Exhibit 10.2
BERWYN PARK
SALE AGREEMENT
BETWEEN
BERWYN DEVELOPMENT ASSOCIATES
a Pennsylvania general partnership
AS SELLER,
AND
BRANDYWINE REALTY TRUST,
a Maryland Real Estate Investment Trust,
AS PURCHASER
As of July 7, 1997
TABLE OF CONTENTS
Page #
ARTICLE I PURCHASE AND SALE
Section 1.1 Agreement of Purchase and Sale 1
Section 1.2 Property Defined 2
Section 1.3. Purchase Price 2
Section 1.4 Payment of Purchase Price 2
Section 1.5 Deposit 2
Section 1.6 Escrow Agent 3
ARTICLE II TITLE AND SURVEY
Section 2.1 Title Inspection Period 3
Section 2.2 Title Examination 4
Section 2.3 Pre-Closing "Gap" Title Defects 4
Section 2.4 Permitted Exceptions 4
Section 2.5 Conveyance of Title 5
ARTICLE III REVIEW OF PROPERTY
Section 3.1 Right of Inspection 6
Section 3.2 Environmental Reports 6
Section 3.3 Right of Termination 7
Section 3.4 Review of Tenant Estoppels 7
Section 3.5 PECO Disclosure 8
ARTICLE IV CLOSING
Section 4.1 Time and Place 8
Section 4.2 Seller's Obligations at Closing 8
Section 4.3 Purchaser's Obligations at Closing 10
Section 4.4 Credits and Prorations 11
Section 4.5 Transaction Taxes and Closing Costs 14
Section 4.6 Conditions Precedent to Obligation of Purchaser 15
Section 4.7 Conditions Precedent to Obligation of Seller 15
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.1 Representations and Warranties of Seller 15
Section 5.2 Knowledge Defined 16
Section 5.3 Survival of Seller's Representations and
Warranties 17
Section 5.4 Covenants of Seller 17
Section 5.5 Representations and Warranties of Purchaser 18
Section 5.6 Survival of Purchaser's Representations and
Warranties 18
ARTICLE VI DEFAULT
Section 6.1 Default by Purchaser 19
Section 6.2 Default by Seller 19
Section 6.3 Recoverable Damages 19
ARTICLE VII RISK OF LOSS
Section 7.1 Minor Damage 19
Section 7.2 Major Damage 20
Section 7.3 Definition of "Major" Loss or Damage 20
ARTICLE VIII COMMISSIONS
Section 8.1 Brokerage Commissions 20
ARTICLE IX DISCLAIMERS AND WAIVERS
Section 9.1 No Reliance on Documents 20
SECTION 9.2 AS-IS SALE; DISCLAIMERS 21
Section 9.3 Survival of Disclaimers 22
ARTICLE X MISCELLANEOUS
Section 10.1 Confidentiality 22
Section 10.2 Public Disclosure 22
Section 10.3 Assignment 22
Section 10.4 Notices 23
Section 10.5 Modifications 24
Section 10.6 Entire Agreement 24
Section 10.7 Further Assurances 24
Section 10.8 Counterparts 24
Section 10.9 Facsimile Signatures 24
Section 10.10 Severability 24
Section 10.11 Applicable Law 25
Section 10.12 No Third-Party Beneficiary 25
Section 10.13 Captions 25
Section 10.14 Construction 25
Section 10.15 Recordation 25
Section 10.16 Time of Essence 25
Section 10.17 SEC Disclosure 25
Section 10.18 Exculpation 25
A DESCRIPTION OF LAND
B LIST OF PERSONAL PROPERTY
C LIST OF OPERATING AGREEMENTS
D LIST OF ENVIRONMENTAL REPORTS
E FORM OF TENANT ESTOPPEL CERTIFICATE
F TENANT ESTOPPEL STANDARDS
G FORM OF DEED
H FORM OF BILL OF SALE
I FORM OF ASSIGNMENT OF LEASES
J FORM OF ASSIGNMENT OF CONTRACTS
K FORM OF TENANT NOTICE
L FORM OF FIRPTA CERTIFICATE
M INTENTIONALLY OMITTED
N LIST OF BROKERAGE AGREEMENTS
O LIST OF SPECIFIED LITIGATION
P RENT ROLL
Q STATEMENT OF TENANT DELINQUENCIES
R FORM OF REPRESENTATION LETTER
SALE AGREEMENT
THIS SALE AGREEMENT (this "AGREEMENT") is made as of July 7, 1997
(the "EFFECTIVE DATE"), by and between Berwyn Development Associates, a
Pennsylvania general partnership ("SELLER" ), and Brandywine Realty Trust, a
Maryland Real Estate Investment Trust ("PURCHASER").
W I T N E S S E T H:
ARTICLE I
PURCHASE AND SALE
Section 1.1 AGREEMENT OF PURCHASE AND SALE. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller, the following:
(a) that certain tract or parcel of land situated in Chester County,
Pennsylvania, more particularly described in Exhibit A attached hereto and made
a part hereof, together with all rights and appurtenances pertaining to such
property, including any right, title and interest of Seller in and to adjacent
streets, alleys or rights-of-way (the property described in clause (a) of this
Section 1.1 being herein referred to collectively as the "Land");
(b) the buildings, structures, fixtures and other improvements affixed to
or located on the Land, excluding fixtures owned by tenants (the property
described in clause (b) of this Section 1.1 being herein referred to
collectively as the "IMPROVEMENTS");
(c) any and all of Seller's right, title and interest in and to all
tangible personal property located upon the Land or within the Improvements,
including, without limitation, any and all appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal property
owned by Seller (excluding cash and any software), located on and used
exclusively in connection with the operation of the Land and the Improvements,
which personal property includes without limitation the personal property listed
on Exhibit B attached hereto (the property described in clause (c) of this
Section 1.1 being herein referred to collectively as the "PERSONAL PROPERTY");
(d) any and all of Seller's right, title and interest in and to the
leases, licenses and occupancy agreements covering all or any portion of the
Real Property, to the extent they are in effect on the date of the Closing (as
such term is defined in Section 4.1 hereof) (the property described in clause
(d) of this Section 1.1 being herein referred to collectively as the "LEASES"),
together with all rents and other sums due thereunder (the "Rents") and any and
all security deposits in Seller's possession in connection therewith (the
"SECURITY DEPOSITS"); and
(e) any and all of Seller's right, title and interest in and to (i) all
assignable contracts and agreements (collectively, the "OPERATING AGREEMENTS")
listed and described on Exhibit C attached hereto and made a part hereof,
relating to the upkeep, repair, maintenance or operation of the Land,
Improvements or Personal Property, and (ii) all assignable existing warranties
and guaranties (express or implied) issued to Seller in connection with the
Improvements or the Personal Property, and (iii) all assignable existing
permits, licenses, approvals and authorizations issued by any governmental
authority in connection with the Property and (iv) the non-exclusive right to
the name "Berwyn Park" (the property described in clause (e) of this Section 1.1
being sometimes herein referred to collectively as the "INTANGIBLES").
Section 1.2 PROPERTY DEFINED. The Land and the Improvements are
hereinafter sometimes referred to collectively as the "REAL PROPERTY." The
Land, the Improvements, the Personal Property, the Leases and the Intangibles
are hereinafter sometimes referred to collectively as the "PROPERTY."
Section 1.3. PURCHASE PRICE. Seller is to sell and Purchaser is to
purchase the Property for the amount of THIRTY SEVEN MILLION ONE HUNDRED FIFTY
THOUSAND DOLLARS ($37,150,000) (the "PURCHASE PRICE").
Section 1.4 PAYMENT OF PURCHASE PRICE. The Purchase Price, as increased
or decreased by prorations and adjustments as herein provided, shall be payable
in full at Closing by one or more wire transfers of immediately available funds
to a bank account or accounts designated by Seller in writing to Purchaser prior
to the Closing.
Section 1.5 DEPOSIT. Simultaneously with the execution and delivery of
this Agreement, Purchaser is depositing with Commonwealth Land Title Insurance
Company (the "ESCROW AGENT"), having its office at 1700 Market Street,
Philadelphia, Pennsylvania Attention: Gordon Daniels, Esquire, the sum of
Two Hundred Fifty Thousand Dollars ($250,000) (the "INITIAL DEPOSIT") in good
funds, either by certified bank or cashier's check or by federal wire transfer.
On or before the expiration of the "Inspection Period" (as defined in Section
3.1 below), Purchaser shall deliver to Escrow Agent the additional sum of Eight
Hundred Fifty Thousand Dollars ($850,000) (the "Second Deposit") in good funds,
either by certified check, or cashier's check or by federal wire transfer, and
upon receipt thereof Escrow Agent immediately shall notify Seller of such
receipt. The Initial Deposit and the Second Deposit, together with any interest
earned thereon, are collectively referred to as the "Deposit". Notwithstanding
that the stated period for the Inspection Period and/or Title Inspection Period
(as hereinafter defined) may not otherwise have expired, upon the delivery of
the Second Deposit to the Escrow Agent, the Inspection Period and Title
Inspection Period shall be deemed to have expired. The Escrow Agent shall hold
the Deposit in an interest-bearing account reasonably acceptable to Seller and
Purchaser, in accordance with the terms and conditions of this Agreement. All
interest on such sum shall be deemed income of Purchaser, and Purchaser shall be
responsible for the payment of all costs and fees imposed on the Deposit
account. The Deposit shall be distributed in accordance with the terms of this
Agreement. The failure of Purchaser to timely deliver any portion of the
Deposit hereunder shall be a material default, and shall entitle Seller, at
Seller's sole option, to terminate this Agreement immediately.
Section 1.6 ESCROW AGENT.
Escrow Agent shall hold and dispose of the Deposit in accordance with
the terms of this Agreement. At the Closing, the Deposit shall be paid by
Escrow Agent to Seller. If the Closing does not occur, and either Seller or
Purchaser shall make a written demand upon Escrow Agent for payment of the
Deposit, Escrow Agent shall give written notice (the "Deposit Notice") to the
other party of such demand and shall continue to hold the Deposit for seven (7)
business days thereafter. Seller and Purchaser agree that the duties of the
Escrow Agent hereunder are purely ministerial in nature and shall be expressly
limited to the safekeeping and disposition of the Deposit in accordance with
this Agreement. Escrow Agent shall incur no liability in connection with the
safekeeping or disposition of the Deposit for any reason other than Escrow
Agent's willful misconduct or gross negligence. In the event that Escrow Agent
shall be in doubt as to its duties or obligations with regard to the Deposit, or
in the event that Escrow Agent receives conflicting instructions from Purchaser
and Seller with respect to the Deposit within seven (7) business days of
furnishing the Deposit Notice, as aforesaid, Escrow Agent shall not be required
to disburse the Deposit and may, at its option, continue to hold the Deposit
until both Purchaser and Seller agree as to its disposition, or until a final
judgment is entered by a court of competent jurisdiction directing its
disposition, or Escrow Agent may interplead the Deposit in accordance with the
laws of the state in which the Property is located.
