the
United States or any jurisdiction and, to the actual knowledge of the Company,
no such petition has been filed against the Company.
(d) For federal income tax purposes, the Company has treated itself as the
sole owner of the WASH Properties and the 74 Xxxxxx Property.
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(e) The Company has delivered to the Saracen Members true and correct
copies of all leases, together with any amendments, renewals, modifications, and
extensions thereto and guarantees thereof (collectively the "Leases" and each a
"Lease") currently in effect with respect to the WASH Properties and the 74
Xxxxxx Property. To the Company's knowledge, there are no leases or occupancy
agreements affecting any of the Properties except for the Leases. Schedule IV
sets forth a list of all the Leases and a true and complete list of all security
deposits held by the Company under the Leases, and whether held in cash, letter
of credit or otherwise.
(f) Except as set forth on Schedule V attached hereto, (i) all commissions
and fees which accrued during the period of the Company's ownership of the
Properties with respect to the current unexpired term of each Lease have been
paid in full, and (ii) neither the Company nor any of the Subsidiaries nor any
of their respective Affiliates has entered into any written obligations with any
broker or similar party to pay such broker or party a leasing fee or commission
in connection with any renewal, extension or expansion of an existing Lease.
(g) Schedule VI attached hereto is a list of certain service, operating,
supply and maintenance agreements, equipment leases and other contracts with
respect to or affecting the Property as of the date of this Agreement (the
documents listed on Schedule VI being referred to herein collectively as the
"Operating Contracts") and true and complete copies of all agreements and
amendments and modifications thereto evidencing all of the Operating Contracts
have been delivered to the Saracen Members or its representatives. To the
Company's knowledge, as of the date hereof, the status of the payables for (x)
all construction contracts, architect's agreements or other construction related
matters, and (y) all legal counsel, accountants and any other vendors who are
not directly involved in the maintenance or other ordinary servicing of any of
the Properties and any other contracts or agreements (other than Leases) which
are not included in Schedule VI as an Operating Contract are as shown on
Schedule VII attached hereto (such contracts, agreements and other items listed
on Schedule VII, the "Payables Contracts"), and said Schedule VII is accurate in
all material respects as to each vendor shown on said Schedule VII. No
representation or warranty is made herein with respect to any amounts owing
under the Operating Contracts or as to the Operating Payables.
(h) To the Company's knowledge, the Company has not received notice in
writing from a governmental agency having jurisdiction that any Property or any
part thereof is in violation of any law, ordinance, rule or regulation
applicable to such Property.
(i) There is not now pending nor, to the Company's knowledge, has there
been threatened, any action, suit or proceeding against or affecting the Company
or any of the Subsidiaries or any of the Properties before or by any federal or
state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, which would, if determined adversely to
the Company, materially and adversely affect the use or the value of any such
Property.
(j) Attached hereto as Schedule IX is a list of all environmental/hazardous
waste studies and reports relating to the Property which are in the Company's
possession (the
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"Environmental Reports"). Complete copies of the Environmental Reports have been
furnished to the Saracen Members.
(k) To the Company's knowledge, no material personal property used by the
Subsidiaries and located on, and used in the operation of, any of the Properties
is leased or has been purchased under a conditional sales contract or any other
arrangement giving any other person a security interest therein.
The representations and warranties set forth in paragraphs (e), (f), (g),
(h), (i) and (j) of this Section 6.1 are qualified in their entirety by any
written information delivered to either Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxx or Xxx
Xxxxxxx and no claim may be made for any inaccuracy in such representations or
warranties fully disclosed in or by such written information. To the extent a
tenant Estoppel Certificate is provided by any tenant of the Property which sets
forth information with respect to any item as to which the Company has made a
representation or warranty, then the Company's representation and warranty with
respect to such information will thereafter be null and void and of no further
force and effect and the Saracen Members shall rely on the information in the
tenant Estoppel Certificate.
Subject to the limitations and other provisions of Section 6.4 hereof, the
Company shall indemnify and defend the Saracen Members and the Designee
(collectively, the "Saracen Indemnities"), against and hold the Saracen
Indemnities harmless from any and all losses, costs, damages, liabilities and
expenses (including, without limitation, reasonable counsel fees) arising out of
any breach by the Company of its representations and warranties hereunder,
except as limited herein.
The Company agrees that the representations and warranties and the
indemnity provided for above in this Section 6.1 shall, without any further
documentation or other action, be for the benefit of the Designee.
6.2. Representations by each Saracen Member. Each Saracen Member hereby
represents and warrants to the Company, as to itself only, that each and every
one of the following statements is true, correct and complete in every material
respect as of the date of this Agreement:
(a) The execution and delivery of this Agreement and the performance by
such Saracen Member of its, his or her obligations under this Agreement requires
no further action or approval of any other individuals or entities, other than
any such matters as may be required under the governing documents of the Company
or pursuant to an agreement by which the Company or any of its properties is
bound or subject to, in order to constitute this Agreement as a binding and
enforceable obligation of such Saracen Member. This agreement is the legal,
valid and binding obligation of such Saracen Member, enforceable in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting the enforcement thereof or relating to creditors' rights
generally.
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(b) Such Saracen Member is not a non-resident alien (as such term is
defined in the Internal Revenue Code and United States Income Tax Regulations).
(c) The entry into, the performance of, or compliance with this Agreement
by such Saracen Member has not resulted, and will not result, in any violation
of, default under, or acceleration of any obligation under any existing
agreement, including, without limitation, the Operating Agreement, corporate
charter, bylaw, mortgage, indenture, loan agreement, note, contract, lease,
permit, judgment, decree, order, restrictive covenant, statute, rule or
regulation applicable to such Saracen Member or its Interest or any part
thereof, not including herein any such matter under the Operating Agreement or
applicable to the Company, any of the Subsidiaries or any of their Affiliates or
by which any of them or any of their respective properties are bound.
(d) Such Saracen Member (i) has not made an assignment for the benefit of
creditors or admitted in writing its inability to pay its debts as they mature,
and (ii) has not been adjudicated a bankrupt or filed a petition in voluntary
bankruptcy or a petition or answer seeking reorganization or an arrangement with
creditors under the Federal bankruptcy law or any other similar law or statute
of the United States or any jurisdiction and, to the actual knowledge of the
Saracen Member, no such petition has been filed against such Saracen Member.
(e) Such Saracen Member has good and valid title to its Interest set forth
opposite such Saracen Member's name on Schedule I hereto, free and clear of all
Liens, and has not previously assigned, encumbered, conveyed, hypothecated or
otherwise transferred all or any part of such Interest or agreed to do any of
the foregoing. Each Saracen Member acknowledges, represents and agrees that,
effective upon the closing, it shall have no further Interest in the Company.
(f) Each Saracen Member (either alone or with his, her or its advisors) has
sufficient knowledge and experience in financial, tax and business matters to
enable him, her or it to evaluate the benefits, detriments, advantages,
disadvantages, merits and risks of the redemption of the Redeemed Interests and
the acquisition of the WASH Properties and the 74 Xxxxxx Property. Each Saracen
Member acknowledges that (1) the transactions contemplated by this Agreement
involve complex legal and tax consequences for each Saracen Member and each
Saracen Member is relying solely on the advice of his, her or its own legal and
tax advisors in evaluating such consequences, (2) neither the Company (including
any of its Affiliates), nor the Manager nor the Management Committee of the
Company nor any of the Non-Saracen Members, or their respective legal and tax
advisors has made (or shall be deemed to have made) any representations or
warranties as to the legal or tax consequences of such transactions to any
Saracen Member, and (3) such Saracen Member is not relying upon the Company, any
of the Non Saracen Members or any of their respective tax or legal advisors
(including Xxxxxxxx & Xxxxxxxx and Xxxxx & Xxxxx) with respect to any
structuring, tax, legal, financial or other aspect of the transactions
contemplated by this Agreement.
(g) Each Saracen Member is over 21 years of age, of sound mind and body and
has the legal and mental capacity to act for himself or herself.
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(h) In connection with this transaction, each Saracen Member has been
represented by independent legal counsel, understands the assumptions of risk
and liability set forth in this Agreement and understands that it will not have
any recourse whatsoever against any the Company or any Company Party, except as
expressly set forth in this Agreement. Each Saracen Member further acknowledges
that it is has had a full and adequate opportunity to understand the Properties
and to review and discuss the same with the Company and with the property
manager (which is an affiliate of some of the Saracen Members, and in this
regard in the property manager's capacity as an affiliate of some of the Saracen
Members and NOT in the property manger's capacity as a representative or agent
of the Company).
(i) No Saracen Member nor any Affiliate thereof (including, without
limitation, the property manager of the Properties) has engaged any Person in
connection with the ownership, operation, management or servicing of the
Properties, except to the extent set forth on Schedules VI and/or VII hereof.
Each Saracen Member shall indemnify and defend the Company against and hold
the Company harmless from any and all losses, costs, damages, liabilities and
expenses (including, without limitation, reasonable counsel fees) arising out of
any breach by such Saracen Member of its representations and warranties
hereunder, except as limited herein.
6.3. Covenants; Payments and Adjustments.
(a) The Company, on the one hand, and the Saracen Members, on the other,
shall each be responsible for the punctual and proper payment of one-half of any
transfer taxes and the costs and expenses of recording the Deed and the
Assignment of Leases which are payable upon the consummation of the transactions
described herein and which may be assessed or become due on or after the date
hereof in respect of the transfer of its, his or her Interest from such Saracen
Member to the Company and the transfer of the WASH Properties and the 74 Xxxxxx
Property to the Saracen Members.
(b) The Company hereby covenants and agrees to fund an amount (the "Funded
Amount") equal to (i) $1,395,000 less (ii) any amounts expended by the Company
between the date hereof and the Closing Date to discharge any liens filed of
record that secure amounts due under the Payables Contracts up to the amount
shown on Schedule VII as to the party whose lien is so discharged, which amount
will be used to pay certain costs, expenses and other expenditures related to
the WASH Properties and the 74 Xxxxxx Property. The parties hereto agree that,
except as provided in Section 6.3(d) below, the only adjustments, prorations and
credits between the parties to this Agreement for any matters as to the
Properties or otherwise, including the Nomura Loan and the escrows held
thereunder, shall be the payment set forth in this Section 6.3(b), and there
shall be no proration, credit or other adjustment on account of any amounts held
in escrow under the Nomura Loan or for any other item or matter other than as
specifically set forth above.
The Funded Amount shall be used at the Closing only as follows (and in the
following order): (I) first, (a) an amount up to $872,000 less any amounts paid
under clause (ii)
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of the immediately preceding paragraph, to pay the payables on the Payables
Contracts as shown on Schedule VII and (b) an amount up to $50,000 to pay any
additional payables approved by the Saracen Members (such approval not to be
unreasonably withheld) which are not set forth on Schedule VII to any Persons
which are not Affiliates of the Company, its manager, any of the Non Saracen
Members, any of the Subsidiaries or any of their respective Affiliates; and (II)
second, to pay the Operating Payables plus any normal increases in the Operating
Payables through the Closing Date. No payable owed to any Affiliate of the
Company, its manager, any of the Non Saracen Members, any of their Subsidiaries
or any of their respective Affiliates shall be paid with the Funded Amount. In
no event shall the Saracen Members or the Designee be responsible for any
amounts owed to the Company, its manager, any of the Non Saracen Members, any of
the Subsidiaries or any of their respective Affiliates, nor for any amounts owed
on any Payables Contracts, nor shall the Saracen Members or the Designee assure
any such obligations or any other obligations under the Payables Contracts. Upon
the consummation of the Closing, the Saracen Members or their Designee shall,
pursuant to the Assignment and Assumption of Contracts, (A) assume the
obligation to pay, and all liability for the payment of, all Operating Payables
and other payables in respect of the Operating Contracts (including amounts in
excess of the portion of the Funded Amount allocated to pay the Operating
Payables) and the CRS Payables, and (B) assume all obligations and liabilities
under all of the Operating Contracts. For the sake of clarity, notwithstanding
anything to the contrary herein, if the portion of the Funded Amount allocated
to pay the Operating Payables is not sufficient to pay all of the Operating
Payables, neither the Company, any Subsidiary nor any of the Non-Saracen Members
shall be liable or otherwise responsible to pay or discharge such excess
payables under any of the Operating Contracts. In the event that any portion of
the Funded Amount remains after making all payments required to be made by this
paragraph, such remaining amount shall be disbursed to, or as directed by, the
Saracen Members.
(c) In consideration of the Company's entering into this Agreement, the
Saracen Members agree that any sums funded by the Company as to any of the
Properties (whether directly or indirectly) from and after the date hereof and
which have been approved by the Saracen Members shall be reimbursed to the
Company in the event that the Saracen Members fail to consummate the Closing on
the Closing Date for any reason other than the Company's failure to close when
it is obligated to do so, a material breach of the Company's representations and
warranties, or a material condemnation or material casualty of any of the
Properties. For purposes of this Section 6.3(c), the term "material
condemnation" means the taking by eminent domain of at least ten percent (10%)
of the affected Property and "material casualty" means a casualty that would
result in $2,5000,000 or more of damage or destruction to a Property or $250,000
or more of uninsured damage or destruction to a Property.
(d) Upon the Closing, the Company shall also pay to the Saracen Members or
its Designee an amount equal to all security deposits made in cash under any
Lease.
(e) Upon the Closing, the Company shall assign, or cause to be assigned,
any letters of credit, certificates of deposit and/or other instruments which
have been deposited with the owners of any of the Properties as security
deposits under any Lease, and in connection therewith shall also execute, or
cause to be executed, such directions, transfer requests and other
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instruments as may be reasonably necessary for the Saracen Members or their
Designee to become the requisite account party, beneficiary or other appropriate
designation entitled to the benefits of the landlord under the applicable Lease
as to any such non-cash security deposits.
