AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
ADVENT REALTY LIMITED PARTNERSHIP AND
ADVENT REALTY LIMITED PARTNERSHIP II (COLLECTIVELY "SELLER")
AND
BRANDYWINE REALTY TRUST
("PURCHASER")
APRIL 7, 1997
Re: Oxford Corporate Center, Bucks County, PA;
Springhouse Corporate Center, Lower Gwynedd, Montgomery County, PA;
Greentree Commons, Evesham Township, Burlington County, NJ; and
Highlands Business Center, Westhampton, Burlington County, NJ
TABLE OF CONTENTS
ARTICLE I......................................................................1
Sale of Property...............................................................1
1.1. Sale of Property................................................1
1.1.1. Land and Improvements................................1
1.1.2. Leases...............................................2
1.1.3. Real Property........................................2
1.1.4. Personal Property....................................2
1.1.5. Intangible Property..................................2
ARTICLE II.....................................................................2
Purchase Price.................................................................3
2.1. Purchase Price..................................................3
ARTICLE III....................................................................3
Deposit........................................................................3
3.1. Initial Deposit.................................................3
3.2. Additional Deposit..............................................3
3.3. Application Upon Default........................................3
3.4. Interest Bearing................................................3
3.5. Escrow Agent....................................................4
ARTICLE IV.....................................................................4
Closing, Prorations and Closing Costs..........................................4
4.1. Closing.........................................................4
4.2. Prorations......................................................4
4.2.1. Taxes................................................4
4.2.2. Insurance............................................5
4.2.3. Utilities............................................5
4.2.4. Rents................................................5
4.2.5. Calculations.........................................6
4.3. Closing Costs...................................................6
4.4. Commissions and Leasing Costs...................................6
4.5. Costs Under Bisys Lease.........................................7
ARTICLE V......................................................................7
Purchaser's Right of Inspection; Feasibility Period............................7
5.1. Right to Evaluate...............................................7
5.2. Inspection Obligations and Indemnity............................8
5.3. Seller Deliveries...............................................9
5.4. Independent Examination........................................10
5.5. Termination Right..............................................10
5.6. Copies of Reports..............................................10
ARTICLE VI....................................................................11
Title and Survey Matters......................................................11
6.1. Title..........................................................11
6.2. Survey.........................................................12
ARTICLE VII...................................................................12
Representations and Warranties of the Seller..................................12
7.1. Seller's Representations.......................................12
7.1.1. Authority..........................................12
7.1.2. Bankruptcy or Debt of Seller.......................13
7.1.3. Environmental Reports..............................13
7.1.4. Foreign Person.....................................13
7.1.5. Employment.........................................13
7.1.6. Service Contracts..................................13
7.1.7. Leases.............................................13
7.1.8. Compliance With Law................................14
7.1.9. Insurance..........................................14
7.1.10. Operating Statement................................14
7.1.11. Rights to Purchase.................................14
7.1.12. No Litigation......................................14
7.1.13. Condemnation.......................................14
7.1.14. No Brokers.........................................14
7.1.15. Completion of Tenant Improvement Obligations.......14
7.1.16. Seller's Knowledge.................................15
7.2. Change in Representation/Waiver................................15
7.3. Survival.......................................................15
ARTICLE VIII..................................................................16
Representations, Warranties and Covenants of Purchaser........................16
8.1. Representations and Warranties.................................16
8.1.1. Authority...........................................16
8.1.2. Bankruptcy or Debt of Purchaser.....................16
8.1.3. ERISA Compliance....................................16
8.2. No Financing Contingency.......................................17
8.3. Purchaser's Acknowledgment.....................................17
8.4. Purchaser's Release............................................18
8.5. Survival.......................................................18
ARTICLE IX....................................................................19
Seller's Interim Operating Covenants..........................................19
9.1. Operations....................................................19
9.2. Maintain Insurance............................................19
9.3. Personal Property.............................................19
9.4. No Sales......................................................19
9.5. Tenant Leases.................................................19
9.6. Alterations...................................................20
9.7. Bill Tenants..................................................20
9.8. Notice to Purchaser...........................................20
9.9. Comply with Leases............................................20
9.10. No New Agreements.............................................20
9.11. Tax Disputes..................................................21
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ARTICLE X.....................................................................21
Closing Conditions............................................................21
10.1. Conditions to Obligations of Seller...........................21
10.1.1. Representations, Warranties and Covenants
of Purchaser.......................................21
10.1.2. No Orders..........................................21
10.2. Conditions to Obligations of Purchaser........................21
10.2.1. Representations, Warranties and Covenants
of Seller..........................................22
10.2.2. No Orders..........................................22
10.2.3. ISRA Non-Applicability Letter......................22
10.2.4. Tenant Estoppels...................................22
10.2.5. Title Policy.......................................23
10.2.6. Possession of the Property.........................23
ARTICLE XI....................................................................23
Closing.......................................................................23
11.1. Purchaser's Closing Obligations...............................23
11.1.1. ...................................................23
11.1.2. ...................................................23
11.1.3. ...................................................23
11.1.4. ...................................................23
11.1.5. ...................................................23
11.1.6. ...................................................23
