EXHIBIT 99.4
THREE ECW REDEMPTION AGREEMENT
THIS THREE ECW REDEMPTION AGREEMENT (this "AGREEMENT") is made and
entered into as of this 12th day of November, 1998, by and among THREE
EMBARCADERO CENTER WEST, a California limited partnership (the "PARTNERSHIP"),
BOSTON PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership
("INVESTOR"), BP EC WEST LLC, a Delaware limited liability company ("BPECW
LLC"), THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey corporation
("PRUDENTIAL"), PIC REALTY CORPORATION, a Delaware corporation ("PIC"), and
PRUDENTIAL REALTY SECURITIES II, INC., a Delaware corporation ("PRS").
Prudential, PIC and PRS shall sometimes hereinafter be collectively referred to
as the "PRUDENTIAL PARTNERS".
R E C I T A L S
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A. Pursuant to that certain Master Transaction Agreement dated as of
September 28, 1998, by and among Investor, Boston Properties, Inc., Prudential,
PIC, Fedmark Corporation, Embarcadero Center Investors Partnership, Pacific
Property Services, L.P. and those Persons listed on Exhibit A-1 attached thereto
(the "MASTER TRANSACTION AGREEMENT"), and immediately prior to the execution of
this Agreement, the ECW Rockefeller Parties contributed their respective
partnership interests in and to the Partnership to BPECW LLC, as Investor's
designee for receiving title to the interests of the Rockefeller Parties, in
exchange for OP Units, such ECW Rockefeller Parties withdrew as partners from
the Partnership, and BPECW LLC was admitted as a general and limited partner of
the Partnership. All initially capitalized terms used herein without definition
shall have the respective meanings given such terms in the Master Transaction
Agreement.
B. Pursuant to the Master Transaction Agreement, and immediately
prior to the execution of this Agreement, Prudential transferred a 1% limited
partnership interest in and to the Partnership to PIC and a 1% limited
partnership interest in and to the Partnership to PRS, and PIC and PRS were each
admitted as partners of the Partnership. BPECW LLC, Prudential, PIC and PRS
shall sometimes hereinafter be collectively referred to as the "EXISTING
PARTNERS". The respective percentage interests of each of the Existing Partners
is set forth on Schedule A attached hereto.
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C. The Partnership is currently governed by those certain Second
Amended and Restated Articles of Limited Partnership of Three Embarcadero Center
West dated as of January 9, 1989, by and among Fedmark, Prudential and those
parties listed on Exhibit A thereto (as amended, modified or supplemented, the
"PARTNERSHIP AGREEMENT").
D. The Existing Partners desire to enter into this Agreement whereby
BPECW LLC's entire 1% general partnership interest and 36.9167% limited
partnership interest in and to
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the Partnership (including all right, title and interest of BPECW LLC in and to
the Partnership to the extent relating to such percentage interests)
(collectively, the "BPECW LLC INTEREST") will be redeemed by the Partnership in
exchange for an undivided 37.9167% tenancy-in-common interest in and to the
Property (defined below) on the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
CERTAIN DEFINITIONS
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1.1 Definitions. In addition to the terms defined in the Master
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Transaction Agreement and in this Agreement below, the following terms shall
have the meanings set forth below for the purposes of the transactions described
in this Agreement:
"ASSIGNED CONTRACTS" shall have the meaning given such term in
Section 7.1.2(d) hereof.
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"ASSIGNMENT OF CONTRACTS" shall have the meaning given such term in
Section 7.1.2(d) hereof.
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"ASSIGNMENT OF LEASES" shall have the meaning given such term in
Section 7.1.2(c) hereof.
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"BPECW LLC" shall have the meaning given such term in the
Introductory Paragraph.
"BPECW LLC INTEREST" shall have the meaning given such term in
Recital D hereof.
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"DEED" shall have the meaning given such term in Section 7.1.2(a)
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hereof.
"EXISTING PARTNERS" shall have the meaning given such term in Recital
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B hereof.