6.4. General Regarding Representations and Warranties. If any party has
knowledge that any representation or warranty made by the other party is untrue
or incorrect at the Closing but nevertheless proceeds with the Closing, then
such party will be deemed to have waived any claim for breach of such
representation or warranty. The representations and warranties set forth in this
Agreement shall survive the Closing until April 15, 2005, after which such
representations and warranties shall be null and void and shall cease to be of
any force or effect and any action brought on the representations and warranties
made by any party or parties hereto shall be commenced by April 15, 2005 or
shall be forever barred and waived. Except with respect to a breach by the
Saracen Members of the representations and warranties contained in Section
6.2(i), in no event shall any Person be entitled to make a claim for breach of
any representations or warranties and no party (for this purpose being all the
Saracen Members as one party) shall have any liability in connection therewith
(i) unless and until the aggregate amount of all such claims exceeds $500,000.00
and then only to the extent such aggregate amount exceeds $500,000.00, or (ii)
for any amount in excess of $1,000,000.00 in the aggregate.
6.5. Brokers. The Saracen Members hereby represent and warrant to the
Company that neither they nor any of their Affiliates employed or used any
broker or finder to arrange or bring about this transaction, and that there are
no claims or rights for brokerage commissions or finder's fees in connection
with the transactions contemplated by this Agreement, other than the commission
(the "Broker's Commission") required to be paid by the Company to Brokers
pursuant to separate agreements between the Company and each Broker. If any
Person brings a claim for a commission or finder's fee based upon any contact,
dealings, or communication with the Saracen Members or any of their Affiliates
in connection with the transactions contemplated by this Agreement, other than
Brokers, then the Saracen Members shall defend the Company from such claim, and
shall indemnify the Company and hold the Company harmless from any and all
costs, damages, claims, liabilities, or expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred by the Company with
respect to the claim.
The Company hereby represents and warrants to the Saracen Members that
neither the Company nor any of the Subsidiaries nor any of their Affiliates has
employed any broker with respect to this transaction. If any person brings a
claim for a commission or finder's fee based upon any contact, dealings, or
communication with the Company or any of the Subsidiaries or any of their
Affiliates in connection with the transactions contemplated by this Agreement,
then the Company shall defend the Saracen Members from such claim, and shall
indemnify the Saracen Members and hold the Saracen Members harmless from any and
all costs, damages, claims, liabilities, or expenses (including, without
limitation, reasonable attorneys' fees and disbursements) incurred by the
Saracen Members with respect to the claim.
The provisions of this 6.5 shall survive Closing or, if the purchase and
sale is not consummated, any termination of this Agreement.
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6.6 Company Cooperation. (a) The Company agrees that after the Closing it
will, at its own cost and expense, reasonably cooperate with the Saracen Members
and the Designee which holds title to the Properties in connection with the
obtaining of a variance on those Properties generally known as Stony Brook and
74 Xxxxxx, in Waltham, Massachusetts, which variance is anticipated to be for
substantially the same matters as the variance as to said Properties which has
or is about to lapse, and in connection with any hearings, appeals and other
matters related to obtaining said variance and any appeals with respect thereto.
Said cooperation shall include, without limitation, the participation of Xxxxxx
Xxxxxxxx and Xxxxxxx Xxxxx (so long as each is employed by, consults with or
occupies any similar position as to the Company, its manager, any Non Saracen
Member, or any of their respective Affiliates), to liaison with abutters and
other potential adverse parties. In addition, the Company hereby waives any
right it may have to object to the representation by Xxxxxx Xxxxxxx, Esq. and
his law firm of the Saracen Members and the Designee as to the above referred to
matters, and further agrees to provide such evidence of such waiver as may be
reasonably required by Xx. Xxxxxx and/or his law firm. In no event shall the
Company be required to incur more than $25,000 of total expenses in fulfilling
its obligations under this Section 6.6. (inclusive of travel and related
expenses or any other out-of-pocket expense).
(b) The Company hereby agrees that, if the Company enters into any
severance agreement with either or both of Xxxxxxx Xxxx or Xxxxxxx Xxxxxxx (each
a "Former Employee"), the Company will use its reasonable efforts to include in
such agreement a provision prohibiting such Former Employee from interfering,
directly or indirectly, with the Saracen Members or their Designee's ongoing use
or operation of, or any other matter as to, any of the Properties. The Saracen
Members understand that the Company, in its sole and absolute discretion, may
elect not to enter into any such agreement with either or both of the Former
Employees and that the Company shall have no liability hereunder for its failure
to enter into any such agreement or for its failure, after using its reasonable
efforts, to include any such provision in any such agreement.
ARTICLE 7
Document Deliveries
7.1. Saracen Closing Documents. On the Closing Date, each of the Saracen
Members will execute and deliver or, as appropriate, cause to be executed and
delivered, the following documents:
(a) Assignment of Redeemed Interest. An assignment and assumption agreement
from each Saracen Member (as to each Saracen Member, an "Assignment") in the
form of Exhibit C conveying title to such Saracen Member's Interest, free and
clear of all Liens;
(b) Resignation Letters. Resignation Letters from each of the Committee
Representatives appointed by the Saracen Members to the Management Committee;
and
(c) FIRPTA Certificates. An affidavit of each Saracen Member and the
Designee in the form of Exhibit D certifying that each such Saracen Member is
not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code.
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(d) Assignments. An Assignment and Assumption of Leases from the title
holder of each Property, in the form attached hereto as Exhibit E, and an
Assignment and Assumption of Contracts in the form attached hereto as Exhibit F.
7.2. Company Closing Documents. On the Closing Date, the Company will
execute and deliver or, as appropriate, cause to be executed and delivered, the
following documents:
(a) Assignment of Redeemed Interest. Counterparts of the Assignments from
each Saracen Member, executed by the Company.
(b) Deeds of WASH Properties and 74 Xxxxxx Property. A deed from the title
holder of each of the WASH Properties and the 74 Xxxxxx Property (the "Deeds")
each in the form of Exhibit G, conveying title to each such Property free and
clear of all Liens not accepted by the Saracen Members, each said Deed with such
grantee thereunder as the Saracen Members may designate in writing to the
Company.
(c) Assignments. An Assignment and Assumption of Leases from the title
holder of each Property, in the form attached hereto as Exhibit E, an Assignment
and Assumption of Contracts in the form attached hereto as Exhibit F, and a Xxxx
of Sale in the form attached hereto as Exhibit H.
(d) Title Affidavits. A Title Affidavit in the form attached hereto as
Exhibit I.
(e) Reporting Designation. A Designation of Person Responsible for Tax
Reporting under Internal Revenue Code Section 6045 designating the Company or
the Company's counsel as the party responsible for making the returns required
under Internal Revenue Code Section 6045.
(f) The CVS Payment and the other funds required under Sections 6.3(b) and
6.3(d).
(g) The deliveries contemplated by Section 6.3(e).
(h) Additional Deliveries. Except to the extent already in the possession
of the Saracen Members or their Affiliates (including, without limitation, the
property managers of the Properties), the documents and deliveries listed in
Schedule X attached hereto, as to each Property.
7.3. Escrow Closing. The Saracen Members may require that the Closing occur
through an escrow with a title company designated by it pursuant to customary
terms and provisions for a closing of the transfer of real estate. The costs of
any such escrow shall be paid by the Saracen Members (or the Designee).
7.4. Survival. The terms and provisions of this Agreement shall survive the
Closing and the delivery of the documents referred to in this Article 7.
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ARTICLE 8
Miscellaneous
8.1. Notices. Any notice provided for by this Agreement and any other
notice, demand or communication which any party may wish to send to another
shall be in writing, addressed to the party for which such notice, demand or
communication is intended at such party's address as set forth in this Section,
and sent either (i) by registered or certified mail, return receipt requested,
in a sealed envelope, postage prepaid, (ii) by any national overnight receipted
courier service, or (iii) by facsimile transmission with express confirmation of
receipt delivered by the recipient to the sender by mail, hand delivery or
return fax. The Company's address for all purposes under this Agreement shall be
the following:
Wellsford/Whitehall Group, L.L.C.
c/o Goldman, Xxxxx & Co.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a simultaneous copy to:
WHWEL Real Estate Limited Partnership
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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The address of each of the Saracen Members under this Agreement shall be the
following:
Saracen Development
Xxxxx Xxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with simultaneous copies to:
Goulston & Storrs
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Rockpoint Group, L.L.C.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and
Xxxxxx, Xxxx & Xxxxxxxx LLP
Century City Office
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any address or name or facsimile number specified above may be changed by a
notice given by the addressee to the other party. Any notice, demand or other
communication shall be deemed given and effective as of the date of delivery in
person or receipt set forth on the return receipt or the facsimile confirmation.
The inability to deliver because of changed address or facsimile number of which
no notice was given, or rejection or other refusal to accept any notice, demand
or other communication, shall be deemed to be receipt of the notice, demand
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or other communication as of the date of such attempt to deliver or rejection or
refusal to accept.
8.2. Saracen Representative. It is agreed that any notice to be given by
the Saracen Members under this Agreement may be given in their stead by either
Saracen Representative, and that any such notice given by a Saracen
Representative on behalf of the Saracen Members shall be binding on the Saracen
Members and may be relied upon by the Company.
8.3. Entire Agreement, Modifications and Waivers. This Agreement and the
other agreements referred to herein constitute the entire agreement between the
parties hereto and may not be modified or amended except by an instrument in
writing signed by the parties hereto, and no provisions or conditions may be
waived other than by a writing signed by the party waiving such provisions or
conditions. No delay or omission in the exercise of any right or remedy accruing
to any Saracen Member or the Company upon any breach under this Agreement shall
impair such right or remedy or be construed as a waiver of any such breach
theretofore or thereafter occurring. The waiver by any Saracen Member or the
Company of any breach of any term, covenant or condition herein stated shall not
be deemed to be a waiver of any other breach, or of a subsequent breach of the
same or any other term, covenant or condition herein contained.
8.4. Exhibits and Schedules. All exhibits and schedules referred to in this
Agreement and attached hereto are hereby incorporated in this Agreement by
reference.
8.5. Successors and Assigns. Except as provided in this Agreement where the
Saracen Members have the right to designate a Person as the Designee, in which
event, the Saracen Members shall have the right to assign the rights to certain
items and other matters that survive the Closing as otherwise so set forth in
this Agreement, neither the Company nor any Saracen Member may assign its rights
under this Agreement to any third party without the prior written consent of the
other party hereto.
8.6. Article Headings. Article and Section headings and Article and Section
numbers are inserted herein only as a matter of convenience and in no way
define, limit or prescribe the scope or intent of this Agreement or any part
thereof and shall not be considered in interpreting or construing this
Agreement.
8.7. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
8.8. Time Periods. If the final day of any time period or limitation set
out in any provision of this Agreement falls on a Saturday, Sunday or legal
holiday under the laws of the State of New York or the Commonwealth of
Massachusetts or of the federal government, then the time of such period shall
be extended to the next day which is not a Saturday, Sunday or legal holiday.
8.9. Counterparts. This Agreement may be executed in any number of
counterparts and by either party hereto on a separate counterpart, each of which
when so executed and
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delivered shall be deemed an original and all of which taken together shall
constitute but one and the same instrument.
8.10. Further Acts. Each of the Company and the Saracen Members shall
perform, execute and deliver or cause to be performed, executed and delivered on
or after the date hereof, any and all further acts, deeds, instruments and
agreements and provide such further assurances as the other party may reasonably
request to consummate the transactions contemplated hereunder, provided that
such request does not result in any increase in the costs, liabilities or other
obligations of the other party.
8.11. Confidentiality. No party shall disclose to any third party the
terms, existence, nature or other aspects of the Definitive Agreements
(including, without limitation, any information provided to any party pursuant
to the terms of the Definitive Agreements) or the discussions between the
parties without the prior written consent of the other party hereto; provided
that each party shall be entitled to make any such disclosure to the extent
required by law, in which case the disclosing party shall notify the other party
prior to making such disclosure. In addition, none of the parties shall make any
public statement or issue any press release or other disclosure with respect to
the redemption by the Company of the Redeemed Interests, the distribution of the
WASH Properties and the 74 Xxxxxx Property or any other aspect of the Definitive
Agreements or the transactions contemplated thereby without the prior written
consent of the other party, which consent may be withheld in the sole discretion
of such other party; provided that each party shall be entitled to make any such
disclosure to the extent required by law, in which case the disclosing party
shall notify the other party prior to making such disclosure. The provisions of
certain Confidentiality Agreements previously entered into by some of the
parties hereto and/or their Affiliates as to information as to the WASH
Properties shall remain in full force and effect.
-23-
IN WITNESS WHEREOF, this Redemption Agreement has been entered into
effective as of the date first written above.
THE COMPANY:
WELLSFORD/WHITEHALL GROUP, L.L.C.
By: WP Commercial, L.L.C., its Manager
By:
--------------------------------
Name:
Title:
SARACEN MEMBERS:
XXXXXXX X. XXXXXXXX
----------------------------------------
XXXX X. XXXXXXXX
----------------------------------------
XXXXXXXX X. XXXXXXXX
----------------------------------------
XXXXX X. XXXXXXXX-XXXXXX
----------------------------------------
-24-
LEAS X. XXXXXXXX
----------------------------------------
XXXXXXX XXXXX
----------------------------------------
XXXXXX XXXXXX
----------------------------------------
XXXXXXXX X. XXXXXXXXX
----------------------------------------
XXXXXX XXXXXXXXXX, III
----------------------------------------
[SIGNATURE PAGE FOR REDEMPTION AGREEMENT BETWEEN
WELLSFORD/WHITEHALL GROUP, L.L.C. AND "SARACEN MEMBERS"]
-25-
The undersigned, being Non-Saracen Members, hereby join in this Redemption
Agreement (i) to consent to and approve of the Company entering into the
Redemption Agreement, and (ii) to agree to the provisions of Sections 5.1, and
5.2(b) and (c).