11.2. Seller's Closing Obligations..................................24
11.2.1. ...................................................24
11.2.2. ...................................................24
11.2.3. ...................................................24
11.2.4. ...................................................24
11.2.5. ...................................................24
11.2.6. ...................................................24
11.2.7. ...................................................24
11.2.8. ...................................................25
11.2.9. ...................................................25
11.2.10. ...................................................25
11.2.11. ...................................................25
11.2.12. ...................................................25
ARTICLE XII...................................................................25
Risk of Loss..................................................................25
12.1. Condemnation and Casualty.....................................25
12.2. Condemnation not Material.....................................26
12.3. Casualty Not Material.........................................26
12.4. Materiality...................................................26
ARTICLE XIII..................................................................26
Default.......................................................................26
13.1. Default by Seller.............................................26
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13.2. Default by Purchaser..........................................27
ARTICLE XIV...................................................................27
Brokers.......................................................................27
14.1. Brokers.......................................................27
ARTICLE XV....................................................................28
Confidentiality...............................................................28
15.1. Confidentiality...............................................28
15.2. Post Closing Publication......................................29
ARTICLE XVI...................................................................29
Miscellaneous.................................................................29
16.1. Notices......................................................29
16.2. Governing Law................................................30
16.3. Headings.....................................................30
16.4. Effective Date...............................................30
16.5. Business Days................................................30
16.6. Counterpart Copies...........................................30
16.7. Binding Effect...............................................30
16.8. Assignment...................................................30
16.9. Interpretation...............................................31
16.10. Entire Agreement.............................................31
16.11. Severability.................................................31
16.12. Survival.....................................................31
16.13. Exhibits.....................................................31
16.14. Time.........................................................32
16.15. Limitation of Liability......................................32
16.16. Prevailing Party.............................................32
16.17. Escrow Agreement.16.17.1.....................................32
16.17.1. Instructions......................................32
16.17.2. Real Estate Reporting Person......................32
16.18. Liability of Escrow Agent....................................33
16.19. No Recording.................................................33
16.20. Waiver of Trial by Jury......................................34
16.21. [Intentionally Omitted.16.22.................................34
16.22. Several Obligations of Seller................................34
16.23. Portfolio Sale...............................................34
16.24. SEC Reporting Requirements...................................35
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is made and
entered into as of the 7th day of April, 1997, by and between ADVENT REALTY
LIMITED PARTNERSHIP ("Fund I") and ADVENT REALTY LIMITED PARTNERSHIP II ("Fund
II"), each a Delaware limited partnership (Fund I and Fund II are hereinafter
collectively referred to as "Seller", notwithstanding that their obligations are
several, not joint obligations) and BRANDYWINE REALTY TRUST, a Maryland real
estate investment trust (hereinafter referred to as "Purchaser").
In consideration of the mutual promises, covenants and agreements
hereinafter set forth and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I.
SALE OF PROPERTY
1.1 SALE OF PROPERTY. Fund I (as to Springhouse, Oxford and Greentree
(as each is hereinafter defined)) and Fund II (as to Highlands (as hereinafter
defined)) hereby agrees to sell, assign and convey to Purchaser and Purchaser
agrees to purchase from Seller, all of Seller's respective right, title and
interest in and to, the following:
1.1.1. LAND AND IMPROVEMENTS. Those certain parcels of land (the
"Land"), being more particularly described as follows: (a) that certain property
more particularly described on Exhibit A-1 hereto located in Bucks County,
Pennsylvania, known as Oxford Corporate Center, which is improved with three (3)
buildings containing approximately one hundred fifteen thousand three hundred
ninety (115,390) square feet of space ("Oxford"); (b) that certain property more
particularly described on Exhibit A-2 hereto located in Lower Gwynedd,
Montgomery County, Pennsylvania, known as Springhouse Corporate Center, which is
improved with two (2) buildings containing approximately one hundred thirty nine
thousand four hundred sixty seven (139,467) square feet of space
("Springhouse"); (c) that certain property more particularly described on
Exhibit A-3 hereto located in Evesham Township, Burlington County, New Jersey,
known as Greentree Commons, which is improved with four (4) buildings containing
approximately forty three thousand nine hundred seventy six (43,976) square feet
of space ("Greentree"); and (d) that certain property more particularly
described on Exhibit A-4 hereto located in Westhampton, Burlington County, New
Jersey, known as Highlands Business Center totaling approximately seventy acres
of land, which is comprised of (i) eight (8) improved, undeveloped parcels
comprised of approximately 37.0999 acres of
land, and (ii) four (4) parcels of land improved, in the aggregate with four (4)
buildings containing approximately three hundred eighty eight thousand nine
hundred eighty eight (388,988) square feet of space ("Highlands") in each case,
together with any improvements located thereon (the "Improvements");
1.1.2. LEASES. All leases, subleases, licenses and other occupancy
agreements, together with any and all amendments, modifications or supplements
thereto, are hereafter referred to collectively as the "Leases" being more
particularly described on Exhibits G-1 through G-4 attached hereto, and all
prepaid rent attributable to the period following the Closing, and subject to
Section 4.2.4 below, the security deposits under such Leases (collectively, the
"Leasehold Property");
1.1.3. REAL PROPERTY. All rights, privileges and easements appurtenant
to Seller's interest in the Land and the Improvements, if any, including,
without limitation, all of Seller's right, title and interest, if any, in and to
all mineral and water rights and all easements, licenses, covenants and other
rights-of-way and privileges, and rights to any land lying in the bed of any
street, road or avenue, open or proposed, adjoining thereto, and all other
appurtenances used in connection with the beneficial use and enjoyment of the
Land and the Improvements (the Land, the Improvements and all such easements and
appurtenances are sometimes collectively referred to herein as the "Real
Property").
