AGREEMENT OF ASSIGNMENT OF REAL ESTATE SALE AGREEMENT (the
"Assignment Agreement") entered into this 26th day of April, 1996, between
BRYMER, L.P., a Pennsylvania limited partnership ("Contract Vendee"), having an
office c/o 443 South Gulph Road, King of Prussia, Pennsylvania 19406 and
CAL-TREE REALTY ASSOCIATES L.P. ("Assignee"), a Pennsylvania limited partnership
having an office c/o Cali Realty Corporation, 11 Commerce Drive, Cranford, New
Jersey 07016.
W I T N E S S E T H:
WHEREAS, as of the 2nd day of February, 1996, an Agreement of
Sale and Purchase was entered into between Adwin Realty Company and LBA
Associates, as seller (collectively, "Seller") and Contract Vendee covering the
purchase and sale of premises known as 1400 Providence Road, Media, Delaware
County, Pennsylvania and more particularly described in Exhibit "A" annexed
hereto ("Premises"), which Agreement of Sale and Purchase was amended by a
certain Amendment to Agreement of Sale and Purchase between Seller and Contract
Vendee dated May 2, 1996 (collectively, the "Sales Agreement"); and
WHEREAS, Contract Vendee is desirous of assigning to Assignee
all of the right, title and interest of Contract Vendee in and to the Sales
Agreement; and
WHEREAS, the parties agree that any capitalized terms not
otherwise defined herein shall have the meaning attributed to them in the Sales
Agreement.
NOW, THEREFORE, in consideration of the Premises and the mutual
covenants expressed herein, the parties hereto hereby agree as follows:
1. ASSIGNMENT OF SALES AGREEMENT; ASSIGNMENT PRICE.
(a) Contract Vendee agrees to assign to Assignee the Sales
Agreement, which assignment shall be effective as of the Closing (as defined
below), on the terms and conditions set forth below, pursuant to the Assignment
of Sales Agreement (the "Assignment") annexed hereto as Exhibit "B".
(b) The assignment price payable to Contract Vendee on account
of this Assignment Agreement is of Six Million ($6,000,000.00) Dollars (the
"Assignment Price"), payable as follows:
(i) Two Hundred Fifty Thousand and XX/100 Dollars
($250,000.00) (the "Deposit") to be paid to First American Title Insurance
Company (the "Escrow Agent") by wire transfer of immediately available funds
received by Escrow Agent on or before April 29, 1996, which Deposit shall be
held in escrow in accordance with the provisions hereinafter set forth; and
(ii) Five Million Five Hundred Seventy Thousand
($5,750,000.00) Dollars at Closing (as defined below), by wire transfer of
immediately available funds to Contract Vendee subject to adjustment as provided
herein.
(iii) At Closing, Assignee shall unconditionally be
entitled to a credit in the amount of $400,000.00 (the "Credit") against the
Assignment Price.
(c) At and only upon the Closing, Assignee shall also pay to
Seller the amount due Seller under the Sales Agreement on account of the
Purchase Price but not to exceed Twenty Two Million Three Hundred Thousand
($22,300,000.00) Dollars and subject to adjustment as provided in the Sales
Agreement, which Contract Vendee represents and warrants to Assignee is the
Purchase Price.
2. INTENTIONALLY DELETED.
3. MATTERS TO WHICH THIS TRANSACTION IS SUBJECT
Title to the Real Property and to the Personal Property shall be
as set forth in Section 5 of the Sales Agreement. Contract Vendee represents and
warrants to Assignee that it has not issued any notice of any defect,
encumbrance or other title objection, and covenants that (a) it shall not issue
any such notice without Assignee's prior consent, (b) will issue any such notice
which Assignee so requests and (c) will exercise the options set forth in
Section 5(d) of the Sales Agreement as directed by Assignee.
4. REPRESENTATIONS AND WARRANTIES.
(a) Contract Vendee for himself only, to induce Assignee to
enter into this Assignment Agreement and to complete the Closing, makes the
following representations and warranties to Assignee, which representations and
warranties are true and correct as of the date of this Assignment Agreement, and
shall be true and correct at and as of the Closing in all respects as though
such representations and warranties were made both at and as of the date of this
Assignment Agreement, and at and as of the Closing:
(i) annexed hereto as Exhibit "C" is a true, complete and
correct copy of the Sales Agreement, which Sales Agreement has not been
modified, changed or amended and which Sales Agreement represents the entire
agreement between Contract Vendee and Seller with respect to the Premises;
(ii) to the best of Contract Vendee's actual knowledge,
the Sales Agreement is in full force and effect, is a valid contract and is
legally enforceable in accordance with its terms;
(iii) Contract Vendee has, to the best of his actual
knowledge, heretofore timely performed and observed all of the duties,
obligations, terms, covenants and conditions of the Sales Agreement on the its
part to be performed or observed thereunder;
(iv) all representations contained in the Sales Agreement
made by Contract Vendee, and to the best knowledge of Contract Vendee, made by
Seller, are and continue to be true and correct;
(v) neither Seller nor Contract Vendee has declared a
default under the Sales Agreement, and to the best of Contract Vendee's actual
knowledge, no event has occurred or failed to occur which, but for the giving of
notice or passage of time, or both, would constitute a default thereunder by
either Seller or Contract Vendee;
(vi) Contract Vendee has not assigned, conveyed,
encumbered, mortgaged, pledged or transferred all or any part of its interest in
the Sales Agreement other than a certain prior Agreement to Form Partnership, as
amended, entered into by Contract Vendee and Berwind Property Group, Inc.
