AGREEMENT OF PURCHASE AND SALE

Exhibit 10.1

 

AGREEMENT OF PURCHASE AND SALE

 

BETWEEN

 

KINGSTON BEDFORD JOINT VENTURE LLC,

a Delaware limited liability company, as SELLER

 

AND

 

FIRST STATES INVESTORS 228, LLC,

a Delaware limited liability company, as BUYER

 

Dated: _January 30, 2004

 

TABLE OF CONTENTS

 

 

i

AGREEMENT OF PURCHASE AND SALE

 

THIS AGREEMENT OF PURCHASE AND SALE (“Agreement”) dated as of January 30, 2004 is between Kingston Bedford Joint Venture LLC, a Delaware limited liability company (“Seller”), and First States Investors 228, LLC, a Delaware limited liability company.

 

RECITALS

 

A. Seller is the owner of a certain tract of land comprised of two (2) parcels of property, together with a 36 story office tower (the “Building”) and an underground five (5) story parking garage (the “Garage”) and other improvements thereon, collectively known as State Street Financial Center, One Lincoln Street, Boston, Suffolk County, Massachusetts.

 

B. Seller is the landlord under that certain lease (the “State Street Lease”) with SSB Realty LLC (the “State Street Tenant”) pursuant to which Seller leased to the State Street Tenant that portion of the Building more particularly described in such Lease.

 

C. Seller desires to sell the Property (as hereinafter defined), including, without limitation, Seller’s interest in the State Street Lease, to Buyer, and Buyer desires to acquire the Property from Seller.

 

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement, and for other valuable consideration, the receipt and sufficiency of which is each hereby acknowledged, Seller and Buyer agree as follows:

 

1.

AGREEMENT TO BUY AND SELL.

 

Seller shall sell and convey to Buyer, and Buyer shall purchase and accept from Seller, all of Seller’s right, title, estate, and interest in and to:

 

(a) the land described on Schedule 1(a), which is attached to and made a part of this Agreement, together with all easements, privileges, and appurtenant rights belonging or in any way appertaining to the land (collectively, the “Land”);

 

(b) the Building, Garage and other improvements, and all fixtures attached to the Land and buildings (collectively, the “Improvements”, and together with the Land, the “Real Property”);

 

(c) such furnishings, furniture, equipment, supplies, and other personal property, if any, as are owned by Seller and are currently located in or on the Real Property and used exclusively in the operation or maintenance of the Real Property, but excluding those items of personal property which are owned by tenants, licensees, the operator of the Garage or other third parties or which may be removed by such parties under the terms of their leases or which are located in Seller’s or Seller’s agent’s property management office, if any, on the Real Property (collectively, the “Personal Property”).

 

The Personal Property is conveyed subject to depletions, replacements and additions in the ordinary course of Seller’s business;

 

(d) the State Street Lease and all other leases and tenancies affecting the Real Property, including, without limitation, those leases and tenancies described on Schedule 1(d), which is attached to and made a part of this Agreement (collectively, the “Tenant Leases”);

 

(e) all other agreements, contracts, and contract rights pertaining to the Property to the extent assignable, including without limitation, those described on Schedule 1(e), which is attached to and made a part of this Agreement (collectively, the “Service Contracts”); and

 

(f) all intangible property owned by Seller and used in connection with the Real Property and Personal Property, including all trademarks and trade names used in connection with the Property, all plans and specifications, if any, in the possession of Seller which were prepared in connection with the construction of the Improvements and all licenses, permits and warranties now in effect with respect to the Property, all to the extent assignable (collectively, the “Intangible Property”).

 

The Real Property, the Personal Property, the Tenant Leases, the Service Contracts and the Intangible Property are collectively referred to in this Agreement as the “Property”.

 

2.

PURCHASE PRICE.