1.1.4. PERSONAL PROPERTY. All personal property (including furniture,
furnishings, machinery and equipment), if any, owned by Seller and located on
the Real Property as of the date hereof, all inventory located on the Real
Property on the date of Closing (hereinafter defined), and all fixtures (if any)
owned by Seller and located on the Real Property as of the date hereof
including, without limitation: all of Seller's right, title and interest to the
items listed on the Schedule of Inventory attached hereto as Exhibit E;
renderings; awnings; and all architects', engineers', surveyors' and other real
estate professionals' plans and specifications (the "Personal Property"); and
1.1.5. INTANGIBLE PROPERTY. All trademarks, trade names and logos, if
any, used or useful in connection with the Real Property, but only to the extent
that the same are not trademarks or trade names of Seller or any of Seller's
affiliated companies (collectively, the "Trade Names"), together with the
Seller's interest, if any, in and to any service, equipment, supply and
maintenance contracts (the "Contracts"), guarantees, licenses, approvals,
certificates, permits and warranties relating to the property, to the extent
assignable (collectively, the "Intangible Property"). (The Real Property, the
Leasehold Property, the Personal Property, the Trade Names and the Intangible
Property are sometimes collectively hereinafter referred to as the "Property").
ARTICLE II.
Purchase Price
2.1. PURCHASE PRICE. The purchase price for the Property shall be Forty
One Million Six Hundred Twenty Five Thousand and No/100 Dollars ($41,625,000.00)
(the "Purchase Price"). The Purchase Price, as adjusted by all prorations as
provided for herein, shall be paid to Seller by Purchaser at Closing, as herein
defined, by wire transfer of immediately available federal funds.
ARTICLE III.
Deposit
3.1. INITIAL DEPOSIT. Upon the Effective Date, as defined in Section
16.4 of this Agreement and as a condition precedent to the formation of this
Agreement, Purchaser shall deposit One Hundred Thousand Dollars ($100,000.00)
(the "Initial Deposit") with Commonwealth Land Title Insurance Company (National
Title Service) (the "Escrow Agent") in immediately available federal funds, the
receipt of which is hereby acknowledged by Escrow Agent's execution hereof. If
Purchaser shall fail to deposit the Initial Deposit within the time period
provided for above, Seller may at any time prior to the deposit of the Initial
Deposit, terminate this Agreement, in which case this Agreement shall be null
and void ab initio and in such event Escrow Agent shall immediately deliver to
Seller all copies of this Agreement in its possession and thereafter, neither
party shall have any further rights or obligations to the other hereunder,
except as otherwise set forth in this Agreement.
3.2. ADDITIONAL DEPOSIT. If Purchaser elects not to terminate this
Agreement in accordance with Section 5.5 herein, then on or before the
expiration of the Feasibility Period (as defined herein), time being of the
essence, Purchaser shall make an additional deposit in the amount of Two Hundred
Thousand Dollars ($200,000.00) (the "Additional Deposit") in immediately
available federal funds, with Escrow Agent. The Initial Deposit and the
Additional Deposit (together with any interest thereon, regardless of whether
the payment of interest is herein otherwise specified) are collectively referred
to herein as the "Deposit."
3.3. APPLICATION UPON DEFAULT. If the Closing occurs, the Deposit shall
be paid to Seller and credited against the Purchase Price at Closing. If the
Closing does not occur in accordance with the terms hereof, the Deposit shall be
held and delivered as hereinafter provided.
3.4. INTEREST BEARING. The Deposit shall (i) be held in an
interest-bearing escrow account by Escrow Agent in an institution as directed by
Purchaser and reasonably acceptable to Seller and (ii) shall include any
interest earned thereon. To allow the interest bearing account to be opened,
Purchaser's and Seller's tax identification or social security numbers are set
forth below their signatures.
3.5. ESCROW AGENT. Escrow Agent is executing this Agreement to
acknowledge Escrow Agent's responsibilities hereunder, which may be modified
only by a written amendment signed by all of the parties. Any amendment to this
Agreement that is not signed by Escrow Agent shall be effective as to the
parties thereto, but shall not be binding on Escrow Agent. Escrow Agent shall
accept the Deposit with the understanding of the parties that Escrow Agent is
not a party to this Agreement except to the extent of its specific
responsibilities hereunder, and does not assume or have any liability of the
performance or non-performance of Purchaser or Seller hereunder to either of
them. Additional provisions with respect to the Escrow Agent are set forth in
Article XVI.
ARTICLE IV.
Closing, Prorations and Closing Costs
4.1. CLOSING. The closing of the purchase and sale of the Property
shall occur on or before 10:00 a.m. local time on a date which is not later than
ten (10) following the expiration of the Feasibility Period (as defined herein),
and shall be conducted pursuant to escrow arrangements with the Title Company
(as hereinafter defined) or at such place agreed to by Seller and Purchaser.
"Closing" shall be deemed to have occurred when the Title Company has been
instructed by both parties to release escrow and to record the Deed. Time is of
the essence. The date of Closing is referred to in this Agreement as the
"Closing Date."
4.2. PRORATIONS. All matters involving prorations or adjustments to be
made in connection with Closing and not specifically provided for in some other
provision of this Agreement shall be adjusted in accordance with this Section
4.2.
Except as otherwise set forth herein, all items to be prorated pursuant
to this Section 4.2 shall be prorated as of midnight of the day immediately
preceding the Closing Date with Purchaser to be treated as the owner of the
Property, for purposes of prorations of income and expenses, on and after the
Closing Date.
4.2.1. TAXES. Real estate and personal property taxes and special
assessments, if any, shall be prorated as of the Closing Date. Seller shall pay
all real estate and personal property taxes and special assessments attributable
to the Property to, but not including, the Closing Date. If the real estate
and/or personal property tax rate and assessments have not been set for
the year in which the Closing occurs, then the proration of such taxes shall be
based upon the rate and assessments for the preceding tax year and such
proration shall be adjusted in cash between Seller and Purchaser upon
presentation of written evidence that the actual taxes paid for the year in
which the Closing occurs, differ from the amounts used in the Closing in
accordance with the provisions of Section 4.2.5 hereof. All taxes imposed due to
a change of use of the Property after the Closing Date shall be paid by the
Purchaser.
