EXHIBIT 10.33 (A)
TERMINATION AGREEMENT
---------------------
THIS TERMINATION AGREEMENT (this "Agreement") is made as of the ____
day of June, 1999, by and among (i) MANUGISTICS, INC. ("Manugistics"), a
Delaware corporation with its principal office in Rockville, Maryland; and (ii)
WASHINGTONIAN NORTH ASSOCIATES LIMITED PARTNERSHIP ("Washingtonian North"), a
Maryland limited partnership, BOSTON PROPERTIES, INC. ("BPI"), a Delaware
corporation, and BOSTON PROPERTIES LIMITED PARTNERSHIP ("BPLP"), a Delaware
limited partnership, each with its principal office in Boston, Massachusetts
(Washingtonian North, BPI and BPLP being referred to herein collectively as
"Boston Properties").
RECITALS
--------
A. BPLP and Manugistics entered into a Memorandum of Agreement dated
March 5, 1998 (the "Memorandum"), setting forth the basic terms and conditions
governing the ownership, development and leasing of a site known as
Washingtonian North, located in the City of Gaithersburg, Maryland, and
containing approximately 27.9787 acres of land (together with any improvements
thereon and appurtenances thereto, the "Property"). BPLP's interest in the
Memorandum was assigned to Washingtonian North pursuant to an Assignment and
Assumption of Memorandum of Agreement dated as of March 5, 1998.
B. Washingtonian North acquired the Property pursuant to that certain
Contract of Sale dated February 13, 1998, by and between Washingtonian
Associates, L.C., as seller ("Xxxxxxxx"), and Manugistics, as buyer (as amended,
the "Contract"), and a Development Agreement between the same parties, also
dated February 13, 1998 (the "Development Agreement"), both as assigned to BPI
pursuant to the Memorandum and an Assignment and Assumption of Contract and
Development Agreement between Manugistics and BPI dated as of March 5, 1998, as
further assigned to BPLP pursuant to an Assignment and Assumption of Contract
and Development Agreement dated as of March 5, 1998, and as further assigned to
Washingtonian North pursuant to an Assignment and Assumption of Contract and
Development Agreement dated as of March 25, 1998.
C. Pursuant to the Memorandum, the following agreements were entered
into: (i) that certain Lease Agreement between Washingtonian North, as landlord,
and Manugistics, as tenant, dated as of March 26, 1998 (the "Lease"); (ii) that
certain Agreement for the Phased Development of Washingtonian North between
Washingtonian North and Manugistics dated as of March 26, 1998 (the "Phased
Development Agreement"); (iii) that certain Development Management Services
Agreement by and among Xxxxx Associates, Ltd., as development manager ("Xxxxx"),
BPLP, as owner's representative, Washingtonian North, as owner, and Manugistics,
as tenant, dated as of March 26, 1998 (the "Phase I Development Agreement") ;
and (iv) that certain Guaranty made by BPLP to Manugistics dated as of March 26,
1998 (the "Guaranty") (the Memorandum, the Lease, the Phased Development
Agreement, the Phase I Development Agreement and the Guaranty being referred to
herein collectively as the "Transaction Documents").
D. Due to a change of circumstances, the parties have agreed not to
proceed with the development and leasing of the Property and other transactions
contemplated by the Transaction Documents (collectively, the "Transaction") and
have agreed to terminate the Transaction Documents and release one another from
their respective obligations thereunder on the terms and conditions set forth
herein.
E. Boston Properties has thus far incurred costs and expenses in
connection with the Transaction, including interest carry on such costs and
expenses, in the approximate aggregate sum of Six Million Dollars ($6,000,000),
but, as an accommodation for the purpose of expeditiously resolving the terms
upon which the Transaction Documents will be terminated, is willing to accept
the lesser sum of Three Million Five Hundred Thousand Dollars ($3,500,000),
payable in installments as set forth herein, in full and final satisfaction of
Manugistics' responsibilities to Boston Properties in connection with the
Transaction, but only on the condition that Manugistics makes all such
installment payments as and when due (subject to applicable cure periods as set
forth below) and otherwise fully complies with the terms of this Agreement. As
used herein, the term "Total Costs" means the sum of Six Million Dollars
($6,000,000).