 

(a) Subject to the charges and prorations set forth in Section 12 of this Agreement, Buyer shall pay to Seller at Closing (as hereinafter defined) the sum of Seven Hundred Five Million and 00/100 Dollars ($705,000,000) (the “Purchase Price”) for the purchase of the Property. The Purchase Price shall be payable by wire transfer of immediately available federal funds to a bank account designated by Seller to Buyer in writing prior to the Closing. To enable Seller to make conveyance as herein provided, Seller may, at the Closing, use the purchase money or any portion thereof to clear the title of any or all encumbrances or interests, provided that provision reasonably satisfactory to Buyer’s and Buyer’s lender’s attorneys is made at the Closing for prompt recording of all instruments so procured.

 

(b) Contemporaneously with the execution and delivery of this Agreement by both parties, Buyer shall deposit the sum of Thirty-Five Million Two Hundred Fifty Thousand and 00/100 Dollars ($35,250,000) (the “Deposit”) with Escrow Agent (as hereinafter defined). If Buyer closes the transactions contemplated by this Agreement, the Deposit shall be applied to the Purchase Price. The Escrow Agent shall hold the Deposit in an interest-bearing account. Seller shall be entitled to any interest earned on the Deposit, except that Buyer shall be entitled to such interest if (a) Seller breaches its material obligations under this Agreement and, as a result thereof, Buyer does not purchase the Property as provided by this Agreement, or (b) Seller is unable to convey

 

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marketable title to the Property in accordance with the provisions of this Agreement and, as a result thereof, Buyer does not purchase the Property as provided by this Agreement.

 

3.

ESCROW AGENT.

 

Chicago Title Insurance Company, 1601 Market Street, Philadelphia, Pennsylvania (“Escrow Agent” or “Title Company”) shall serve as escrow agent for the transaction contemplated in this Agreement (“Escrow Agent”) pursuant to the terms of the escrow agreement (the “Escrow Agreement”) attached hereto as Schedule 3.

 

4.

TITLE; SURVEY.

 

(a) For Buyer’s convenience, Seller has (i) attached hereto as Schedule 4(a) a commitment by Fidelity National Title Insurance Company of New York to issue an owner’s policy of title insurance insuring the Real Property (the “Title Commitment”) and (ii) has delivered to Buyer an ALTA survey (the “Survey”) provided with respect to the Real Property entitled “State Street Financial Center – ALTA/ACSM Land Title Survey in Boston, Massachusetts” dated December 17, 2003, prepared by Gunther Engineering, Inc. All matters set forth in or disclosed by the Title Commitment and Survey are deemed approved by Buyer as “Permitted Exceptions” except as otherwise provided in paragraph 4(d) below.

 

(b) With respect to any continuation of the Title Commitment obtained by Buyer subsequent to the date of the Title Commitment, Buyer shall deliver to Seller, within one (1) business day of receipt of such continuation or update, a copy of such continuation or update together with a written statement by Buyer of any objections to title which have appeared for the first time in such continuation or update and relate to matters first arising after the date of the Title Commitment (collectively, a “Title Objection”). If any matter is unsatisfactory, Buyer must specify in such written notice (the “Title Notice”) the reason such matter(s) are not satisfactory and the curative steps necessary to remove the basis for Buyer’s disapproval. The parties shall then have until three (3) business days after the Title Notice (the “Response Date”) to make such arrangements or take such steps as they shall mutually agree to satisfy Buyer’s objections(s); provided, however, that Seller shall have no obligation whatsoever to expend or agree to expend any funds, to undertake or agree to undertake any obligations or otherwise to attempt to cure or agree to attempt to cure any Title Objections, and Seller shall not be deemed to have any obligation to attempt to cure any such matters unless Seller expressly undertakes such an obligation by a written notice to or written agreement with Buyer given or entered into on or prior to the Response Date and which recites that it is in response to a Title Notice. Buyer’s sole right with respect to any Title Objections contained in a Title Notice which Seller has not agreed to satisfactorily resolve shall be to elect on or before the date which is one business day after the Response Date to terminate this Agreement in accordance with Section 5(f) hereof, in which event the Deposit, and all interest thereon, shall be returned to Buyer, and neither party shall have any further liability to the other hereunder, except at otherwise provided herein. All Title Objections not included in a Title Notice given by Buyer to Seller or with respect to which a timely

 

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Title Notice is given but Seller fails to expressly agree to attempt to cure as provided above shall be deemed approved by Buyer as “Permitted Exceptions” as provided in paragraph (c).