4.2.2. INSURANCE. There shall be no proration of Seller's insurance
premiums or assignment of Seller's insurance policies. Purchaser shall be
obligated (at its own election) to obtain any insurance coverage deemed
necessary or appropriate by Purchaser. Except as otherwise expressly set forth
in Article XII pursuant to an assignment by Seller, Purchaser shall have no
interest in or be deemed a beneficiary under Seller's insurance policies.
4.2.3. UTILITIES. Purchaser and Seller hereby acknowledge and agree
that the amounts of all telephone, electric, sewer, water and other utility
bills, trash removal bills, janitorial and maintenance service bills and all
other operating expenses relating to the Property and allocable to the period
prior to the Closing Date shall be determined and paid by Seller before Closing,
if possible, or shall be paid thereafter by Seller or adjusted between Purchaser
and Seller at Closing based upon the last meter readings, if available, and then
adjusted, as necessary, immediately after the same have been determined. Seller
shall attempt to have all utility meters read as of the Closing Date. Purchaser
shall cause all utility services to be placed in Purchaser's name as of the
Closing Date. All utility deposits in Seller's name shall be assigned to
Purchaser as of the Closing Date and Seller shall receive a credit therefor at
Closing.
4.2.4. RENTS. Rents (including, without limitation, estimated
pass-through payments, payments for 1997 year-end common area maintenance
reconciliations and all additional charges payable by tenants under the Leases,
(collectively, "Rents")) collected by Seller prior to Closing shall be prorated
as of the Closing Date. During the period after Closing, Purchaser shall deliver
to Seller any and all Rents accrued but uncollected as of the Closing Date to
the extent subsequently collected by Purchaser; provided, however, Purchaser
shall apply Rents received after Closing first to payment of current Rent then
due, and thereafter to delinquent Rents (other than "true up" payments received
from tenants attributable to a year-end reconciliation of actual and budgeted
pass-through payments which shall be allocated among Seller and Purchaser pro
rata in accordance with their respective period of ownership as set forth in
Section 4.2.5 below). Seller shall have the right, after Closing, to proceed
against tenants for delinquent Rents allocable to the period of Seller's
ownership of the Property; provided, however, that Seller shall have no right to
seek to evict or dispossess tenants or to terminate their respective leases.
Purchaser agrees
that it shall use commercially reasonable efforts to collect all pass-through
rents payable by tenants and any delinquent Rents (provided, however, that
Purchaser shall have no obligation to institute legal proceedings, including an
action for unlawful detainer, against a tenant owing delinquent Rents). The
amount of any unapplied security deposits under the Leases held by Seller in
cash shall be credited against the Purchase Price; accordingly, Seller shall
retain the actual cash deposits. If any security deposits are in the form of a
letter of credit, Seller shall assign such letter of credit to Purchaser and
deliver the original letter of credit to Purchaser at Closing.
4.2.5. CALCULATIONS. For purposes of calculating prorations, Purchaser
shall be deemed to be in title to the Property, and, therefore, entitled to the
income therefrom and responsible for the expenses thereof for the entire day
upon which the Closing occurs. All such prorations shall be made on the basis of
the actual number of days of the month which shall have elapsed as of the day of
the Closing and based upon the actual number of days in the month and a three
hundred sixty five (365) day year. The amount of such prorations shall be
initially performed at Closing but shall be subject to adjustment in cash after
the Closing as and when complete and accurate information becomes available, if
such information is not available at the Closing. Seller and Purchaser agree to
cooperate and use their best efforts to make such adjustments no later than
sixty (60) days after the Closing (or as soon thereafter as may be practicable,
with respect to common area maintenance and other additional rent charges
(including pass-throughs for real estate and personal property taxes and special
assessments) payable by tenants under leases). Except as set forth in this
Section 4.2, all items of income and expense which accrue for the period prior
to the Closing will be for the account of Seller and all items of income and
expense which accrue for the period on and after the Closing will be for the
account of Purchaser. The provisions of Section 4.2 shall survive the Closing.
4.3. CLOSING COSTS. All state or county documentary stamps and transfer
and recordation taxes on the deeds with respect to Greentree and Highlands shall
be paid by Seller. With respect to Oxford and Springhouse, Seller and Purchaser
shall each pay one half of any applicable state or county documentary stamps and
transfer and recordation taxes on the deeds. Purchaser shall pay title
examination costs, title insurance premiums, survey costs and all other costs
associated with Purchaser's due diligence. Each party shall be responsible for
its own attorney's fees. Any other closing fees or expenses shall be split
between Seller and Purchaser in accordance with local practices.
4.4. COMMISSIONS AND LEASING COSTS. Subject to the provisions of
Section 4.5 below, Seller shall be responsible for all leasing and brokerage
commissions and other leasing costs (including, without limitation, tenant
improvement costs, required capital improvements, free rent credits, holdover
rents and eviction costs) arising (i) prior to the Effective Date with respect
to the Leases and (ii) after the Effective Date but prior to Closing to the
extent that such obligations do not relate to Approved New Leases (as
hereinafter defined). Provided that Closing shall occur, Purchaser shall be
responsible for all other leasing and brokerage commissions and other leasing
costs (including, without limitation, tenant improvement costs, required capital
improvements, free rent credits, holdover rents and eviction costs).