("BPG") relating to the Premises and the Sales Agreement. BPG has consented to
the execution, delivery and performance of this Assignment Agreement by Contact
Vendee and that no further authorization from BPG is required to so perform. BPG
agrees, represents and warrants, by its execution and delivery of this
Assignment Agreement for the limited purpose of joining in this and the
following paragraph, that it has not entered into any assignment or other
agreement which, by its terms or in the performance thereof, would conflict with
or result in a breach of this Assignment Agreement. Assignee agrees that based
upon the foregoing, it will look solely to Contract Vendee for the performance
of Contract Vendee's obligations, representations and warranties hereunder, and
that BPG will have no obligations or liabilities with respect thereto. Nothing
herein contained shall be deemed to modify or alter the respective rights and
obligations of BPG and Contract Vendee under the terms of the BPG Agreement;
(vii) No person, firm, corporation or other entity has
any right or option to acquire the Premises or any part thereof other than
Assignee and BPG as set forth in the preceding paragraph;
(viii) Contract Vendee has delivered to Assignee true,
correct and complete copies any and all material documents, instruments,
agreements and other items in its possession with respect to the Premises,
including without limitation the Tenant Leases, the Service Agreements, the
Recorded Agreements, the Tenant Estoppel Certificates, any schedules, summaries
and projections of tenant improvement costs and leasing commission obligations,
tenant profiles and summaries and structural, engineering and environmental
assessment reports in Contract Vendee's possession with respect to the Premises;
(ix) Contract Vendee has not received from Seller or any
other party any notice of any litigation, insurance claim, personal injury,
proceeding (zoning or otherwise) or governmental investigation pending or
threatened against or relating to the Premises or the transaction contemplated
by the Sales Agreement other than as set forth on Exhibit "D" annexed hereto; to
the extent any matter is set forth on Exhibit "D";
(x) To the best of Contract Vendee's knowledge, the only
leases, tenancies, licenses and other agreements for the use and occupancy of
any portion of the Premises other than the Tenant Leases are those leases,
tenancies, licenses and other agreements listed on Exhibit "E" (the "Additional
Leases"), which Exhibit is a true, correct and complete list of Additional
Leases; the representations and warranties of Seller with respect to the Tenant
Leases set forth in Sections 8(b) through (m) of the Sales Agreement are hereby
deemed repeated in their entirety in this Assignment Agreement by Contract
Vendee with respect to the Additional Leases and Exhibit "E", and therefore all
references in said Sections to Seller, Tenant Leases and Exhibit "G" are hereby
deemed references to Contract Vendee, Additional Leases and Exhibit "E"
respectively;
(xi) Annexed hereto as Exhibit "H" is a true, complete
and correct schedule of the economic terms of the leases currently under
negotiation by Seller or Contract Vendee with Principal Mutual Life Insurance
Company ("Principal"), Barnett International ("Barnett") and Anixeter
("Anixeter");
(xii) Annexed hereto as Exhibit "F" is a true, complete
and correct schedule of the leasing commission agreements for the Additional
Leases;
(xiii) To the best of Contract Vendee's knowledge, there
has been no material adverse change in the status of the Premises or any
contracts or agreements relating thereto (including without limitation
additional leases, renewals or amendments thereto, or additional service
contracts) except for Additional Leases; and
(xiv) The execution and delivery of this Assignment
Agreement and the performance by Contract Vendee of its obligations hereunder
will not conflict with or result in a breach of any law, regulation or order, or
any agreement or instrument to which Contract Vendee is a party or by which
Contract Vendee is bound; and this Assignment Agreement and the documents to be
delivered by Contract Vendee pursuant to this Assignment Agreement will each
constitute the legal, valid and binding obligations of Contract Vendee,
enforceable in accordance with their respective terms, covenants and conditions;
and there are no claims, defenses (personal or otherwise) or offsets to the
validity of or enforceability against Contract Vendee of this Assignment
Agreement and the documents to be delivered pursuant hereto.
(b) Assignee, to induce Contract Vendee to enter into this
Assignment Agreement and to complete the Closing, hereby represents and warrants
to Contract Vendee that the execution and delivery of this Assignment Agreement
and the performance by Assignee of its obligations hereunder will not conflict
with or result in a breach of any law, regulation or order, or any agreement or
instrument to which Assignee is a party or by which Assignee is bound; and this
Assignment Agreement and the documents to be delivered by Assignee pursuant to
this Assignment Agreement will each constitute the legal, valid and binding
obligations of Assignee, enforceable in accordance with their respective terms,
covenants and conditions; and there are no claims, defenses (personal or
otherwise) or offsets to the validity of or enforceability against Assignee of
this Assignment Agreement and the documents to be delivered pursuant hereto.
This representation and warranty is true and correct as of the date of this
Assignment Agreement, and shall be true and correct at and as of the Closing in
all respects as though such representation and warranty was made both at and as
of the date of this Assignment Agreement, and at and as of the Closing.