 

(c) At the Closing, Seller shall convey title to the Property to Buyer by Massachusetts statutory quitclaim deed (the “Deed”), duly executed and acknowledged by Seller and in proper form for recording, conveying good and clear record marketable fee simple title to the Real Property to Buyer (or its nominee if specified in written notice from Buyer to Seller delivered at least seven (7) days prior to the Closing), subject to no exceptions other than (i) matters created by or to be assumed by Buyer; (ii) matters specifically set forth in this Agreement, including without limitation the 88 Kingston Easement Agreement, as defined below, if applicable; (iii) zoning, building ordinances and bylaws and provisions of existing and future laws, regulations, restrictions, requirements, ordinances, resolutions and orders (including, without limitation, any relating to building, zoning and environmental protection) as to the use, occupancy, subdivision or improvement of the Real Property; (iv) general and special real estate taxes and assessments that are a lien on the date of Closing, but are not yet due and payable; (v) legal roadways and highways; (vi) covenants, conditions, restrictions, agreements and easements of record that do not unreasonably interfere with the use of the Property as currently used; (vii) nonmaterial encroachments over a building setback or property line, a prohibited encroachment of a nonmaterial nature over any easement or any other matter which does not materially interfere with the use of the Real Property; (viii) interests of tenants in possession; (ix) the leases set forth in the schedule of Tenant Leases attached as Exhibit 1(d) hereto, and any other leases consented to by Buyer in accordance with Section 7(a) below; (x) any state of facts that a personal inspection of the Real Property might disclose; (xi) easements or claims of easements not shown by the public records; (xii) any lien or encumbrance encumbering the Real Property as to which Seller shall deliver to Buyer, or to Buyer’s Title Company at or prior to the Closing, payment sufficient to satisfy the obligations secured by such lien or encumbrance (in the case of liens or encumbrances, if any, which secure the payment of money) or proper instruments, in recordable form, which upon recordation will cancel such lien or encumbrance, together with any other instruments necessary thereto and the cost of recording and canceling the same; (xiii) any lien or encumbrance as to which the Title Company will insure, or commit to insure, Buyer against loss or forfeiture of title to, or collection from, the Real Property without additional cost to Buyer, whether by payment, bonding, indemnity of Seller or otherwise; and (xiv) the Permitted Exceptions. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title”.

 

(d) Notwithstanding the foregoing, however, Seller agrees to discharge any mortgage liens and other voluntary encumbrances securing the payment of money due and owing by Seller which currently exist or which may be placed on the Property by Seller at any time up to and including the date of Closing (collectively, “Monetary Liens”).

 

(e) By acceptance of the Deed and the Closing of the purchase and sale of the Property, (i) Buyer agrees it is assuming for the benefit of Seller all of the obligations of

 

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Seller with respect to the Conditions of Title from and after the Closing, and (ii) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section 4 shall survive the Closing.

 

5.

BUYER’S DUE DILIGENCE.

 

(a) Without expanding or extending Buyer’s rights with respect to inspection of title and survey matters governed by the foregoing Section 4, Buyer shall have five (5) business days after the execution of this Agreement (the “Due Diligence Period”) to make such inquiries and review such documents reasonably necessary to ascertain that (i) all governmental permits and approvals required for the construction of the Improvements were obtained, and such construction was performed in accordance with such permits and approvals, and (ii) the Property is in compliance with all material environmental laws and regulations applicable to the Property. Buyer shall undertake such inquiries and reviews with commercially reasonable diligence and effort. Buyer shall have reasonable access to the Property, subject to the terms of the State Street Lease, for the purpose of making, at Buyer’s sole cost and expense, surveys, inspections and other investigations on business days upon at least forty-eight (48) hours prior written notice to Seller. Buyer shall conduct such inspections in a manner not disruptive to tenants or to the operation of the Property.