WHWEL REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WHATR Gen-Par, Inc., its general
partner
By:
--------------------------------
Name:
Title:
WELLSFORD COMMERCIAL PROPERTIES TRUST,
a Maryland real estate investment trust
By:
-------------------------------------
Name:
Title:
WXI/WWG REALTY, L.L.C., a Delaware
limited liability company
By:
-------------------------------------
Name:
Title:
-26-
W/W GROUP HOLDINGS, L.L.C., a Delaware
limited liability company
By:
-------------------------------------
Name:
Title:
WP COMMERCIAL, L.L.C., a Delaware
limited liability company
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE FOR REDEMPTION AGREEMENT BETWEEN
WELLSFORD/WHITEHALL GROUP, L.L.C. AND "SARACEN MEMBERS"]
-27-
EXHIBIT A
WASH Properties
1. 00/00/00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (Xxxxx Research Center)
2. 0/00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
3. 0-00 Xxxxxx Xxxxx / 00 Xxxxxx Xxxxx, Xxxxxx and Xxxxxxxx, Xxxxxxxxxxxxx
(Xxxxxx Xxxxx)
0. 000 Xxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
5. 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx (Stony Brook Office Park)
6. 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
[Legal descriptions follow]
EXH A-1-
Legal Descriptions of WASH Properties
00/00/00 XXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX
(XXXXX RESEARCH CENTER)
PARCEL II
All of these two certain parcels of land situate, lying and being in the
City of Newton, County of Middlesex, State of Massachusetts, shown on a plan
entitled "Plan of Land, Newton, Mass." dated February 5, 1973, by Alone X. Xxxx,
Inc., Engineers and Architects, and revised October 25, 1974, by Xxxxx
Xxxxxxxxx, Inc., Land Surveyors and Engineers, recorded with Middlesex South
Registry of Deeds as Plan No. 1032 of 1975 in Book 12873, Page 90, and more
particularly described as follows:
Parcel 1 of II
A certain parcel of land shown as Lot C on the above referenced plan
bounded and described as follows:
NORTHEASTERLY by the southwesterly sideline of Xxxxx Avenue by a curved
line having a radius of two thousand twenty-five (2025.00) feet, two
hundred sixty-nine and 15/100 (269.15) feet;
NORTHEASTERLY again by the southwesterly sideline of Xxxxx Avenue, four hundred
seventy-three and 86/100 (473.86) feet;
SOUTHEASTERLY by Lot D as shown on the above-referenced plan, seven hundred
forty and 20/100 (740.20) feet;
SOUTHWESTERLY by Parcel 2 as shown on the above-referenced plan, two hundred
thirty-four and 69/100 (234.69) feet;
SOUTHWESTERLY again by said Parcel 2 by a curved line having a radius of one
thousand and two hundred (1200.00) feet, five hundred sixteen and
19/100 (516.19) feet; and
NORTHWESTERLY by Lot B as shown on the above-referenced plan, seven hundred
twenty and 01/100 (720.01) feet.
Parcel 2 of II
A certain parcel of land shown as Lot D on the above-referenced plan
bounded and described as follows:
NORTHEASTERLY two hundred eighty-eight and 38/100 (288.38) feet by the
southwesterly sideline of Xxxxx Avenue;
NORTHEASTERLY again by the Southwesterly sideline of Xxxxx Avenue by a curved
line having a radius of two hundred fifty-nine and 55/100 (259.55)
feet, eighty-five and 71/100 (85.71) feet;
EASTERLY one hundred and 8/100 (100.08) feet by Lot E as shown on the
above-referenced plan;
EASTERLY &
SOUTHEASTERLY by a cured line having a radius of four hundred (400.00) feet, two
hundred eighty-seven and 56/100 (287.56) feet by said Lot E;
SOUTHEASTERLY again three hundred sixty-five and 27/100 (365.27) feet by
said Lot E (this and said last two prior boundaries by said Lot E being the
center line or approximate center line of the "50' Permanent Drain
Easement" shown on the above-referenced plan);
SOUTHWESTERLY by Parcel 2 as shown on the above-referenced plan, five hundred
fifty-two and 3/100 (552.03) feet; and
NORTHWESTERLY seven hundred forty and 20/100 (740.20) feet by Lot C as
shown on the above-referenced plan.
Parcel 3 of II
That certain non-exclusive permanent easement for a main drain and common
sewer appurtenant to Parcel 2 of Parcel II described above over the
northwesterly twenty-five (25) feet of Lot E, as set forth in that certain
instrument recorded in Book 7257, Page 379, and as shown on the above-referenced
plan.
0/00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
The land in Newton, Middlesex County, Massachusetts, described as Lot B
shown on a Plan of Land by Xxxxxx X. Xxxx, Inc. dated February 5, 1973, revised
October 25, 1974 by Xxxxx & Xxxxxxxxx, Inc., recorded with the Middlesex South
Registry of Deeds in Book 12873, page 90.
0-00 Xxxxxx Xxxxx/00 Xxxxxx Xxxxx, Xxxxxx and Westwood, Massachusetts
(Dedham Place)
Unit O (the "Unit") in a condominium known as Dedham Place Condominium, situated
at 0-00 Xxxxxx Xxxxx and 00 Xxxxxx Xxxxx, Xxxxxxxx and Dedham, Massachusetts
(the "Condominium), created by Master Deed dated November 20, 1991, recorded
with Norfolk County Registry of Deed on November 27, 1991, Book 9118, Page 336
(the "Master Deed").
The Unit is more particularly described in the Master Deed
and on the site plans for the Condominium filed therewith entitled "Site + Land
Plan Dedham Place Condominium, Dedham Place Associates Joint Venture dated
November 7, 1991, prepared by Xxxxxx X. Xxxxxxx (the "Site Plans").
The Unit is conveyed together with an undivided fifty-one (51%) percent interest
appertaining to said Unit in the common areas and facilities of the Condominium,
and together with the right to the exclusive use of the areas shown as
"Exclusive Use Areas - Unit O" on the Site Plans.
The United is conveyed subject to and with the benefit of (a) all easements,
restrictions and encumbrances of record insofar as the same as now in force and
applicable, (b) the provisions of Massachusetts General Laws Chapter 183A, as
that statute is written as of the date hereof and as it may hereinafter by
amended, the terms and provisions of the Master Deed and the Dedham Place
Condominium Trust and By-laws, dated November 20, 1991, recorded with Norfolk
County Registry of Deeds on November 27,1 991 in Book 9118, Page 376 and any
rules and regulations promulgated pursuant thereto.
000 Xxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
Xxx 00 xx Xxxx Xxxxx Xxxx Xx. 00000X, dated July 16, 1969, a copy of which is
filed with the Norfolk County Registry District of the Land Court with
Certificate of Title No. 94229.
Numerous parcels of land described in the Deed at Book 11656, Page 456, two of
which are shown on a recorded plan as follows:
Lots 1 and 1A shown on a plan entitled "Plan of Land in Dedham and Westwood,
Mass." Dated December 21, 1979, by Xxxxxx X Xxxxxx, Inc., Civil Engineers,
recorded with said Deeds, Book 5880, Page 305.
All those six certain parcels of registered and unregistered land situated on
Elm Street in Dedham and Westwood, Norfolk County, Massachusetts and more
particularly described as follows:
Parcels 1 and 2 of Parcel III - Unregistered Land
Two certain contiguous parcels of land with the building and improvements
thereon being situated in Dedham and Westwood, Norfolk County, Massachusetts
being shown as Lot 1 and Lot 1A on a plan entitled "Plan of Land in Dedham and
Westwood, Mass." Scale: 40 feet to an inch, dated Dec. 21, 1979, prepared by
Xxxxxx X. Xxxxxx, Inc., Civil Engineers, Xxxxxx Building 0000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, recorded with the Norfolk County Registry of Deeds in
Book 5580, Page 305, and more particularly bounded and described as follows:
NORTHEASTERLY by Elm Street, as shown on said plan, by a curved line, ninety-six
and 71/100 (96.71) feet;
EASTERLY by discontinued county layout as shown on said plan, by two (2)
courses measuring respectively, fifty-two and 70/100 (52.70) feet
and eighty-seven and 77/100 (87.77) feet;
SOUTHERLY by Commonwealth of Massachusetts Circumferential Highway, as
shown on said plan, twenty-three and 05/100 (23.05) feet;
EASTERLY by Commonwealth of Massachusetts Circumferential Highway, as shown
on said plan, thirty-seven and 87/100 (37.87) feet;
SOUTHEASTERLY by Commonwealth of Massachusetts Circumferential Highway, as shown
on said plan, ninety and 59/100 (90.59) feet;
SOUTHWESTERLY by Commonwealth of Massachusetts Circumferential Highway, as shown
on said plan, by two (2) courses measuring respectively, thirteen
and 95/100 (13.95) feet and two hundred ninety-eight and 76/100
(298.76) feet;
WESTERLY by land of Bruce's Animal Hospital and Kennel Inc., as shown on
said plan, one hundred fourteen and 52/100 (114.52) feet;
NORTHERLY by land of Bruce's Animal Hospital and Kennel Inc. as shown on
said plan, three hundred twenty-seven and 20/100 (327.20) feet.
Parcel 3 of Parcel III - Registered Land
That certain parcel of land with the buildings and improvements thereon situated
in Dedham and Westwood, Norfolk County, Massachusetts, being shown as Lot number
12 on a plan entitled "Subdivision Plan of Land in Dedham and Westwood", dated
July 16, 1969, prepared by Pilling Engineering Company, Inc., Surveyors,
approved by the Norfolk County Registry of District of the Land Court, filed in
the Norfolk County Land Registration Office as No. 21105J, a copy of a portion
of which is filed in said Land Court with Certificate No. 94229 I Book 472 at
Page 29, and being more particularly bounded and described as follows:
WESTERLY by Elm Street, thirty-eight and 20/100 (38.20) feet;
SOUTHWESTERLY by the end of said Elm Street, thirty-four and 60/100 (34.60)
feet;
WESTERLY by a line in former Elm Street, fourteen and 46/100 (14.46) feet;
NORTHWESTERLY by a line in said former Elm Street, by the Southeasterly line of
Rustcraft Road and by land now or formerly of Xxxxxx Xxxxxxx et
al, ninety-one and 07/100 (91.07) feet;
NORTHEASTERLY
& NORTHERLY by said Rustcraft Road, one hundred seventy-one and 88/100
(171.88) feet; and
SOUTHEASTERLY by land now or formerly of The New York, New Haven and Hartford
Railroad Company, two hundred thirty-seven and 07/100 (237.07)
feet.
Parcel 4 of Parcel III - Unregistered Land
That portion of Rustcraft Road, abandoned by the Town of Dedham, Massachusetts,
under Order recorded with the Norfolk County Registry of Deeds in Book 849, Page
103.
Parcel 5 of Parcel III - Unregistered Land
The portion of Elm Street, discontinued by the County of Norfolk, dated June 28,
1960 and recorded with Norfolk County Registry of Deeds in Book 3829, Page 408.
Parcel 6 of Parcel III - Unregistered Land
The portion of Rustcraft Road, abandoned by the Town of Dedham, Massachusetts,
consisting of 59 square feet under Order dated April 22, 1954 and recorded with
the Norfolk County Registry of Deeds in Book 3261, Page 56.
000 Xxxxxx Xxxxxx (128 Technology Center), Waltham, Massachusetts
(Stony Brook Office Park)
PARCEL 1
Parcel 1 of Parcel IV
A certain parcel of land situate in Waltham in the County of Middlesex and
Commonwealth of Massachusetts, bounded and described as follows:
Beginning in the Southerly line of land of the Boston and Maine Railroad at land
of the City of Cambridge at a point 59.82 feet S. 30 degrees 19 minutes 10
seconds W. from a point on the center line of the location of said railroad;
thence running by said Railroad land or location S. 54 degrees 4 minutes 40
seconds E., two hundred seventy-one and 6/10 (271.6) feet, and S. 58 degrees 55
minutes 20 seconds E., one hundred (100) feet;
thence turning and running Southeasterly still on said railroad land or location
on a curve to the left having a radius of 2433.75 feet, one hundred one and 9/10
(101.9) feet;
thence turning and running Southeasterly still on said land or location on a
curve to the left having a radius of 2911.18 feet, two hundred ninety-nine and
85/100 (299.85) feet;
thence Southwesterly about one hundred thirty-four (134) feet to a corner of
land now or formerly of heirs of Xxxx Xxxxxxx;
thence turning and running N. 67 degrees 32 minutes 45 seconds W. in the
Northerly line of said lands now or formerly of heirs of Xxxx Xxxxxxx, eight
hundred three and 4/10 (803.4) feet to said land of City of Cambridge;
thence turning and running North 30 degrees 19 minutes 10 seconds E. by said
last named land, two hundred forty-seven (247) feet to the point of beginning,
be all of said measurements more or less.
Being the same shown premises as Lot A on a plan entitled "Plan of Land of White
Pigment Corporation in Waltham, Massachusetts" dated August 15,1955, by Xxxxxxx
X. Xxxxxx &. Co., Civil Engineers, recorded with Middlesex South District
Registry of Deeds in Book 8555, Page 346 (the "1955 Plan").