5. COVENANTS.
Contract Vendee hereby covenants and agrees that between the
date hereof and the Closing, and with respect to the Closing, it shall perform
and observe the following with respect to the Premises and the Sales Agreement:
(a) Contract Vendee shall continue to timely perform and
observe all of the duties, obligations, terms, covenants and conditions of the
Sales Agreement on its part to be performed or observed thereunder;
(b) Contract Vendee shall not modify, terminate, amend,
cancel, surrender or, with the exception of this Assignment Agreement, make any
agreement affecting the Sales Agreement without first obtaining Assignee's prior
written consent, which consent shall not be unreasonably withheld or delayed;
(c) It shall not grant any consents or approvals with
respect to the Premises and shall not enter into or caused to be entered into
any agreements, leases, tenancies, licenses or contracts with respect to the
Premises without first obtaining Assignee's prior written consent, which consent
shall not be unreasonably withheld or delayed;
(d) It will use its reasonable efforts to cause Seller to
operate and maintain the Premises in the ordinary course of business and use
reasonable efforts to cause Seller to reasonably preserve for Assignee the
relationships of tenants, suppliers, managers, employees and others having
on-going relationships with the Premises, and use reasonable efforts to cause
Seller to not defer taking actions or spending its funds, or otherwise manage
the Premises differently, due to the pending sale of the Premises, except as
specifically permitted in the Sales Agreement;
(e) It shall forward to Assignee all notices,
communications, demands or requests received by Contract Vendee with respect to
the Premises promptly after receipt;
(f) In the event Seller shall not consent to this
Assignment Agreement on or before the earlier of the Closing hereunder or the
Closing Date under the Sales Agreement, then at Assignee's request, Contract
Vendee shall exercise its right to extend the Closing Date as provided in
Section 4(b) of the Sales Agreement. In connection therewith, Contract Vendee
represents and warrants to Assignee that the Inspection Period expired April 22,
1996 and that the Closing Date under the Sales Agreement is June 21, 1996. If
Assignee shall make said request, then it shall provide Contract Vendee with the
$50,000.00 to be deposited by Contract Vendee in order to exercise such
extension, and Assignee and Contract Vendee shall enter into a mutually
acceptable letter agreement evidencing Assignee's sole right, title and interest
in and to said amount and that if said amount is to be refunded to Contract
Vendee in accordance with the Sales Agreement or otherwise, said amount shall be
paid directly to Assignee;
(g) At least ten (10) days prior to the Closing, advise
Seller that Contract Vendee has assigned the Sales Agreement to Assignee
effective as of the Closing and use its best efforts to cause Seller to prepare
and execute all documents, items and instruments to be delivered at Closing in
the name and for the benefit of Assignee;
(h) Contract Vendee shall include Assignee and its agents
in all aspects in the closing of the Sales Agreement, including by way of
example and not limitation, closing documents and closing adjustments, provided
that Closing under this Assignment Agreement occurs simultaneously with closing
under this Sales Agreement;
(i) Contract Vendee shall cooperate in all respects with
Assignee in connection with the acquisition by Assignee of the Premises; and
(j) If, as of the Closing Date, there shall occur any
event giving rise to the making of an election under Section 14(b) of the Sales
Agreement, then the following shall apply:
(i) so long as Assignee is nevertheless prepared
to acquire the Premises if the condition can be satisfied by Seller, Contract
Vendee shall not terminate its obligations under the Sales Agreement. In such
event, if Seller consents to the assignment of the Sales Agreement to Assignee,
Assignee shall be obligated to perform its obligations hereunder and Assignee
shall have the sole right to make said election; if Seller does not so consent,
the Closing hereunder shall be extended to the date Seller is obligated to close
under the Sales Agreement and Contract Vendee and Assignee shall each perform
their respective obligations hereunder. If Contract Vendee is prepared to waive
said condition, then Assignee agrees to close hereunder or terminate this
Assignment Agreement on or prior to June 2, 1996; and
(ii) if Assignee is not prepared to acquire the
Premises due to such condition, then this Agreement shall terminate, the Deposit
shall be returned to Assignee, and the parties shall have no further obligations
to the other except as shall specifically survive such termination as provided
herein.
6. INTENTIONALLY DELETED.
7. ITEMS TO BE DELIVERED OR CAUSE TO BE DELIVERED BY
CONTRACT VENDEE ON THE CLOSING DATE
On the Closing Date, Contract Vendee, at its sole cost and
expense, will deliver or cause to be delivered to Assignee the following:
(a) All of the documents, items and instruments to be
delivered by Seller under and pursuant to the Sales Agreement, provided, that
Closing under this Assignment Agreement occurs simultaneously with the Closing
under the Sales Agreement;
(b) Any documents reasonably required by Assignee or
necessary in order to effectuate the transactions contemplated by this
Assignment Agreement, including by way of example and not limitation,
affidavits, assurances, acknowledgements, deeds, and transfer tax returns;
(c) The Assignment;
(d) An affidavit on account of Contract Vendee in the
form of Schedule "N", FIRPTA Affidavit, to the Sales Agreement; and
(e) Any agreements contracts, reports, analysis, studies,
leases, licenses, tenancies, material, documents and items with respect to the
Premises which have not previously been delivered to Assignee.