4.5. COSTS UNDER BISYS LEASE. Seller agrees to pay all of the tenant
improvement and leasing commission costs currently due and payable in connection
with the Bisys lease at Springhouse, consisting of all costs (tenant
improvements, leasing commissions, required capital improvements and free rent
credits) associated with Bisys' existing 53,849 square feet and 4,737 square
feet of "must take" space currently occupied by the tenant, but excluding all
tenant improvement and leasing commission costs arising pursuant to any renewal
or expansion rights under such lease; provided, however, that with respect to
the unfunded $4.00 per square foot tenant improvement obligation in connection
with the 53,849 square feet of space, Seller shall pay such amount to Purchaser
upon receipt by Seller of notice from Purchaser that Bisys has requested such
payment from Purchaser. At Closing, Seller shall receive a credit on the
settlement sheet equal to one half (1/2) of the leasing commissions paid by
Seller with respect to the "must take" space to the extent that Seller has paid
such amounts prior to Closing as set forth on Exhibit P attached hereto.
Purchaser shall assume and agrees to pay all costs (including, without
limitation, all tenant improvements, leasing commissions, required capital
improvements, free rent credits, holdover rent and eviction costs) associated
with Bisys' 15,920 square feet of "must take" space, as outlined in a letter
from Mr. James Raisides dated February 20, 1997.
ARTICLE V.
Purchaser's Right of Inspection; Feasibility Period
5.1. RIGHT TO EVALUATE. Commencing on the Effective Date and continuing
until 5:00 p.m. local time on that day that is thirty (30) days after the
Effective Date (the "Feasibility Period"), Purchaser and its agents shall have
the right during business hours (with reasonable advance notice to Seller
subject to the rights of the tenants in possession), at Purchaser's sole cost
and expense and at Purchaser's and its agents' sole risk, to perform inspections
and tests of the Property and to perform such other analyses, inquiries and
investigations as Purchaser shall deem necessary or appropriate; provided,
however, that in no event shall (i) such inspections or tests unreasonably
disrupt or disturb the on-going operation of the Property or the rights of the
tenants at the Property, or (ii) Purchaser or its agents or representatives
conduct any
physical testing, drilling, boring, sampling or removal of, on or through the
surface of the Property (or any part or portion thereof) including, without
limitation, any ground borings or invasive testing of the Improvements
(collectively, "Physical Testing"), without Seller's prior written consent,
which consent may be given or withheld in Seller's sole and absolute discretion.
In the event Purchaser desires to conduct any such Physical Testing of the
Property, then Purchaser shall submit to Seller, for Seller's approval, a
written detailed description of the scope and extent of the proposed Physical
Testing, which approval may be given or withheld in Seller's sole and absolute
discretion. If Seller does not approve the Physical Testing or approves only a
portion thereof, Purchaser may, at its option, by sending written notice to
Seller, elect to, either (i) terminate this Agreement or (ii) conduct during the
Feasibility Period that portion of the Physical Testing approved by Seller, if
any, or if Seller disapproves the entire proposed Physical Testing,
affirmatively agree to forego any Physical Testing of the Property. In the event
Purchaser terminates this Agreement as aforesaid, the Deposit, plus all interest
accrued thereon, shall be immediately refunded to Purchaser and this Agreement
shall terminate and be of no further force and effect other than the Surviving
Termination Obligations (as hereinafter defined). In no event shall Seller be
obligated as a condition of this transaction to perform or pay for any
environmental remediation of the Property recommended by any such Physical
Testing. After making such tests and inspections, Purchaser agrees to promptly
restore the Property to its condition prior to such tests and inspections (which
obligation shall survive the Closing or any termination of this Agreement).
Prior to Purchaser entering the Property to conduct the inspections and tests
described above, Purchaser shall obtain and maintain, at Purchaser's sole cost
and expense, and shall deliver to Seller evidence of, the following insurance
coverage, and shall cause each of its agents and contractors to obtain and
maintain, and, upon request of Seller, shall deliver to Seller evidence of, the
following insurance coverage: general liability insurance, from an insurer
reasonably acceptable to Seller, in the amount of One Million and No/100 Dollars
($1,000,000.00) combined single limit for personal injury and property damage
per occurrence, such policy to name Seller as an additional insured party, which
insurance shall provide coverage against any claim for personal liability or
property damage caused by Purchaser or its agents, employees or contractors in
connection with such inspections and tests. Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its agents
do not unreasonably interfere with Purchaser's inspection.
5.2. INSPECTION OBLIGATIONS AND INDEMNITY. Purchaser and its agents and
representatives shall: (a) not unreasonably disturb the tenants of the
Improvements or interfere with their use of the Real Property pursuant to their
respective Leases; (b) not interfere with the operation and maintenance of the
Real Property; (c) not damage any part of the Property or any personal
property owned or held by any tenant; (d) not injure or otherwise cause bodily
harm to Seller, its agents, contractors and employees or any tenant; (e)
promptly pay when due the costs of all tests, investigations and examinations
done with regard to the Property; (f) not permit any liens to attach to the
Property by reason of the exercise of its rights hereunder; (g) restore the
Improvements and the surface of the Real Property to the condition in which the
same was found before any such inspection or tests were undertaken; and (h) not
reveal or disclose any information obtained during the Feasibility Period
concerning the Property to anyone outside Purchaser's organization other than
its agents, consultants, representatives, and lenders and its and their legal
counsel, or as otherwise required by applicable law. Purchaser shall, at its
sole cost and expense, comply with all applicable federal, state and local laws,
statutes, rules, regulations, ordinances or policies in conducting its
inspection of the Property and Physical Testing. Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, officers,
directors, employees, agents, attorneys and their respective successors and
assigns, harmless from and against any and all claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including but not limited to reasonable attorneys' fees) arising out
of Purchaser's or Purchaser's agents' actions taken in, on or about the Property
in the exercise of the inspection right granted pursuant to Section 5.1,
including, without limitation, (i) claims made by any tenant against Seller for
Purchaser's entry into such tenant's premises or any interference with any
tenant's use or damage to its premises or property in connection with
Purchaser's review of the Property, and (ii) Purchaser's obligations pursuant to
this Section 5.2. This Section 5.2 shall survive the Closing and/or any
termination of this Agreement.