 

(b) Prior to any entry to perform any soils or other intrusive on-site testing, Buyer shall give Seller written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. Seller shall have the right to approve or disapprove, in Seller’s sole discretion, such proposed soils or other intrusive testing within three (3) business days after receipt of such notice. If Buyer or its agents, employees or contractors take any sample from the Property in connection with any such approved testing, Buyer shall provide to Seller a portion of such sample being tested to allow Seller, if it so chooses, to perform its own testing. Seller or its representative may be present to observe any testing or other inspection performed on the Property. Upon the request of Seller, Buyer shall promptly deliver to Seller copies of any reports relating to any testing or other inspection of the Property performed by Buyer or its agents, employees or contractors. Buyer shall not contact any governmental authority without first obtaining the prior written consent of Seller thereto, and Seller, at Seller’s election, shall be entitled to have a representative on any phone or other contact made by Buyer to a governmental authority and present at any meeting by Buyer with a governmental authority.

 

(c) Seller has made available for inspection by Buyer copies of such of the following respecting the Property as Seller currently maintains in its possession: (i) as-built plans and specifications with respect to completed portions of the Improvements; (ii) soil tests; (iii) the Tenant Leases; (iv) the Service Contracts; (v) construction and other warranties still in effect; (vi) operating statements for the period beginning July 1, 2003 through December 31, 2003; (vii) an inventory list of Personal Property; (viii) the real and personal property tax bills for the current tax year; (ix) the utility bills for the period beginning July 1, 2003 through December 31, 2004; (x) environmental and

 

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engineering reports; and (xi) licenses and permits or certificates of occupancy or other documents required for construction of the Improvements built to date and occupation of the Building as, and to the extent, presently used. Buyer agrees that all such documentation and any other instruments or information in respect of the Property provided by Seller or Seller’s agents or representatives to Buyer or Buyer’s agents or representatives and all test and inspection results and reports (collectively, the “Due Diligence Materials”) shall be and remain the property of Seller, unless Buyer consummates the purchase of the Property hereunder, and that until such time, Buyer agrees not to permit unauthorized access to such information and further agrees to take reasonable steps to protect the confidentiality of such information.

 

(d) Except as otherwise expressly set forth herein, Seller makes no representations or warranties as to the truth, accuracy or completeness of any of the Due Diligence Materials, including without limitation the contents of Seller’s books and records, the Leases, the Service Contracts, rent rolls or income and expense statements, supplied to Buyer in connection with Buyer’s inspection of the Property. It is the parties’ express understanding and agreement that all such Due Diligence Materials were provided by Seller solely for Buyer’s convenience in making its own examination as to whether it wishes to purchase the Property, and, in making such examination and determination, Buyer shall rely exclusively on its own independent investigation and evaluation of the Property and not on any materials supplied by Seller.

 

(e) During the term of this Agreement, Buyer may not contact any tenant of the Property or any public officials without Seller’s prior written consent.

 

(f) If, on or before the expiration of the Due Diligence Period, Buyer discovers that that the condition described in paragraph (a) above is not satisfied and that the cost to remedy the unsatisfied condition or the defect giving rise to such failure to satisfy any such condition or defect, excluding the cost of soil disposal as expressed in Section 5(i) below) is in excess of Three Million & 00/100 Dollars ($3,000,000.00), then Buyer shall have the right to terminate this Agreement by delivering to Seller written notice of such termination, which notice shall set forth with specificity and provide reasonably detailed evidence to support its conclusion that one or both of such conditions are not satisfied and that the cost to remedy the condition or defect giving rise to such failure to satisfy any such condition is in excess of Three Million & 00/100 Dollars ($3,000,000.00). In response to such notice, Seller shall have the right, at its option, to avoid such termination by curing the defect, in which event Closing shall be extended for such period, not to exceed forty-five (45) days, as Seller may reasonably require in order to effect the cure, or Seller may elect to offer to Buyer a credit against the Purchase Price in the amount necessary to effect such cure in excess of Three Million & 00/100 Dollars ($3,000,000.00), as such amount shall be reasonably determined by Seller and Buyer. If Seller declines to cure the defect, Buyer may, at its option, proceed to Closing and accept, if offered by Seller, the amount in excess of Three Million & 00/100 Dollars ($3,000,000.00) required to effect the cure, or Buyer may terminate this Agreement in accordance with the terms hereof, in which event, Buyer shall return to Seller all Due Diligence Materials, Escrow Agent shall return to Buyer the Deposit and all interest