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND OBLIGATIONS
The representations, warranties and obligations of Contract
Vendee set forth in Sections 4(a) (i), (vi) and (vii) shall remain in effect for
a period of one (1) year following the Closing and thereafter if Assignee shall
have given to Contract Vendee notice of a breach thereof within one (1) year
period.
9. OBLIGATIONS WITH RESPECT TO SALES AGREEMENT.
Contract Vendee and Assignee hereby agree as to the following
with respect to certain of the obligations of Contract Vendee under the Sales
Agreement and this Assignment Agreement:
(a) Assignee shall pay an amount which is equal to the
amount Contract Vendee is obligated to pay pursuant to Section 7(d) of the Sales
Agreement less $50,000.00, and one-half (1/2) of all realty transfer,
recordation and documentary fees, stamps and taxes imposed on an amount equal to
the Assignment Price less the Credit. Contract Vendee shall pay the $50,000.00
balance of the amount it is obligated to pay pursuant to Section 7(d) of the
Sales Agreement, and one-half (1/2) of all realty transfer, recordation and
documentary fees, stamps and taxes imposed on an amount equal to the Assignment
Price less the Credit, plus 100% of all realty transfer, recordation and
documentary fees, stamps and taxes imposed on the Credit. Contract Vendee's tax
obligation attributable to the Assignment Price shall be held in escrow by
Pryor, Cashman, Sherman & Flynn ("PCS&F") pending a final determination by the
Pennsylvania Supreme Court regarding taxes of this type. If it is finally
determined that said tax is due, then such amount shall be promptly paid to the
appropriate taxing authority; if it is determined that no such tax is due, then
such amount shall be promptly returned to Contract Vendee;
(b) Any claims arising out of Contract Vendee's entry
upon the Premises shall be the responsibility of Contract Vendee, and any claims
arising out of Assignee's entry upon the Premises shall be the responsibility of
Assignee;
(c) Contract Vendee shall be obligated to make the
payments required of it pursuant to Section 17 of the Sales Agreement; and
(d) Contract Vendee shall be obligated to make all
payments due on account of leasing commissions and costs for tenant improvements
for the Additional Leases and the New Leases (as defined below), or to the
extent applicable as provided in Section 12 herein, Alternative Leases (as
defined below). Assignee shall be obligated to pay leasing commissions pursuant
to the commissions scheduled on Exhibit "G" annexed hereto for renewals or
expansions of Tenant Leases and leasing commissions for renewals or expansions
pursuant to the commissions scheduled on Exhibit "F" annexed hereto with respect
to Additional Leases and New Leases, or to the extent applicable, Alternative
Leases.
10. TITLE.
Notwithstanding anything to the contrary contained in the Sales
Agreement, title to the Premises shall be insured by First American Title
Insurance Company of New York or such other title company selected by Assignee
which is licensed in the State of Pennsylvania (the "Title Company"). Assignee
has procured a report of title from the Title Company, and instructed the Title
Company to forward same to counsel for Contract Vendee. If title to the Premises
is not conveyed to Assignee pursuant to the Sales Agreement and this Assignment
Agreement as a result of any act of Contract Vendee, Contract Vendee shall be
responsible for all title fees, survey expenses and search charges of the Title
Company. In all other events, Assignee shall be responsible for the premiums,
costs and expenses of the Title Company. Contract Vendee shall be responsible
for the costs and expenses of Certified Abstract Co., Inc. as long as Certified
Abstract Co., Inc does not provide title hereunder.
11. CONDITIONS PRECEDENT TO ASSIGNEE'S OBLIGATIONS.
The obligations of Assignee to accept the Assignment, to acquire
the Premises and to perform the other covenants and obligations to be performed
by Assignee on the Closing shall be subject to the following conditions (all or
any of which may be waived, in whole or in part, by Assignee):
(a) The representations and warranties made by Seller in
the Sales Agreement and Contract Vendee in this Assignment Agreement shall be
true and correct in all respects with the same force and effect as though such
representations and warranties had been made on and as of the Closing, except
that for purposes of this paragraph (a), the representations and warranties of
Contract Vendee shall be without regard to any knowledge standard of Contract
Vendee.
(b) Seller and Contract Vendee, respectively, shall have
performed all covenants and obligations undertaken by Seller in Section 10 of
the Sales Agreement and Contract Vendee in Section 5 of this Assignment
Agreement in all respects and complied with all conditions required by the Sales
Agreement and this Assignment Agreement to be performed or complied with by it
on or before the Closing.
(c) The satisfaction by Seller of its obligations as set
forth in Section 14(a) of the Sales Agreement shall be subject to Assignee's
approval.
(d) The Title Company is prepared to issue to Assignee a
Title Policy meeting the requirements set forth in Section 5 of the Sales
Agreement subject only to the payment of the premium therefore by Assignee.
(e) Seller and Contract Vendee, respectively, shall have
delivered to Assignee all of the documents enumerated in Section 15 of the Sales
Agreement and Section 7 of this Assignment Agreement.