Together with an easement in common with others entitled thereto to pass and
xxxxxx and to install and maintain utilities in, over and under the private way
marked "Easement" and located on Lot B on the 1955 Plan, the utilities in said
private way to be located as may be agreed upon between the parties entitled to
such way; and the right to use and extend at the expense of Compo Shoe Machinery
Corporation, its successors and assigns, the railroad spur track of the Boston
and Maine Railroad situated north of the building of White Pigment Corporation
as it was located on April 29, 1955. Such easements are set forth in deed
recorded with said Deeds in Book 8555, Page 350.
Parcel 2 of Parcel IV
That certain parcel of land situate in Waltham in the County of Middlesex and
said Commonwealth, bounded and described as follows:
WESTERLY three hundred ninety-two and 20/100 feet;
NORTHERLY ninety-two and 42/100 feet; and
NORTHEASTERLY seven hundred seven and 04/100 feet, all by Lot 13 as shown on
plan hereinafter mentioned;
SOUTHEASTERLY by Lot 9 on said plan, three hundred sixteen and 12/100 feet; and
SOUTHWESTERLY
& SOUTHERLY by Lot 15 on said plan, six hundred twenty-nine and 32/100 feet.
Said parcel is shown as Lot 14 on said plan. All of said boundaries are
determined by the Court to be located as shown on a subdivision plan, as
approved by the Court, filed in the Land Registration Office, a copy of which is
filed in the Registry of Deeds for the South Registry District of Middlesex
County in Registration Book 683, Page 56, with Certificate 110606.
Also another certain parcel of land situate in said Waltham bounded and
described as follows:
SOUTHWESTERLY by the northeasterly line of Xxxxxxx Road, two hundred twenty-four
and 87/100 feet;
NORTHEASTERLY by land now or formerly of White Pigment Corporation, two hundred
feet; and
EASTERLY by land now or formerly of Xxxxx X. True, sixty-two and 67/100
feet.
Said parcel is shown as Lot 8 on plan hereinafter mentioned. All of said
boundaries are determined by the Court to be located as shown on a plan, as
modified and approved by the Court, filed in the Land Registration office, a
copy of a portion of which is filed in the Registry of Deeds for the South
Registry District of Middlesex County in Registration Book 544, Page 174, with
Certificate 82924.
Said lots have the benefit of the provisions of Easement Indenture, Document
389934, referred to in Order of Court Document 389937.
There is also appurtenant to Parcel 2 of Parcel IV an unregistered easement, in
common with others entitled thereto, to pass and xxxxxx and to install and
maintain utilities in over and under the private way marked "Easement" located
on Lot B on the 1955 Plan referenced in the description of Parcel 1, the
utilities in said private way to be located as may be agreed upon between the
parties entitled to use such way. Such easement is set forth in a deed recorded
with said Deeds in Book 8555, Page 352.
Parcel 3 of Parcel IV
That certain parcel of land situate in Waltham in the County of Middlesex and
said Commonwealth, bounded and described as follows:
SOUTHERLY by Lot 13 as shown on plan hereinafter mentioned, one hundred
fifty-three and 55/100 feet;
NORTHWESTERLY by land now or formerly of the City of Cambridge, ninety-six and
78/100 feet; and
NORTHEASTERLY by land now or formerly of White Pigment Corporation, ninety and
14/100 feet.
Said parcel is shown as lot 6 on said plan.
Also another certain parcel of land situate in said Waltham bounded and
described as follows:
SOUTHWESTERLY by Lot 13 as shown on said plan hereinafter mentioned, two hundred
twenty-seven and 85/100 feet;.and
NORTHEASTERLY two hundred twenty-three and 36/100 feet; and
EASTERLY forty feet, by land now or formerly of White Pigment Corporation.
Said parcel is shown as Lot 7 on said plan.
Also another certain parcel of land situate in said Waltham bounded and
described as follows:
NORTHEASTERLY by Lot 12 as shown on said plan hereinafter mentioned and by the
Southwesterly line of Xxxxxxxx Street, three hundred forty-six and
19/100 feet;
EASTERLY by lands now or formerly of Xxxxxxx X. Xxxxxxx et al and of Xxxxxx
Xxxxx, one hundred ninety and 05/100 feet;
SOUTHERLY forty-six and 59/100 feet; and
SOUTHEASTERLY one hundred forty-seven and 52/100 feet by land now formerly of
Xxxxxx X. Xxxxxxxx;
SOUTHWESTERLY by the northeasterly line of Sunnyside Street, three hundred
eighty and 24/100 feet; and
NORTHWESTERLY by Lot 9 on said plan, three hundred fourteen and 52/100 feet.
Said parcel is shown as Lot 11 on said plan.
Also another certain parcel of land situate in said Waltham bounded and
described as follows:
WESTERLY by land now for formerly of the City of Cambridge, four hundred
eleven and 26/100 feet
NORTHERLY by Lot 6 as shown on said plan hereinafter mentioned, one hundred
fifty-three and 55/100 feet;
NORTHEASTERLY by land now formerly of White Pigment Corporation and by Lot 7 on
said plan, seven hundred seventeen and 75/100 feet;
SOUTHEASTERLY by Lot 12 on said plan, forty feet;
SOUTHWESTERLY seven hundred seven and 04/100 feet;
SOUTHERLY ninety-two and 42/100 feet; and
EASTERLY three hundred ninety-two and 20/100 feet, all by Lot 14 on said
plan; and
SOUTHERLY by Lot 16 on said plan, forty and 02/100 feet
Said parcel is shown as Lot 13 on said plan.
Also another certain parcel of land situate in said Waltham bounded and
described as follows:
SOUTHEASTERLY by a line crossing Xxxxxxx Road as shown on plan filed in
Registration Book 544, Page 174, forty and 79/100 feet;
WESTERLY by land now or formerly of the City of Cambridge, eight hundred
ninety-seven and 98/100 feet:
NORTHERLY by Lot 13 as shown on plan hereinafter mentioned forty and 02/100
feet; and
EASTERLY by Lot 15 on said plan, eight hundred sixty-two and 80/100 feet.
Said parcel is shown as Lot 16 said plan.
Also another certain parcel of land situate in said Waltham bounded and
described as follows:
SOUTHEASTERLY by the end of Xxxxxxxx Street, forty and 05/100 feet;
SOUTHWESTERLY by Lots 11 and 9 as shown on said plan hereinafter mentioned, two
hundred twenty-six and 78/100 feet;
NORTHWESTERLY by Lot 13 on said plan, forty feet; and
NORTHEASTERLY by Lot 8 on said plan, two hundred twenty-four and 87/100 feet.
Said parcel is shown as Lot 12 on said plan.
All of said boundaries are determined by the Court to be located as shown on a
subdivision plan, as approved by the Court, filed in the Land Registration
office, a copy of which is filed in the Registry of Deeds for the South Registry
District of Middlesex County in Registration Book 683, Page 56, with Certificate
of Title 110606.
All of the above described land has the benefit of the provisions of Easement
Indenture, Document 389934.
There is also appurtenant to Parcel 3 an unregistered easement, in common with
others entitled thereto, to pass and xxxxxx and to install and maintain
utilities in, over and under the private way marked "Easement" located on Lot B
on the 1955 Plan referenced in the description of Parcel 1, the utilities in
said private way to be located as may be agreed upon between the parties
entitled to use such way. Such easement is set forth in deeds recorded with said
Deeds in Book 8458, Page 404 and Book 8555, Page 352.
Parcel 4 of Parcel IV
A certain piece or parcel of land situated in Waltham, County of Middlesex and
Commonwealth of Massachusetts, bounded and described as follows:
Beginning at a point which is South 22 degrees 27 minutes 15 seconds West
twenty-eight (28.00) feet from Station 617-72.82 on center line of location
Fitchburg Main Line Boston Division Boston and Maine Railroad, thence running
South 22 degrees 27 minutes 15 seconds West eighteen and twenty-five hundredths
(18.25) feet to a point:
thence turning and running along land of Compo Shoe Machinery Corporation on the
following four (4) courses: on a curve to the right having a radius of two
thousand nine hundred eleven and eighteen hundredths (2911.18) feet and a length
and three hundred six and forty-seven hundredths (306.47) feet; on a curve to
the right having a radius of two thousand four hundred thirty-three and
seventh-five hundredths (2433.75) feet and a length of one hundred one and ,
ninety-four hundredths (101.94) feet; North 58 degrees 55 minutes 20 seconds
West one hundred (100.00) feet; and North 54 degrees 04 minutes 40 seconds West
two hundred seventy-one and sixty hundredths (271.60) feet to a point;
thence turning and running North 30 degrees 19 minutes 10 seconds East
thirty-one and sixteen hundredths (31.16) feet to a point.
thence turning and running along land of Boston and Maine Railroad on the
following three (3) courses: on a curve to the left having a radius of one
thousand nine hundred thirty-eight and eight hundredths (1938.08) feet and a
length of three hundred seventy-three and twenty-one hundredths (373.21) feet;
on a curve to the left having a radius of two thousand four hundred fifteen and
fifty hundredths (2415.50) feet and a length of one hundred one and eighteen
hundredths (101.18) feet; on a curve to the left having a radius of two thousand
eight hundred ninety-two and ninety-three hundredths (2892.93) feet and a length
of three hundred four and fifty-four hundredths (304.54) feet to the point of
beginning.
Be all of said measurements more or less, said parcel containing about fifteen
thousand, five hundred thirty-two (15,532) square feet and being shown upon plan
marked "Land in WALTHAM, MASS. Boston and Maine Railroad - To Compo Shoe
Machinery Corporation, X.X. Xxxxxx Asst. Chief Engr., Scale 1"= 50 ft., May
1962, recorded with said Deeds as Plan No.1472 of 1962.
Parcel 5 of Parcel IV
That certain easement appurtenant to Parcels 1,2, 3 and 4 above, to and from
said parcels to Xxxxxx Street, created and more particularly described by that
certain Grant of Easement dated March 3, 1986 recorded with Middlesex South
Registry of Deeds as Instrument No. 571 of March 4, 1986, and as more
particularly described on the Plan recorded as Plan 279 of 1986.
Together with the benefit of easements as set forth in Deeds, recorded with said
Deeds, Book 8555, Page 350 and Book 8555, Page 352.
Together with the benefit of the provisions of an Easement Indenture as set
forth in Document No. 389934 as referred to in Document No. 389937.
000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
That certain parcel of land situated in Westwood in the County of Norfolk and
Commonwealth of Massachusetts bounded and described as follows:
SOUTHEASTERLY by University Avenue, shown on the plan, hereinafter referred to
six hundred fifty-seven and 25/100 (657.25) feet;
SOUTHWESTERLY by Lots numbers 22, 24 and 32, as shown on said plan, three
hundred eighty-four and 40/100 (384.40) feet;
NORTHWESTERLY by said lot numbers 32, six hundred fifty-seven and 25/100
(657.25) feet; and
NORTHEASTERLY by land now or formerly of Xxxxxxx X. X'Xxxxxx, three hundred
eighty-four and 40/100 (384.40) feet.
Said parcel is shown as Xxxx 00 xxx 00 xxxxx xx Xxxx Xxxxx Xxxx Xx. 00000X,
dated June 3, 1964, revised through September 4, 1964, a copy of which is filed
with the Norfolk County Registry District of the Land Court with Certificate of
Title No. 76456.
Together with the benefit of drain and slope rights set forth in an Indenture,
dated August 24, 1964, filed with said Registry District as Document No. 258345
and as set forth in an Order of Court, filed with said Registry District as
Document No. 260043.
Together with the benefit of the rights set forth or referred to in Document
Nos. 258596, 258597, 258689, 260043, 260694, 261815, 263363, and 263595.
EXHIBIT B
00 XXXXXX XXXXXX
LEGAL DESCRIPTION
Parcel of land located at 00 Xxxxxx Xxxxxx in Waltham, Massachusetts.
A certain parcel of land with the buildings thereon situated on Xxxxxx Street
and being shown as Lot B on a plan entitled "Plan of Land of White Pigment
Corporation in Waltham, Mass." Scale 1" = 40ft., dated August 15, 1995, Xxxxxxx
X. Xxxxxx & Co., Civil Engineer, recorded with Middlesex South District Registry
of Deeds in Book 8555, Page 346, and more fully described as follows:
SOUTHERLY by Xxxxxx Street four hundred and fourteen (414.0) feet;
SOUTHEASTERLY in two courses by said Xxxxxx Street and land now or formerly of
Xxxxx X. True, sixty and 85/100 (60.85) feet and forty (40.00)
feet;
SOUTHERLY by land of owners unknown, two hundred (200.00) feet;
WESTERLY by land of owners unknown, forty (40.00) feet; and by Lot A, one
hundred thirty-four (134.0) feet;
NORTHERLY by land now or formerly of the Boston and Maine Railroad, six
hundred and 35/100 (600.35) feet;
EASTERLY by land now or formerly of the Boston and Maine Railroad,
twenty-nine and 4/10 (29.4) feet.
All as shown on said plan.
EXHIBIT C
Form of Redeemed Interests Assignment Agreement
ASSIGNMENT AND ASSUMPTION
OF MEMBERSHIP INTEREST
This Assignment and Assumption of Membership Interest (this "Agreement") is
made as of this ____ day of June, 2004 by and between ____________________
("Assignor") and Wellsford/Whitehall Group, L.L.C., a Delaware limited liability
company ("Assignee").
RECITALS
WHEREAS, Assignor currently owns the membership interest described on
Schedule I (the "Membership Interest") in Wellsford/Whitehall Group, L.L.C., a
Delaware limited liability company (the "Company"); and
WHEREAS, the Company is presently governed by that certain Limited
Liability Company Operating Agreement of the Company, dated as of May 28, 1999,
as amended by the First Amendment thereto dated as of December 21, 2000, and as
further amended by the Second Amendment thereto dated as of March 29, 2004; and
WHEREAS, Assignee desires to redeem the Membership Interest, all as part of
that certain Redemption Agreement dated June 2004, between the parties hereto,
among others (the "Redemption Agreement").