Seller and Purchaser agree that Escrow Agent is acting purely as a
stakeholder at their request and for their convenience, and that Escrow Agent
shall not be deemed to be the agent of either of the parties.
Escrow Agent shall not be responsible for any interest on the Deposit
except as is actually earned, or for the loss of any interest resulting from the
withdrawal of the Deposit prior to the date interest is posted thereon or for
any loss caused by the failure, suspension, bankruptcy or dissolution of the
institution in which the Deposit is deposited.
Escrow Agent shall execute this Agreement solely for the purpose of
being bound by the provisions of Sections 1.5 and 1.6 hereof.
ARTICLE II
TITLE AND SURVEY
Section 2.1 TITLE INSPECTION PERIOD. During the period beginning upon
the Effective Date and ending at 5:00 p.m. (local time at the Property) on the
twentieth (20th) day
following the Effective Date (hereinafter referred to as
the "TITLE INSPECTION PERIOD"), Purchaser shall have the right to review (a) a
current preliminary title report on the Real Property, accompanied by copies of
all documents referred to in the report, which shall be obtained by Purchaser
promptly after the Effective Date (with a copy of the preliminary title report
simultaneously furnished to Seller) (b) copies of the most recent property tax
bills for the Property, which shall be obtained by Seller promptly after the
Effective Date; (c) a survey of the Real Property prepared by a licensed
surveyor or engineer hired by Purchaser (the "SURVEY"); and (d) a copy of
Seller's existing title insurance policy and/or survey for the Real Property, if
available, which policy and survey (if available) shall be provided by Seller
promptly after the Effective Date.
Section 2.2 TITLE EXAMINATION. Purchaser shall notify Seller in writing
(the "TITLE NOTICE") prior to the expiration of the Title Inspection Period
which exceptions to title (including survey matters), if any, will not be
accepted by Purchaser. If Purchaser fails to notify Seller in writing of its
disapproval of any exceptions to title by the expiration of the Title Inspection
Period, or if pursuant to any other provision of this Agreement the Title
Inspection Period shall be deemed to have expired, Purchaser shall be
conclusively deemed to have approved the condition of title to the Real
Property. If Purchaser notifies Seller in writing that Purchaser objects to any
exceptions to title, Seller shall have ten (10) business days after receipt of
the Title Notice to notify Purchaser (a) that Seller will remove such
objectionable exceptions from title on or before the Closing; provided that
Seller may extend the Closing for such period as shall be required to effect
such cure, but not beyond thirty (30) days; or (b) that Seller elects not to
cause such exceptions to be removed. The procurement by Seller of a commitment
for the issuance of the Title Policy (as defined in Section 2.5 hereof) or an
endorsement thereto insuring Purchaser against any title exception which was
disapproved pursuant to this Section 2.2 shall be deemed a cure by Seller of
such disapproval. If Seller gives Purchaser notice under clause (b) above,
Purchaser shall have five (5) business days in which to notify Seller that
Purchaser will nevertheless proceed with the purchase and take title to the
Property subject to such exceptions, or that Purchaser will terminate this
Agreement. If this Agreement is terminated pursuant to the foregoing provisions
of this paragraph, then neither party shall have any further rights or
obligations hereunder (except for any indemnity obligations of either party
pursuant to the other provisions of this Agreement), the Deposit shall be
returned to Purchaser and each party shall bear its own costs incurred
hereunder. If Purchaser shall fail to notify Seller of its election within said
five-day period, Purchaser shall be deemed to have elected to proceed with the
purchase and take title to the Property subject to such exceptions.
Section 2.3 PRE-CLOSING "GAP" TITLE DEFECTS. Purchaser may, at or
prior to Closing, notify Seller in writing (the "GAP NOTICE") of any objections
to title (a) raised by the Title Company between the expiration of the Title
Inspection Period and the Closing and (b) not disclosed by the Title Company or
otherwise known to Purchaser prior to the expiration of the Title Inspection
Period; provided that Purchaser must notify Seller of such objection to title
within two (2) business days of being made aware of the existence of such
exception. If Purchaser sends a Gap Notice to Seller, Purchaser and Seller
shall have the same rights and obligations with respect to such notice as apply
to a Title Notice under Section 2.2 hereof.
Section 2.4 PERMITTED EXCEPTIONS. The Property shall be conveyed
subject to the following matters, which are hereinafter referred to as the
"PERMITTED EXCEPTIONS":
(a) those matters that either are not objected to in writing within the
time periods provided in Sections 2.2 or 2.3 hereof, or if objected to in
writing by Purchaser, are those which Seller has elected not to remove or cure,
or has been unable to remove or cure, and subject to which Purchaser has elected
or is deemed to have elected to accept the conveyance of the Property;
(b) the rights of tenants under the Leases;
(c) the lien of all ad valorem real estate taxes and assessments and
water and sewer rents not yet due and payable as of the date of Closing, subject
to adjustment as herein provided;
(d) local, state and federal laws, ordinances or governmental regulations,
including but not limited to, building and zoning laws, ordinances and
regulations, now or hereafter in effect relating to the Property;
(e) title to those portions of the Property within the bed of (i) Cassatt
Avenue, (ii) Relocated Cassatt Avenue, and (iii) Swedesford Road;
(f) restriction prohibiting explosives and fences as in Deed Book S-21,
page 270;
(g) Declaration of Easements and Covenants for Berwyn Park dated December
8, 1984, and recorded in Misc Deed Book 665, Page 80, as amended and recorded in
Record Book 650, Page 290;
(h) items shown on the Survey and not objected to by Purchaser or waived
or deemed waived by Purchaser in accordance with Section 2.2 hereof; and
(i) all mechanics', materialmen's and other similar liens, levies and
charges against the Property, whether existing now or at the time of Closing,
which is the obligation of any of the tenants of the Property or a portion
thereof to discharge, whether under its respective Lease, or by law or
otherwise.
Section 2.5 CONVEYANCE OF TITLE. At Closing, Seller shall convey and
transfer to Purchaser fee simple title to the Land and Improvements, by
execution and delivery of the Deed (as defined in Section 4.2(a) hereof).
Evidence of delivery of such title shall be the issuance by Commonwealth Land
Title Insurance Company (the "TITLE COMPANY"), or another national title
company, of an ALTA 1992 Form of Owner's Policy of Title Insurance (the "TITLE
POLICY") covering the Real Property, in the full amount of the Purchase Price,
subject only to the Permitted Exceptions.
ARTICLE III
REVIEW OF PROPERTY
Section 3.1 RIGHT OF INSPECTION. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) on the
thirtieth (30th) day after the Effective Date (hereinafter referred to as the
"INSPECTION PERIOD"), Purchaser shall have the right to make a physical
inspection of the Real Property, including an inspection of the environmental
condition thereof pursuant to the terms and conditions of this Agreement, and to
examine at the Property (or the property manager's office, as the case may be)
documents and files located at the Property or the property manager's office
concerning the leasing, maintenance and operation of the Property, but excluding
Seller's, and the Seller's partners', partnership or corporate records, internal
memoranda, financial projections, budgets, appraisals, accounting and tax
records and similar proprietary, confidential or privileged information
(collectively, the "Confidential Documents").
Purchaser understands and agrees that any on-site inspections of the
Property shall occur at reasonable times agreed upon by Seller and Purchaser
after reasonable prior written notice to Seller and shall be conducted so as not
to interfere unreasonably with the use of the Property by Seller or its tenants.
Seller reserves the right to have a representative present during any such
inspections. If Purchaser desires to do any invasive testing at the Property,
Purchaser shall do so only after notifying Seller and obtaining Seller's prior
written consent thereto, which consent may be subject to any terms and
conditions imposed by Seller in its sole discretion, including without
limitation the prompt restoration of the Property to its condition prior to any
such inspections or tests, at Purchaser's sole cost and expense. At Seller's
option, Purchaser will furnish to Seller copies of any reports received by
Purchaser relating to any inspections of the Property. Purchaser agrees to
protect, indemnify, defend and hold Seller harmless from and against any claim
for liabilities, losses, costs, expenses (including reasonable attorneys' fees),
damages or injuries arising out of or resulting from the inspection of the
Property by Purchaser or its agents or consultants, and notwithstanding anything
to the contrary in this Agreement, such obligation to indemnify and hold
harmless Seller shall survive Closing or any termination of this Agreement.
Section 3.2 ENVIRONMENTAL AND GEOTECHNICAL REPORTS. PURCHASER ACKNOWLEDGES
THAT (1) PURCHASER HAS RECEIVED COPIES OF THE ENVIRONMENTAL AND/OR GEOTECHNICAL
REPORTS LISTED ON EXHIBIT D ATTACHED HERETO, (2) IF SELLER DELIVERS ANY
ADDITIONAL ENVIRONMENTAL AND/OR GEOTECHNICAL REPORTS TO PURCHASER, PURCHASER
WILL ACKNOWLEDGE IN WRITING THAT IT HAS RECEIVED SUCH REPORTS PROMPTLY UPON
RECEIPT THEREOF, (3) ANY ENVIRONMENTAL AND/OR GEOTECHNICAL REPORTS DELIVERED OR
TO BE DELIVERED BY SELLER OR ITS REPRESENTATIVES OR CONSULTANTS TO PURCHASER ARE
BEING MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO PURCHASER AND MAY NOT BE
RELIED UPON BY PURCHASER IN CONNECTION WITH THE PURCHASE OF THE PROPERTY, AND
(4) SELLER MAKES NO REPRESENTATION OR WARRANTY THAT IT HAS PROVIDED TO PURCHASER
ALL ENVIRONMENTAL AND/OR GEOTECHNICAL REPORTS THAT MAY HAVE BEEN PREPARED WITH
RESPECT TO THE PROPERTY. PURCHASER AGREES THAT NEITHER SELLER NOR ITS PARTNERS
SHALL HAVE ANY LIABILITY OR OBLIGATION WHATSOEVER FOR ANY INACCURACY IN OR
OMISSION FROM ANY ENVIRONMENTAL AND/OR GEOTECHNICAL REPORT. PURCHASER HAS
CONDUCTED, OR WILL CONDUCT PRIOR TO THE EXPIRATION OF THE INSPECTION PERIOD, ITS
OWN INVESTIGATION OF THE ENVIRONMENTAL AND/OR GEOTECHNICAL CONDITION OF THE
PROPERTY TO THE EXTENT PURCHASER DEEMS SUCH AN INVESTIGATION TO BE NECESSARY OR
APPROPRIATE, AND PURCHASER SHALL DELIVER TO SELLER A COPY OF ALL WRITTEN
ENVIRONMENTAL AND/OR GEOTECHNICAL REPORTS PURCHASER OBTAINS TOGETHER WITH A
LETTER FROM THE COMPANY FROM WHICH ANY SUCH REPORT IS OBTAINED ENTITLING SELLER
TO RELY THEREON.