- -
"INVESTOR" shall have the meaning given such term in the Introductory
Paragraph.
"LEASES" shall have the meaning given such term in Section 7.1.2(c)
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hereof.
"MASTER TRANSACTION AGREEMENT" shall have the meaning given such term
in Recital A hereof.
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"OTHER PROPERTY RIGHTS" shall have the meaning given such term in
Section 2.1.1(c) hereof.
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"PARTNERSHIP" shall have the meaning given such term in the
Introductory Paragraph.
"PARTNERSHIP AGREEMENT" shall have the meaning given such term in
Recital C hereof.
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"PERSONAL PROPERTY" shall have the meaning given such term in Section
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2.1.1(b) hereof.
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"PROPERTY" shall have the meaning given such term in Section 2.1.1
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hereof.
"PRUDENTIAL" shall have the meaning given such term in the
Introductory Paragraph.
"PRUDENTIAL PARTNERS" shall have the meaning given such term in the
Introductory Paragraph.
"PIC" shall have the meaning given such term in the Introductory
Paragraph.
"PRS" shall have the meaning given such term in the Introductory
Paragraph.
"REAL PROPERTY" shall have the meaning given such term in Section
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2.1.1(a) hereof.
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"REDEMPTION DATE" shall have the meaning given such term in Section
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7.1.1 hereof.
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ARTICLE 2
REDEMPTION
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2.1 Redemption. On the date hereof and concurrently herewith, the
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Partnership is fully redeeming the BPECW LLC Interest as set forth below.
2.1.1 Transfer of 37.9167% Percentage Interest in Property. The
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Partnership and the Existing Partners each hereby agrees that, on the date
hereof and concurrently herewith the Partnership is distributing, transferring
and assigning to BPECW LLC, and BPECW LLC is accepting and assuming from the
Partnership, in full redemption of the BPECW LLC Interest, an undivided 37.9167%
tenancy-in-common interest in and to the Partnership's right, title and
interest, if any, in and to the following (collectively, the "PROPERTY"):
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(a) Real Property. That certain real estate located at 275 Battery
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Street, City of San Francisco, County of San Francisco, State of
California, legally described on Exhibit A attached hereto and incorporated
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herein by this reference, together with all buildings, improvements and
fixtures located thereon and all rights, privileges and appurtenances
pertaining thereto, including all of the Partnership's right, title and
interest in and to all rights-of-way, open or proposed streets, alleys,
easements, strips or gores of land adjacent thereto (herein collectively
called the "REAL PROPERTY"); and
(b) Personal Property. All tangible and intangible personal property
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of the Partnership (excluding any computer or computer equipment and
software owned by the Partnership or PPS), located on the Real Property,
and used in the ownership, operation and maintenance of the Real Property,
and all books, records and files (excluding appraisals, budgets, the
Partnership's strategic plans for the Property, marketing information,
submissions relating to the Partnership's obtaining of corporate
authorization, or other information in the possession or control of the
Partnership or PPS which is privileged (provided that inadvertent
disclosure shall not constitute a waiver of any privilege)) relating to the
Real Property (herein collectively called the "PERSONAL PROPERTY"); and
(c) Other Property Rights. (i) The Partnership's interest as
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"landlord" in all Leases; and (ii) if and to the extent assignable by the
Partnership, (A) all service, supply, maintenance and utility agreements,
all equipment leases and all other agreements relating to the Property that
are described on Exhibit B attached hereto and incorporated herein by this
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reference, (B) all licenses, permits and other written authorizations
necessary for the use, operation or ownership of the Real Property or
Personal Property and in the Partnership's possession or control, and (C)
the Partnership's interest, if any, in and to the name "Embarcadero Center
West" or any similar name of the Building (the rights of the Partnership
described in clauses (i) and (ii) hereinabove being herein collectively
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called the "OTHER PROPERTY RIGHTS").