NOW THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. On the terms and conditions hereinafter set forth, Assignor hereby
grants, conveys, assigns and transfers to Assignee (collectively, the
"Assignment") all of Assignor's right, title and interest, in, to and under the
Membership Interest (the "Assigned Interest").
2. Assignee hereby accepts the Assignment and, subject to the provisions of
that certain Redemption Agreement dated as of the date hereof between Assignor
and Assignee, among others, assumes the obligations of Assignor with respect to
the Membership Interest accruing after the date hereof and, subject to the
provisions of said Redemption Agreement, hereby releases the Assignor from any
and all obligations the Assignor may have to Assignee.
3. Upon the execution of this Assignment by the parties hereto, Assignor
does hereby withdraw as a member of the Company.
Exh. C-1-
4. Assignor hereby represents and warrants to Assignee that each and every
one of the following statements is true, correct and complete in every material
respect as of the date of this Assignment:
(a) The execution and delivery of this Agreement and the performance by
Assignor of its, his or her obligations under this Agreement requires no further
action or approval of any other individual or entities, other than any such
matters as may be required under the governing documents of the Company, any of
the Subsidiaries or any of their Affiliates (as such capitalized terms are
defined in the aforesaid Redemption Agreement), or pursuant to an agreement by
which the Company, any of the Subsidiaries or any of their Affiliates or any of
their respective properties is bound or subject to, in order for this Agreement
to constitute a binding valid and enforceable obligation of Assignor. This
Agreement is the legal, valid and binding obligation of Assignor, enforceable in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws affecting the enforcement thereof or relating to
creditors' rights generally.
(b) Assignor is not non-resident alien (as such term is defined in the
Internal Revenue Code and United States Income Tax Regulations).
(c) The entry into, the performance of, or compliance with this Agreement
by Assignor has not resulted, and will not result, in any violation of, default
under, or acceleration of any obligation under any existing agreement,
including, without limitation, the mortgage, indenture, loan agreement, note,
contract, lease, permit, judgment, decree, order, restrictive covenant, statute,
rule or regulation applicable to Assignor or its Interest or any part thereof,
not including herein any such matter under the Operating Agreement or applicable
to the Company, any of the Subsidiaries or any of their Affiliates or by which
any of them or any of their respective properties are bound.
(d) Assignor (i) has not made an assignment for the benefit of creditors or
admitted in writing its inability to pay its debts as they mature, and (ii) has
not been adjudicated a bankrupt or filed a petition in voluntary bankruptcy or a
petition or answer seeking reorganization or an arrangement with creditors under
the Federal bankruptcy law or any other similar law or statute of the United
States or any jurisdiction and, to the actual knowledge of Assignor, no such
petition has been filed against Assignor.
(e) Assignor has good and valid title to the Membership Interest set forth
opposite Assignor's name on Schedule I hereto, free and clear of all Liens, and
has not previously assigned, encumbered, conveyed, hypothecated or otherwise
transferred all or any part of such Membership Interest or agreed to do any of
the foregoing. Assignor acknowledges and agrees that, effective upon the
execution of this Agreement, it shall have no further Interest in the Company.
Exh. C-2-
(f) Assignor (either alone or with his, her or its advisors) has sufficient
knowledge and experience in financial, tax and business matters to enable him,
her or it to evaluate the benefits, detriments, advantages, disadvantages,
merits and risks of the redemption of the Redeemed Interests and the acquisition
of the WASH Properties and the 74 Xxxxxx Property. Assignor acknowledges that
(1) the transactions contemplated by this Agreement involve complex legal and
tax consequences for Assignor and Assignor is relying solely on the advice of
his, her or its own legal and tax advisors in evaluating such consequences, (2)
neither the Company (including any of its Affiliates), nor the Manager nor the
Management Committee of the Company nor any of the Non-Saracen Members, or their
respective legal and tax advisors has made (or shall be deemed to have made) any
representations or warranties as to the legal or tax consequences of such
transactions to Assignor and (3) Assignor is not relying upon the Company, any
of the Non Saracen Members or any of their respective tax or legal advisors
(including Xxxxxxxx & Xxxxxxxx and Xxxxx & Xxxxx) with respect to any
structuring, tax, legal, financial or other aspect of the transactions
contemplated by this Agreement.
(g) Assignor is over 21 years of age, of sound mind and has the legal and
mental capacity to act for himself or herself.
(h) In connection with this Agreement and the Redemption Agreement,
Assignor has been represented by independent legal counsel, understands the
assumptions of risk and liability set forth in this Agreement and understands
that it will not have any recourse whatsoever against any the Company or any
Company Party, except as expressly set forth in this Agreement and in the
Redemption Agreement. Assignor further acknowledges that it is has had a full
and adequate opportunity to understand the Properties and to review and discuss
the same with the Company and with the property manager (which is an affiliate
of some of the Saracen Members, and in this regard in the property manager's
capacity as an affiliate of some of the Saracen Members and not in the property
manger's capacity as a representative or agent of the Company).
Assignor shall indemnify and defend the Company against and hold the
Company harmless from any and all losses, costs, damages, liabilities and
expenses (including, without limitation, reasonable counsel fees) arising out of
any breach by Assignor of its representations and warranties hereunder, except
as limited herein.
Capitalized terms used above and not defined in this Agreement shall have
the meanings ascribed thereto in the Redemption Agreement.
5. Assignee hereby represents and warrants to Assignor that each and every
one of the following statements is true, correct and complete in every material
respect as of the date of this Assignment:
(i) The execution and delivery of this Agreement and the performance by
Assignee of its obligations under this Agreement requires no further action or
approval of any other individual or entities in order for this Agreement to
constitute a valid, binding and
Exh. C-3-
enforceable obligation of Assignee. This Agreement is the legal, valid and
binding obligation of Assignee, enforceable in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting the
enforcement thereof or relating to creditors' rights generally.
(j) The entry into, the performance of, or compliance with this Agreement
by Assignee has not resulted, and will not result, in any violation of, default
under, or acceleration of any obligation under any existing agreement,
including, without limitation the mortgage, indenture, loan agreement, note,
contract, lease, permit, judgment, decree, order, restrictive covenant, statute,
rule or regulation applicable to Assignee or any part thereof, not including
herein any such matter under the Operating Agreement or applicable to the
Company or any of the Company's Affiliates.
(k) Assignee (i) has not made an assignment for the benefit of creditors or
admitted in writing its inability to pay its debts as they mature, and (ii) has
not been adjudicated a bankrupt or filed a petition in voluntary bankruptcy or a
petition or answer seeking reorganization or an arrangement with creditors under
the Federal bankruptcy law or any other similar law or statute of the United
States or any jurisdiction and, to the actual knowledge of Assignee, no such
petition has been filed against Assignee.
6. The representations and warranties set forth in Paragraphs 4 and 5
hereof shall survive the delivery of this Agreement for the applicable statute
of limitations.
7. (a) Assignor agrees to indemnify, defend and hold Assignee, its members,
employees, agents and representatives, their respective Affiliates and their
respective successors and assigns, harmless from and against any and all actual
losses, costs, damages, claims, liabilities and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) actually suffered or
incurred in connection with or arising out of any breach of any representation
or warranty by Assignor contained herein.
(b) Assignee agrees to indemnify, defend and hold Assignor, its members,
employees, agents and representatives, their respective Affiliates and their
respective successors and assigns, harmless from and against any and all actual
losses, costs, damages, claims, liabilities and expenses (including, without
limitation, reasonable attorneys' fees and disbursements) actually suffered or
incurred in connection with or arising out of any breach of any representation
or warranty by Assignee contained herein.
8. The parties hereto agree that this Agreement shall bind and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
9. This Agreement shall be construed under and enforced in accordance with
the laws of the State of Delaware.
Exh. C-4-
10. Any modification of this Agreement shall be effective only if in a
writing executed by all parties.
11. This Agreement may be executed in counterparts, each of which shall be
an original and all of which, taken together, shall constitute one and the same
instrument.
[signature page follows]
Exh. C-5-
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement as
of the day and year first above written.
[ASSIGNOR]
By:
-----------------------------------------
Name:
Title:
WELLSFORD/WHITEHALL GROUP, L.L.C.,
A Delaware limited liability company
By: WP Commercial, L.L.C., its Manager
By:
-------------------------------------
Name:
Title:
Exh. C-6-
EXHIBIT D
Form of FIRPTA Certificate
CERTIFICATE OF NON-FOREIGN STATUS
This Certificate of Non-Foreign Status (this "Certificate") is made as of
the day of __________, 2004, by ____________________, a ____________________
(the "Transferor").
This Certificate is made pursuant to Section 1445 of the Internal Revenue
Code, which provides that a transferee of a U.S. real property interest must
withhold tax if the transferor is a foreign person. [For U.S. tax purposes
(including section 1445), the owner of a disregarded entity (which has title to
a U.S. real property interest under local law) will be the transferor of the
property and not the disregarded entity.] To inform the transferee that
withholding of tax is not required on the disposition of a U.S. real property
interest by the Transferor, the undersigned hereby certifies the following [on
behalf of the Transferor]:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate or non-resident alien (as those terms are
defined in the Internal Revenue Code and United States Income Tax Regulations);
2. [The Transferor is not a disregarded entity, as defined in United States
Income Tax Regulations Section 1.1445-2(b)(2)(iii);]
3. The Transferor's U.S. employer identification number or social security
number is ____________________; and
4. The Transferor's [office] address is:
_____________________________
_____________________________
_____________________________
The Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined the contents of
this Certificate and, to the best of my knowledge and belief, they are true,
correct, and complete, [and I further declare that I have authority to sign this
document on behalf of the Transferor].
__________________________________
EXH D-1-
EXHIBIT E
FORM OF ASSIGNMENT OF LEASES
EXH E-1
FORM OF ASSIGNMENT OF LEASES
ASSIGNMENT AND ASSUMPTION AGREEMENT RE: LEASES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment") is made as of
this _ day of July 2004, by and between Xxxxx Avenue Senior Holdings LLC
("Assignor") and RP/Saracen Properties, LLC (the "Assignee").
RECITALS:
Reference is made to the following facts that form the background to this
Assignment:
A. The owners of the Assignee are members of the Wellsford/Whitehall
Group, LLC, a Delaware limited liability company (the "Company"). The
Company is the eventual parent of the Assignor. The Company and the
aforesaid owners have entered into that certain Redemption Agreement
dated July 2, 2004 (the Redemption Agreement"). Capitalized terms used
herein but not defined shall have the meanings set forth in the
Redemption Agreement.
B. WASH owns the WASH Properties, one of which is located at 00/00/00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx and more particularly described in
Exhibit A attached hereto (the "Property").
C. Simultaneously with the execution of this Agreement, the Company is
redeeming the interests of all of the owners of the Assignee in the
Company in exchange for the WASH Properties, among other
considerations, pursuant to the terms and conditions of the Redemption
Agreement.
D. The Assignor desires to convey, assign, transfer and set over, as
applicable, to the Assignees all of the interest, rights and benefits
of the Assignor in and to the personal property, tangible or
intangible, related to the Property upon the terms hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto do
hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title and
interest of Assignor in and to the following described property: All leases,
subleases and other occupancy agreements relating to or affecting the Premises,
together with all guarantees of obligations of tenants and other parties under
such leases and agreements, including, without limitation, the leases and other
agreements more fully described on Exhibit B attached hereto and made a part
hereof (collectively, the "Leases");
-1-
TO HAVE AND TO HOLD all of the foregoing unto the Assignee, its successors
and assigns, from and after the date hereof, subject to the terms, covenants,
conditions and provisions contained herein.
2. Assignee hereby accepts the foregoing assignment of the Leases and
hereby assumes all the duties and obligations of Assignor accruing under the
Leases and with respect to the Security Deposits described in Exhibit C attached
hereto. Assignee shall indemnify, defend and hold Assignor harmless from and
against, any and all claims, liabilities and costs (including attorneys' fees
and costs) arising out of or relating to Assignee's failure to perform any duty
or obligation assumed by Assignee under the Leases or with respect to the
Security Deposits.
3. This Assignment is without recourse to Assignor, except such, if any, as
provided for under the Redemption Agreement.
4. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
[Remainder of Page Intentionally Left Blank. Signatures on Following Page.]
- 2 -
IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Agreement Re: Leases under seal on the day and year first above
written.
WITNESS: ASSIGNOR:
XXXXX AVENUE SENIOR HOLDINGS LLC
--------------------
By:
------------------------------------
Name:
Title:
ASSIGNEE:
-------------------- RP/SARACEN PROPERTIES, LLC
By: RP/SARACEN HOLDINGS, LLC, its sole
member
By: SM EQUITY LLC HOLDINGS, its sole
member
By:
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Manager
-3-
EXHIBIT A
Legal Description of Property
- 4 -
EXHIBIT B
Leases at ____________________
-5-
EXHIBIT F
FORM OF ASSIGNMENT OF CONTRACTS
EXH F-1
ASSIGNMENT AND ASSUMPTION AGREEMENT
RE: CONTRACTS AND INTANGIBLES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made as of
the ___ day of July 2004, by and between Xxxxx Avenue Senior Holdings LLC
("Assignor") and RP/Saracen Properties (the "Assignee").