12. NEW LEASE OBLIGATIONS.
Contract Vendee is currently negotiating leases with Barnett,
Anixeter and Principal for vacant space at the Premises. As a condition to
Closing hereunder, Contract Vendee hereby agrees as follows:
(a) (i) A portion of the Assignment Price in the
aggregate amount of 110% of the tenant improvement allowances (the "Tenant
Improvement Fund") granted under the New Leases set forth on Exhibit "I" (the
"New Leases"), 100% of the brokerage commissions relating to the New Leases (the
"Brokerage Fund") set forth on Exhibit "I" and 100% of a full year's annual
fixed rent under each New Lease set forth on Exhibit "I" (the "Annual Rent
Fund") be remitted directly to PCS&F and held by PCS&F who shall act jointly
with Adelman Lavine Gold and Levin as escrow agent pursuant to the terms of an
escrow agreement (the "Escrow Agreement") to be agreed upon between the parties
hereto and reflecting the provisions of this Section 12. Interest on said
account, and on account of the escrow for transfer taxes, shall be paid to
Contract Vendee.
(ii) Upon the full execution and delivery of each New
Lease by Contract Vendee, PCS&F shall disburse the escrowed funds as follows:
(x) for tenant improvement costs, on a progress basis out of the Tenant
Improvement Fund pursuant to invoices submitted by the general contractor
provided (i) the work is performed in accordance with the applicable New Lease,
(ii) lien waivers are delivered by the appropriate subcontractors and (iii)
Contract Vendee delivers a certificate prior to each disbursement warranting
that the balance of the Tenant Improvement Fund allocable to said New Lease,
after such payment, will be sufficient to complete the tenant improvements under
such New Lease; (y) for brokerage commissions, the amount then due pursuant to
the applicable brokerage agreements against invoices submitted by the brokers
thereunder, and (z) to Contract Vendee, an amount equal to 80% of the Annual
Rent Fund related to such New Lease, unless (i) such New Lease permits the
tenant to terminate the lease as a result of Landlord's failure to complete the
tenant improvements by a date certain or (ii) such New Lease is executed and
delivered less than thirty (30) days prior to the rent commencement date set
forth in Exhibit "H", in which event the total Annual Rent Fund shall remain in
escrow until the balance thereof is otherwise to be released to Contract Vendee
as provided in (iii) below. Notwithstanding anything to the contrary contained
in this subsection 12(a)(ii), if the New Lease(s) are executed and delivered to
Assignee but Contract Vendee or its affiliate, acting as general contractor, has
failed to commence or diligently continue working on the tenant improvements
under such New Lease, Assignee shall have the right to perform the tenant
improvement work required under the New Lease and utilize the Tenant Improvement
Fund for such purpose.
(iii) If the tenant under a New Lease fails to
commence paying rent by the date set forth on Exhibit "H" as a result of
Contract Vendee failing to complete timely the tenant improvements, Assignee may
draw down and retain on a monthly basis the balance of the Annual Rent Fund, to
pay monthly rent until such time as tenant's obligations to pay rent commences.
Thereafter, the balance of the allocable Annual Rent Fund shall be paid to
Contract Vendee. If the tenant under a New Lease is obligated to commence paying
rent by said date, the balance of the allocable Annual Rent Fund shall be paid
to Contract Vendee.
(iv) Assignee hereby consents to Contract Vendee or
its affiliated construction entity performing the tenant improvements on account
of the New Leases. If Contract Vendee or its affiliated construction entity
shall not perform said work, then Assignee shall have the right to select the
contractor therefor.
(v) Contract Vendee shall have the right to submit
requisitions every fourteen (14) days, and PCS&F shall expedite payment on
account of said requisition by wire transfer to Contract Vendee as expeditiously
as possible.
(b) In the event that one or more of the New Leases are
not executed and delivered to Assignee at Closing, then in substitution thereof,
Contract Vendee shall have the nonexclusive right to pursue an alternative lease
(an "Alternative Lease") for each New Lease not so executed and delivered.
Provided the following conditions are met:
(i) the economic term of the Alternative Lease shall
be equal to or more favorable than those set forth in Exhibit "H" for the
corresponding space, including, at Contract Vendee's election, the payment to
Assignee of the monies held in the Annual Rent Fund;
(ii) the creditworthiness of the tenant under the
Alternative Lease shall be equal to or more favorable than the average of the
creditworthiness of the balance of the tenants at the Premises;
(iii) the Alternative Lease is on a form, and contains
terms and conditions, reasonably acceptable to Assignee and Contract Vendee and
shall be comparable to the leases in the marketplace for such tenants;
(iv) the tenant under the Alternative Lease is a bona
fide third party and has executed the Alternative Lease; and
(v) Assignee has not entered into leases for any of
such space,
then the terms and conditions set forth in Section 12(a) applicable to New
Leases shall apply to the Alternative Lease(s). In addition, Contract Vendee's
obligations with respect to such Alternative Lease shall be deemed satisfied,
whether or not Assignee shall enter into said Alternative Lease.