5.3. SELLER DELIVERIES. Seller shall use its reasonable, good faith
efforts to deliver to Purchaser or make available at the Property, at Seller's
option, all of the items specified on Exhibit B, attached hereto (the
"Documents"), within five (5) days after the Effective Date; provided, however,
except as otherwise expressly set forth in Section 7.1 hereof, Seller makes no
representations or warranties of any kind regarding the accuracy, thoroughness
or completeness of or conclusions drawn in the information contained in such
documents, if any, relating to the Property. Purchaser hereby waives any and all
claims against Seller arising out of the accuracy, completeness, conclusions or
statements expressed in materials so furnished and any and all claims arising
out of any duty of Seller to acquire, seek or obtain such materials.
Notwithstanding anything contained in the preceding sentence, Seller shall not
deliver or make available to Purchaser Seller's internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Property, and reports regarding the Property prepared by
Seller or its affiliates solely for internal use or for the information of the
investors in Seller. Purchaser acknowledges that any and all of the Documents
that are not otherwise known by or available to the public are proprietary and
confidential in
nature and will be delivered to Purchaser solely to assist Purchaser in
determining the feasibility of purchasing the Property. Other than as may be
required by law, Purchaser agrees not to disclose such non-public Documents, or
any of the provisions, terms or conditions thereof, to any party outside of
Purchaser's organization other than its agents, consultants, representatives and
lenders, and its and their legal counsel. Purchaser shall return all of the
Documents, on or before three (3) business days after the first to occur of (a)
such time as Purchaser notifies Seller in writing that it shall not acquire the
Property, or (b) such time as this Agreement is terminated for any reason. This
Section 5.3 shall survive any termination of this Agreement without limitation.
5.4. INDEPENDENT EXAMINATION. Purchaser hereby acknowledges that it has
been, or will have been given, prior to the termination of the Feasibility
Period, a full, complete and adequate opportunity to make such legal, factual
and other determinations, analyses, inquiries and investigations as Purchaser
deems necessary or appropriate in connection with the acquisition of the
Property. Purchaser is relying upon its own independent examination of the
Property and all matters relating thereto and not upon any statements of Seller
(excluding the limited matters expressly represented by Seller in Article VII
hereof, or as otherwise expressly set forth herein) or of any officer, director,
employee, agent or attorney of Seller with respect to acquiring the Property.
Seller shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser. The provisions of this Section 5.4 shall survive Closing
and/or termination of this Agreement.
5.5. TERMINATION RIGHT. In the event that Purchaser determines that it
does not desire to acquire the Property as a result of its analyses, inquiries,
tests, investigations or inspections under Section 5.1, Purchaser shall provide
written notice to Seller upon or before the end of the Feasibility Period, and
subject to the Surviving Termination Obligations (as defined in Section 16.12
herein) this Agreement shall terminate, the Deposit shall be delivered to
Purchaser and thereupon neither party shall have any further rights or
obligations to the other hereunder. If Purchaser shall fail to timely notify
Seller in writing of its election to terminate this Agreement on or before the
expiration of the Feasibility Period, time being of the essence, the termination
right described in this Section 5.5 shall be immediately null and void and of no
further force or effect. Purchaser's failure to provide such notice on or before
the end of the Feasibility Period shall constitute Purchaser's waiver of the
herein-described termination right.
5.6. COPIES OF REPORTS. As additional consideration for the transaction
contemplated herein, Purchaser agrees that it will provide to Seller, within
five (5) days following a written request therefore, copies of any and all final
reports, tests or studies relating to the Property, including but not limited
to those involving environmental matters. Purchaser shall provide Seller with a
list of the reports, tests and studies to be undertaken on Purchaser's behalf
and the additional cost, if any, of having each such report addressed to both
Seller and Purchaser, and Seller may elect to pay such additional cost, in which
event Purchaser shall cause such report(s) to be addressed to both parties.
Notwithstanding any provision of this Agreement, no termination of this
Agreement shall terminate Purchaser's obligations pursuant to the foregoing
sentence.
ARTICLE VI.
Title and Survey Matters
6.1. TITLE. Purchaser hereby acknowledges receipt of copies of Seller's
most recent title insurance commitment and/or policy covering the Property.
Within three (3) days from the Effective Date, Purchaser shall apply for a title
insurance commitment (the "Commitment") for an Owner's Policy of Title
Insurance, issued by Commonwealth Land Title Insurance Company (National
Business Unit) (the "Title Company"), covering the Real Property, together with
a copy of all exceptions set forth therein. Purchaser shall notify Seller no
later than twenty five (25) days after the Effective Date in writing of any
title exceptions identified in the Commitment which Purchaser disapproves. Any
exception not disapproved in writing within such time period shall be deemed
approved by Purchaser and shall constitute a "Permitted Exception" hereunder.