2.1.2 Adjustment of Percentage Interests. Immediately upon the
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consummation of the transactions described in this Sections 2.1 above, by
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operation of law and the terms of the Partnership Agreement, the percentage
interests of the Prudential Partners in the Partnership shall be increased, pro
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rata in accordance with the percentage interest of each Prudential Partner prior
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to such increase, such that the aggregate percentage interests of the remaining
partners is 100%.
2.2 Consent of Existing Partners. All Existing Partners hereby consent to
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the full redemption of the BPECW LLC Interest as provided in this Article 2
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above.
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ARTICLE 3
TITLE MATTERS
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3.1 Title to Real Property. The Partnership is hereby distributing, and
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BPECW LLC is hereby accepting, such 37.9167% tenancy-in-common interest in and
to the Real Property, subject only to: (a) such matters as are visible or
apparent on that certain ALTA/ACSM Survey of Three Embarcadero Center West-
Portion of Assessors Block 238, San Francisco, California, prepared by KCA
ENGINEERS, INC., 318 Brannan Street, San Francisco, CA 94107, dated August, 1998
(2 pages) (b) those exceptions to title for the Property as are listed on
Exhibit C attached hereto, (c) any and all matters created by or on behalf of
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Investor or any of its Affiliates (including, without limitation, any mechanics'
liens or other claims relating to any of the due diligence inspections or
investigations of the Property performed by or on behalf of Investor, BPECW LLC
or any of their Affiliates in connection with the transactions described herein
and in the Master Transaction Agreement), and (d) all matters disclosed to or
discovered by Investor, BPECW LLC or any of their Affiliates (whether in
connection with their respective due diligence investigations and inspections or
otherwise) prior to the Redemption Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PRUDENTIAL PARTNERS
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4.1 General Statement. The Prudential Partners make the representations
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and warranties to BPECW LLC and Investor which are set forth in this Article 4.
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All representations and warranties shall survive the Closing (and none shall
merge into any instrument of conveyance) for the period of any relevant statute
of limitations therefor. All representations and warranties of the Prudential
Partners are made as of the date of this Agreement.
4.2 Representations and Warranties. The Prudential Partners hereby
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represent and warrant to BPECW LLC and Investor that:
4.2.1 The execution and delivery of this Agreement and the other
documents to be executed by the Partnership and/or the Prudential Partners
in connection herewith, and the consummation of the transactions described
in this Agreement and such documents do not require, to the knowledge of
the Prudential Partners, the consent or approval of any governmental
authority, nor to the Prudential Partners' knowledge does the execution
and delivery of this Agreement and the other documents to be executed by
the Partnership and/or the Prudential Partners in connection herewith
violate, in any way material to the transactions described herein, any
contract or agreement to which the Partnership or any such Prudential
Partner is a party or (to the knowledge of the Prudential Partners) any
governmental or judicial order, judgment, decree, statute, law, rule or
regulation applicable to the Partnership or any Prudential Partner, and
this Agreement and all documents to be executed by the Partnership and/or
any Prudential Partner in connection
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with the transactions described herein constitute the legal, valid and
binding obligations of such Person. To the knowledge of the Prudential
Partners, none of the Partnership or any Prudential Partner is a party to,
or bound by, any unexpired, undischarged or unsatisfied contract,
agreement, indenture, mortgage (other than with respect to the Existing
Mortgage Loans, ECW Swap Notes and Three ECW I/P Loans), debenture, note or
other instrument under the terms of which performance by such Person in
accordance with the terms and provisions of this Agreement will be a
default or an event of acceleration, or grounds for termination, and
whereby such default, acceleration or termination would reasonably be
expected to have a material adverse effect on the timely performance by the
Partnership or the Prudential Partners of their respective obligations
under this Agreement and the other documents to be executed by any such
Person in connection herewith, nor does the execution of this Agreement or
the other documents to be executed by the Partnership in connection
herewith, or the consummation of the transactions contemplated hereby and
thereby, violate the Partnership Agreement or constitute a breach
thereunder.