F. Recognizing that the termination of the Transaction Documents gives
rise to a right of repurchase by Xxxxxxxx under the Contract, the parties also
wish to set forth herein their agreement with regard to the effect that the
exercise by Xxxxxxxx of such repurchase right would have upon the agreements set
forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises set
forth below, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Termination Payments. Manugistics hereby agrees to pay to Boston
--------------------
Properties the sum of Three Million Five Hundred Thousand Dollars ($3,500,000)
(the "Settlement Amount"), payable in installments in accordance with the
following payment schedule:
Installment Due Date
----------- --------
$1,500,000 June 21, 1999
250,000 September 30, 1999
250,000 December 31, 1999
250,000 March 31, 2000
312,500 June 30, 2000
312,500 September 30, 2000
312,500 December 31, 2000
312,500 March 31, 2001
Notwithstanding the foregoing, if either (i) Manugistics fails to make the first
installment payment due hereunder as and when due (Manugistics hereby expressly
waiving any right to any notice, grace or cure period with respect to such
payment); or (ii) Manugistics fails to make any other installment payment as and
when due and such failure is not cured within fifteen (15) days
2
following the date notice thereof is given to Manugistics by Boston Properties
in accordance with the notice provisions hereof (a failure under either of
clause (i) or (ii) being referred to herein as an "Event of Default"), then the
entire amount of Total Costs, less any and all amounts paid by Manugistics to
Boston Properties on account of the Settlement Amount prior to the occurrence of
the Event of Default, plus interest accrued on the unpaid balance of the Total
Costs from June 1, 1999 to the date of payment at an annual rate (the "Interest
Rate") of two (2) percentage points in excess of the Prime Rate of interest from
time to time quoted in The Wall Street Journal, shall become immediately due and
payable hereunder. The Interest Rate shall be adjusted as of the effective date
of each change in the Prime Rate. In addition, following an Event of Default,
Manugistics shall be liable to Boston Properties for all costs of collection and
other costs and expenses (including, but not limited to, reasonable attorneys'
fees) incurred by Boston Properties in enforcing this Agreement, whether or not
suit is filed hereon. No payment made by Manugistics following an Event of
Default shall operate to cure any outstanding default, but all such payments
shall be applied by Boston Properties, without waiver of its rights, to
Manugistics' obligations hereunder.
2. Termination. Effective as of the date hereof, each of the Transaction
-----------
Documents, other than the Phase I Development Agreement, is hereby terminated,
and all rights, obligations and liabilities of the parties thereunder are hereby
released and discharged. Concurrently herewith or promptly following the
execution hereof, the Phase I Development Agreement is being or shall be
terminated and Boston Properties and Manugistics are being or shall be released
from their respective obligations thereunder pursuant to a separate Termination
Agreement substantially in the form attached hereto as Exhibit A (the "Xxxxx
---------
Termination Agreement"). The parties hereto agree to work diligently and in good
faith to expeditiously reach agreement with Xxxxx on the final form of and to
enter into the Xxxxx Termination Agreement; however, the obligations of the
parties under this Agreement are independent of, and not contingent upon, such
agreement with Xxxxx.
3. Xxxxxxxx Repurchase Option.
--------------------------
(a) As a result of the termination of the Transaction Documents,
Boston Properties shall offer Xxxxxxxx the right to repurchase the Property
pursuant to the terms of the repurchase option set forth in Section 34 of the
Contract, by giving Xxxxxxxx a repurchase notice in the form attached hereto as
Exhibit B. The Contract provides that if Xxxxxxxx exercises its repurchase
---------
option, Xxxxxxxx is to pay to Boston Properties at the closing of the repurchase
(the "Closing Date") the sum of (x) Actual Costs (as defined in the Contract);
and (z) interest accruing on Actual Costs until the Closing Date, calculated as
provided in the Contract ("Interest on Actual Costs"). Among the costs included
in Actual Costs are (A) the Purchase Price paid to Xxxxxxxx pursuant to (and as
defined in) the Contract; and (B) the Five Million Five Hundred Thousand Dollar
($5,500,000) payment (the "Overpass Contribution") that was made by Boston
Properties pursuant to the Development Agreement as its contribution to the
costs of the Interchange Work more particularly described (and defined) in the
Development Agreement. The parties hereto agree that if Xxxxxxxx exercises its
repurchase option, then, as between Boston Properties and Manugistics, the sums
paid by Xxxxxxxx shall be applied and credited as follows:
3
(i) first, to Boston Properties on account of the Purchase
Price and the portion of Interest on Actual Costs
representing interest accrued on the Purchase Price;
(ii) second, to Boston Properties on account of the Overpass
Contribution and the portion of Interest on Actual Costs
representing interest accrued on the Overpass
Contribution;
(iii) third, to Boston Properties on account of Interest on
Actual Costs accruing between June 1, 1999 and the date of
payment by Xxxxxxxx (to the extent not already credited
pursuant to clauses (i) or (ii) immediately above);
(iv) fourth, to Boston Properties and applied to the portion of
Total Costs that is in excess of the Settlement Amount;
(v) fifth, to Boston Properties and applied to reduce the
outstanding balance of the Settlement Amount;
(vi) sixth, to Manugistics to the extent of the aggregate
amount of any installment payments made by Manugistics to
Boston Properties hereunder; and
(vii) seventh, any remaining sums shall be the property of
Boston Properties.
Except as expressly stated above, Manugistics shall have no right to
receive any portion of the sums paid by Xxxxxxxx to Boston Properties nor any
right to receive any sums that may be paid to Boston Properties in connection
with any other sale or other disposition of the Property.