 

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thereon, and neither party shall have any further liability to the other hereunder, except as otherwise provided herein unless, within five (5) business days of Seller’s receipt of Buyer’s notice of termination, Seller notifies Buyer and Escrow Agent that Buyer’s election to terminate this Agreement has not been made in compliance with the requirements of this Section 5, in which event the provisions of the Escrow Agreement shall govern.

 

(g) Buyer shall maintain, and shall assure that its contractors maintain, commercial general liability and property insurance with a reputable insurer licensed in the state in which the Property is located, with a Best’s rating of A-X or better in amounts and in form and substance reasonably satisfactory to Seller to insure against all liability of Buyer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Buyer shall provide Seller with evidence of such insurance coverage upon request by Seller. Any such policy shall include a contractual liability endorsement which insures Buyer’s indemnity obligations hereunder. At a minimum, such liability insurance shall provide minimum limits of liability of One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate, with an umbrella excess liability policy in minimum amount of Five Million Dollars ($5,000,000) per occurrence bodily injury/ property and Five Million Dollars ($5,000,000) aggregate damage/ occurrence. Buyer shall (i) indemnify, defend and hold Seller harmless from and against any and all liability, claims, demands, damages or expenses of any kind, including attorneys’ fees, caused directly or indirectly by, or in any manner relating to, such entry upon the Property or the making of such tests and investigations or for any damages to the Property caused thereby and (ii) restore the Property as nearly as practicable to the condition existing immediately prior to the performance of such tests and investigations. This subsection 5(g) shall survive the termination of, or the closing of the transactions contemplated by, this Agreement.

 

(h) If the Closing does not take place for any reason whatsoever, Buyer shall not, directly or indirectly, disclose to any person or party or use in any manner any Due Diligence Materials or any other information of Seller acquired by Buyer with respect to Seller or the Property. Upon termination of this Agreement for any reason other than Closing, and as a condition precedent to the return of the Deposit (if applicable), Buyer shall return to Seller any and all Due Diligence Materials, including, without limitation, copies of all surveys, tests and investigations prepared by or for the benefit of Buyer in connection with the Property. This subsection 5(h) shall have survive the termination of this Agreement.

 

(i) Anything in this Agreement to the contrary notwithstanding, Seller shall remain liable for all costs, expenses and liabilities, direct and indirect, foreseen and unforeseen, in connection with the storage, transportation and disposal of contaminated soils associated with the development of the Building and Property (as described in a letter dated July 24, 2003, from Haley & Aldrich to the Massachusetts Department of Environmental Protection). The terms and provisions of this paragraph shall survive Closing hereunder.

 

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6.

ESTOPPEL CERTIFICATES.

 

Prior to the expiration of the Due Diligence Period, Seller shall prepare and deliver (i) to the State Street Tenant an estoppel certificate in the form attached to the State Street Lease as Exhibit K (the “State Street Certificate”), and (ii) to Valet Park of New England, Inc. an estoppel certificate in the form attached hereto as Schedule 6 (the “Parking Garage Certificate”). The obligations of Buyer hereunder shall be conditioned upon the receipt by Buyer on or before the Closing Date of the State Street Certificate substantially in the form of such Exhibit K and the Parking Garage Certificate substantially in the form of such Schedule 6.

 

7.