4.2.2 The Partnership is a limited partnership duly formed and
existing under the laws of the State of California and is not insolvent,
and has all necessary power and authority to execute and deliver this
Agreement and all documents executed by it in connection herewith and to
perform all its obligations hereunder and thereunder. This Agreement has
been duly authorized by all requisite partnership action on the part of the
Partnership. The Partnership is not a Person other than a United States
Person within the meaning of the Code and the transactions contemplated
herein are not subject to the withholding provisions of section 3406 or
subchapter A of Chapter 3 of the Code.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF INVESTOR
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5.1 General Statement. BPECW LLC and Investor each hereby make the
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representations and warranties to the Partnership and each Prudential Partner
which are set forth in this Article 5. All representations and warranties shall
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survive the Closing (and none shall merge into any instrument of conveyance) for
the period of any relevant statute of limitations therefor. Representations and
warranties of BPECW LLC and Investor are made as of the date of this Agreement.
5.2 Representations and Warranties of Investor. Investor hereby
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represents and warrants that (i) Investor is a limited partnership duly formed
and in good standing under the laws of the State of Delaware, is (or prior to
the Closing will be) duly qualified and in good standing as a foreign limited
partnership under the laws of the State of California, and has all necessary
power, partnership and otherwise, to execute and deliver this Agreement and all
other documents and instruments to be executed and delivered by Investor in
connection herewith and to perform
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all its obligations hereunder and thereunder, (ii) this Agreement has been duly
authorized by all requisite partnership action on the part of Investor, (iii)
the execution and delivery of this Agreement and the other documents and
instruments to be executed and delivered by Investor in connection with the
transactions described herein, and the consummation of the transactions
contemplated hereby and thereby, do not require the consent or approval of the
partners of Investor or, to the knowledge of Investor, the consent or approval
of any governmental authority, nor, to the knowledge of Investor, does the
execution and delivery of this Agreement violate, in any way material to the
transactions contemplated hereby, any contract or agreement to which Investor is
a party or any governmental or judicial order, judgment, decree, statute, law,
rule or regulation applicable to Investor, (iv) this Agreement and all documents
and other instruments to be executed and delivered by Investor in connection
herewith constitute the legal, valid and binding obligations of Investor, (v)
Investor is not a party to, or bound by, any unexpired, undischarged or
unsatisfied contract, agreement, indenture, mortgage, debenture, note or other
instrument under the terms of which performance by Investor according to the
terms of this Agreement will be a default or an event of acceleration, or
grounds for termination, or whereby timely performance by Investor, according to
the terms of this Agreement, may be prohibited, prevented or delayed, and (vi)
BPECW LLC is a limited liability company duly organized and existing under the
laws of the State of Delaware and Investor is the sole member of BPECW LLC.
5.3 Representations and Warranties of BPECW LLC. BPECW LLC hereby
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represents and warrants that (i) BPECW LLC is a limited liability company duly
organized and in good standing under the laws of the State of Delaware, is (or
prior to the Closing will be) duly qualified and in good standing as a foreign
limited liability company under the laws of the State of California, and has all
necessary power to execute and deliver this Agreement and all other documents
and instruments to be executed and delivered by BPECW LLC in connection herewith
and to perform all its obligations hereunder and thereunder, (ii) this Agreement
has been duly authorized by all requisite company action on the part of BPECW
LLC, (iii) the execution and delivery of this Agreement and the other documents
and instruments to be executed and delivered by BPECW LLC in connection with the
transactions described herein, and the consummation of the transactions
contemplated hereby and thereby, do not require the consent or approval of the
members of BPECW LLC or, to the knowledge of BPECW LLC, the consent or approval
of any governmental authority, nor, to the knowledge of BPECW LLC, does the
execution and delivery of this Agreement violate, in any way material to the
transactions contemplated hereby, any contract or agreement to which BPECW LLC
is a party or any governmental or judicial order, judgment, decree, statute,
law, rule or regulation applicable to BPECW LLC, (iv) this Agreement and all
documents and other instruments to be executed and delivered by BPECW LLC in
connection herewith constitute the legal, valid and binding obligations of BPECW
LLC, (v) BPECW LLC is not a party to, or bound by, any unexpired, undischarged
or unsatisfied contract, agreement, indenture, mortgage, debenture, note or
other instrument under the terms of which performance by BPECW LLC according to
the terms of this Agreement will be a default or an event of acceleration, or
grounds for termination, or whereby timely performance by BPECW LLC, according
to the terms of this Agreement, may be prohibited, prevented or delayed.