(b) Boston Properties hereby agrees that if Xxxxxxxx exercises its
repurchase option, Boston Properties will (i) use its reasonable and good faith
efforts to collect from Xxxxxxxx the maximum sum to which Boston Properties is
entitled on account of the repurchase pursuant to the terms of the Contract; and
(ii) provide to Manugistics a full and complete accounting of the determination
of Actual Costs and the other sums payable by Xxxxxxxx on account of the
repurchase.
4. Payment of Xxxxx and other Contractors.
--------------------------------------
(a) Boston Properties has paid or will pay Xxxxx development
management fees for the months of March and April 1999 in the amount of Ten
Thousand Dollars ($10,000.00) per month, plus reimbursable expenses of One
Hundred Eighty-Four Dollars and Eighty-Three Cents ($184.83), for a total
payment of $20,184.83. With respect to the contractors identified on Exhibit C
---------
attached hereto, whose complete and final invoices have not yet been provided,
Boston Properties agrees to pay such contractors the outstanding sums due such
4
contractors, as approximately identified on Exhibit C, as and when complete
---------
invoices and back-up therefor are provided to Boston Properties.
(b) Boston Properties shall have no responsibility for payment of any
further development management fee or other fees or invoices owed or payable to
or claimed by Xxxxx or any other contractor. Boston Properties and Manugistics
shall be released from all further obligations under the Phase I Development
Agreement pursuant to the Xxxxx Termination Agreement. In addition, the parties
hereto agree to work diligently and in good faith to expeditiously obtain a
release substantially in the form attached hereto as Exhibit D, pursuant to
---------
which Boston Properties and Manugistics shall be released from any liability to
HOK (the base building architect named in the Phase I Development Agreement);
however, the obligations of the parties under this Agreement are independent of,
and not contingent upon, obtaining such release from HOK.
5. Release by Manugistics. Except as to obligations arising under this
----------------------
Agreement, Manugistics, for itself and its affiliates, officers, directors,
employees, shareholders, partners, successors, heirs, assigns, agents,
attorneys, and representatives, hereby forever and irrevocably releases,
remises, discharges, and acquits each of the entities comprising Boston
Properties and each of their respective affiliates, officers, directors,
shareholders, employees, partners, successors, heirs, assigns, agents,
subcontractors, attorneys, and representatives, from any and all claims,
actions, causes of action, demands, rights, damages and costs of whatsoever kind
or nature, whether at law, in equity, or mixed, whether known or unknown, based
on, arising out of or related to the Transaction Documents and all dealings
between Boston Properties and Manugistics relating to the Transaction Documents.
6. Release by Boston Properties. Except as to obligations arising under
----------------------------
this Agreement, each of the entities comprising Boston Properties, for itself
and each of its affiliates, officers, directors, employees, shareholders,
partners, successors, heirs, assigns, agents, attorneys, and representatives,
hereby forever and irrevocably releases, remises, discharges, and acquits
Manugistics and its affiliates, officers, directors, shareholders, employees,
partners, successors, heirs, assigns, agents, subcontractors, attorneys, and
representatives, from any and all claims, actions, causes of action, demands,
rights, damages and costs of whatsoever kind or nature, whether at law, in
equity, or mixed, whether known or unknown, based on, arising out of or related
to the Transaction Documents and all dealings between Boston Properties and
Manugistics relating to the Transaction Documents.
7. Remedies. Manugistics hereby expressly agrees that by execution of
--------
this Agreement, Manugistics shall have no further rights of any kind in or to
the Property and that any claims Manugistics may have arising hereunder shall be
enforced solely against Boston Properties and not against the Property.
Manugistics and Boston Properties each agrees that under no circumstances
(including in the event of a breach hereof) will it seek to rescind this
Agreement or otherwise attempt to reinstate the Transaction Documents.
8. Notices. All notices or other communications required hereunder shall
-------
be in writing and shall be delivered in person (with receipt therefor), or sent
by certified mail, return receipt
5
requested, postage prepaid, or by facsimile transmission, to the following
addresses or facsimile numbers:
(i) if to Boston Properties, at:
Boston Properties, Inc.
000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: E. Xxxxxxxx Xxxxxxxx, Senior Vice President
facsimile no. 000-000-0000 (verify no. 202-646-7600);
with copies to:
Boston Properties, Inc.
000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Regional General Counsel
facsimile no. 000-000-0000 (verify no. 202-646-7600);
and
Boston Properties, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
facsimile no. 000-000-0000 (verify no. 617-859-2600);
and
Xxxx Xxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
facsimile no. 202-663-8007 (verify no. 202-663-8096);
(ii) if to Manugistics, at:
Manugistics, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Director of Operations
facsimile no. 000-000-0000 (verify no. 301-984-5000);
with copies to:
Manugistics, Inc.