Section 3.3 RIGHT OF TERMINATION. If for any reason whatsoever
Purchaser determines that the Property or any aspect thereof is unsuitable for
Purchaser's acquisition, Purchaser shall have the right to terminate this
Agreement by giving written notice thereof to Seller prior to the expiration of
the Inspection Period, and if Purchaser gives such notice of termination within
the Inspection Period, this Agreement shall terminate. If this Agreement is
terminated pursuant to the foregoing provisions of this paragraph, then neither
party shall have any further rights or obligations hereunder (except for any
indemnity obligations of either party pursuant to the other provisions of this
Agreement), the Deposit shall be returned to Purchaser and each party shall bear
its own costs incurred hereunder. If Purchaser fails to give Seller a notice of
termination prior to the expiration of the
Inspection Period, or if pursuant to any other provision of this Agreement
the Inspection Period shall be deemed to have expired, Purchaser shall be
deemed to have approved all aspects of the Property (except title and survey,
which shall be governed by Article II hereof) and to have elected to proceed
with the purchase of the Property pursuant to the terms hereof.
Section 3.4 REVIEW OF TENANT ESTOPPELS. Seller shall deliver to each
tenant of the Property an estoppel certificate in substantially the form of
Exhibit E attached hereto (the "FORM TENANT ESTOPPELS"), and shall request that
the tenants complete and sign the Form Tenant Estoppels and return them to
Seller. Seller shall deliver copies of the completed Form Tenant Estoppels to
Purchaser as Seller receives them; provided, however, Purchaser acknowledges and
agrees that each tenant only shall be obligated to return an estoppel as set
forth in such tenant's lease (the "Lease Tenant Estoppels"). The Form Tenant
Estoppels and/or Lease Tenant Estoppels that are executed by a tenant and
delivered to Purchaser as aforesaid are hereafter collectively referred to as
the Tenant Estoppels. Purchaser shall notify Seller within three (3) days of
receipt of any Tenant Estoppel in the event Purchaser determines such Tenant
Estoppel as executed and modified by a tenant is not acceptable to Purchaser
along with the reasons for such determination, but no such Tenant Estoppel shall
be deemed unacceptable by Purchaser if it complies with the applicable tenant's
lease in all material respects. In the event Purchaser fails to give such
notice within such three (3) day period then any such Tenant Estoppel shall be
deemed to be acceptable to Purchaser. In the event that Seller fails to obtain
the Tenant Estoppels (or in lieu thereof, at Seller's option, Seller estoppels
therefor) that meet the tenant estoppel standards described on Exhibit F
attached hereto on or before five (5) days prior to Closing, Purchaser shall
have the right to terminate this Agreement by written notice to Seller. If this
Agreement is terminated pursuant to the foregoing provisions of this paragraph,
then neither party shall have any further rights or obligations hereunder
(except for any indemnity obligations of either party pursuant to the other
provisions of this Agreement), the Deposit shall be returned to Purchaser and
each party shall bear its own costs incurred hereunder. If Purchaser fails to
give Seller a notice of termination as set forth above, Purchaser shall be
deemed to have approved the Tenant Estoppels (and Seller estoppels, if
applicable) and to have elected to proceed with the purchase of the Property
pursuant to the terms hereof. Any Tenant Estoppel which is received from a
tenant after Seller provides its own estoppel may be substituted by Seller for
Seller's estoppel and Seller shall have no further liability thereunder,
provided that such Tenant Estoppel contains no changes or, if changed, complies
in all material respects with the provisions of the applicable lease, or is
otherwise reasonably acceptable to Purchaser. The provisions of this Section
3.4 shall survive the Closing.
Section 3.5 PECO DISCLOSURE. Purchaser acknowledges that Seller has
advised Purchaser that PECO has indicated its interest in taking by eminent
domain an access road over the Property to serve PECO's intended development on
PECO's adjacent property, but to the knowledge of the parties no declaration of
taking has been filed with respect to the Property. In addition, Purchaser
acknowledges that Seller has given to Purchaser copies of a PECO traffic study,
comments thereon by Seller's consultant, and an update of the traffic study.
ARTICLE IV
CLOSING
Section 4.1 TIME AND PLACE. The consummation of the transaction
contemplated hereby (the "CLOSING") shall be held at the offices of Blank Rome
Comisky & McCauley, 1200 Four Penn Center Plaza, Philadelphia, Pennsylvania on
the forty fifth (45th) day after the Effective Date (unless such day is not a
business day, in which case on the next business day), unless extended as
specifically in this Agreement provided. At the Closing, Seller and Purchaser
shall perform the obligations set forth in, respectively, Section 4.2 and
Section 4.3 hereof, the performance of which obligations shall be concurrent
conditions; provided that the Deed shall not be recorded until Seller receives
confirmation that Seller has received the full amount of the Purchase Price,
adjusted by prorations as set forth herein. At Seller's option, the Closing
shall be consummated through an escrow administered by Escrow Agent. In such
event, the Purchase Price and all documents shall be deposited with the Escrow
Agent as escrowee.
Section 4.2 SELLER'S OBLIGATIONS AT CLOSING. At Closing, Seller shall:
(a) deliver to Purchaser a duly executed special warranty deed (the
"DEED") in the form attached hereto as Exhibit G, conveying the Land and
Improvements, subject only to the Permitted Exceptions; the warranty of title in
the Deed will be only as to claims made by, through or under Seller and not
otherwise;
(b) deliver to Purchaser a duly executed bill of sale in the form attached
hereto as Exhibit H (the "BILL OF SALE") conveying the Personal Property without
warranty of title or use and without warranty, express or implied, as to
merchantability and fitness for any purpose ;
(c) assign to Purchaser, and Purchaser shall assume, the Seller's interest
in and to the obligations with respect to the Leases, Rents and Security
Deposits, including any and all obligations to pay leasing commissions and
finder's fees and Tenant Inducement Costs with respect to the Leases and
amendments, renewals and expansions thereof, to the extent provided in Section
4.4(b)(v) hereof, by duly executed assignment
and assumption agreement (the "ASSIGNMENT OF LEASES") in the form attached
hereto as Exhibit I pursuant to which (i) Seller shall indemnify Purchaser
and hold Purchaser harmless from and against any and all claims pertaining
thereto arising prior to Closing and (ii) Purchaser shall indemnify Seller
and hold Seller harmless from and against any and all claims pertaining
thereto arising from and after the Closing, including without limitation,
claims made by tenants with respect to tenants' Security Deposits to the
extent such Security Deposits are paid, credited or assigned to Purchaser;
(d) to the extent assignable, assign to Purchaser, and Purchaser shall
assume, Seller's interest in and to the obligations with respect to the
Operating Agreements and the other Intangibles by duly executed assignment and
assumption agreement (the "ASSIGNMENT OF CONTRACTS") in the form attached hereto
as Exhibit J pursuant to which (i) Seller shall indemnify Purchaser and hold
Purchaser harmless from and against any and all claims pertaining thereto
arising prior to Closing and (ii) Purchaser shall indemnify Seller and hold
Seller harmless from and against any and all claims pertaining thereto arising
from and after the Closing;
(e) join with Purchaser to execute a notice (the "TENANT NOTICE") in the
form attached hereto as Exhibit K, which Purchaser shall send to each tenant
under each of the Leases promptly after the Closing, informing such tenant of
the sale of the Property and of the assignment to and assumption by Purchaser of
Seller's interest in, and obligations under, the Leases (including, if
applicable, any Security Deposits), and directing that all Rent and other sums
payable after the Closing under each such Lease be paid as set forth in the
notice;
(f) In the event that any representation or warranty of Seller needs to be
modified due to material changes since the Effective Date, deliver to Purchaser
a certificate, dated as of the date of Closing and executed on behalf of Seller
by a duly authorized representative thereof, identifying any representation or
warranty which is not, or no longer is, true and correct and explaining the
state of facts giving rise to the change. In no event shall Seller or its
partners be liable to Purchaser for, or be deemed to be in default hereunder by
reason of, any breach of representation or warranty which results from any
change that (i) occurs between the Effective Date and the date of Closing and
(ii) is expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Seller to prevent; provided, however, that the occurrence
of a change which is not permitted hereunder or is beyond the reasonable control
of Seller to prevent shall, if materially adverse to Purchaser, constitute the
non-fulfillment of the condition set forth in Section 4.6(b) hereof which shall
entitle Purchaser, at Purchaser's sole option, to terminate this Agreement. If
this Agreement is terminated pursuant to the foregoing provisions of this
paragraph (f), then neither party shall have any further rights or obligations
hereunder (except for any indemnity obligations of either party pursuant to the
other provisions of this Agreement), and the Deposit shall be returned to
Purchaser and each party shall bear its own costs incurred hereunder. If,
despite changes or other matters described in such certificate, the Closing
occurs, Seller's representations and warranties set forth in this Agreement
shall be deemed to have been modified by all statements made in such
certificate;
(g) deliver to Purchaser such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Seller;
(h) deliver to Purchaser a certificate in the form attached hereto as
Exhibit L duly executed by Seller stating that Seller is not a "foreign person"
as defined in the Federal Foreign Investment in Real Property Tax Act of 1980;
(i) deliver to Purchaser the Leases and the Operating Agreements, together
with such leasing and property files and records located at the Property or the
property manager's office which are material in connection with the continued
operation, leasing and maintenance of the Property, but excluding any
Confidential Documents, and shall deliver to Purchaser all keys in Seller's
possession and the combination to all combination locks under Seller's control.
For a period of three (3) years after the Closing, Purchaser shall allow Seller
and its partners and their agents and representatives access without charge to
all files, records and documents delivered to Purchaser at the Closing, upon
reasonable advance notice and at all reasonable times, to examine and make
copies of any and all such files, records and documents, which right shall
survive the Closing;
(j) deliver such affidavits as may be customarily and reasonably required
by the Title Company, in a form reasonably acceptable to Seller;
(k) deliver to Purchaser possession and occupancy of the Property, subject
to the Permitted Exceptions;
(l) execute a settlement statement acceptable to Seller; and
(m) deliver such additional documents as shall be reasonably required to
consummate the transaction contemplated by this Agreement.