(c) In the event that one or more of the New Lease(s) are
not delivered at Closing and Assignee secures alternative tenants for the
unleased space, Assignee may use the Tenant Improvement Fund and the Brokerage
Fund for their intended purposes but on account of the leases so procured by
Assignee, and shall be entitled to monthly payments, commencing on the dates set
forth in Exhibit "H", from the Annual Rent Fund in the monthly amounts set forth
on Exhibit "I" until the tenant(s) so procured by Assignee commence rental
payments on a regular basis. On such date, any amounts remaining in escrow for
said space shall be released to Contract Vendee. Assignee agrees not to exercise
the rights in this paragraph (c) for a period of four (4) months following the
Closing hereunder.
13. CLOSING.
The closing under this Assignment Agreement shall take place on
or about May 2, 1996 (the "Closing"), at the time and location specified in the
Sales Agreement, unless extended in accordance with this Assignment Agreement.
This transaction shall be consummated simultaneously with the transaction
covered by the Sales Agreement. The Premises shall be conveyed directly from the
Seller to Assignee at the Closing so as to vest title to the Premises in the
Assignee pursuant to the terms of the Sales Agreement.
14. BROKER
Contract Vendee and Assignee represent that they have not dealt
with any brokers, co- brokers, consultants, finders or salesmen except Jackson
Cross Co. (the "Broker") in connection with this Assignment Agreement, and agree
to indemnify, defend and hold each other harmless from and against any and all
loss, cost, damage, liability or expense, including reasonable attorneys' fees,
which they may sustain, incur or be exposed to by reason of any claim for fees
or commissions by any party acting by, through or under the indemnitor. The
commission payable to Broker shall be paid by Contract Vendee. This Section 14
shall survive the Closing or earlier termination of this Assignment Agreement.
15. REMEDIES.
(a) In the event Assignee fails to perform on the
Closing, Assignee's sole liability and Contract Vendee's sole recourse shall be
limited to the amount of the Deposit. Contract Vendee agrees that retention of
the Deposit constitutes fixed and liquidated damages resulting from Assignee's
default, and Contract Vendee waives any other claim, at law or in equity, either
against Assignee or against any person, known or unknown, disclosed or
undisclosed.
(b) (i) If, after complying with the terms of this
Assignment Agreement, Contract Vendee shall be unable to perform in accordance
with the terms of this Assignment Agreement, Contract Vendee shall direct the
Escrow Agent to refund to Assignee the Deposit, whereupon this Assignment
Agreement shall be deemed cancelled and the parties hereto shall be released of
all obligations and liabilities under this Assignment Agreement, except those
that are expressly stated to survive the cancellation or termination of this
Assignment Agreement.
(ii) In the event of any default on the part of Seller
or Contract Vendee, or Seller's or Contract Vendee's failure to comply with any
representation, warranty or agreement in the Sales Agreement or herein,
respectively, which Contract Vendee has failed to cure within ten (10) days
after receipt of written notice from Assignee of such default, Assignee shall be
entitled to (a) terminate this Assignment Agreement upon notice to Contract
Vendee, in which event the Deposit shall be returned by Escrow Agent to Assignee
and neither party shall thereafter have any further obligations under this
Assignment Agreement, (b) commence an action against Seller, Contract Vendee or
both seeking specific performance of Seller's and Contract Vendee's obligations
under the Sales Agreement and this Assignment Agreement, respectively or (c) in
the event of a willful default by Seller under the Sales Agreement, Contract
Vendee under the Assignment Agreement, or both, Assignee may pursue any and all
of its remedies at law or in equity or any combination thereof against the
defaulting party.
16. ESCROW AGREEMENT
The parties agree that the Deposit shall be held by the Escrow
Agent in escrow and disposed of only in accordance with the provisions of this
Section 16. The parties agree that if the Deposit is cash, such cash shall be
invested in an assignable interest-bearing certificate of deposit, money market
fund, treasury bill or other similar security approved by Contract Vendee and
Assignee, and all interest accruing thereon shall be paid to Assignee, except as
otherwise provided herein.
(a) The Escrow Agent will deliver the Deposit to Contract
Vendee or to Assignee, as the case may be, under the following conditions:
(i) To Contract Vendee at Closing;
(ii) To Contract Vendee upon receipt of written demand
therefor, such demand stating that Assignee has defaulted in the performance of
this Assignment Agreement and specifically setting forth the facts and
circumstances underlying such default. The Escrow Agent shall not honor such
demand until more than five (5) days have elapsed after receipt of such demand
by Contract Vendee or Assignee after transmittal by the Escrow Agent, as the
case may be, nor thereafter if the Escrow Agent shall have received written
notice of objection from Assignee in accordance with the provisions of clause
(b) of this Section 16; or
(iii) To Assignee upon receipt of written demand
therefor, such demand stating that this agreement has been terminated in
accordance with the provisions hereof, or Contract Vendee has defaulted in the
performance of this Assignment Agreement, and specifically setting forth the
facts and circumstances underlying the same. The Escrow Agent shall not honor
such demand until more than five (5) days have elapsed after receipt of such
demand to Contract Vendee or Assignee after transmittal by Escrow Agent, as the
case may be, nor thereafter, if the Escrow Agent shall have received written
notice of objection from the other party in accordance with the provisions of
clause (b) of this Section 16.
(b) Upon the filing of a written demand for the Deposit
by Assignee or Contract Vendee, pursuant to subclause (ii) or (iii) of clause
(a) of this Section 16, the Escrow Agent shall promptly mail a copy thereof to
the other party. The other party shall have the right to object to the delivery
of the Deposit by filing written notice of such objection with the Escrow Agent
at any time within five (5) days after receipt of such copy, but not thereafter.