6
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
facsimile no. 000-000-0000 (verify no. 301-984-5000);
and
Manugistics, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
facsimile no. 000-000-0000 (verify no. 301-984-5000);
and
Xxxxx & Xxxxxx LLP
0000 X Xxxxxx, XX
Xxxxx 000X
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
facsimile no. 000-000-0000 (verify no. 202-775-7988).
Either party may change its address for the giving of notices by notice given in
accordance with this Section. Notices given by any means other than by facsimile
shall be deemed given or received on the date actually received or, if refused,
on the date delivery was attempted and refused. Notices given by facsimile shall
be deemed given or received when confirmation of complete receipt is obtained by
the transmitting party during normal business hours or, if not confirmed during
normal business hours, on the next business day.
9. Confidentiality. The parties agree to keep the economic terms of this
---------------
Agreement strictly confidential and shall not disclose the same to any person or
entity except (1) as required by court order; (2) as necessary to enforce any
term of this Agreement; (3) as required to obtain tax, accounting, legal, or
regulatory advice or financing; or (4) as may be necessary or appropriate
(including by issuance of a press release) to comply with applicable laws,
including, without limitation, SEC and other governmental regulatory,
disclosure, tax and reporting requirements.
10. Miscellaneous.
-------------
a. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of Maryland, without regard to its
conflict of law provisions, and shall be binding upon, inure to the benefit of,
and be enforceable by, the parties hereto and their respective officers,
directors, shareholders, affiliates, agents, employees, heirs, successors and
assigns.
b. Any dispute involving or alleging a breach of this Agreement
shall be brought only in a state or federal court of competent jurisdiction in
Maryland. Each party hereto hereby
7
consents, and waives any objection to, personal jurisdiction and venue in the
state and federal courts of Maryland. If for any reason the state and federal
courts of Maryland decline to exercise jurisdiction or hear any such dispute,
then the dispute may be brought in any other court of competent jurisdiction.
c. This Agreement and the Exhibits referred to herein contain the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof. There are no other agreements or understandings
between the parties with respect to, and there have not been any contrary or
additional representations (express or implied) between the parties concerning,
the subject matter herein. No party shall be bound by any terms, covenants,
conditions or representations not expressly contained herein in writing, all of
which are agreed to be immaterial and none of which was relied upon by any party
entering into this Agreement.
d. This Agreement may be amended or modified only by a written
instrument duly executed by each of the parties hereto.
e. Each party acknowledges that the terms of this Agreement shall
survive the execution of the general releases set forth herein.
f. This Agreement is a negotiated document prepared by one party
as a matter of convenience and, in the event of any dispute between the parties,
the parties agree that it shall not be construed against or in favor of any
party solely as a consequence of such party's preparation, or lack of
preparation, of this Agreement.
g. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and all of which, together, shall constitute
the same document.
h. Each of the parties hereto represents, warrants and agrees that
such party shall execute such instruments and perform such further acts as shall
be reasonably necessary to carry out the terms of this Agreement.
i. Each of the persons executing this Agreement on behalf of a
corporation hereby personally warrants and represents that he has been fully
authorized and empowered to execute this Agreement on behalf of such
corporation.
j. All of the parties to this Agreement represent that they have
read it, understand its terms and conditions, have consulted with legal counsel
regarding this Agreement, and voluntarily sign it after conferring with their
legal counsel.
k. If any provision of this Agreement is held invalid by a court
of competent jurisdiction, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the parties in
accordance with applicable law, and the remainder of this Agreement shall remain
in full force and effect as if the Agreement had been entered into with the
restated provision.
l. Time is of the essence hereof.
8
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement under seal as of the date first above written.
MANUGISTICS, INC.,
a Delaware corporation
By: /s/ Xxxxx X Xxxxxxx
----------------------------
Name: XXXXX X XXXXXXX
--------------------------
Title: SVP. CFO
-------------------------
(Seal)
BOSTON PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------
Title: Executive Vice President
-------------------------
(Seal)
WASHINGTONIAN NORTH ASSOCIATES
LIMITED PARTNERSHIP
By: Boston Properties LLC, a Delaware
limited liability company, its General
Partner
By: Boston Properties Limited
Partnership, a Delaware limited
partnership, its Managing Member
By: Boston Properties, Inc., a
Delaware corporation, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------
Title: Executive Vice President
-------------------------
(Seal)
9
BOSTON PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Boston Properties, Inc., a Delaware
corporation, its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------
Title: Executive Vice President
---------------------------
(Seal)
EXHIBITS:
EXHIBIT A - Form of Xxxxx Termination Agreement
---------
EXHIBIT B - Form of Repurchase Option Notice
---------
EXHIBIT C - Schedule of Contractors
---------
EXHIBIT D - Form of HOK Release
---------
10
EXHIBIT A
---------
Form of Xxxxx Termination Agreement
-----------------------------------
Xxxxx Termination
XXXX XXXXXXX 6-8-99 DRAFT
TERMINATION AGREEMENT
----------------------
THIS TERMINATION AGREEMENT (this "Agreement") is made as of the ____ day of
June, 1999, by and among MANUGISTICS, INC. ("Manugistics"), a Delaware
corporation with its principal office in Rockville, Maryland; WASHINGTONIAN
NORTH ASSOCIATES LIMITED PARTNERSHIP ("Washingtonian North"), a Maryland limited
partnership with its principal office in Boston, Massachusetts; BOSTON
PROPERTIES LIMITED PARTNERSHIP ("BPLP"), a Delaware limited partnership with its
principal office in Boston, Massachusetts (Washingtonian North and BPLP being
referred to herein collectively as "Boston Properties"); and XXXXX ASSOCIATES,
LTD., a Virginia corporation with its principal office in Fairfax, Virginia
("Xxxxx").