Section 4.3 PURCHASER'S OBLIGATIONS AT CLOSING. At Closing, Purchaser
shall:
(a) pay to Seller the full amount of the Purchase Price (which amount
shall include the Deposit), as increased or decreased by prorations and
adjustments as herein provided, in immediately available wire transferred funds
pursuant to Section 1.4 hereof;
(b) join Seller in execution of the Assignment of Leases, Assignment of
Contracts and Tenant Notices;
(c) In the event that any representation or warranty of Purchaser set
forth in Sections 5.5(a) or (b) hereof needs to be modified due to material
changes since the Effective Date, deliver to Seller a certificate, dated as of
the date of Closing and executed on behalf of Purchaser by a duly authorized
representative thereof, identifying any such representation or warranty which is
not, or no longer is, true and correct and explaining the state of facts giving
rise to the change. In no event shall Purchaser be liable to Seller for, or be
deemed to be in default hereunder by reason of, any breach of representation or
warranty set forth in Sections 5.5(a) or (b) hereof which results from any
change that (i) occurs between the Effective Date and the date of Closing and
(ii) is expressly permitted under the terms of this Agreement or is beyond the
reasonable control of Purchaser to prevent; provided, however, that the
occurrence of a change which is not permitted hereunder or is beyond the
reasonable control of Purchaser to prevent shall, if materially adverse to
Seller, constitute the non-fulfillment of the condition set forth in Section
4.7(c) hereof which shall entitle Seller, at Seller's sole option, to terminate
this Agreement. If this Agreement is terminated pursuant to this paragraph (c),
and was by reason of a change beyond the reasonable control of Purchaser to
prevent, then neither party shall have any further rights or obligations
hereunder (except for indemnity obligations of either party pursuant to the
provisions of this Agreement), and the Deposit shall be returned to Purchaser
and each party shall bear its own costs incurred hereunder. If the change is
within the reasonable control of Purchaser, the same shall constitute a default
by Purchaser under Section 6.1. If, despite changes or other matters described
in such certificate, the Closing occurs, Purchaser's representations and
warranties set forth in this Agreement shall be deemed to have been modified by
all statements made in such certificate;
(d) deliver to Seller such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Purchaser;
(e) deliver such affidavits as may be customarily and reasonably required
by the Title Company, in a form reasonably acceptable to Purchaser;
(f) execute a settlement statement acceptable to Purchaser; and
(g) deliver such additional documents as shall be reasonably required to
consummate the transaction contemplated by this Agreement.
Section 4.4 CREDITS AND PRORATIONS.
(a) All income and expenses of the Property shall be apportioned as of
12:01 a.m., on the day of Closing, as if Purchaser were vested with title to the
Property during the entire day upon which Closing occurs. Such prorated items
shall include without limitation the following:
(i) all Rents, if any;
(ii) taxes and assessments (including personal property taxes on the
Personal Property) levied against the Property;
(iii) utility charges for which Seller is liable, if any, such
charges to be apportioned at Closing on the basis of the most recent meter
reading occurring prior to Closing (dated not more than fifteen (15) days prior
to Closing) or, if unmetered, on the basis of a current bill for each such
utility;
(iv) all amounts payable under brokerage agreements and Operating
Agreements, pursuant to the terms of this Agreement; and
(v) any other operating expenses or other items pertaining to the
Property which are customarily prorated between a purchaser and a seller in the
county in which the Property is located.
(b) Notwithstanding anything contained in Section 4.4(a) hereof:
(i) At Closing, (A) Seller shall, at Seller's option, either deliver
to Purchaser any Security Deposits actually held by Seller pursuant to the
Leases or credit to the account of Purchaser the amount of such Security
Deposits (to the extent such Security Deposits have not been applied against
delinquent Rents or otherwise as provided in the Leases), and (B) Purchaser
shall credit to the account of Seller all refundable cash or other deposits
posted with utility companies serving the Property, or, at Seller's option,
Seller shall be entitled to receive and retain such refundable cash and
deposits;
(ii) Any taxes paid at or prior to Closing shall be prorated based
upon the amounts actually paid. If taxes and assessments due and payable
during the year of Closing have not been paid before Closing, Seller shall be
charged at Closing an amount equal to that portion of such taxes and
assessments which relates to the period before Closing and Purchaser shall
pay the taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or
assessed valuation, or both, have not yet been fixed shall be based upon the
tax rate and/or assessed valuation last fixed. To the extent that the actual
taxes and assessments for the current year differ from the amount apportioned
at Closing, the parties shall make all necessary adjustments by appropriate
payments between themselves within thirty (30) days after such amounts are
determined following Closing, subject to the provisions of Section 4.4(d)
hereof;
(iii) Charges referred to in Section 4.4(a) hereof which are
payable by any tenant to a third party shall not be apportioned hereunder, and
Purchaser shall accept title subject to any of such charges unpaid and Purchaser
shall look solely to the tenant responsible therefor for the payment of the
same. If Seller shall have paid any of such charges on behalf of any tenant,
and shall not have been reimbursed therefor by the time of Closing, Purchaser
shall credit to Seller an amount equal to all such charges so paid by Seller;
(iv) As to utility charges referred to in Section 4.4(a)(iii) hereof,
Seller may on notice to Purchaser elect to pay one or more of all of said items
accrued to the date hereinabove fixed for apportionment directly to the person
or entity entitled thereto, and to the extent Seller so elects, such item shall
not be apportioned hereunder, and Seller's obligation to pay such item directly
in such case shall survive the Closing or any termination of this Agreement;
(v) Purchaser shall be responsible for the payment of (A) all Tenant
Inducement Costs (as hereinafter defined) and leasing commissions which become
due and payable (whether before or after Closing) as a result of any new Leases,
or any renewals, amendments or expansions of existing Leases, signed during the
Lease Approval Period (as hereinafter defined) and, if required, approved or
deemed approved in accordance with Section 5.4 hereof; and (B) all Tenant
Inducement Costs and leasing commissions with respect to new Leases, or
renewals, amendments or expansions of existing Leases, signed or entered into
from and after the date of Closing; and (C) all leasing commissions listed on
Exhibit N attached hereto to the extent due and payable from and after the date
of Closing. If, as of the date of Closing, Seller shall have paid any Tenant
Inducement Costs or leasing commissions for which Purchaser is responsible
pursuant to the foregoing provisions, Purchaser shall reimburse Seller therefor
at Closing. For purposes hereof, the term "TENANT INDUCEMENT COSTS" shall mean
any out-of-pocket payments required under a Lease to be paid by the landlord
thereunder to or for the benefit of the tenant thereunder which is in the nature
of a tenant inducement, including specifically, without limitation, tenant
improvement costs, lease buyout costs, and moving, design, refurbishment and
club membership allowances. The term "Tenant Inducement Costs" shall not
include loss of income resulting from any free rental period, it being agreed
that Seller shall bear the loss resulting from any free rental period until the
date of Closing and that Purchaser shall bear such loss from and after the date
of Closing. For purposes hereof, the term "LEASE APPROVAL PERIOD" shall mean
the period from the Effective Date until the date of Closing;
(vi) Unpaid and delinquent Rent collected by Seller and Purchaser
after the date of Closing shall be delivered as follows: (a) if Seller collects
any unpaid or delinquent Rent for the Property, Seller shall, within fifteen
(15) days after the receipt thereof, deliver to Purchaser any such Rent which
Purchaser is entitled to hereunder relating to the date of Closing and any
period thereafter, and (b) if Purchaser collects any unpaid or delinquent Rent
from the Property, Purchaser shall, within fifteen (15) days after the receipt
thereof, deliver to Seller any such Rent which Seller is entitled to hereunder
relating to the period prior to the date of Closing. Seller and Purchaser agree
that (i) all Rent received by Seller or Purchaser within the first ninety (90)
day period after the date of Closing shall be applied first to unpaid Rents for
the month in which the Closing occurred, then to current Rents and then to
delinquent Rent, if any, in the order of their maturity, and (ii) all Rent
received by Seller or Purchaser after the first ninety (90) day period after the
date of Closing shall be applied first to current Rent and then to delinquent
Rent, if any, in the inverse order of maturity. Purchaser will make a good
faith effort after Closing to collect all Rents in the usual course of
Purchaser's operation of the Property, but Purchaser will not be obligated to
institute any lawsuit or other collection procedures to collect delinquent
Rents. Seller may attempt to collect any delinquent Rents owed Seller and may
institute any lawsuit or collection procedures, but may not evict any tenant.
In the event that there shall be any Rents or other charges under any Leases
which, although relating to a period prior to Closing, do not become due and
payable until after Closing or are paid prior to Closing but are subject to
adjustment after Closing (such as year end common area expense reimbursements
and the like), then any Rents or charges of such type received by Purchaser or
its representatives or Seller or its representatives subsequent to Closing
shall, to the extent applicable to a period extending through the Closing, be
prorated between Seller and Purchaser as of Closing and Seller's portion thereof
shall be remitted promptly to Seller by Purchaser.
(c) [Intentionally omitted]
(d) Except as otherwise provided herein, any revenue or expense amount
which cannot be ascertained with certainty as of Closing shall be prorated on
the basis of the parties' reasonable estimates of such amount, and shall be the
subject of a final proration sixty (60) days after Closing, or as soon
thereafter as the
precise amounts can be ascertained. Purchaser shall promptly notify Seller
when it becomes aware that any such estimated amount has been ascertained.
Once all revenue and expense amounts have been ascertained, Purchaser shall
prepare, and certify as correct, a final proration statement which shall be
subject to Seller's approval. Upon Seller's acceptance and approval of any
final proration statement submitted by Purchaser, such statement shall be
conclusively deemed to be accurate and final.
(e) Subject to the final sentence of Section 4.4(d) hereof, the provisions
of this Section 4.4 shall survive Closing.
Section 4.5 TRANSACTION TAXES AND CLOSING COSTS
(a) Seller and Purchaser shall execute such returns, questionnaires and
other documents as shall be required with regard to all applicable real property
transaction taxes imposed by applicable federal, state or local law or
ordinance;
(b) Seller shall pay the fees of any counsel representing Seller in
connection with this transaction. Seller shall also pay the following costs and
expenses:
* one-half (1/2) of the escrow fee, if any, which may be charged by the
Escrow Agent or Title Company; and
* one-half (1/2) of any transfer tax which becomes payable by reason of the
transfer of the Property from Seller to Purchaser.