OPERATION OF THE PROPERTY PRIOR TO CLOSING/SELLER’S WORK

 

(a) From the date of this Agreement to the Closing Date, Seller shall:

 

(i) continue to maintain and operate the Property in accordance with Seller’s past practices, except that Seller shall not enter into any new leases or tenancies with respect to the Property without the consent of Buyer, and shall not enter into any other new agreements or contracts which would be binding on Buyer unless the same are terminable upon not more than thirty (30) days’ notice;

 

(ii) maintain the Property in as good repair, order, and condition as exists on the date of this Agreement, ordinary wear and tear excepted;

 

(iii) maintain and keep in full force and effect insurance on the Property in amounts currently in effect; and

 

(iv) comply with the terms and provisions of all existing Tenant Leases and Service Contracts in all material respects.

 

(b) Seller is in the process of completing certain punch-list items of work to the Improvements as described in Schedule 7(b) . If such work is not completed by the Closing, Seller shall credit Buyer with unpaid amounts remaining, as of Closing, to be paid under any and all contracts for such work (including change orders approved as of Closing) and Seller shall assign to Buyer, and Buyer shall assume, all contracts and remaining obligations with respect thereto. Buyer hereby agrees with Seller that Buyer, at its cost, shall assume all such contracts in connection with the Closing in the Assignment of Service Contracts and Intangible Property attached hereto as Schedule 13(a)(iv) and promptly complete after Closing the remaining work in accordance with the scope of work and plans therefor in effect at Closing. The provisions of this paragraph (b) shall survive the Closing.

 

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8.

REPRESENTATIONS AND WARRANTIES.

 

(a) Seller represents and warrants to Buyer as follows:

 

(i) Seller is and will be on the Closing Date a limited liability company duly organized and validly existing under the laws of the State of Delaware, and qualified to do business in the jurisdiction in which the Property is located, and Seller has and will have on the Closing Date all necessary power and authority to: (A) carry on the business for which it has been organized; (B) own and operate the Property; and (C) enter into and perform Seller’s obligations under this Agreement.

 

(ii) Seller has taken all actions required to be taken under the laws of the State of Delaware and under Seller’s operating agreement to approve or authorize the execution and delivery of this Agreement and consummation of the transactions contemplated in this Agreement.

 

(iii) Neither the execution of this Agreement nor the consummation of the transactions contemplated in this Agreement will constitute a violation of, be in conflict with, or constitute a default under (or with the passage of time or delivery of notice, or both, would constitute a default under) any term or provision of Seller’s operating agreement or, to the actual knowledge of Seller, any other agreement, lease, or other instrument by which the Property is bound.

 

(iv) No litigation, proceeding, or action is pending or, to Seller’s actual knowledge, threatened against or relating to the Property or Seller, that could materially adversely affect the Property or its ownership or operation by Buyer, except as shown on Schedule 8(a)(iv).

 

(v) No condemnation proceeding is pending or, to Seller’s actual knowledge, threatened against or relating to the Property.

 

(vi) As to the Tenant Leases,

 

(A) complete, true, and correct copies of all written leases disclosed on Schedule 1(d), including all modifications and amendments thereof or thereto, have been delivered to Buyer.

 

(B) except as disclosed on Schedule 8(a)(vi)(B), which is attached to and made a part of this Agreement, to the actual knowledge of Seller, no tenant under any Tenant Lease is in default under any Tenant Lease, and no condition exists nor has any event occurred that by notice, the passage of time, or otherwise, would constitute an event of default under any Tenant Lease.

 

(vii) As to the Service Contracts,

 

(A) complete, true, and correct copies of all written Service Contracts disclosed on Schedule 1(e), including all modifications and amendments thereof or thereto, have been delivered to Buyer.

 

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(B) except as disclosed on Schedule 8(a)(vii)(B), which is attached to and made a part of this Agreement, to the actual knowledge of Seller, neither Seller nor any other party under any Service Contract is in default under any Service Contract, and no condition exists nor has any event occurred that by notice, the passage of time, or otherwise, would constitute an event of default under any Service Contract.