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ARTICLE 6
LIMITATIONS
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6.1 Limitations. The representations and warranties of the parties made
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in this Agreement are personal to the other parties hereto and no Person other
than a named party hereto shall be entitled to bring any action based thereon.
ARTICLE 7
REDEMPTION PROCEDURE
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7.1 Redemption Deliveries.
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7.1 Closing. As used herein, the term "REDEMPTION DATE" shall mean
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the date upon which all transactions described in Sections 7.1.2 and 7.1.3 below
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are consummated.
7.1.2 Deliveries of the Partnership. On the date hereof, the
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Partnership is concurrently delivering to BPECW LLC, or is causing to be
delivered to the Escrow Agent, the following:
(a) Deed. A grant deed in the form of Exhibit D attached
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hereto and incorporated herein by this reference, conveying to BPECW
LLC an undivided 37.9167% tenancy-in-common interest in and to the
Partnership's right, title and interest in and to the Real Property,
subject only to the Permitted Exceptions ("DEED").
(b) Bill of Sale. A bill of sale in the form of Exhibit E
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attached hereto and incorporated herein by this reference, conveying
to BPECW LLC an undivided 37.9167% tenancy-in-common interest in the
Partnership's right, title and interest in and to the Personal
Property.
(c) Assignment of Tenant Leases. An assignment and assumption
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of leases in the form of Exhibit F attached hereto and incorporated
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herein by this reference ("ASSIGNMENT OF LEASES"), transferring to
BPECW LLC an undivided 37.9167% tenancy-in-common interest in the
Partnership's interest in the Leases encumbering the Property on the
date hereof described on Exhibit G attached hereto and incorporated
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herein by this reference and any amendments, guarantees and other
documents relating thereto (herein collectively called the "LEASES").
(d) Assignment of Equipment Leases and Service Contracts. An
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assignment and assumption of equipment leases, service contracts,
warranties and
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guaranties and the Other Property Rights (to the extent the same are
not transferred by Deed, Bill of Sale or Assignment of Leases) in the
form of Exhibit H attached hereto and incorporated herein by this
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reference ("ASSIGNMENT OF CONTRACTS"), transferring to BPECW LLC, to
the extent assignable, without liability or expense to the
Partnership, an undivided 37.9167% interest in the Partnership's
interest in the equipment leases in effect at the Property on the
Redemption Date, the contracts described on Exhibit B, the warranties
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and guaranties which remain in effect on the date hereof and a
37.9167% tenancy-in-common interest in any Other Property Rights not
otherwise transferred to BPECW LLC (all of the foregoing being herein
collectively called the "ASSIGNED CONTRACTS").
(e) Other Documents. Such other documents as may be reasonably
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required by the Escrow Agent or as may be agreed upon by the
Partnership and BPECW LLC to consummate the transactions contemplated
by this Agreement.
7.1.3 Deliveries of BPECW LLC. On the date hereof, BPECW LLC is
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concurrently delivering to the Partnership, or is causing to be delivered to the
Escrow Agent, the following:
(a) Assignment of Leases. The Assignment of Leases executed by
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BPECW LLC.
(b) Assignment of Equipment Leases and Service Contracts. The
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Assignment of Contracts executed by BPECW LLC.
(c) Other Documents. Such other documents as may be reasonably
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required by the Escrow Agent or may be agreed upon by the Partnership,
Prudential Partners and BPECW LLC to consummate the transactions
contemplated by this Agreement.
7.1.4 Waiver of Failure of Conditions Precedent. By closing the
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transactions contemplated by this Agreement, each party hereto shall be
conclusively deemed to have waived the benefit of any remaining unfulfilled
conditions precedent set forth in this Agreement and/or the Master Transaction
Agreement.