(c) Purchaser shall pay the fees of any counsel representing Purchaser in
connection with this transaction. Purchaser shall also pay the following costs
and expenses:
*one-half (1/2) of the escrow fee, if any, which may be charged by the
Escrow Agent or Title Company;
* one-half (1/2) of any transfer tax which becomes payable by reason of the
transfer of the Property from Seller to Purchaser.
* the fee for the title examination and the Title Commitment and the
premium for the Owner's Policy of Title Insurance to be issued to Purchaser
by the Title Company at Closing, and all endorsements thereto;
* the cost of the Survey;
* the fees for recording the Deed;
* any sales tax, documentary stamp tax or similar tax which becomes payable
by reason of the transfer of the Property;
(d) The Personal Property is included in this sale without charge, except
that Purchaser shall pay to Seller the amount of any and all sales or similar
taxes payable in connection with the transfer of the Personal Property and
Purchaser shall execute and deliver any tax returns required of it in connection
therewith;
(e) All costs and expenses incident to this transaction and the closing
thereof, and not specifically described above, shall be paid by the party
incurring same; and
(f) The provisions of this Section 4.5 shall survive the Closing.
Section 4.6 CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER. The
obligation of Purchaser to consummate the transaction hereunder shall be subject
to the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Purchaser in its sole
discretion:
(a) Seller shall have delivered to Purchaser all of the items required to
be delivered to Purchaser pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.2 hereof;
(b) All of the representations and warranties of Seller contained in this
Agreement shall be to the best of Seller's knowledge, true and correct in all
material respects as of the date of Closing (with appropriate modifications
permitted under this Agreement); and
(c) Seller shall have performed and observed, in all material respects,
all covenants and agreements of this Agreement to be performed and observed by
Seller as of the date of Closing.
Section 4.7 CONDITIONS PRECEDENT TO OBLIGATION OF SELLER. The
obligation of Seller to consummate the transaction hereunder shall be subject to
the fulfillment on or before the date of Closing of all of the following
conditions, any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted as provided
herein, pursuant to and payable in the manner provided for in this Agreement;
(b) Purchaser shall have delivered to Seller all of the items required to
be delivered to Seller pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.3 hereof;
(c) All of the representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects as of the date
of Closing (with appropriate modifications permitted under this Agreement); and
(d) Purchaser shall have performed and observed, in all material respects,
all covenants and agreements of this Agreement to be performed and observed by
Purchaser as of the date of Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
makes the following representations and warranties to Purchaser as of the
Effective Date, which representations and warranties shall be deemed to have
been made again as of the Closing, subject to Section 4.2(f) hereof:
(a) ORGANIZATION AND AUTHORITY. Seller has been duly organized and is
validly existing under the laws of the Commonwealth of Pennsylvania. Seller has
the full right and authority
to enter into this Agreement and to transfer all of the Property and to
consummate or cause to be consummated the transaction contemplated by this
Agreement. The person signing this Agreement on behalf of Seller is or are
authorized to do so.
(b) PENDING ACTIONS. To Seller's knowledge, Seller has not received
written notice of any action, suit, arbitration, unsatisfied order or judgment,
government investigation or proceeding pending against Seller which, if
adversely determined, could individually or in the aggregate materially
interfere with the consummation of the transaction contemplated by this
Agreement.
(c) OPERATING AGREEMENTS. To Seller's knowledge, the Operating Agreements
listed on Exhibit C are all of the agreements concerning the operation and
maintenance of the Property entered into by Seller and affecting the Property,
except those operating agreements that are not assignable or are to be
terminated by Seller within thirty (30) days after the Closing, and except any
agreement with Seller's property manager, which shall be terminated by Seller.
(d) LEASE BROKERAGE. To Seller's knowledge, there are no agreements with
brokers providing for the payment from and after the Closing by Seller or
Seller's successor-in-interest of leasing commissions or fees for procuring
tenants with respect to the Property, except as disclosed in Exhibit N hereto;
(e) LITIGATION. To Seller's knowledge, except as set forth on Exhibit O
attached hereto, and except tenant eviction proceedings, tenant bankruptcies,
proceedings for the collection of delinquent rentals from tenants and
proceedings related to claims for personal injury or damage to property due to
events occurring at the Property, Seller has not received written notice of any
litigation which has been filed against Seller that arises out of the ownership
of the Property and would materially affect the Property or use thereof, or
Seller's ability to perform hereunder; Seller agrees to indemnify and hold
harmless Buyer from and against all loss, cost and expense it may suffer by
reason of the claim asserted and referred to on Exhibit O attached hereto; and
(f) LEASES. To Seller's knowledge, the rent roll attached hereto as
Exhibit P is accurate in all material respects, and lists all of the leases
currently affecting the Property.
(g) PURCHASE RIGHTS. To Seller's knowledge, Seller has not granted any
rights or options to purchase the Property to, or accepted any offers to
purchase the property from, any party other than Purchaser.
(h) EMPLOYEES OF SELLER. To Seller's knowledge, Seller has no
employees at the Property. Purchaser shall not be responsible for or required
to assume any employee benefit plans or severance obligations of Seller.
(i) STATEMENT OF TENANT DELINQUENCIES. To Seller's knowledge, the
Statement of Tenant Delinquencies attached hereto as Exhibit Q is accurate in
all material respects and lists all overdue monetary obligations to Seller of
tenants at the Property.
(j) NAME. To Seller's knowledge, Seller has not assigned its rights,
if any, to use the name "Berwyn Park" to any other person or entity. The use of
such name by any tenant of the Property shall not be deemed a violation of this
representation and warranty.
Section 5.2 KNOWLEDGE DEFINED. References to the "knowledge" of Seller
shall refer only to the current actual knowledge of the Designated Persons (as
hereinafter defined), and shall not be construed, by imputation or otherwise, to
refer to the knowledge of Seller or any affiliate of Seller, or to any officer,
agent, manager, representative or employee of Seller or any affiliate thereof or
to impose upon such Designated Persons any duty to investigate the matter to
which such actual knowledge, or the absence thereof, pertains. As used herein,
the term "DESIGNATED PERSONS" shall refer to the following persons: (a) Albert
Griffith, (b) William Wilson, (c) Dean Lundahl and (d) J. Patrick Armstrong.
Section 5.3 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller set forth in Section 5.1 hereof as
updated as of the Closing in accordance with the terms of this Agreement, shall
survive Closing for a period of one hundred eighty (180) days. No claim for a
breach of any representation or warranty of Seller shall be actionable or
payable if the breach in question results from or is based on a condition, state
of facts or other matter which was known to Purchaser prior to Closing. Seller
shall have no liability to Purchaser for a breach of any representation or
warranty (a) unless the valid claims for all such breaches collectively
aggregate more than Twenty-Five Thousand Dollars ($25,000), in which event the
full amount of such valid claims shall be actionable, up to the Cap (as defined
in this Section), and (b) unless written notice containing a description of the
specific nature of such breach shall have been given by Purchaser to Seller
prior to the expiration of said one hundred eighty (180) day period and an
action shall have been commenced by Purchaser against Seller within two hundred
forty (240) days of Closing. Purchaser agrees to first seek recovery under any
insurance policies, service contracts and Leases prior to seeking recovery from
Seller, and Seller shall not be liable to Purchaser if Purchaser's claim is
satisfied from such insurance policies, service contracts or Leases. As used
herein, the term "CAP " shall mean the total aggregate amount of Five Hundred
Thousand Dollars ($500,000).
Section 5.4 COVENANTS OF SELLER. Seller hereby covenants with Purchaser
as follows:
(a) From the Effective Date hereof until the Closing or earlier
termination of this Agreement, Seller shall use reasonable efforts to operate
and maintain the Property in a manner generally consistent with the manner in
which Seller has operated and maintained the Property prior to the date hereof;
(b) Except as provided hereinbelow, a copy of any amendment, renewal or
expansion of an existing Lease (unless such renewal or expansion is pursuant to
the terms of an existing Lease) or of any new Lease which Seller wishes to
execute between the Effective Date and the date of Closing will be submitted to
Purchaser prior to execution by Seller. Purchaser agrees to notify Seller in
writing within five (5) business days after its receipt thereof of either its
approval or disapproval thereof, including all Tenant Inducement Costs and
leasing commissions to be incurred in connection therewith. In the event
Purchaser informs Seller within such five business day period that Purchaser
does not approve the amendment, renewal or expansion of the existing Lease or
the new Lease, which approval shall not be unreasonably withheld, Seller will
not enter into such renewal or expansion or new lease. In the event Purchaser
fails to notify Seller in writing of its approval or disapproval within the five
(5) business day period set forth above, Purchaser shall be deemed to have
approved such new Lease, amendment, renewal or expansion. At Closing, Purchaser
shall reimburse Seller for any Tenant Inducement Costs, leasing commissions or
other expenses, including legal fees, incurred by Seller pursuant to an
amendment, a renewal, an expansion or a new Lease approved (or deemed approved)
by Purchaser.
Section 5.5 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
hereby makes the following representations and warranties to Seller as of the
Effective Date, which representations and warranties shall be deemed to have
been made again as of the Closing, subject to Section 4.3(c) hereof:
(a) ORGANIZATION AND AUTHORITY. Purchaser has been duly organized and is
validly existing under the laws of the State of Maryland. Purchaser has the
full right and authority to enter into this Agreement and to consummate or cause
to be consummated the transaction contemplated by this Agreement. The person(s)
signing this Agreement on behalf of Purchaser is or are authorized to do so;
(b) PENDING ACTIONS. To Purchaser's knowledge, there is no action, suit,
arbitration, unsatisfied order or judgment, government investigation or
proceeding pending against Purchaser which, if adversely determined, could
individually or in the aggregate materially interfere with the consummation of
the transaction contemplated by this Agreement.
(c) ERISA. As of the Closing, (1) Purchaser will not be an employee
benefit plan as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), which is subject to Title I of
ERISA, nor a plan as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (each of the foregoing hereinafter referred to collectively
as "PLAN"), and (2) the assets of the Purchaser will not constitute "plan
assets" of one or more such Plans within the meaning of Department of Labor
("DOL") Regulation Section 2510.3-101.
As of the Closing, if Purchaser is a "governmental plan" as defined in
Section 3(32) of ERISA, the closing of the sale of the Property will not
constitute or result in a violation of state or local statutes regulating
investments of and fiduciary obligations with respect to governmental plans.
As of the Closing, Purchaser will be acting on its own behalf and not on
account of or for the benefit of any Plan.