Such notice shall set forth the basis for objecting to the delivery of the
Deposit. Upon receipt of such notice, the Escrow Agent shall promptly mail a
copy thereof to the party who filed the written demand.
(c) In the event the Escrow Agent shall have received the
notice of objection provided for in clause (b) above and within the time therein
prescribed, the Escrow Agent shall continue to hold the Deposit until (i) the
Escrow Agent receives written notice from Contract Vendee and Assignee directing
the disbursement of said Deposit, in which case, the Escrow Agent shall then
disburse said Deposit in accordance with said direction, or (ii) in the event of
litigation between Contract Vendee and Assignee, the Escrow Agent shall deliver
the Deposit to the Clerk of the Court in which said litigation is pending, or
(iii) the Escrow Agent takes such affirmative steps as the Escrow Agent may, in
the Escrow Agent's reasonable opinion, elect in order to terminate the Escrow
Agent's duties including, but not limited to, depositing the Deposit with the
Court and bringing an action for interpleader, the costs thereof to be borne by
whichever of Contract Vendee or Assignee is the losing party.
(d) The Escrow Agent may act upon any instrument or other
writing believed by it in good faith to be genuine and to be signed and
presented by the proper person and it shall not be liable in connection with the
performance of any duties imposed upon the Escrow Agent by the provisions of
this Agreement, except for damage caused by the Escrow Agent's own negligence or
willful default. The Escrow Agent shall have no duties or responsibilities
except those set forth herein. The Escrow Agent shall not be bound by any
modification of this agreement, unless the same is in writing and signed by
Assignee and Contract Vendee, and, if the Escrow Agent's duties hereunder are
affected, unless Escrow Agent shall have given prior written consent thereto. In
the event that the Escrow Agent shall be uncertain as to the Escrow Agent's
duties or rights hereunder, or shall receive instructions from Assignee or
Contract Vendee which, in the Escrow Agent's opinion, are in conflict with any
of the provisions hereof, the Escrow Agent shall be entitled to hold and apply
the Deposit pursuant to clause (c) above and may decline to take any other
action. The Escrow Agent shall not charge a fee for its services as escrow
agent.
17. NOTICE
All notices, demands, requests, or other writings in this
agreement provided to be given or made or sent, or which may be given or made or
sent, by either party hereto to the other or by Escrow Agent, shall be in
writing and shall be delivered by depositing the same with any nationally
recognized overnight delivery service, or by telecopy or fax machine, in either
event with all transmittal fees prepaid, properly addressed, and sent to the
following addresses:
If to Assignee: Cal-Tree Realty Associates L.P.
c/o Cali Realty Acquisition Corporation
11 Commercial Drive
Cranford, New Jersey 07016
Attn: John J. Cali and Roger W. Thomas, Esq.
(908) 272-8000 (tele.)
(908) 272-6755 (fax)
with a copy to: Andrew S. Levine, Esq.
Pryor, Cashman, Sherman & Flynn
410 Park Avenue
New York, New York 10022
(212) 326-0414 (tele.)
(212) 326-0806 (fax)
If to Contract Vendee: J. Brian O'Neill
443 South Gulph Road
King of Prussia, Pennsylvania 19406
(610) 962-5101 (tele.)
(610) 962-5108 (fax)
with a copy to: Kevin W. Walsh, Esq.
Adelman Lavine Gold and Levin
Suite 1900
Two Penn Center Plaza
Philadelphia, Pennsylvania 19102
(215) 568-7515 (tele.)
(215) 557-7922 (fax)
If to Escrow Agent: First American Title Insurance Company
228 East 45th Street
New York, New York 10017
Attention: Escrow Department
(212) 922-9700 (tele.)
(212) 922-0881 (fax)
or to such other address as either party may from time to time designate by
written notice to the other or to the Escrow Agent. Notices given by (i)
overnight delivery service as aforesaid shall be deemed received and effective
on the first business day following such dispatch and (ii) telecopy or fax
machine shall be deemed given at the time and on the date of machine transmittal
provided same is sent prior to 4:00 p.m. on a business day (if sent later, then
notice shall be deemed given on the next business day) and if the sending party
receives a written send verification on its machines and forwards a copy thereof
by regular mail accompanied by such notice or communication. Notices may be
given by counsel for the parties described above, and such Notices shall be
deemed given by Assignee or Contract Vendee, as the case may be, for all
purposes hereunder.
18. MISCELLANEOUS
(a) If any instrument or deposit is reasonably necessary
in order to obviate a defect in or objection or exception to title, the
following shall apply: (i) any such instrument shall be in such form and shall
contain such terms and conditions as may be reasonably required by the Title
Company to omit any defect, objection or exception to title, (ii) any such
deposit shall be made with the title company, and (iii) Contract Vendee agrees
to execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any such instrument and to make any such deposit.
(b) This Assignment Agreement constitutes the entire
agreement between the parties and incorporates and supersedes all prior
negotiations and discussions between the parties.
(c) This Assignment Agreement cannot be amended, waived
or terminated orally, but only by an agreement in writing signed by the party to
be charged.