7.1.5 Closing Costs. The parties shall bear certain closing costs of
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the transactions contemplated hereby as set forth in Section 10.3.2 and Exhibit
V of the Master Transaction Agreement.
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ARTICLE 8
REMEDIES
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8.1 Remedies. Any party hereto shall have the right to initiate an
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action for specific performance with respect to any breach or default of this
Agreement by, or to enforce any obligation under this Agreement of, any other
party hereto (including, without limitation, the obligation of the Partnership
to make, and the obligation of BPECW LLC to accept, the redemption distribution
pursuant hereto), it being acknowledged and agreed by the parties hereto that
monetary damages would be an inadequate remedy and would not adequately
compensate any non-defaulting party. In addition to the remedy of specific
performance, any non-breaching party may initiate an action seeking actual
damages; provided that, the limitations of liability set forth in Article 12 of
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the Master Transaction Agreement shall apply to this Agreement, and all such
terms and provisions of said Article 12 of the Master Transaction Agreement are
hereby incorporated herein by this reference.
ARTICLE 9
MISCELLANEOUS
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9.1 Commissions. The parties hereto each agree to indemnify, defend,
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protect and hold the others harmless from and against any and all commissions,
finder's and/or similar fees or compensation claimed by any broker or finder in
connection with the transactions described in this Agreement based on claimed
contacts with, or other acts or omissions of, such indemnifying party. The terms
and provisions of this Section 9.1 shall survive the Closing or termination of
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this Agreement.
9.2 Expenses. Except as otherwise expressly set forth herein or expressly
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set forth in the Master Transaction Agreement, each party hereto shall bear its
own costs and expenses with respect to the transactions contemplated hereby.
9.3 Amendment. This Agreement may be amended, modified or supplemented
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but only in writing signed by each of the parties hereto.
9.4 Notices. Any notice, request, instruction or other document to be
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given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (a) when received if given in person or by courier or a courier
service, (b) on the date of transmission if sent by telex, facsimile or other
wire transmission or (c) three business days after being deposited in the U.S.
mail, certified or registered mail, postage prepaid:
9.4 If to BPECW LLC or Investor, addressed as follows:
Boston Properties, Inc.
8 Arlington Street
Boston, Massachusetts 02116-3495
Attention: General Counsel
Facsimile: 617-421-1555
with a copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
Attention: Eli Rubenstein, Esq.
Facsimile: 617-574-4112
9.4 If to the Partnership or the Prudential Partners, addressed as
follows:
Prudential Realty Group
8 Campus Drive
4th Floor - Arbor Circle South
Parsippany, New Jersey 07054
Attention: John R. Triece
Facsimile: (201) 683-1797
with a copy to:
The Prudential Insurance Company
of America
c/o Prudential Capital Group
Four Embarcadero Center
Suite 2700
San Francisco, California 94111
Attention: Harry Mixon, Esq.
Facsimile: (415) 956-2197
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and a copy to:
O'Melveny & Myers LLP
Embarcadero Center West
275 Battery Street
San Francisco, California 94111
Attention: Stephen A. Cowan, Esq.
Facsimile: (415) 984-8701
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
9.5 Waivers. The failure of a party hereto at any time or times to
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require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or
of any breach of any term, covenant, representation or warranty contained in
this Agreement shall be effective unless in writing, and no waiver in any one or
more instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
9.6 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9.7 Interpretation. The headings preceding the text of Articles and
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Sections included in this Agreement and the headings to Exhibits and Schedules
attached to this Agreement are for convenience only and shall not be deemed part
of this Agreement or be given any effect in interpreting this Agreement. The
use of the masculine, feminine or neuter gender herein shall not limit any
provision of this Agreement. The use of the term "including" or "include" shall
in all cases herein mean "including, without limitation" or "include, without
limitation," respectively. Underscored references to Articles, Sections,
Subsections, Exhibits or Schedules shall refer to those portions of this
Agreement.