Purchaser has no present intent to transfer the Property to any entity,
person or Plan which will cause a violation of ERISA.
Purchaser shall not assign its interest under this Agreement to any entity,
person, or Plan which will cause a violation of ERISA.
Section 5.6 SURVIVAL OF PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser set forth in Section 5.5 hereof as
updated as of the Closing in accordance with the terms of this Agreement, shall
survive Closing for a period of one hundred eighty (180) days. Purchaser shall
have no liability to Seller for a breach of any representation or warranty
unless written notice containing a description of the specific nature of such
breach shall have been given by Seller to Purchaser prior to the expiration of
said one hundred eighty (180) day period and an action shall have been commenced
by Seller against Purchaser within two hundred forty (240) days of Closing.
ARTICLE VI
DEFAULT
Section 6.1 DEFAULT BY PURCHASER. In the event the sale of the Property
as contemplated hereunder is not consummated due to Purchaser's default
hereunder, Seller shall be entitled, as its sole remedy, to terminate this
Agreement and receive the Deposit as liquidated damages for the breach of this
Agreement, it being agreed between the parties hereto that the actual damages to
Seller in the event of such breach are impractical to ascertain and the amount
of the Deposit is a reasonable estimate thereof.
Section 6.2 DEFAULT BY SELLER. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller's default hereunder,
Purchaser shall be entitled, as its sole remedy,
either (a) to receive the retur nof the Deposit, which return shall operate
to terminate this Agreement and release Seller from any and all liability
hereunder, except that in such event Seller shall reimburse Purchaser for up
to Twenty Five Thousand Dollars ($25,000) for reasonable expenses incurred by
Purchaser and documented to Seller's reasonable satisfaction and incurred in
connection with Purchaser's investigation of the Property or (b) to enforce
specific performance of Seller's obligation to convey the Property to
Purchaser in accordance with the terms of this Agreement, it being understood
and agreed that the remedy of specific performance shall not be available to
enforce any other obligation of Seller hereunder. Except as expressly set
forth in clause (a) of this Section 6.2, Purchaser expressly waives its
rights to seek damages in the event of Seller's default hereunder. Purchaser
shall be deemed to have elected to terminate this Agreement and receive back
the Deposit if Purchaser fails to file suit for specific performance against
Seller in a court having jurisdiction in the county and state in which the
Property is located, on or before thirty (30) days following the date upon
which Closing was to have occurred.
Section 6.3 RECOVERABLE DAMAGES. Notwithstanding Sections 6.1 and 6.2
hereof, in no event shall the provisions of Sections 6.1 and 6.2 limit the
damages recoverable by either party against the other party due to the other
party's obligation to indemnify such party in accordance with this Agreement.
This Section shall survive the Closing or the earlier termination of this
Agreement.
ARTICLE VII
RISK OF LOSS
Section 7.1 MINOR DAMAGE. In the event of loss or damage to the
Property or any portion thereof which is not "Major" (as hereinafter defined),
this Agreement shall remain in full force and effect provided that Seller shall,
at Seller's option, either (a) perform any necessary repairs, or (b) assign to
Purchaser, without representation, warranty or recourse to Seller, all of
Seller's right, title and interest in and to any claims and proceeds Seller may
have with respect to any net casualty insurance policies or net condemnation
awards relating to the premises in question (that is, after expense of
collection), subject however, to Seller's right to receive reimbursement
therefrom of any amounts paid or incurred by Seller for or on account of repairs
and/or restoration of the Property prior to Closing. In the event that Seller
elects to perform repairs upon the Property, Seller shall use reasonable efforts
to complete such repairs promptly and the date of Closing shall be extended a
reasonable time, not to exceed ninety (90) days, in order to allow for the
completion of such repairs. If Seller elects to assign a casualty claim to
Purchaser, the Purchase Price shall be reduced by an amount equal to the lesser
of the deductible amount under Seller's insurance policy or the cost of such
repairs as determined in accordance with Section 7.3 hereof. Upon Closing, full
risk of loss with respect to the Property shall pass to Purchaser.
Section 7.2 MAJOR DAMAGE. In the event of a "Major" loss or damage,
Purchaser may terminate this Agreement by written notice to the Seller, in which
event the Deposit shall be returned to Purchaser. If Purchaser does not elect
to terminate this Agreement within ten (10) days after Seller sends Purchaser
written notice of the occurrence of such Major loss or damage (which notice
shall state the cost of repair or restoration thereof as opined by an architect
in accordance with Section 7.3 hereof), then Purchaser shall be deemed to have
elected to proceed with Closing, in which event Seller shall, at Seller's
option, either (a) perform any necessary repairs, or (b) assign to Purchaser,
without representation, warranty or recourse to Seller, all of Seller's right,
title and interest in and to any claims and proceeds Seller may have with
respect to any net casualty insurance policies or net condemnation awards
relating to the premises in question (that is, after expense of collection),
subject however, to Seller's right to receive reimbursement therefrom of any
amounts paid or incurred by Seller for or on account of repairs and/or
restoration of the Property prior to Closing. In the event that Seller elects
to perform repairs upon the Property, Seller shall use reasonable efforts to
complete such repairs promptly and the date of Closing shall be extended a
reasonable time in order to allow for the completion of such repairs. Upon
Closing, full risk of loss with respect to the Property shall pass to Purchaser.
Section 7.3 DEFINITION OF "MAJOR" LOSS OR DAMAGE. For purposes of
Sections 7.1 and 7.2, "MAJOR" loss or damage refers to the following: (a) loss
or damage to the Property hereof such that the cost of repairing or restoring
the premises in question to substantially the same condition which existed prior
to the event of damage would be, in the opinion of an architect selected by
Seller and reasonably approved by Purchaser, equal to or greater than One
Million Dollars ($1,000,000), and (b) any loss due to a condemnation which
permanently and materially impairs the current use of the Property. If
Purchaser does not give written notice to Seller of Purchaser's reasons for
disapproving an architect within five (5) business days after receipt of notice
of the proposed architect, Purchaser shall be deemed to have approved the
architect selected by Seller.
ARTICLE VIII
COMMISSIONS
Section 8.1 BROKERAGE COMMISSIONS. With respect to the transaction
contemplated by this Agreement, Seller and Purchaser each represent that it has
not utilized a broker . Each party hereto agrees that if any person or entity
makes a claim for brokerage commissions or finder's fees related to the sale of
the Property by Seller to Purchaser, and such claim is made by, through or on
account of any acts or alleged acts of said party or its representatives, said
party will protect, indemnify, defend and hold the other party free and harmless
from and against any and all loss, liability, cost, damage and expense
(including reasonable attorneys'
fees) in connection therewith. The provisions of this paragraph shall
survive Closing or any termination of this Agreement.
ARTICLE IX
DISCLAIMERS AND WAIVERS
Section 9.1 NO RELIANCE ON DOCUMENTS. Except as expressly stated
herein, Seller makes no representation or warranty as to the truth, accuracy
or completeness of any materials, data or information delivered by Seller or
its representatives to Purchaser in connection with the transaction
contemplated hereby. Purchaser acknowledges and agrees that all materials,
data and information delivered by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience
only and that any reliance on or use of such materials, data or information
by Purchaser shall be at the sole risk of Purchaser, except as otherwise
expressly stated herein. Neither Seller, nor any affiliate of Seller, nor the
person or entity which prepared any report or reports delivered by Seller to
Purchaser shall have any liability to Purchaser for any inaccuracy in or
omission from any such reports.
SECTION 9.2 AS-IS SALE; DISCLAIMERS. EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT
MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY
KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND
CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS,
WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT
LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, OFFERING
PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY
SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH
IN THIS AGREEMENT. PURCHASER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE
REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD "AS-IS."
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL
CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT
NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS
PURCHASER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION
OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE
TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM
THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, PURCHASER SHALL
ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO,
CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY
NOT HAVE BEEN REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON
CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER
(AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM
AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES
OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES) OF ANY AND EVERY KIND OR CHARACTER,
KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST
SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS)
AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION
DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND
ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE
PROPERTY.
Section 9.3 SURVIVAL OF DISCLAIMERS. The provisions of this Article
IX shall survive Closing or any termination of this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 CONFIDENTIALITY. Purchaser and its representatives shall
hold in strictest confidence all data and information obtained with respect
to Seller or its business, whether obtained before or after the execution and
delivery of this Agreement, and shall not disclose the same to others;
provided, however, that it is understood and agreed that Purchaser may
disclose such data and information to the employees, lenders, consultants,
accountants and attorneys of Purchaser provided that such persons agree in
writing to treat such data
and information confidentially. In the event this Agreement is terminated
or Purchaser fails to perform hereunder, Purchaser shall promptly return to
Seller any statements, documents, schedules, exhibits or other written
information obtained from Seller in connection with this Agreement or the
transaction contemplated herein. It is understood and agreed that, with respect
to any provision of this Agreement which refers to the termination of this
Agreement and the return of the Deposit to Purchaser, such Deposit shall not be
returned to Purchaser unless and until Purchaser has fulfilled its obligation to
return to Seller the materials described in the preceding sentence. In the
event of a breach or threatened breach by Purchaser or its agents or
representatives of this Section 10.1, Seller shall be entitled to an injunction
restraining Purchaser or its agents or representatives from disclosing, in whole
or in part, such confidential information. Nothing herein shall be construed as
prohibiting Seller from pursuing any other available remedy at law or in equity
for such breach or threatened breach. The provisions of this Section 10.1 shall
survive Closing or any termination of this Agreement.
Section 10.2 PUBLIC DISCLOSURE. Prior to and after the Closing, except
as required by federal and/or state securities laws, any release to the public
of information with respect to the sale contemplated herein or any matters set
forth in this Agreement will be made only in the form approved by Purchaser and
Seller. The provisions of this Section 10.2 shall survive the Closing or any
termination of this Agreement.