(d) This Assignment Agreement shall be interpreted and
governed by the laws of the Commonwealth of Pennsylvania and shall be binding
upon the parties hereto and their respective successors and assigns.
(e) Whenever in this Assignment Agreement there is a
provision for the return of the Deposit, the provision shall be deemed to
include all interest earned thereon and paid to Assignee.
(f) The caption headings in this Assignment Agreement are
for convenience only and are not intended to be part of this agreement and shall
not be construed to modify, explain or alter any of the terms, covenants or
conditions herein contained.
(g) If any term, covenant or condition of this agreement
is held to be invalid, illegal or unenforceable in any respect, this agreement
shall be construed without such provision.
(h) Each party shall, from time to time, execute,
acknowledge and deliver such further instruments, and perform such additional
acts, as the other party may reasonably request in order to effectuate the
intent of this agreement. Nothing contained in this Assignment Agreement shall
be deemed to create any rights or obligations of partnership, joint venture or
similar association between Contract Vendee and Assignee. This Assignment
Agreement shall be given a fair and reasonable construction in accordance with
the intentions of the parties hereto, and without regard to or aid of canons
requiring construction against Contract Vendee, Assignee or the party whose
counsel drafted this agreement.
(i) This Assignment Agreement shall not be effective or
binding until such time as it has been executed and delivered by all parties
hereto. This Assignment Agreement may be executed by the parties hereto in
counterparts, all of which together shall constitute a single agreement.
(j) This Assignment Agreement shall not create any rights
in any third parties against Assignee not otherwise heretofore in existence.
IN WITNESS WHEREOF, the parties have executed this agreement as
of the day and year first above written.
CONTRACT VENDEE:
BRYEMERE, L.P.
By: Bryemere Estate Planning and Construction, Inc.
By: _____/s/____________________________
Name: J. Brian O'Neill
Title:
ASSIGNEE:
CAL-TREE REALTY ASSOCIATES L.P.
By: Cali Sub VIII, Inc.
By: /s/
Name: Roger W. Thomas
Title: Vice President - General Counsel
ACKNOWLEDGED FOR JOINDER PURPOSES
AS TO SECTIONS 4(a)(vi) and 4(a)(vii) ONLY:
BERWIND PROPERTY GROUP, INC.
By: /s/
Name: Stephen M. Spaeder
Title: Vice President
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:
Name:
Title:
LIST OF EXHIBITS
Exhibit "A" - Property Description
Exhibit "B" - Form of Assignment of Sale and Purchase Agreement, as amended
Exhibit "C" - Sale and Purchase Agreement, as amended
Exhibit "D" - Schedule of Litigation/Proceedings
Exhibit "E" - Additional Leases
Exhibit "F" - Schedule of Leasing Commissions for Renewals or Expansions
of Additional Leases
Exhibit "G" - Schedule of Leasing Commissions for Renewals or Expansions of
Tenant Leases
Exhibit "H" - Economic Terms of the New Leases
Exhibit "I" - Tenant Improvements, Brokerage Commissions and Annual
Rent under the New Leases
EXHIBIT "A"
(Property Description)
EXHIBIT "B"
(Form of Assignment of Sale and Purchase Agreement, as amended)
ASSIGNMENT OF CONTRACT OF SALE
THIS ASSIGNMENT OF CONTRACT OF SALE (the "Assignment") dated
this ___ day of April, 1996, made by J. BRIAN O'NEILL, having an address c/o 443
South Gulph Road, King of Prussia, PA 19406 ("Assignor").
FOR AND IN CONSIDERATION of Ten ($10.00) Dollars and other good
and valuable consideration paid by CAL-TREE REALTY ASSOCIATES L.P., a
Pennsylvania limited partnership having an address c/o Cali Realty Corporation,
11 Commerce Drive, Cranford, New Jersey 07016 ("Assignee") to Assignor, receipt
of which is acknowledged, Assignor hereby assigns, sets over and transfers unto
Assignee all of its right, title and interest in and to that certain Agreement
of Sale and Purchase dated as of February 28, 1996, as amended by that certain
Amendment to Agreement of Sale and Purchase dated April ___, 1996 (collectively,
the "Agreement") made by and between Adwin Realty Company, as seller, and
Assignor, as purchaser, pursuant to which Assignor agreed to acquire certain
real property located at 1400 North Providence Road, Media, Pennsylvania (as
more particularly described in the Agreement).
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns forever from and after the effective date of this Assignment.
IN WITNESS WHEREOF, Assignor has executed this Assignment the
day and year first above written.
--------------------------
J. Brain O'Neill
EXHIBIT "C"
(Agreement of Sale and Purchase, as amended)
EXHIBIT "D"
(Schedule of Litigation/Proceedings)
None
EXHIBIT "E"
(Additional Leases)
EXHIBIT "F"
(Schedule of Leasing Commissions for Renewals or
Expansions of Additional Leases)
EXHIBIT "G"
(Schedule of Leasing Commissions for Renewals or Expansions of Tenant Leases)
EXHIBIT "H"
(Economic Terms of the New Leases)
EXHIBIT "I"
(Tenant Improvements, Brokerage Commissions and Annual Rent under New Leases)