RECITALS
--------
A. Washingtonian North is the owner of a development parcel known as
Washingtonian North, located in the City of Gaithersburg, Maryland, and
containing approximately 27.9787 acres of land (the "Property"), which was to be
developed and leased to Manugistics pursuant to the following agreements: (i)
that certain Lease Agreement between Washingtonian North, as landlord, and
Manugistics, as tenant, dated as of March 26, 1998 (the "Lease"); (ii) that
certain Agreement for the Phased Development of Washingtonian North between
Washingtonian North and Manugistics dated as of March 26, 1998 (the "Phased
Development Agreement"); and (iii) that certain Development Management Services
Agreement by and among Xxxxx, as development manager, BPLP, as owner's
representative, Washingtonian North, as owner, and Manugistics, as tenant, dated
as of March 26, 1998 (the "Phase I Development Agreement").
B. Due to a change of circumstances, Manugistics and Boston Properties
have agreed not to proceed with the development and leasing of the Property and
other transactions contemplated by the aforesaid agreements (collectively, the
"Transaction") and, pursuant to a separate Termination Agreement dated as of
June __, 1999 (the "BP/Manugistics Termination Agreement"), are terminating the
Lease, the Phased Development Agreement and certain other agreements entered
into in connection therewith (collectively, together with the Phase I
Development Agreement, the "Transaction Documents").
C. Concurrently herewith, Xxxxx and Manugistics are entering into a post-
termination agreement (the "Xxxxx/Manugistics Agreement") setting forth the
rights and responsibilities of those two parties with respect to certain matters
arising out of the Phase I Development Agreement being terminated hereby.
D. The parties hereto, being all of the parties to the Phase I
Development Agreement, wish to terminate the Phase I Development Agreement and
release one another from their respective obligations thereunder on the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises set
forth below, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Termination. Effective as of the date hereof, the Phase I Development
-----------
Agreement is hereby terminated, and all rights, obligations and liabilities of
the parties thereunder are hereby released and discharged. As a result thereof,
effective as of the date hereof, no terms, provisions or agreements contained in
the Phase I Development Agreement, including, but not limited to, any provisions
regarding the survival of any terms thereof or any provisions regarding rights
and obligations upon termination, shall be of any further force or effect, and
all such terms, provisions and agreements are hereby rendered null and void.
Further, following the date hereof, Xxxxx shall have no further responsibilities
for maintenance of insurance, stabilization of the site or otherwise advancing
development of the Property from its current state.
2. Payment of Xxxxx and other Contractors. Upon the execution hereof,
--------------------------------------
Boston Properties will pay Xxxxx development management fees for the months of
March and April 1999 in the amount of Ten Thousand Dollars ($10,000.00) per
month, together with an expense reimbursement of One Hundred Eighty-Four Dollars
and Eighty-Three Cents ($184.83), for a total payment of $20,184.83, in full and
final payment of all sums due Xxxxx under the Phase I Development Agreement.
Boston Properties hereby acknowledges and agrees that it has paid or will in due
course pay the sums due contractors pursuant to those certain Applications for
Payment numbered 8, 9 and 10 that have previously been submitted to Boston
Properties by Xxxxx. With respect to the contractors identified on Exhibit A
---------
attached hereto, whose complete and final invoices have not yet been provided,
Boston Properties agrees to pay such contractors the outstanding sums due such
contractors, as approximately identified on Exhibit A, as and when complete
---------
invoices and back-up therefor are provided to Boston Properties. In addition,
Boston Properties agrees to replace the three (3) bonds that have been posted by
Xxxxxx Xxxxxx Construction Co. pursuant to its agreement with Xxxxx. Boston
Properties shall have no responsibility for payment of any further development
management fee or other fees or invoices owed or payable to or claimed by Xxxxx
or any other contractor claiming by, through or under Xxxxx.