Purchaser and Seller hereby agree that (i) all non-delinquent property taxes and
assessments, (ii) the rights of the tenants under the Leases and Approved New
Leases, and (iii) all matters created by or on behalf or Purchaser, including,
without limitation, any documents or instruments to be recorded as part of any
financing for the acquisition of the Property by Purchaser shall constitute
"Permitted Exceptions" (subject to appropriate prorations for taxes and
assessments as hereinabove provided). Without Seller's prior written consent,
Purchaser shall not make any application to any governmental agency for any
permit, approval, license or other entitlement for the Property or the use or
development thereof other than a township or municipal officer's zoning
certificate, for which Purchaser may apply, provided that (i) such application
or certificate does not by its terms require an inspection of the Property and
(ii) Purchaser does not receive prior notice from the zoning authority that a
request for such certificate will cause an inspection of the Property. It is
acknowledged that the matters on Exhibit D attached hereto are exceptions to
title as shown on Seller's title policy. Seller shall have no obligation in
connection with this Agreement to modify such matters, and Purchaser shall have
no obligation to accept such matters unless Purchaser shall fail to object
thereto in accordance with this Agreement. Not later than five (5) business days
after receipt of notice of disapproval from Purchaser, Seller shall notify
Purchaser in writing of any disapproved title exceptions
which Seller is unable or unwilling to cause to be removed or insured against
prior to or at Closing and, with respect to such exceptions, Purchaser then
shall elect, by giving written notice to Seller within three (3) days
thereafter, (x) to terminate this Agreement, or (y) to waive its disapproval of
such exceptions, in which case such exceptions shall then be deemed to be
Permitted Exceptions. Purchaser's failure to give such notice shall be deemed an
election to waive the disapproval of any such exception. In the event Purchaser
elects to terminate this Agreement in accordance with clause (x) above, the
Deposit, plus all interest accrued thereon, shall be immediately refunded to
Purchaser; provided, however, that Purchaser shall be responsible for any title
fees. Seller shall be obligated to cause to be discharged, insured against or
bonded over any monetary liens encumbering the Property prior to Closing;
provided, however, Seller may only bond over or insure over liens in an amount
less than or equal to $1 million for each of Oxford, Springhouse, Greentree and
Highlands (other than liens which are insured over by the title company pursuant
to a pay-off letter from an institutional mortgage lender which shall not be
subject to the $1 million limitation). Notwithstanding the foregoing, in the
event such title encumbrance results from a matter willfully caused by Seller
from and after the Effective Date, Seller shall take affirmative action to cure
such title defect. In addition, Seller shall cause the discharge of the existing
mortgage encumbering Highlands in order to effect Closing hereunder, subject to
an extension of the Closing Date with respect to Highlands only as set forth in
Section 16.22.
6.2. SURVEY. Purchaser hereby acknowledges receipt of copies of surveys
covering the Property. Purchaser shall, at its sole cost and expense, within
three (3) days from the Effective Date, order a survey of the Real Property (the
"Survey"). If the Survey discloses any matters which are unacceptable to
Purchaser, Purchaser shall notify Seller in writing within twenty five (25) days
after the Effective Date. Purchaser shall furnish a copy of the Survey to Seller
and the Title Company of any matters identified on the Survey which Purchaser
disapproves. Any survey matter not disapproved in writing within said time
period shall be deemed approved by Purchaser and shall constitute a "Permitted
Exception" hereunder. Seller may, not later than ten (10) days after receipt of
notice of disapproval from Purchaser, have the matters to which Purchaser has
objected removed; provided, however, in no event will Seller be obligated to
incur costs to do so.
ARTICLE VII.
Representations and Warranties of the Seller
7.1. SELLER'S REPRESENTATIONS. Seller represents and warrants that the
following matters are true and correct as of the Effective Date with respect to
the Property to the current actual knowledge of Seller.
7.1.1. AUTHORITY. Seller is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of Delaware.
This Agreement has been duly authorized, executed and delivered by Seller, is
the legal, valid and binding obligation of Seller, and does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller is subject. All documents to be executed by Seller which are to be
delivered at Closing (i) will be duly authorized, executed and delivered by
Seller, (ii) will be legal, valid and binding obligations of Seller, and (iii)
will not violate any provision of any agreement or judicial order to which
Seller is a party or to which Seller is subject.
7.1.2. BANKRUPTCY OR DEBT OF SELLER. Seller has not made a general
assignment for the benefit of creditors, filed any voluntary petition in
bankruptcy, admitted in writing its inability to pay its debts as they come due
or made an offer of settlement, extension or composition to its creditors
generally. Seller has received no written notice of (a) the filing of an
involuntary petition by Seller's creditors, (b) the appointment of a receiver to
take possession of all, or substantially all, of Seller's assets, or (c) the
attachment or other judicial seizure of all, or substantially all, of Seller's
assets.
7.1.3. ENVIRONMENTAL REPORTS. The reports listed on Exhibit F attached
hereto constitute all of the reports prepared by third party environmental
consultants within the last four (4) years in Seller's possession. Seller has
received no written notice from any governmental authority that the Property is
in violation of any federal, state and local laws, ordinances and regulations
applicable to the Property with respect to hazardous or toxic substances
(collectively, "Environmental Laws"), which violation has not been corrected.
Notwithstanding the foregoing representations and warranties, the acts, if any,
of Seller's past or current tenants shall not be imputed to Seller unless Seller
shall have actual knowledge thereof.
7.1.4. FOREIGN PERSON. Seller is not a foreign person within the
meaning of Section 1445(f) of the Internal Revenue Code, and Seller agrees to
execute any and all documents necessary or required by the Internal Revenue
Service or Purchaser in connection with such declaration(s).
7.1.5. EMPLOYMENT. Seller has no employees at the Property. Purchaser
shall assume no liability or responsibility for Seller's employees.