Section 10.3 ASSIGNMENT. Subject to the provisions of this Section 10.3,
the terms and provisions of this Agreement are to apply to and bind the
permitted successors and assigns of the parties hereto. Except for an
assignment of this Agreement to a wholly owned subsidiary or an affiliate
controlled by or under common control by Purchaser which Seller agrees is
permitted, Purchaser may not assign its rights under this Agreement without
first obtaining Seller's written approval, which approval may be given or
withheld in Seller's sole discretion. In the event Purchaser intends to assign
its rights hereunder, and even if permitted as provided in this Section above
(a) Purchaser shall send Seller written notice of its request at least ten (10)
business days prior to Closing, which request shall include the legal name and
structure of the proposed assignee, as well as any other information that Seller
may reasonably request, and (b) Purchaser and the proposed assignee shall
execute an assignment and assumption of this Agreement in form and substance
satisfactory to Seller, and (c) in no event shall any assignment of this
Agreement release or discharge Purchaser from any liability or obligation
hereunder. Notwithstanding the foregoing, under no circumstances shall
Purchaser have the right to assign this Agreement to any person or entity owned
or controlled by an employee benefit plan if Seller's sale of the Property to
such person or entity would, in the reasonable opinion of Seller's ERISA
advisor, create or otherwise cause a "prohibited transaction" under ERISA. Any
transfer, directly or indirectly, of any stock, partnership interest or other
ownership interest in Purchaser shall constitute an assignment of this
Agreement. For the purposes of this Section 10.3, the term "control" or
"controlled" shall mean possessing a majority interest in ownership and voting
rights. The provisions of this Section 10.3 shall survive the Closing or any
termination of this Agreement.
Section 10.4 NOTICES. Any notice pursuant to this Agreement shall be
given in writing by (a) personal delivery, (b) reputable overnight delivery
service with proof of delivery, (c) United States Mail, postage prepaid,
registered or certified mail, return receipt requested, or (d) legible facsimile
transmission, sent to the intended addressee at the address set forth below, or
to such other address or to the attention of such other person as the addressee
shall have designated by written notice sent in accordance herewith, and shall
be deemed to have been given upon receipt or refusal to accept delivery, or, in
the case of facsimile transmission, as of the date of the facsimile transmission
provided that an original of such facsimile is also sent to the intended
addressee by means described in clauses (a), (b) or (c) above. Unless changed
in accordance with the preceding sentence, the addresses for notices given
pursuant to this Agreement shall be as follows:
If to Seller: Berwyn Development Associates
C/O LCOR Inc.
300 Berwyn Park, Suite 115
Berwyn, PA 19312
Attention: Dean O. Lundahl
Telephone No.(610) 408-4443
Telecopy No. (610) 640-0516
with a copy to: Metropolitan Life Insurance Company
Real Estate Investments
8300 Boone Boulevard - Suite 750
Vienna, VA 22182
Attention: Christine Madigan
Telephone No. (703) 506-8008
Telecopy No. (703) 848-2594
with a copy to: Metropolitan Life Insurance Company
200 Park Avenue, 12th Floor
New York, New York 10166
Attention: William P. Gardella, Esquire
Telephone No. (212) 578-5884
Telecopy No. (212) 685-5927
If to Purchaser: Brandywine Realty Trust
16 Campus Boulevard, Suite 150
Newtown Square, PA 19073
Attention: Gerard H. Sweeney
Telephone No. (610) 325-5600
Telecopy No. (610) 325-5622
with a copy to: Brad A. Molotsky, Esquire
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Philadelphia, PA 19103
Telephone No. (215) 981-4262
Telecopy No. (215) 981-4930
Section 10.5 MODIFICATIONS This Agreement cannot be changed orally, and
no executory agreement shall be effective to waive, change, modify or discharge
it in whole or in part unless such executory agreement is in writing and is
signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
Section 10.6 ENTIRE AGREEMENT This Agreement, including the exhibits and
schedules hereto, contains the entire agreement between the parties hereto
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the parties pertaining to such
subject matter, other than the confidentiality agreement executed by Purchaser
and Seller in connection with the Property.
Section 10.7 FURTHER ASSURANCES Each party agrees that it will execute
and deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may be reasonably requested by the other party to
consummate the transaction contemplated by this Agreement. The provisions of
this Section 10.7 shall survive Closing.
Section 10.8 COUNTERPARTS. This Agreement may be executed in
counterparts, all such executed counterparts shall constitute the same
agreement, and the signature of any party to any counterpart shall be deemed a
signature to, and may be appended to, any other counterpart.
Section 10.9 FACSIMILE SIGNATURES. In order to expedite the transaction
contemplated herein, telecopied signatures may be used in place of original
signatures on this Agreement. Seller
and Purchaser intend to be bound by the signatures on the telecopied document,
are aware that the other party will rely on the telecopied signatures, and
hereby waive any defenses to the enforcement of the terms of this Agreement
based on the form of signature.
Section 10.10 SEVERABILITY. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement shall nonetheless remain in full force and
effect.
Section 10.11 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
Purchaser and Seller agree that the provisions of this Section 10.11 shall
survive the Closing or any termination of this Agreement.
Section 10.12 NO THIRD-PARTY BENEFICIARY. The provisions of this
Agreement and of the documents to be executed and delivered at Closing are and
will be for the benefit of Seller and Purchaser only and are not for the benefit
of any third party, and accordingly, no third party shall have the right to
enforce the provisions of this Agreement or of the documents to be executed and
delivered at Closing.
Section 10.13 CAPTIONS. The section headings appearing in this Agreement
are for convenience of reference only and are not intended, to any extent and
for any purpose, to limit or define the text of any section or any subsection
hereof.
Section 10.14 CONSTRUCTION The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or any exhibits or amendments hereto.
Section 10.15 RECORDATION. This Agreement may not be recorded by any
party hereto without the prior written consent of the other party hereto. The
provisions of this Section 10.15 shall survive the Closing or any termination of
this Agreement.
Section 10.16 TIME OF THE ESSENCE. The time for the payment of money and
all other times referred to for the performance by Purchaser of any provisions
of this Agreement are hereby agreed to be of the essence of this Agreement.
Section 10.17 SEC DISCLOSURE. During the period beginning on the
Effective Date and ending on the first anniversary of the date of the Closing;
and in addition to any other document production required of Seller hereunder,
Seller shall, from time to time, upon reasonable advance written notice from
Purchaser, provide Purchaser and its representatives with (i) access to all
financial and other information pertaining to Seller's ownership and operation
of the Property for the period of January 1, 1995 to and including Closing, but
excluding any Confidential Documents (as defined in Section 3.1 of this
Agreement), to enable Purchaser and Arthur Anderson & Co. (the "Accountant") to
prepare financial statements in compliance with any or all of (a) Rule 3-05 or
3-14 of Regulation S-X of the Securities and Exchange Commission (the
"Commission"), as applicable, and (b) any registration statement report or
disclosure statement required to be filed with the Commission by or on behalf of
the Purchaser, and (ii) if required by the Accountant in order to render an
opinion concerning the operating statements for the Property, a representation
letter substantially in the form attached hereto as Exhibit R.
Section 10.18 EXCULPATION. No recourse shall be had for any obligation
of Purchaser
under this Agreement or under any document executed in connection with or
pursuant to this Agreement or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any statue,
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being expressly waived and released by Seller and all parties
claiming by, through or under Seller, it being agreed by Purchaser and Seller
that recourse against Purchaser under this Agreement shall be limited to the
assets of Brandywine Realty Trust.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the Effective Date.
SELLER:
BERWYN DEVELOPMENT ASSOCIATES, a Pennsylvania
general partnership
By: Linpro Berwyn Associates, general partner
By: _______________________________
Name: Eric Eichler
Title: Managing General Partner
By: Metropolitan Life Insurance Company
general partner
By: _______________________________
Name:
Title:
PURCHASER:
BRANDYWINE REALTY TRUST
By: _______________________
Name: Gerard H. Sweeney
Title: President/CEO
Escrow Agent executes this Agreement below solely for the purpose of
acknowledging that it agrees to be bound by the provisions of Sections 1.5 and
1.6 hereof.
ESCROW AGENT:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
a Pennsylvania corporation
By: _______________________
Name: _____________________
Title: ____________________
EXHIBIT A
DESCRIPTION OF LAND
EXHIBIT B
LIST OF PERSONAL PROPERTY
EXHIBIT C
LIST OF OPERATING AGREEMENTS
VENDOR AGREEMENT PURPOSE TERM CANCELLATION DATE CLAUSE
NAME
EXHIBIT D
LIST OF ENVIRONMENTAL AND GEOTECHNICAL REPORTS
EXHIBIT E
TENANT ESTOPPEL FORM
___________________________[Date]
[PURCHASER]
____________________
____________________
[SELLER]
Berwyn Development Associates
C/O LCOR Inc.
300 Berwyn Park, Suite 115
Berwyn, PA 19312
Re: Lease dated ________________, 199 _ (the "Lease") executed between
____________________________ ("Landlord"), and __________________ ("Tenant"),
for those premises located at ________________________________.
Gentlemen:
The undersigned Tenant understands that you or your assigns intend to
acquire fee title to that property located at _____________ (the "Property")
from Berwyn Development Associates. The undersigned Tenant does hereby certify
to you as follows:
A. Tenant has entered into a certain lease together with all amendments
(the "Lease") as described on Schedule 1 attached hereto.
B. The Lease is in full force and effect and has not been modified,
supplemented, or amended except as set forth on Schedule 1 attached hereto.
C. Tenant has not given Landlord written notice of any dispute between
Landlord and Tenant or that Tenant considers Landlord in default under the
Lease.
D. Tenant does not claim any offsets or credits against rents payable
under the Lease.
E. Tenant has not paid a security or other deposit with respect to the
Lease, except as follows: ___________________________________.
F. Tenant has fully paid rent to and including the month of
______________, 199_.
G. Tenant has not paid any rentals in advance except for the current
month of _________, 199_.
H. The Lease expires on ____________________________.
I. Tenant has no options, rights of first offer or rights of first
refusal to purchase the Property, except as follows:
TENANT:
_________________________________
a _______________________________
By: _____________________________
Name: ___________________________
Title: __________________________
EXHIBIT F
TENANT ESTOPPEL STANDARDS
Tenants representing 70% or more of occupied space in the Property,
including the following tenants (Required Estoppels):
Berwyn 100 Shared Medical
Berwyn 200 Devon Direct
Berwyn 300 Delval Financial
EXHIBIT G
FORM OF DEED
[A deed form is not included as it is a State specific document. The deed will
be a limited or special warranty type deed in which the Property will be
conveyed subject to the Permitted Exceptions (as described in Section 2.4 of the
Sale Agreement) with a warranty of title by Seller as to the lawful claims of
all persons claiming by, through or under Seller, but against none other.]