RECITALS:
Reference is made to the following facts that form the background to this
Assignment:
A. The owners of the Assignee are members of the Wellsford/Whitehall
Group, LLC, a Delaware limited liability company (the "Company"). The
Company is the eventual parent of the Assignor. The Company and the
aforesaid owners have entered into that certain Redemption Agreement
dated July 2, 2004 (the Redemption Agreement"). Capitalized terms used
herein but not defined shall have the meanings set forth in the
Redemption Agreement.
B. WASH owns the WASH Properties, listed and more particularly described
in Exhibit A, attached hereto (the "Property").
C. Simultaneously with the execution of this Agreement, the Company is
redeeming the interests of all of the owners of the Assignee in the
Company in exchange for the WASH Properties, among other
considerations, pursuant to the terms and conditions of the Redemption
Agreement.
D. The Assignor desires to convey, assign, transfer and set over, as
applicable, to the Assignees all of the interest, rights and benefits
of the Assignor in and to the personal property, tangible or
intangible, related to the Property upon the terms hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto do
hereby agree as follows:
1. Assignor hereby transfers and assigns to Assignee all right, title and
interest of Assignor in, to and under any of the following:
(a) All those certain service, supply and maintenance agreements, equipment
leases, and such other contracts with respect to or affecting the Property, all
as are specifically listed on Exhibit B attached hereto and made a part hereof
(collectively, the "Contracts").
-1-
(b) All existing warranties and guaranties (express or implied) benefiting
Assignor in connection with the improvements or the personal property being
conveyed to Assignee by Xxxx of Sale of even date herewith,
(c) All existing permits, licenses, approvals and authorizations issued by
any governmental authority in connection with the Property, and
All items described in (b) and (c) above are hereinafter collectively
referred to as the "Intangibles".
2. Assignee hereby accepts the foregoing assignment of the Contracts and
the Intangibles and hereby assumes all the duties and obligations of Assignor
accruing under the Contracts and the Intangibles, including, without limitation,
the obligation to pay, and all liability for the payment of, all payables in
respect of the Contracts and all Operating Payables, as such term is defined in
the Redemption Agreement. Assignee shall indemnify, defend and hold Assignor
harmless from and against, any and all claims, liabilities and costs (including
attorneys' fees and costs) (i) accruing and arising out of or relating to the
Contracts or with respect to the Intangibles, or (ii) relating to any actions
taken or agreements entered into by Assignee, any Saracen Member, Northeast
Services, Inc., or any of their respective Affiliates in respect of the
Contracts or the Intangibles.
3. Assignee shall assume the obligation to pay, and all liability for the
payment of, all payables related to the Contracts and will assume all
obligations and liabilities under all of the Operating Contracts. This
Assignment is without recourse to Assignor, except such, if any, as provided for
under the Redemption Agreement.
4. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
[Remainder of Page Intentionally Left Blank. Signatures on Following Page.]
-2-
IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Agreement Re: Contracts And Intangibles under seal on the day and
year first above written.
ASSIGNOR:
XXXXX AVENUE SENIOR HOLDINGS LLC
By:
------------------------------------
Name:
Title:
Hereunto duly authorized
ASSIGNEE:
RP/SARACEN PROPERTIES, LLC
By:
------------------------------------
Name:
Title:
Hereunto duly authorized.
-3-
EXHIBIT G
Form of Quitclaim Deed
The undersigned, [XXXXX AVENUE SENIOR HOLDINGS, LLC/74 XXXXXX STREET LLC],
having a mailing address of c/o WP Commercial, L.L.C., 00 Xxxx Xxxxxx, Xxxxxxx,
Xxx Xxxxxx 00000 ("Grantor") for and in consideration of the assumption by the
Grantee of the debt presently encumbering the Properties and the redemption of
the ownership interests of the owners of the Grantee in the indirect owner of
the Grantor, and no other consideration, hereby GRANTS to [Saracen Members
Designee], a Delaware limited liability company, having an address The Saracen
Companies, Xxxxx Xxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 ("Grantee"),
with QUITCLAIM COVENANTS, the land and all improvements thereon located
in _____________, ________________ County, Massachusetts known [and numbered
as] ___________________________________________________ and more particularly
described in Exhibit A attached hereto and made a part hereof (the "Property").
This conveyance is made subject to and with the benefit of those easements,
covenants, conditions, agreements and restrictions of record, insofar as they
may lawfully affect the Property.
[The premises being conveyed do not constitute all or substantially all of
the assets of the Grantor located in the Commonwealth of Massachusetts.] [TO
DISCUSS - WHY DO WE NEED THIS?]
Being the same premises conveyed to by deed of ____________________ and
filed with the ____________________ County Registry of Deeds (the "Register") as
Document No. ____.
IN WITNESS WHEREOF, said Grantor has caused this deed to be signed,
acknowledged and delivered on its behalf, under seal, by the undersigned as of
the ___ day of June, 2004.
XXXXX AVENUE SENIOR HOLDINGS,LLC/
00 XXXXXX XXXXXX LLC
WITNESS:
EXH G-1-
-------------------- By:
-------------------------------------
Name:________________________________
Title:_______________________________
(Acknowledgement on the next page)
EXH G-2-
ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF ) June __, 2004
On this __ day of __________, 2004, before me, the undersigned notary
public, personally appeared ____________________, as ____________________ of
____________________, LLC, proved to me through satisfactory evidence of
identification, which were ____________________, to be the person whose name is
signed on the preceding or attached document, and acknowledged to me that he
signed it voluntarily for its stated purpose.
----------------------------------------
Notary Public
My Commission Expires:
------------------
EXH G-3-
EXHIBIT A
LEGAL DESCRIPTION
A certain parcel of land situated in ____________________ in the County of
____________________ and Commonwealth of Massachusetts, bounded and described as
follows:
[signature page follows]
EXH G-4-
EXHIBIT H
FORM OF XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that [Xxxxx Avenue Senior Holdings LLC/74
Xxxxxx Property LLC] ("Grantor"), for and in consideration of the sum of TEN
DOLLARS ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby bargain, convey,
grant, transfer, assign, and convey, without recourse, to [Designee]
("Grantee"), its successors and assigns, for its and their own use and benefit,
forever, any and all personal property (whether tangible, intangible or
otherwise) owned by Grantor and now at, in or upon or used in connection with
the premises known as ___________ located in ______________, and more
particularly described on Exhibit A attached hereto (the "Premises"), including,
without limitation, the following:
All furniture, fixtures, equipment, machines, apparatus, appliances,
supplies and personal property of every nature and description and all
replacements thereof, any plans and specifications, surveys, catalogs,
booklets, manuals, files, logs, records, correspondence, tenant lists,
tenant prospect lists and other mailing lists, sales brochures and
materials, leasing brochures and materials, advertising materials and other
similar items, market studies and similar inspections with respect to the
sale, management, leasing, promotion, ownership, maintenance, use,
occupancy and operation of the Premises, permits, licenses, certificates of
occupancy, approvals, guaranties, warranties, utility contracts or other
rights relating to the ownership, use or operation of the Premises, (but
excluding attorney and accountant work product).
In Witness Whereof, Grantor has executed this Xxxx of Sale, under seal, as
of the ____ day of June, 2004.
Witness: GRANTOR:
___-1
EXHIBIT I
FORM OF BORROWER AFFIDAVIT
STATE OF )
) ss:
COUNTY OF )
____________________, being the authorized signatory of WASH Manager
L.L.C., a Delaware limited liability company and the manager of Xxxxx Avenue
Senior Holdings LLC, a Massachusetts limited liability company ("Xxxxx Avenue")
(and solely in such capacity as authorized signatory of WASH Manager L.L.C.), in
consideration of Land America Commercial Services (the "Title Company") issuing
its Title Commitments and Policies of Title Insurance (the "Title Policies")
insuring an interest in the real estate described on Exhibit A, annexed hereto
(the "Premises"), and being first duly sworn on oath, deposes and states as
follows:
1. That, except as shown on Exhibit B annexed hereto, Xxxxx Avenue has not
(a) performed any construction or repair work on the Premises, (b) contracted
for any labor to be supplied to the Premises or (c) contracted for any materials
to be delivered to the Premises, in each case for at least ninety (90) days
preceding the date hereof which has not already been paid.
2. Xxxxx Avenue hereby indemnifies Title Company and agrees to hold it
harmless against any loss, claim, cost, damage or expense, including attorneys'
fees and court costs, which it may sustain, suffer or incur by reason of the
filing, recording, assertion or claim of any and all mechanics' and/or
materialmen's lienors by reason of rights, actions and claims entered, filed or
commenced against the Premises arising out of work done or alleged to be done or
materials furnished or alleged to be furnished within the past ninety three (93)
days to, or on account of, any construction, erection or improvement made or to
be made upon the Premises and not shown as an exception to title on Schedule B
to the Title Commitments only to the extent said mechanics' and/or materialmen's
lien is the result of work done or materials furnished at the Premises
specifically requested or consented to by the Xxxxx Avenue or it's agents or
representatives.
3. Xxxxx Avenue will indemnify and hold Title Company harmless from and
against any claim or liability in connection with any lien, encumbrance or other
matter affecting title to the Premises which first appears in the public record
after the date of closing and before the recordation of the insured deed,
provided such lien, encumbrance or other matter was created or caused by Xxxxx
Avenue and provided such deed is recorded within five business days after
closing.
4. The only tenants occupying the Premises are as set forth on the rent
rolls annexed hereto as Exhibit X.
XXXXX AVENUE SENIOR HOLDINGS, L.L.C
By: WASH Manager L.L.C, its Manager
By:
-------------------------------
Name:
Title:
Sworn to before me this
_____ day of ___________, 2004.
-------------------------------
(Notary Public)
EXHIBIT J
Form of Release Language
Lender, for itself and its successors and assigns, hereby forever,
unconditionally and irrevocably, releases, discharges, acquits and covenants not
to xxx, Xxxxx Avenue Senior Holdings LLC ("Borrower"), its direct and indirect
partners and affiliates and their respective officers, directors, employees and
other agents, of and from any and all claims, rights, demands, actions, suits,
causes of action, damages, counterclaims, defenses, losses, costs, obligations,
liabilities and expenses of every kind or nature, known or unknown, suspected or
unsuspected, fixed or contingent, foreseen or unforeseen, arising out of or
relating directly or indirectly to any circumstances or state of facts
pertaining to the Loan Documents, in each case which arise after the date
hereof, or relating to the performance or nonperformance of any agreement or
obligation related thereto, or relating to any statements, representations, acts
or omissions, intentional, willful, negligent or innocent in any way connected
with, relating to or affecting, directly or indirectly, the Loan Documents, in
each case which arise or are required after the date hereof. Lender hereby
represents and warrants that (i) Lender owns all of the purported claims,
rights, demands and causes of action that Lender is releasing by this release
and that no other person or entity has an interest in said claims, rights,
demands or causes of action by reason of any contract or dealing with Lender,
and (ii) Lender has not assigned to any other person or entity all or any part
of such claims, rights, demands or causes of action.
EXH I-1-
SCHEDULE I
Assigned Interests
Membership
----------
Name of Saracen Member Units
---------------------- -----
Xxxxxxx X. Xxxxxxxx 734,713
Xxxx X. Xxxxxxxx 245,800
Xxxxxxxx X. Xxxxxxxx 203,510
Xxxxx X. Xxxxxxxx-Xxxxxx 106,783
Leas X. Xxxxxxxx 51,043
Xxxxxxx Xxxxx 12,132
Xxxxxx Xxxxxx 47,442
Xxxxxxx X. Xxxxxxxxx 17,290
Xxxxxx XxXxxxxxxx, III 15,413
Sch I-1
SCHEDULE II
Non-Saracen Members
Wellsford Commercial Properties Trust
WXI/WWG Realty, L.L.C.
WHWEL Real Estate Limited Partnership
W/W Group Holdings, L.L.C.
WP Commercial, L.L.C.
Sch II-1
SCHEDULE III
Section 5.2(a) Breach Damages
A. Definitions used in Schedule:
(i) "Code" shall mean the Internal Revenue Code of 1986, as amended, or
any corresponding provision(s) of succeeding law.
(ii) "Non-Recourse Liabilities" has the meaning set forth in Treasury
Regulations Section 1.752-1(a)(2).
(iii) "Required Amortization" means the partial, periodic amortization of
the Nomura Loan during the period from May 15, 1998 through May 15,
2007, but only as and to the extent such amortization is required in
connection with any applicable regularly scheduled payment of
principal and interest pursuant to the documents evidencing the
Nomura Loan as of May 15, 1998, such amortization not to include any
voluntary or involuntary payments of principal, other than Required
Amortization on or before May 15, 2007, whether in connection with
any default, casualty, condemnation or otherwise.
(iv) "Treasury Regulations" shall mean the regulations promulgated under
the Code, as such regulations are in effect on the date of the
Contribution of the Properties to the Company.
B. For purposes of this Schedule , the term "Saracen Debt Reduction Event"
shall mean the recognition of taxable income by any Saracen Member as a
result of the failure, for any reason whatsoever, of the Company to have
outstanding an amount of Non-Recourse Liabilities such that each Saracen
Member is allocated (pursuant to Section 752 of the Code and the Treasury
Regulations issued thereunder) an amount of such liabilities at least equal
to the amount by which such Saracen Member's (outside) tax basis in his
Interest would be negative but for allocations of "Non-Recourse
Liabilities" to such Member (pursuant to Section 752 of the Code and the
Treasury Regulations thereunder), in order to prevent such Member from
recognizing taxable income as a result of a reduction in the amount of debt
allocable to such Member; provided, however, that the amount of liabilities
required to be allocated to all Saracen Members in the aggregate shall not
exceed $50,000,000, reduced over time with respect to each applicable
Saracen Member (x) by the aggregate amount of additions to such Saracen
Member" (outside) tax basis in his Interests attributable to all prior
Saracen Debt Reduction Events, and (y) by the aggregate amount of "Required
Amortization" as allocated entirely among the Saracen Members.