3. Release and Indemnification by Xxxxx.
------------------------------------
(a) Except as to obligations of Manugistics arising under the
Xxxxx/Manugistics Agreement and obligations arising hereunder, Xxxxx, for itself
and its affiliates, officers, directors, employees, shareholders, partners,
successors, heirs, assigns, agents, attorneys, and
2
representatives, hereby forever and irrevocably releases, remises,
discharges, and acquits Manugistics and each of the entities comprising Boston
Properties and each of their respective affiliates, officers, directors,
shareholders, employees, partners, successors, heirs, assigns, agents,
subcontractors, attorneys, and representatives, from any and all claims,
actions, causes of action, demands, rights, damages and costs of whatsoever kind
or nature, whether at law, in equity, or mixed, whether known or unknown, based
on, arising out of or related to the Phase I Development Agreement or any of the
other Transaction Documents or the dealings between or among Boston Properties,
Manugistics and/or Xxxxx relating to any of such agreements.
(b) Xxxxx hereby agrees to indemnify and hold harmless Manugistics and
each of the entities comprising Boston Properties and each of their respective
affiliates, officers, directors, shareholders, employees, partners, successors,
heirs, assigns, agents, subcontractors, attorneys and representatives, from any
and all claims, actions, causes of action, demands, rights, damages and costs of
whatsoever kind or nature, whether at law, in equity, or mixed, whether known or
unknown, asserted or claimed by contractors or other persons or entities engaged
by Xxxxx or otherwise claiming by, through or under a written or oral agreement
or understanding with Xxxxx and based on, arising out of or related to the
development of the Property, including, but not limited to, claims for services
or materials provided in connection therewith, but excluding the specific claims
for which Boston Properties has agreed to be responsible pursuant to the terms
of Paragraph 2 above and the obligations of Manugistics pursuant to the
Xxxxx/Manugistics Agreement.
4. Release by Manugistics.
----------------------
(a) Except as to obligations of Xxxxx arising under the
Xxxxx/Manugistics Agreement and obligations arising hereunder, Manugistics, for
itself and its affiliates, officers, directors, employees, shareholders,
partners, successors, heirs, assigns, agents, attorneys, and representatives,
hereby forever and irrevocably releases, remises, discharges, and acquits Xxxxx
and its affiliates, officers, directors, shareholders, employees, partners,
successors, heirs, assigns, agents, subcontractors, attorneys, and
representatives, from any and all claims, actions, causes of action, demands,
rights, damages and costs of whatsoever kind or nature, whether at law, in
equity, or mixed, whether known or unknown, based on, arising out of or related
to the Phase I Development Agreement or any of the other Transaction Documents
or the dealings between or among Boston Properties, Manugistics and/or Xxxxx
relating to any of such agreements.
(b) Manugistics hereby agrees to indemnify and hold harmless Xxxxx
and its affiliates, officers, directors, shareholders, employees, partners,
successors, heirs, assigns, agents, subcontractors, attorneys and
representatives, from any and all claims, actions, causes of action, demands,
rights, damages and costs of whatsoever kind or nature, whether at law, in
equity, or mixed, whether known or unknown, asserted or claimed by contractors
or other persons or entities engaged by Manugistics or otherwise claiming by,
through or under a written or oral agreement or understanding with Manugistics
and based on, arising out of or related to the development of the Property,
including, but not limited to, claims for services or materials provided in
connection therewith.
3
5. Release by Boston Properties.
----------------------------
(a) Except as to obligations arising hereunder, each of the entities
comprising Boston Properties, for itself and its affiliates, officers,
directors, employees, shareholders, partners, successors, heirs, assigns,
agents, attorneys, and representatives, hereby forever and irrevocably releases,
remises, discharges, and acquits Xxxxx and its affiliates, officers, directors,
shareholders, employees, partners, successors, heirs, assigns, agents,
subcontractors, attorneys, and representatives, from any and all claims,
actions, causes of action, demands, rights, damages and costs of whatsoever kind
or nature, whether at law, in equity, or mixed, whether known or unknown, based
on, arising out of or related to the Phase I Development Agreement or any of the
other Transaction Documents or the dealings between or among Boston Properties,
Manugistics and/or Xxxxx relating to any of such Agreements.
(b) Boston Properties hereby agrees to indemnify and hold harmless
Xxxxx and its affiliates, officers, directors, shareholders, employees,
partners, successors, heirs, assigns, agents, subcontractors, attorneys and
representatives, from any and all claims, actions, causes of action, demands,
rights, damages and costs of whatsoever kind or nature, whether at law, in
equity, or mixed, whether known or unknown, asserted or claimed by contractors
or other persons or entities engaged by Boston Properties or otherwise claiming
by, through or under a written or oral agreement or understanding with Boston
Properties and based on, arising out of or related to the development of the
Property, including, but not limited to, claims for services or materials
provided in connection therewith.
6. Miscellaneous.
-------------
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the state of Maryland, without regard to its conflict of law
provisions, and shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective officers, directors,
shareholders, affiliates, agents, employees, heirs, successors and assigns.
(b) Any dispute involving or alleging a breach of this Agreement shall
be brought only in a state or federal court of competent jurisdiction in
Maryland. Each party hereto hereby consents, and waives any objection to,
personal jurisdiction and venue in the state and federal courts of Maryland. If
for any reason the state and federal courts of Maryland decline to exercise
jurisdiction or hear any such dispute, then the dispute may be brought in any
other court of competent jurisdiction.