EXHIBIT H
FORM OF BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that BERWYN DEVELOPMENT ASSOCIATES, a
Pennsylvania general partnership (the "Seller"), for and in consideration of the
sum of Ten Dollars and other valuable consideration to it in hand paid by
_________ , a _____________ the "Purchaser"), the receipt and sufficiency of
which are hereby acknowledged, hereby sells, assigns, transfers and conveys unto
said Purchaser any and all of Seller's right, title and interest in and to all
tangible personal property located upon the land described in Schedule "1"
attached hereto and hereby made a part hereof (the "Land") or within the
improvements located thereon, including, without limitation, any and all
appliances, furniture, carpeting, draperies and curtains, tools and supplies,
and other items of personal property owned by Seller (excluding cash and any
software), used exclusively in the operation of the Land and improvements, as
is, where is, and without warranty of title or use, and without warranty,
express or implied, of merchantability or fitness for a particular purpose.
TO HAVE AND TO HOLD all of said personal property unto Purchaser, its
successors and assigns, to its own use forever.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the __day
of ______________, 199_
BERWYN DEVELOPMENT ASSOCIATES, a Pennsylvania
general partnership
By: Linpro Berwyn Associates, general partner
By: _______________________________
Name: Eric Eichler
Title: Managing General Partner
By: Metropolitan Life Insurance Company
general partner
By: _______________________________
Name:
Title:
[ACKNOWLEDGMENT AND/OR WITNESSES TO BE
ADDED IF REQUIRED UNDER APPLICABLE STATE LAW]
SCHEDULE "1"
LEGAL DESCRIPTION
[To be attached]
EXHIBIT I
FORM OF ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES (the "Assignment") is made as of this __day of
______________ , 199 __ between BERWYN DEVELOPMENT ASSOCIATES, a Pennsylvania
general partnership ("Assignor") and ____________ , a _____________
("Assignee").
For and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration to it in hand paid by Assignee to Assignor, the
conveyance by Assignor to Assignee of all that certain real property being
particularly described on Schedule "1" attached hereto and incorporated herein
by this reference, more commonly known as Berwyn Park located in the Township of
Tredyffrin, County of Chester, Commonwealth of Pennsylvania (the "Property"),
and the mutual covenants herein contained, the receipt and sufficiency of the
foregoing consideration being hereby acknowledged by the parties hereto,
Assignor hereby assigns, transfers, sets over and conveys to Assignee all of
Assignor's right, title and interest in, to and under any and all existing and
outstanding leases, licenses and occupancy agreements (collectively, the
"Leases"), of the improvements comprising a part of the Property, including
without limitation, all those Leases described on Schedule "2" attached hereto
and incorporated herein by this reference, together with all security deposits
tendered under the Leases remaining in the possession of Assignor and described
on Schedule "3" attached hereto and incorporated herein by this reference (the
"Security Deposits").
Assignee does hereby assume and agree to perform all of Assignor's
obligations under or with respect to the Leases accruing from and after the date
hereof, including without limitation, any and all obligations to pay leasing
commissions and finder's fees which are due or payable after the date hereof as
specifically set forth on Schedule "4" attached hereto and incorporated herein
by this reference, with respect to the tenants listed on said Schedule "4", and
claims made by tenants with respect to the tenants' security deposits listed on
Schedule "3". Assignee agrees to indemnify, protect, defend and hold Assignor
harmless from and against any and all liabilities, losses, costs, damages and
expenses (including reasonable attorneys' fees) directly or indirectly arising
out of or related to any breach or default in Assignee's obligations hereunder.
Assignor shall remain liable for all of Assignor's obligations under or with
respect to the Leases accruing prior to the date hereof. Assignor agrees to
indemnify, protect, defend and hold Assignee harmless from and against any and
all liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees) directly or indirectly arising out of or related to any breach
or default in Assignor's obligations hereunder.
This Assignment shall be binding upon and inure to the benefit of Assignor
and Assignee and their respective heirs, executors, administrators, successors
and assigns.
This Assignment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment as of the date first written above.
ASSIGNOR:
BERWYN DEVELOPMENT ASSOCIATES
By: Linpro Berwyn Associates, general partner
By: ____________________________
Name:
Title:
By: Metropolitan Life Insurance Company
general partner
By: ____________________________
Name:
Title:
ASSIGNEE:
________________________
a _______________________
By: ______________________
Name:
Title:
[ADD STATE SPECIFIC ACKNOWLEDGMENTS
AND/OR WITNESSES FOR ASSIGNOR AND ASSIGNEE]
SCHEDULE "1"
LEGAL DESCRIPTION
SCHEDULE "2"
LEASES
[To be attached]
SCHEDULE "3"
SECURITY DEPOSITS
SCHEDULE "4"
LEASING COMMISSIONS AND TENANTS
EXHIBIT J
FORM OF ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES (the
"Assignment") is made as of the ____ day of _________, 199 between BERWYN
DEVELOPMENT ASSOCIATES, a Pennsylvania general partnership ("Assignor") and
__________________ , a ______________________________("Assignee").
For and in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration to it in hand paid by Assignee to Assignor, the
conveyance by Assignor to Assignee of all that certain real property being
particularly described on Schedule "1" attached hereto and incorporated herein
by this reference, more commonly known as Berwyn Park located in the Township of
Tredyffrin, County of Chester, Commonwealth of Pennsylvania (the "Property"),
and the mutual covenants herein contained, the receipt and sufficiency of the
foregoing consideration being hereby acknowledged by the parties hereto,
Assignor hereby assigns, transfers, sets over and conveys to Assignee all of
Assignor's right, title and interest, to the extent assignable, in, to and under
any and all of the following, to wit:
(i) the contracts and agreements listed and described on Schedule "2"
attached hereto and incorporated herein by this reference (the
"Contracts"),
(ii) all existing warranties and guaranties (express or implied) issued to
Assignor in connection with the improvements or the personal property
being conveyed to Assignee by Bill of Sale on the date hereof,
(iii) all existing permits, licenses, approvals and authorizations issued
by any governmental authority in connection with the Property, and
(iv) the non-exclusive right to the name "Berwyn Park."
All items described in (ii), (iii) and (iv) above are hereinafter collectively
referred to as "Intangible Property."
Assignee does hereby assume and agree to perform all of Assignor's
obligations under the Contracts and Intangible Property accruing from and after
the date hereof. Assignee agrees to indemnify, protect, defend and hold
Assignor harmless from and against any and all liabilities, losses, costs,
damages and expenses (including reasonable attorneys' fees) directly or
indirectly arising out of or related to any breach or default in Assignee's
obligations hereunder. Assignor shall remain liable for all of Assignor's
obligations under the Contracts and Intangible Property accruing prior to the
date hereof. Assignor agrees to indemnify, protect, defend and hold Assignee
harmless from and against any and all liabilities, losses, costs, damages and
expenses (including reasonable attorneys' fees) directly or indirectly arising
out of or related to any breach or default in Assignor's obligations hereunder.
This Assignment shall be binding upon and inure to the benefit of Assignor
and Assignee and their respective heirs, executors, administrators, successors
and assigns.
This Assignment may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have each executed this
Assignment as of the date first written above.
ASSIGNOR:
BERWYN DEVELOPMENT ASSOCIATES
By: Linpro Berwyn Associates, general partner
By: ____________________________
Name:
Title:
By: Metropolitan Life Insurance Company
general partner
By: ____________________________
Name:
Title:
ASSIGNEE:
________________________________
a _______________________________
By: _____________________________
[ADD STATE SPECIFIC ACKNOWLEDGMENTS
AND/OR WITNESSES FOR ASSIGNOR AND ASSIGNEE]
SCHEDULE "1"
LEGAL DESCRIPTION
SCHEDULE "2"
CONTRACTS
[To be attached]
EXHIBIT K
FORM OF TENANT NOTICE
TENANT NOTIFICATION LETTER
[DATE OF SALE CLOSING]
HAND DELIVERED
TO: All Tenants at BERWYN PARK, BERWYN, PA
RE: Berwyn Park
Notification Regarding Change of Ownership
This letter is to notify you as a Tenant at Berwyn Park, Berwyn, Pennsylvania
(the "Property"), that the Property has been sold by Berwyn Development
Associates, ("Seller"), to ______________, a ________________- ("Purchaser").
As of the date hereof, your Lease has been assigned by Seller to Purchaser.
From the date of this letter, any and all rent hereinafter due, or any other
amounts hereinafter due under the terms of your Lease, shall be directed as
follows:
TO:___________________
ATTN: _______________
AT:___________________
_______________________
As part of the sale, all refundable tenant deposits, if any, actually held by
Seller with respect to the Property have been transferred to, and Seller's
obligations with respect to such deposits have been assumed by, Purchaser as of
the date of this letter. Any and all payments of rent (or other sums due
under your Lease) hereafter paid to any party other than Purchaser shall not
relieve you of the obligation of making said payment to Purchaser.
Seller: BERWYN DEVELOPMENT ASSOCIATES
By: Linpro Berwyn Associates, general partner
By: ____________________________
Name:
Title:
By: Metropolitan Life Insurance Company
general partner
By: ____________________________
Name:
Title:
Purchaser: ______________________
a ____________________
By: _______________________________
Name:
Title:
EXHIBIT L
FORM OF FIRPTA CERTIFICATE
CERTIFICATE REGARDING FOREIGN INVESTMENT
IN REAL PROPERTY TAX ACT
(ENTITY TRANSFEROR)
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee (purchaser) that
withholding of tax is not required upon the disposition of a U.S. real property
interest by BERWYN DEVELOPMENT ASSOCIATES, a Pennsylvania general partnership
("Transferor") Transferor hereby certifies:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations).
2. Transferor's Federal Employer Identification Number is
__________________
3. Transferor's office address is:
300 Berwyn Park
Suite 115
Berwyn, PA 19312
4. The address or description of the property which is the subject matter
of the disposition is 100, 200 and 300 Berwyn Park, Berwyn, Pennsylvania.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor declares that it has examined this certification and to the best
of its knowledge and belief, it is true, correct and complete, and further
declares that the individual executing this certification on behalf of
Transferor has full authority to do so.
BERWYN DEVELOPMENT ASSOCIATES
By: Linpro Berwyn Associates, general partner
By: ____________________________
Name:
Title:
By: Metropolitan Life Insurance Company
general partner
By: ____________________________
Name:
Title:
Dated:___________________
EXHIBIT M
INTENTIONALLY OMITTED
EXHIBIT N
LIST OF BROKERAGE AGREEMENTS
[e.g. Lease Commission Agreement dated ______ by and between Berwyn Development
Associates and XYZ Brokerage Company]
EXHIBIT O
LIST OF SPECIFIED LITIGATION
[e.g. XYZ v. Berwyn Development Associates, action filed on ____ in ______
court]
EXHIBIT P
RENT ROLL
EXHIBIT Q
STATEMENT OF TENANT DELINQUENCIES
EXHIBIT R
FORM OF SEC REPRESENTATION LETTER