 

(viii) Seller has received no written notice from a public authority that there are contemplated improvements to or adjoining the Real Property by a public authority, the costs of which are to be assessed as special taxes against the Real Property. Seller shall continue to defend all such actions to completion and shall defend, indemnify and hold harmless Buyer, its successors and assigns, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature, relating to or arising from or out of the litigation set forth on Schedule 8(a)(iv).

 

(b) Buyer represents and warrants to Seller as follows:

 

(i) Buyer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, and qualified to do business in the jurisdiction in which the Property is located, and Buyer has and will have on the Closing Date all necessary power and authority to: (A) carry on the business for which it has been organized; (B) own and operate the Property; and (C) enter into and perform Buyer’s obligations under this Agreement.

 

(ii) Buyer has taken all actions required to be taken under the laws of the State of Delaware and under Buyer’s partnership agreement, articles of incorporation and by-laws or articles of organization and operating agreement, as the case may be, to approve or authorize the execution and delivery of this Agreement and consummation of the transactions contemplated in this Agreement.

 

(iii) Neither the execution of this Agreement nor the consummation of the transactions contemplated in this Agreement will constitute a violation of, be in conflict with, or constitute a default under (or with the passage of time or delivery of notice, or both, would constitute a default under) any term or provision of Buyer’s partnership agreement, articles of incorporation and by-laws or articles of organization and operating agreement, as the case may be, or any other agreement or other instrument to which Buyer is bound.

 

(iv) Buyer has not (A) made a general assignment for the benefit of creditors, (B) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Buyer’s creditors, (C) suffered the appointment of a receiver to take possession of all, or substantially all, of Buyer’s assets, (D) suffered the attachment or other judicial seizure of all, or substantially all, of

 

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Buyer’s assets, (E) admitted in writing its inability to pay its debts as they come due, or (F) made an offer of settlement, extension or composition to its creditors generally.

 

(v) Buyer is not (A) an individual who is, or (B) a partnership, association, or corporation that is owned or controlled by, a person who during the preceding three (3) years was employed by, an officer of, or a board member of, The State Teachers Retirement System of Ohio, a constituent member of Seller, and no employee of Buyer who holds a fiduciary, administrative, supervisory, or trust position, or any other position in which such person would be involved on behalf of Buyer in decisions or recommendations pertaining to the Property, is a person who during the preceding three (3) years was employed by, an officer of, or a board member of The State Teachers Retirement System of Ohio.

 

(c) When the phrase “to Seller’s actual knowledge” or similar phrase is used with respect to Seller, it shall (i) be limited to the actual knowledge of Kevin Benedix only, who is an employee of Seller’s management agent, (ii) be deemed to refer to the current actual, not implied, constructive or imputed, knowledge of such person as management agent as aforesaid, and not individually, as of the times expressly indicated only, and without any obligation to make any independent investigation of, or any implied duty to investigate, the matters being represented and warranted, or to make any inquiry of any other persons, or to search or to examine any files, records books, correspondence and the like, and (iii) not be construed to refer to the knowledge of any other beneficial owner, officer, director, employee, shareholder or agent of Seller. There shall be no personal liability on the part of the individual named above arising out of any representations or warranties made herein or otherwise.

 

(d) To the extent a tenant estoppel certificate is provided to Buyer which sets forth information with respect to any item as to which Seller has made a representation or warranty, then Seller’s representation and warranty with respect to such information will thereafter be null and void and of no further force and effect and Buyer shall rely on the information in the tenant estoppel certificate.

 

(e) If after the date of this Agreement but prior to the Closing, Buyer obtains knowledge that any of Seller’s representations and warranties are untrue, inaccurate or incorrect in any material respect, Buyer shall give Seller notice thereof within five (5) business days of obtaining such knowledge (but, in any event, prior to the Closing). If after the date of this Agreement but prior to the Closing, Seller obtains actual knowledge that any of Seller’s representations and warranties are untrue, inaccurate or incorrect in any material resp