(c) This Agreement and the Exhibit referred to herein contain the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof. There are no other agreements or understandings
between the parties with respect to, and there have not been any contrary or
additional representations (express or implied) between the parties concerning,
the subject matter herein. No party shall be bound by any terms, covenants,
4
conditions or representations not expressly contained herein in writing, all of
which are agreed to be immaterial and none of which was relied upon by any party
entering into this Agreement.
(d) This Agreement may be amended or modified only by a written instrument
duly executed by each of the parties hereto.
(e) Each party acknowledges that the terms of this Agreement shall survive
the execution of the general releases set forth herein.
(f) This Agreement is a negotiated document prepared by one party as a
matter of convenience and, in the event of any dispute between the parties, the
parties agree that it shall not be construed against or in favor of any party
solely as a consequence of such party's preparation, or lack of preparation, of
this Agreement.
(g) This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and all of which, together, shall constitute the same
document.
(h) Each of the parties hereto represents, warrants and agrees that such
party shall execute such instruments and perform such further acts as shall be
reasonably necessary to carry out the terms of this Agreement.
(i) Each of the persons executing this Agreement on behalf of a
corporation hereby personally warrants and represents that he has been fully
authorized and empowered to execute this Agreement on behalf of such
corporation.
(j) All of the parties to this Agreement represent that they have read it,
understand its terms and conditions, have consulted with legal counsel regarding
this Agreement, and voluntarily sign it after conferring with their legal
counsel.
(k) If any provision of this Agreement is held invalid by a court of
competent jurisdiction, such provision shall be deemed to be restated to reflect
as nearly as possible the original intentions of the parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full force
and effect as if the Agreement had been entered into with the restated
provision.
5
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement under seal as of the date first above written.
MANUGISTICS, INC.,
a Delaware corporation
By: ______________________________
Name: ___________________________
Title: __________________________
(Seal)
WASHINGTONIAN NORTH ASSOCIATES
LIMITED PARTNERSHIP
By: Boston Properties LLC, a Delaware
limited liability company, its General
Partner
By: Boston Properties Limited
Partnership, a Delaware limited
partnership, its Managing Member
By: Boston Properties, Inc., a
Delaware corporation, its
General Partner
By: ____________________
Name: __________________
Title: _________________
(Seal)
[Signatures Continue on Next Page]
6
BOSTON PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Boston Properties, Inc., a Delaware
corporation, its General Partner
By: ____________________________
Name: __________________________
Title: _________________________
(Seal)
XXXXX ASSOCIATES, LTD.,
a Virginia corporation
By: _____________________________
Name: ___________________________
Title: __________________________
(Seal)
EXHIBITS:
EXHIBIT A - Schedule of Contractors
---------
7
EXHIBIT A
---------
Schedule of Contractors
-----------------------
Contractor's Name Approximate Amount Due
----------------- ----------------------
Xxxxxx Xxxxxx Construction Co. $29,959.61
X.X. Xxxxxxxxxx Engineers $ 7,460.00
Loiderman & Associates, Inc. $ 5,000.00
EXHIBIT B
---------
Form of Repurchase Option Notice
--------------------------------
____________, 1999
Via Federal Express
-------------------
Washingtonian Associates L.C.
00000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx XxXxxxx, Esq.
Re: Repurchase Notice - 27.9787 acre parcel of land (the "Property") known as
Washingtonian North, located in Gaithersburg, MD and conveyed pursuant to
that certain Contract of Sale dated February 13, 1998, by and between
Washingtonian Associates L.C., as Seller, and Manugistics, Inc.
("Manugistics"), as Buyer, as assigned to Boston Properties, Inc., as
further assigned to Boston Properties Limited Partnership, and as further
assigned to Washingtonian North Associates Limited Partnership (as amended
and assigned, the "Contract")
Ladies and Gentlemen:
This is to notify you that the undersigned, Washingtonian North Associates
Limited Partnership ("Owner"), has terminated its agreements with Manugistics
for the development and leasing of the referenced Property for use as
Manugistics' headquarters facility. As a result, Owner desires to use the
Property for a use that is not "Buyer's Intended Use", as such term is defined
in Section 34 of the Contract, thus entitling you to repurchase the Property in
accordance with the terms of such Section 34. This notice constitutes the
Repurchase Notice required pursuant to Section 34 of the Contract.
The repurchase price, should you elect to exercise your right to
repurchase, shall be $_________________, representing the sum of Actual Costs
(as defined in the Contract) and interest thereon (calculated as specified in
the Contract), as more particularly detailed in Schedule A attached hereto.
----------
Section 34 of the Contract requires that, if you wish to exercise your
repurchase right, you are to notify the undersigned of such intent, in writing,
within thirty (30) days from your receipt of this notice, with settlement to
take place within sixty (60) days after such exercise of the repurchase right.