9.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
9.9 Assignment. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns. No
assignment of any rights or obligations shall be made by any party without the
written consent of each other party.
9.10 No Third Party Beneficiaries. This Agreement is solely for the
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benefit of the parties hereto and, to the extent provided herein, their
respective Representatives, and no provision of this Agreement shall be deemed
to confer upon other third parties any remedy, claim, liability, reimbursement,
cause of action or other right.
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9.11 Further Assurances. Upon reasonable request of any party, each other
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party will execute and deliver such other documents, releases, assignments and
other instruments as may be required to effectuate completely the transfer and
assignment to BPECW LLC of the Property and the redemption of the BPECW LLC
Interest and to otherwise carry out the purposes of this Agreement.
9.12 Severability. If any provision of this Agreement shall be held
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invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
9.13 Remedies Cumulative. The remedies provided in this Agreement shall
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be cumulative and shall not preclude the assertion or exercise of any other
rights or remedies available by law, in equity or otherwise.
9.14 Entire Understanding. This Agreement, together with the other
--------------------
Transaction Documents, sets forth the entire agreement and understanding of the
parties hereto with respect to the matters set forth herein and supersedes any
and all prior agreements, arrangements and understandings among the parties.
9.15 Consent to Jurisdiction and Service of Process. ALL JUDICIAL
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PROCEEDINGS BROUGHT AGAINST ANY PERSON ARISING OUT OF OR RELATING TO THIS
AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH
PARTY HERETO ACCEPTS FOR ITSELF, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT. Each party hereby agrees that service of all
process in any such proceeding in any such court may be made by registered or
certified mail, return receipt requested, to any other party hereto, at its
address provided in this Agreement, such service being hereby acknowledged by
each party to be sufficient for personal jurisdiction in any action against such
party in any such court and to be otherwise effective and binding service in
every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law.
9.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
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AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including,
without limitation, contract claims, tort claims, breach of duty claims and all
other
13
common law and statutory claims. Each party hereto acknowledges that this
waiver is a material inducement to enter into a business relationship, that each
has already relied on this waiver in entering into this Agreement, and that each
shall continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with such legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
PARTNERSHIP: THREE EMBARCADERO CENTER WEST,
a California limited partnership
By: THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation,
its General Partner
By: /s/ Gary L. Frazier
--------------------------------------------------
Name: _______________________________
Title: ________________________________
BPECW LLC: BP EC WEST LLC,
a Delaware limited liability company
By: BOSTON PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership,
its sole Member
By: BOSTON PROPERTIES, INC.,
a Delaware corporation,
its General Partner
By: /s/ Thomas J. O'Connor
--------------------------------------
Name: Thomas J. O'Connor
Title: Vice President
S-1
INVESTOR: BOSTON PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: BOSTON PROPERTIES, INC.,
a Delaware corporation,
its General Partner
By: /s/ Thomas J. O'Connor
------------------------------------------------
Name: Thomas J. O'Connor
Title: Vice President
PRUDENTIAL: THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, a New Jersey corporation
By: /s/ Gary L. Frazier
------------------------------------------------
Name: _____________________________________________
Title: ____________________________________________
PIC: PIC REALTY CORPORATION,
a Delaware corporation
By: /s/ Gary L. Frazier
------------------------------------------------
Name: _____________________________________________
Title: ____________________________________________
PRS: PRUDENTIAL REALTY SECURITIES II, INC.,
a Delaware corporation
By: /s/ Duane H. Tucker, Jr.
------------------------------------------------
Name: Duane H. Tucker, Jr.
Title: President
S-2
SCHEDULE A
PERCENTAGE INTERESTS OF EXISTING PARTNERS
-----------------------------------------
GENERAL PARTNERSHIP INTERESTS
-----------------------------
Prudential 1%
BPECW LLC 1%
LIMITED PARTNERSHIP INTERESTS
-----------------------------
PIC 1%
PRS 1%
Prudential 59.0833%
BPECW LLC 36.9167%
A-1