C. In the event of a breach by the Company of Section 5.2(a) of the Redemption
Agreement resulting in a Saracen Debt Reduction Event, the Company shall
pay to the applicable Saracen Members an amount equal to the amounts
described in Paragraphs D or E, as applicable, and G below.
D. In the case of any Saracen Debt Reduction Event at or before May 15, 0000,
xxx xxxxxxxxx xxxxxxx, xxxxx and local income taxes (determined in
acordance with paragraph G below) payable by each Saracen Member on the pro
rata amount of taxable income recognized by such Saracen Member as a result
of the Saracen Debt Reduction Event, as such taxable income is reduced,
without duplication, by items (x) and (y) described in Paragraph B above.
E. In the case of any Saracen Debt Reduction Event after May 15, 2003, and
subject to Paragraph G below, an amount representing the present value of
the aggregate federal, state and local income taxes (determined in
accordance with Paragraph G below) payable by each Saracen Member on the
pro rata amount of taxable income recognized by such Saracen Member as a
result of the Saracen Debt Reduction Event, as such taxable income is
reduced, without duplication, by items (x) and (y) described in Paragraph B
above, determined as if such taxes were payable on May 15, 2007 and
calculated using a 10% discount rate.
F. In addition, and notwithstanding the foregoing, in the case of any Saracen
Debt Reduction Event that occurs after May 15, 2003, the Company shall,
concurrently with the event or circumstance which results in such Saracen
Debt Reduction Event, make a loan to each Saracen Member providing for (i)
a principal amount equal to the amount by which the aggregate federal,
state and local income taxes payable by such Saracen Member as a result of
such Saracen Debt Reduction Event exceeds the amount reimbursed by the
Company pursuant to Paragraph D or E above; (ii) an interest rate equal to
10% per annum or, in the case of a Saracen Debt Reduction Event that arises
in connection with an event which is not within the reasonable control of
the Company, an interest rate equal to 12% per annum, which interest shall
accrue until maturity, with all such amounts compounding annually; (iii)
maturity on May 15, 2007; and (iv) prepayment at any time without premium
or penalty.
G. Any reimbursement by the Company under Paragraph D and/or E above shall be
increased by an amount (the "gross-up") to take into account any tax
liability that would be incurred by the Saracen Member arising from the
receipt or accrual of such reimbursement payment without regard to the
gross-up. That is, the gross-up amount does not take into account any tax
liability that would be incurred by the Saracen Member arising from the
receipt or accrual of the gross-up payment itself. In computing the amount
of any tax reimbursement payment or gross-up, such Saracen Member shall be
deemed to be subject to federal, state and local income tax at the highest
effective tax rate imposed on income of residents of Boston, Massachusetts
then in effect but taking into account all applicable capital gains tax
rates and giving effect to all federal income tax savings attributable to
deductions for all state and local taxes payable hereunder in connection
with a Saracen Debt Reduction Event, and such payments shall be made
without regard to or reduction for any items of loss, deduction or credit
to which such Member may be entitled under applicable law, other than such
deductions for all state and local taxes payable hereunder.
SCHEDULE IV
SCHEDULE OF LEASES
0/00 XXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX
1 Boston Sausage & Provision Company, Inc.
a. Lease dated June 6, 1996
b. First Amendment dated September 5, 2003
2 Xxxxxxx X. Xxxxxx
a. Lease dated February 24, 1992
b. First Amendment dated June 2, 1997
c. Second Amendment dated June 24, 2002
3 Xxxxxxxxx Forge, Inc.
a. Lease dated February 23, 1987
b. First Amendment dated December 10, 1996
c. Second Amendment dated December 21, 1998
d. Third Amendment dated October, 2003
4 CWC Builders, Inc.
a. Lease dated May 1, 1989
b. First Amendment dated March 31, 1992
c. Second Amendment dated March 8, 1995
d. Third Amendment dated November 27, 0000
x. Xxxxxx Xxxxxxxxx dated September 30, 1999
f. Fifth Amendment dated September, 2002
5 Derby & Company, Inc.
a. Lease dated June 5, 1996
b. First Amendment dated January 27, 1999
c. Second Amendment dated July, 2001
6 FIC Management, Inc.
a. Lease dated September 15, 1998
b. First Amendment dated October 21, 2003
7 FinArc, LLC
a. Lease dated 1999 (No date)
b. Letter Agreement dated April 27, 2004
8 The Xxxxxxx Firm, P.C.
a. Lease dated March 17, 1998
b. First amendment dated April 1, 2003
9 GEO Centers, Inc.
a. Lease dated July 30, 1985
b. Addendum to Lease dated September 25, 1986
c. First Amendment to Lease dated October 13, 1989
d. Second Amendment to Lease dated March 30, 1992
e. Third Amendment to Lease dated November 17, 1992
f. Fourth Amendment to Lease dated November 7, 1997
g. Fifth Amendment to Lease dated December 23, 2002
h. Letter Agreement dated March 4, 2003
i. Sixth Amendment to Lease dated August, 2003
10 The Hall Corporation (formerly The Xxxxxxxxx Corporation)
a. Lease dated February 28, 2002
11 Heroix Corporation
a. Lease dated October, 1999
12 Xxxxxxx, Alvary & Company, LLC
a. Lease dated August, 2001
13 Jungbunzlauer, Inc.
a. Lease dated December 2, 1997
b. First Amendment to Lease dated September, 2002
14 Northeast Real Estate Services, LLC
a. Lease dated January 1, 1999
First Amendment regarding Relocation of Leased Premises under
Lease dated August 8, 2003
0 XXXXXX XXXXX, XXXXXX, XXXXXXXXXXXXX
1 ARC Advisory Group, Inc.
a. Lease dated May 2, 1994
b. Amendment To Lease dated August 8, 2001
2 CapitalSource Finance, LLC
a. Lease dated July 31, 2002
b. Letter Agreement dated July 31, 2002
3 Xxxxxxx & Xxxxxxx, LLC
a. Lease dated August, 2003
4 The Manufacturer's Life Insurance Company
a. Lease dated November, 2003
5 Washington Mutual Bank, FA
a. Lease dated November 21, 2001
Subordination, Non-Disturbance and Attornment Agreement dated
November, 2001
c. First Amendment to Lease dated April 29, 2002
00-00-00 XXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX
1 Xxxxxxx River Office Suites, Inc.
a. Lease dated September 26, 2003
Subordination, Non-Disturbance and Attomment Agreement dated
November 26, 2003
2 XXX Xxxxxxxxxxx
a. Lease dated June, 1998
b. First Amendment to Lease dated June 27, 2000
3 Information Technology Systems, Inc.
a. Lease dated June 9, 1999
b. Forbearance Agreement dated January 13, 2003
4 Invensys Production Solutions (formerly Wonderware Solutions, Inc.,
successor to Marcam Solutions, Inc.)
a. Lease (Undated)
b. Letter Agreement dated June 15, 2000
c. First Amendment to Lease dated June 16, 2000
5 Nationwide Life Insurance Company of America
a. Lease dated November, 1998
b. Notice of Early Termination dated February 10, 2003
c. Extension of Lease Term dated May 17, 2004
000 XXX XXXXXX, XXXXXX, XXXXXXXXXXXXX
1 Assistive Technology, Inc.
a. Lease dated June 3, 1996
b. Lease Agreement dated October 1, 2001
c. Second Amendment to Lease dated February 1, 2004
2 Cataract & Laser Center, Inc.
a. Lease dated September 1, 1992
b. Amendment No. 1 dated December 16, 1994
c. Confirmation of Lease Renewal dated May 1, 1999
d. Letter Confirming Intent to Extend Lease dated June 7, 2002
e. Second Amendment to Lease dated September, 2002
3 Cummins Northeast, Inc.
a. Lease dated November 20, 2002
4 Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
a. Lease dated April 4, 2000
5 The Fertility Center of New England, Inc.
a. Lease dated April 15, 1999
b. Pre-Lease Construction Agreement dated April 15, 1999
6 Metrocall, Inc.
a. Lease dated August 9, 2002
7 New England Medical Center Hospitals, Inc.
a. Lease dated July 15, 1999
8 RNK, Inc.
a. Lease dated May 8, 2000
b. Indemnification Agreement dated March 14, 2000
000 XXXXXX XXXXXX, XXXXXXX, XXXXXXXXXXXXX
1 Archon Group LP (formerly WP Commercial, L.L.C.)
a. License Agreement dated September 1, 2002
2 Wachovia Securities, LLC
a. Lease dated September 5, 2003
OTHER LEASES (I.E., ANTENNA AGREEMENTS, SIGNAGE AGREEMENTS AND OTHER AGREEMENTS)
0 XXXXXX XXXXX, XXXXXX, XXXXXXXXXXXXX
1 Arch Wireless, Inc. (formerly Paging Network of Massachusetts, Inc.)
a. Lease of Site For Communications Facilities dated December 1,
1996
b. Letter dated December 1, 2000 (name change)
0 Xxxxxx Xxxxx Hotel Associates Limited Partnership (Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx)
a. Signage License Agreement dated May 15, 1998
3 Verison Wireless (formerly Cellco Partnership)
a. Building and Rooftop Lease Agreement dated December 11, 1997
b. Letter dated February 8, 2002 (name change)
5 Wireless PCS, Inc. d/b/a AT&T Wireless Services
a. Lease Agreement dated December 27, 1996
00-00-00 XXXXX XXXXXX, XXXXXX, XXXXXXXXXXXXX
1 Nextel Communications of the Mid-Atlantic, Inc.
Communication Site Lease Agreement (Building) dated September 27, 2001
Memorandum of Agreement dated September 21, 2001
000 XXXXXX XXXXXX (STONY BROOK OFFICE PARK), WALTHAM, MASSACHUSETTS
1 AT&T Wireless PCS, LLC
a. Antenna Site Agreement dated March 24, 2004
2 Verizon Wireless (Formerly Cellco Partnership d/b/a Xxxx Atlantic
Mobile of Massachusetts)
Building and Rooftop Lease Agreement dated December 11, 1997 (lease
never commenced)
First Amendment to Building and Rooftop Lease Agreement dated 2004
(partially executed, awaiting fully executed original)
000 XXXXXXXXXX XXXXX, XXXXXXX, XXXXXXXXXXXXX
1 Nextel Communications of the Mid-Atlantic, Inc.
Communications Site Lease Agreement (Building) dated September
27, 2001
b. Memorandum of Agreement dated September 27, 2001
c. Amendment No. 1 dated October 23, 2002
2 Sprint Spectrum L.P.
a. Communications Site Lease Agreement (Building) dated May 9, 2003
000 XXXXXXXXXX XXXXX, XXXXXXX, XXXXXXXXXXXXX
1 Cingular Wireless (Southwestern Xxxx Mobile Systems Inc., d/b/a
Cellular One)
a. Building Lease Agreement dated October 8, 1996
SCHEDULE V
Commissions Payable
Listing Agent Stony Brook
Xxxx X. Xxxxxx Xxxxxxxxx & Xxxx Colliers International
Xxxx_Xxxxxx@XxxxxxXxxx.xxx 000 Xxxxx Xxxxxx
0xx xxx.
Dir.: (000) 000-0000 Xxxxxx, XX 00000
Mob.: (000) 000-0000
Outstanding Commission
Xxxxx Cravidi Lease Amount
Xxxxxxx River Suites $53,439.75
SCHEDULE VI
Operating Contracts
Type of Service Vendor Properties Start Date End Date
--------------- ------ ---------- ---------- --------
Cleaning Service Janitronics Building Norfolk Place 01/01/04 12/31/04
Services Dedham Place Office
Stony Brook
Office Park
7/57 Xxxxx Avenue
Xxxxx Research Center
Trash Removal Waste Management of Southshore Norfolk Place 01/01/04 12/31/04
Waste Management of Massachusetts, Inc. Stony Brook Office Park (Automatically renews each year)
0/00 Xxxxx Xxxxxx
Xxxxx Research Center
Interior Plant Foliaire Dedham Place Office No current contract in effect.