If you have any questions concerning this matter, please call
_________________ at 000-000-0000.
Sincerely,
WASHINGTONIAN NORTH ASSOCIATES
LIMITED PARTNERSHIP
By: Boston Properties LLC, a Delaware limited
liability company, its General Partner
By: Boston Properties Limited
Partnership, a Delaware limited
partnership, its Managing Member
By: Boston Properties, Inc., a
Delaware corporation, its
General Partner
By: ___________________
Name:__________________
Title:_________________
(Seal)
Attachment:
Schedule A - Calculation of Repurchase Price
----------
cc: Xxxxxxx X. Xxxxxx, Xx., Esq. - via Federal Express
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
2
EXHIBIT C
---------
Schedule of Contractors
-----------------------
Contractor's Name Approximate Amount Due
----------------- ----------------------
Xxxxxx Xxxxxx Construction Co. $29,959.61
X.X. Xxxxxxxxxx Engineers $ 7,460.00
Loiderman & Associates, Inc. $ 5,000.00
EXHIBIT D
---------
Form of HOK Release
-------------------
RELEASE
-------
THIS RELEASE (this "Release") is made as of the ____ day of _________,
1999, by HOK, a __________________ with its principal offices in
____________________________ ("HOK"), to and for the benefit of the following
(collectively, the "Released Parties"): MANUGISTICS, INC. ("Manugistics"), a
Delaware corporation with its principal office in Rockville, Maryland;
WASHINGTONIAN NORTH ASSOCIATES LIMITED PARTNERSHIP ("Washingtonian North"), a
Maryland limited partnership with its principal office in Boston, Massachusetts;
BOSTON PROPERTIES LIMITED PARTNERSHIP ("BPLP"), a Delaware limited partnership
with its principal office in Boston, Massachusetts (Washingtonian North and BPLP
being referred to herein collectively as "Boston Properties"); and XXXXX
ASSOCIATES, LTD., a Virginia corporation with its principal office in Fairfax,
Virginia ("Xxxxx").
RECITALS
--------
A. Washingtonian North is the owner of a development parcel known as
Washingtonian North, located in the City of Gaithersburg, Maryland, and
containing approximately 27.9787 acres of land (the "Property"), which was to be
developed and leased to Manugistics pursuant to the following agreements: (i)
that certain Lease Agreement between Washingtonian North, as landlord, and
Manugistics, as tenant, dated as of March 26, 1998 (the "Lease"); (ii) that
certain Agreement for the Phased Development of Washingtonian North between
Washingtonian North and Manugistics dated as of March 26, 1998 (the "Phased
Development Agreement"); and (iii) that certain Development Management Services
Agreement by and among Xxxxx, as development manager, BPLP, as owner's
representative, Washingtonian North, as owner, and Manugistics, as tenant, dated
as of March 26, 1998 (the "Phase I Development Agreement").
B. Due to a change of circumstances, Manugistics and Boston Properties
have agreed not to proceed with the development and leasing of the Property and
other transactions contemplated by the aforesaid agreements (collectively, the
"Transaction") and, pursuant to termination agreements dated on or about the
date hereof, are terminating the aforesaid agreements.
C. In connection with the foregoing, any and all agreements or
understandings, written or oral, between HOK and Xxxxx and/or any of the other
Released Parties relating to the development of the Property have been
terminated, and HOK wishes to confirm the same and release the Released Parties
from any and all liability in connection therewith, as hereinafter provided.
NOW, THEREFORE, in consideration of the sum of Ten Dollars and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned,
HOK, hereby acknowledges and agrees that any and all agreements or
understandings, written or oral, between HOK and Xxxxx and/or any of the other
Released Parties relating to the development of the Property have been
terminated, HOK has been paid all sums due in connection therewith, and any and
all rights, obligations and liabilities of the parties thereunder have been
released and discharged. Further, HOK, for itself and its affiliates, officers,
directors, employees, shareholders, partners, successors, heirs, assigns,
agents, subcontractors, subconsultants, attorneys, and representatives, hereby
forever and irrevocably releases, remises, discharges, and acquits Xxxxx,
Manugistics, each of the entities comprising Boston Properties and each of their
respective affiliates, officers, directors, shareholders, employees, partners,
successors, heirs, assigns, agents, subcontractors, attorneys, and
representatives, from any and all claims, actions, causes of action, demands,
rights, damages and costs of whatsoever kind or nature, whether at law, in
equity, or mixed, whether known or unknown, based on, arising out of or related
to the development of the Property, any agreements or understandings, written or
oral, between HOK and Xxxxx and/or any of the other Released Parties relating
thereto or the dealings between or among HOK, Xxxxx and/or any of the other
Released Parties relating thereto.
IN WITNESS WHEREOF, the undersigned has duly executed this Release under
seal as of the date first above written.
HOK, a ___________________________
By: ______________________________
Name:_____________________________
Title: ___________________________
(Seal)
2