Maintenance 0/00 Xxxxx Xxxxxx
Fire Alarm Assured Fire Alarm Company,Inc. Norfolk Place 01/01/04 12/31/04
Dedham Place Office
7/57 Xxxxx Avenue
Xxxxx Research Center
Monitoring Advanced Alarms, Inc. Dedham Place Office (Automatically renews each year)
(Automatically renews each year)
Security OCS Protective Services Norfolk Place 01/01/04 12/31/04
Dedham Place Office (Automatically renews each year)
Stony Brook Office Park
Landscaping Garden Clty Landscape Maintenance, Co., Inc.Norfolk Place 03/25/04 12/01/04
Dedham Place Office
Stony Brook Office Park
000 Xxxxxxxxxx Xxxxxx
7/57 Xxxxx Avenue
Xxxxx Research Center
HVAC Accutemp Engineering, Inc. Norfolk Place 01/01/04 12/31/06
Dedham Place Office
Stony Brook Office Park
000 Xxxxxxxxxx Xxxxxx
7/57 Xxxxx Avenue
Xxxxx Research Center
Elevator Xxxxxxx Elevator Company, Inc. Norfolk Place 01/01/04 12/31/04
Dedham Place Office (Automatically renews each year)
Stony Brook Office Park
7/57 Xxxxx Avenue
Xxxxx Research Center
Xxxx Elevator Company Stony Brook Office Park 01/01/04 12/31/04
(Automatically renews each year)
Generators FM Emergency Generator, Inc. Dedham Place Office 08/01/02 07/31/05
Stony Brook Office Park
Xxxxx Research Center
Building Cafe Subsidy Sodexho Operations, LLC Dedham Place 10/03/03 Annual Renewal
Xxxxx Research
Management Agreement Sodexho Operations, LLC Dedham 11/18/03
Stony Xxxxx
Xxxxx Research
Management Fees & Northeast Real Estate Norfolk
Payroll Dedham
Stony Brook
201 University
7/57 Xxxxx
Xxxxx Research
Rooftop Management Tower Resource Management,Inc. Stony Brook 03/16/04
Neighbor Agreements
Porch/house 28 Xxxxxx Xxxxx Xxxxxxx StonyBrook/74 Xxxxxx
improvement
Signage Green Realty LLC StonyBrook/74 Xxxxxx 05/02/03
Landscape & Green Realty LLC StonyBrook/74 Xxxxxx 05/02/03
Maintenance
Landscape,Maintenance AA Nominee Trust StonyBrook/74 Xxxxxx 05/01/03
& Sign
Schedule VII
Other Payables Summary
28-Jun-04
-------------------------------------------------------------------------------
Outstanding
Contractor Invoices
-------------------------------------------------------------------------------
Property
Stony Brook Office Park
Base Building
BHA $ -
Precision Land Surveying 3,170
Initial Tropical Plants 1,236
Xxxxxxxxx & Xxxx 730
Parking Deck
BHA
Xxxxx & Xxxxxxx 179
Wachovia
BHA
TI Reimbursement 636,370
Xxxxx Research Center
Base Building
Commodore Builders 97,466
Xxxxxxxx Xxxxxxx, & Associates 11,952
R-Squared Office Panel & Furniture, Inc. -
Techmark Security Integration, Inc. 2,446
Xxxxx Associates 682
Xxxxxx X. Xxxxx 650
7/57 Xxxxx Avenue
Base Building
Accutemp Engineering (RTU) 61,143
Commodore Builders (75,695)
Xxxxxxxx Associates 15,364
Techmark Security Integration, Inc. 4,402
Geo-Centers
Commodore Builders 41,155
Xxxxxxxx Associates 2,345
Boston Sausage
Commodore Builders 10,016
Xxxxxxxx Associates 718
Northeast Real Estate Services
Commdore Builders 4,454
Xxxxxxxx Associates 356
The Xxxxxxx Firm
Commodore Builders 10,478
Xxxxxxxx Associates 000
Xxxxxxxxx Xxxxx
Xxxxxxxxx Builders 13,821
Xxxxxxxx Associates 843
000 Xxx Xxxxxx
Base Building
Xxxxxxxx and Grew 2,609
ValleyCrest Landscape Development 5,000
Xxxxxxxx Associates 903
Assistance Technologies
Xxxxxxxx and Grew 4,847
Dedham Place
ValleyCrest Landscape 7,394
SignWorks -
201 University
Xxxxxxxx Associates 1,174
Other:
Xxx-Cel Company 438 Retainage payable
Interstate Electrical 100 Retainage payable
Accutenp Engineering 375 Retainage payable
Xxxxxxx Xxxxxxxxxxx 1,486 Retainage payable
Arent Fox 37,196 RCN Bankruptcy
Xxxxxxxx Xxxxxxx & Xxxxxxxx 3,346 Lease legal and Stony Brook office expansion
Xxxxxxx Procter 2,207 Lease legal
Xxxxxxxxx Xxxx 500 Worldcom bankruptcy
Law Offices of Xxxxx X. Xxxxx, XX, P.C. 1,000 Norfolk -Assistive Technologies
Law Offices of Xxxxxx X. Xxxxxxx, Xx. 10,000 Estimate Stony Brook office expansion
XxXxxxx Xxxxx Xxxxx & Xxxxxx LLP 2,500 Estimate - Stony Brook - Permitting/Construction
The Xxxxxxx Flan 5,000 Estimate - Litigation / Custom Communications
Xxxxxx X. Xxxx Xx Attorney at Law 1,500 Neighbor obligations Stony Brook variance
-----------------
Total Other Payables 932,382
------------------------------------------------------------------
Less: Accutemp (61,143)
------------------------------------------------------------------
Net Total Other Payables 871,239
------------------------------------------------------------------
Schedule VIII
List of Operating Payables
Payable Dated Payable
Types of Service Vendor From To: Properties Amount
---------------- ------ ---- --- ---------- ------
Cleaning Service Janitronics Building Services Norfolk Place $ 7,727
Dedham Place Office $ 12,468
Stony Brook Office Park $ 7,628
0/00 Xxxxx Xxxxxx $ 13,824
Xxxxx Research Center $ 25,478
Trash Removal Waste Management of Southshore Norfolk Place $ 1,952
Waste Management of Massachusetts, Inc. Stony Brook Office Park $ 1,174
0/00 Xxxxx Xxxxxx $ 1,880
16-Apr-04 15-Jun-04 Xxxxx Research Center $ 2,050
Interior Plant Foilaire Dedham Place Office $ 120
Maintenance
0/00 Xxxxx Xxxxxx $ 164
Fire Alarm Assured Fire Alarm Company, Inc. Norfolk Place $ 000
Xxxxxx Xxxxx Office $ 1,487
0/00 Xxxxx Xxxxxx $ 497
Xxxxx Research Center $ 2,475
Monitoring Advanced Alarms, Inc. Dedham Place Office $ 521
Security OCS Protective SeMcee Norfolk Place $ 1,525
Dedham Place Office $ 2,580
Stony Brook Office Park $ 4,576
Landscaping Garden City Landscape Maintenance Co., Inc. Norfolk Place $ 000
Xxxxxx Xxxxx Office $ 10,610
Stony Brook Office Park $ 1,440
000 Xxxxxxxxxx Xxxxxx $ 6,075
0/00 Xxxxx Xxxxxx $ 405
Xxxxx Research Center $ 14,295
HVAC Aocutemp Engineering, Inc. Norfolk Place $ 2,377
Dedham Place Office $ 7,724
Stony Brook Office Park $ 8,910
000 Xxxxxxxxxx Xxxxxx $ 3,265
0/00 Xxxxx Xxxxxx $ 5,401
Service Contract 1-May-04 30-Jun-04 Xxxxx Research Center $ 14,264
Additional Work 31-May-04 31-May-04 Xxxxx Research Center $ 4,351
Elevator Xxxxxxx Elevator Company, Inc. Norfolk Place $ 000
Xxxxxx Xxxxx Office $ 2,498
Stony Brook Office Park $ 2,926
0/00 Xxxxx Xxxxxx $ 2,020
Xxxxx Research Center $ 1,986
Xxxx Elevator Company Stony Brook Office Park $ 2,215
Neighbor Agreements 26 Xxxxxx - Xxxxx Xxxxxxx Stony Brook $ 28,486
Other Neighbors Stony Brook $ 20,000
Building Cafe Subsidy Sodexho 1-Apr-04 00-Xxx-00 Xxxxxx Xxxxx $ 4,000
Sodexho 1-Apr-04 31-May-04 Xxxxx Research $ 4,000
Net Management Fees & Northeast Real Estate 3-May-04 25-Jun-04 Norfolk $ 9,072
Payroll* 19-Apr-04 25-Jun-04 Dedham $ 18,226
3-May-04 25-Jun-04 Stony Brook $ 14,986
31-May-04 25-Jun-04 201 University $ 20,812
3-May-04 25-Jun-04 7/57 Xxxxx $ 12,365
3-May-04 25-Jun-04 Xxxxx Research $ 46,060
Trash Removal Hilton at Dedham Dedham $ 1,661
Generators FM Emergency Generator, Inc. Dedham Place Office $ 250
Xxxxx Research Center $ 149
Telecom Verizon 23-Apr-04 22-May-04 Norfolk $ 50
23-Apr-04 22-May-04 Dedham $ 184
15-May-04 15-Jun-04 Stony Brook $ 171
5-May-04 4-Jun-04 7/57 Xxxxx $ 25
4-May-04 5-Jun-04 Xxxxx Research $ 90
Water/Sewer Dedham Water 30-Oct-03 29-Jan-04 Norfolk $ 1,417
30-Apr-04 31-May-04 Dedham $ 729
22-Mar-04 7-Jun-04 201 University $ 000
Xxxxxx Xxxxxxx $ 194
Dedham $ 000
Xxxxx Xxxxx $ 388
Xxxxx Research $ 388
Xxxxxx 30-Apr-04 30-Apr-04 Xxxxx Research $ 360
Pest Control Paramount Norfolk $ 90
Dedham $ 330
Roof Repair Xxxxxx Norfolk $ 440
Dedham $ 2,400
Stony Brook $ 2,200
7/57 Xxxxx $ 5,575
Xxxxx Research $ 1,355
Vinyl Xxxxx Vinyl Dedham $ 20
Public Relations Beckerman Dedham $ 000
Xxxxx Xxxxx $ 1,622
Xxxxx Research $ 1,192
Sprinkler System BISCO 3-Jun-04 22-Jun-04 Dedham $ 65
Stony Brook $ 21
Irrigation Des. Dedham $ 80
Electrical D-Tech Electric 20-Jun-04 20-Jun-04 Dedham $ 1,050
Xxxxxx Electrical Stony Brook $ 350
7/57 Xxxxx $ 120
Utilities NSTAR Electric 9-Apr-04 9-Jun-04 Norfolk $ 14,710
7-May-04 8-Jun-04 Dedham $ 150,039
17-May-04 21-Jun-04 Stony Brook $ 18,167
12-Apr-04 11-May-04 201 University $ 16,299
28-Apr-04 27-May-04 7/57 Xxxxx $ 20,114
28-Apr-04 27-May-04 Xxxxx Research $ 30,084
Keyspan Energy 14-May-04 14-Jun-04 Xxxxx Research $ 350
NSTAR Gas 6-Apr-04 7-Jun-04 Dedham $ 325
Hot Water Heater RFG Mechanical Dedham $ 95
Stony Brook $ 1,100
7/57 Xxxxx $ 510
Xxxxx Research $ 889
Repair and Maintenance Ultra Construction Dedham $ 350
Xxxxx Research $ 1,850
Signage Green Realty Stony Brook $ 1,000
Xxxxxxxx & Grew Norfolk $ 1,281
Dedham $ 508
Parking Lot Repairs National Stony Brook $ 27
Locksmith Superior Key Stony Brook $ 1,515
7/57 Xxxxx $ 360
Xxxxx Research $ 524
Grainger 7/57 Xxxxx $ 280
Delivery Service DHL Express 7/57 Xxxxx $ 37
Supplies Home Depot 7/57 Xxxxx $ 239
Fire Extinguisher
Service Xxxxx Fire 7/57 Xxxxx $ 314
Xxxxx Research $ 339
Recycling Pickup Save That 1-May-04 31-May-04 7/57 Xxxxx $ 80
Satellite TV DirectTV Xxxxx Research $ 30
------------
Total $ 643,240
============
Less: Accutemp 48,291
Net Total Operting Payables $ 596,948
Schedule IX
Environmental Reports
Property Report Performing Company Date
Norfolk Place Phase I* IVI April-04
Phase I ENSR September-03
Dedham Place Phase I* IVI April-04
Phase I and Subsurface Eval. ENSR September-03
201 University Phase I* IVI April-04
Phase I and Subsurface Eval. ENSR September-01
Method 3 Risk Assessment: Chlordane ENSR September-01
Concentrations in soil and indoor air
Stony Brook Phase I* IVI April-04
Phase I and '98 ESA ENSR March-98
Asbestos bulk sampling/microbial investigation ATC February-03
Asbestos Abatement final report ATC August-03
Mold Remediation MARCOR September-03
Post Remediation Eval. ATC November-03
Xxxxx Research
Phase I* IVI April-04
Phase I E Capital RE January-02
Emergency Generator Inspection ENSR May-02
Limited Asbestos-containing Building materials survey ATC September-03
Post Remediation Microbial Visual ATC November-03
Inspection and environmental sampling ATC December-03
Mold Closeout Package MARCOR September-03
7/57 Xxxxx Phase I* IVI April-04
Phase I ENSR February-98
Limited Asbestos-containing Building materials survey ATC September-03
Completed Documentation Package: Mold Remediation MARCOR November-03
* Report Commissioned by GMAC
SCHEDULE X
Additional Closing Documents and Deliveries
1. A Xxxx of Sale for all personal property on each Property owned by the
title holder to each Property, substantially in the form attached hereto
and made a part hereof as Exhibit H;
2. Originals of all Leases, Operating Contracts, plans, governmental
approvals, and warranties, and all correspondence and credit reports
relating to any of the preceding items, to the extent in the possession of
the Company, any of the Subsidiaries or any of their respective Affiliates;
3. Written notices signed by the title holder or other appropriate party,
addressed to (a) each tenant under the Leases, and (b) each contractor to
the Operating Contracts which are to be assigned pursuant to this
Agreement, indicating that the relevant Property or Properties have been
conveyed to the Saracen Members or the Designee, and that all rights of the
title holder or other appropriate party thereunder and in any security
deposits have been assigned to the Saracen Members or the Designee;
4. Originals or copies in the possession or control of the Company, any of the
Subsidiaries or any of their Affiliates of all warranties, guarantees and
operating manuals, if any, with respect to the Properties, including
without limitation, any from any contractors, subcontractors, suppliers or
material men in connection with any construction, repair or alteration of
any of the improvements, systems, personal property or any tenant
improvements;
5. Originals or copies of all land use and building permits, certificates of
occupancy, licenses, variances and the like relating to the Properties in
the possession or control of the Company, any of the Subsidiaries or any of
their Affiliates, and originals or copies of all certificates of occupancy
for the Properties and all space included within the Properties to the
extent in the possession or control of the Company, any of the Subsidiaries
or any of their Affiliates; and
6. All keys to all locks on the Properties.
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