7.1.6. SERVICE CONTRACTS. Attached hereto as Exhibit O is a list
prepared by The Flynn Company (the "Property Manager") of all Contracts. Unless
otherwise directed by Purchaser on or before the end of the Feasibility Period,
and except as hereinafter expressly provided, the Contracts shall not be
terminated by Seller as of Closing but shall be assigned to and assumed by
Purchaser at Closing. Anything in this Section 7.1.6 to the contrary
notwithstanding, Seller represents and warrants that the management agreement
with the Property Manager and all leasing agreements entered into by Seller or
the Property Manager relating to the Property shall be terminated as of Closing.
7.1.7. LEASES. Seller has received no notice of any oral or written
leases affecting the Property other than the leases ("Leases") listed on the
rent rolls attached hereto as Exhibits G-1 through G-4. Seller has not assigned,
pledged, hypothecated or otherwise encumbered the Leases except as collateral
for an existing mortgage upon the Property, if any, which shall be released of
record at or before Closing. In reliance upon a certificate from the Property
Manager and without any independent verification by Seller, Exhibits G-1 through
G-4 set forth and the current balance of unapplied and unreturned security
deposits from tenants being held by Seller and the amount of any prepaid rents
under any of the Leases.
7.1.8. COMPLIANCE WITH LAW. Seller has received no written notice of
any violations issued by a Governmental Authority having jurisdiction over the
Property which violation has not been corrected. Notwithstanding the foregoing
representation and warranty, the knowledge, if any, of Seller's past or current
tenants shall not be imputed to Seller unless Seller shall have actual knowledge
thereof.
7.1.9. INSURANCE. Attached hereto as Exhibit M are copies of insurance
certificates summarizing Seller's insurance coverage with respect to the
Property.
7.1.10. OPERATING STATEMENT. Seller has previously delivered to
Purchaser copies of Seller's unaudited annual operating statements with respect
to the Property for the prior three (3) fiscal years.
7.1.11. RIGHTS TO PURCHASE. Seller has not entered into any outstanding
written agreements, options, rights of first refusal, conditional sales
agreements or other agreements or arrangements regarding the purchase and sale
of the Property, other than the Leases and such matters of record.
7.1.12. NO LITIGATION. Seller has received no written notice of any
lawsuits pending or threatened against or relating to the Property other than
actions, if any, taken by Seller in connection with Seller's enforcement of
lease obligations relating to tenant defaults set forth on Exhibits G-1 through
G-4.
7.1.13. CONDEMNATION. Seller has received no written notice of any
condemnation or eminent domain proceeding pending or threatened with regard to
any part of the Property.
7.1.14. NO BROKERS. Seller has received no written notice of any unpaid
brokerage commissions which will be due and payable to any person, firm,
corporation or other entity with respect to or on account of any Leases except
as indicated on Exhibits G-1 through G-4.
7.1.15. COMPLETION OF TENANT IMPROVEMENT OBLIGAITONS. In reliance
solely upon a certificate from the Property Manager and without independent
verification by Seller, the Seller has completed the tenant improvements
required to be completed as of the date hereof under the Leases, except as set
forth on Exhibits G-1 through G-4.
7.1.16. SELLER'S KNOWLEDGE. For purposes of this Agreement and any
document delivered at Closing, whenever the phrases "to the best of Seller's
knowledge", "to the current, actual knowledge of Seller" or the "knowledge" of
Seller or words of similar import are used, they shall be deemed to refer to the
actual knowledge only, and not any implied, imputed or constructive knowledge,
without any independent investigation having been made or any implied duty to
investigate, of Henry Brauer with respect to Springhouse, Oxford and Greentree
and Pamela Deery with respect to Highlands.
7.2. CHANGE IN REPRESENTATION/WAIVER. Notwithstanding anything to the
contrary contained herein, Purchaser acknowledges that Purchaser shall not be
entitled to rely on any representation made by Seller in this Article VII to the
extent, prior to Closing, Purchaser shall have or obtain actual knowledge of any
information that was contradictory to such representation or warranty; provided,
however, if Purchaser determines prior to Closing that there is a breach of any
of the representations and warranties made by Seller above or learns of any
pending legal proceedings or administrative actions or any violations of
existing laws, ordinances, regulations and building, codes affecting the
Property, then Purchaser may, at its option, by sending to Seller written notice
of its election either (i) terminate this Agreement or (ii) waive such breach
and/or conditions and proceed to Closing with no adjustment in the Purchase
Price and Seller shall have no further liability as to such matter thereafter.
In the event Purchaser terminates this Agreement for the reasons set forth
above, the Deposit, plus all interest accrued thereon, shall be immediately
refunded to Purchaser and neither Purchaser nor Seller shall thereafter have any
other rights or remedies hereunder other than under Section 16.12 hereof. In
furtherance thereof, Seller shall have no liability with respect to any of the
foregoing representations and warranties to the extent that, prior to the
Closing, Purchaser discovers or learns of information (from whatever source,
including, without limitation, the property manager , the tenant estoppel
certificates delivered pursuant to Section 10.2.4 below, as a result of
Purchaser's due diligence tests, investigations and inspections of the Property,
or disclosure by Seller or Seller's agents and employees) that
contradicts any of the foregoing representations and warranties, or renders any
of the foregoing representations and warranties untrue or incorrect, and
Purchaser nevertheless consummates the transaction contemplated by this
Agreement.
7.3. SURVIVAL. The express representations and warranties made in this
Agreement shall not merge into any instrument or conveyance delivered at the
Closing; provided, however, that (i) any alleged claim with respect to the
truth, accuracy or completeness of such representations and warranties shall be
brought to the attention of Seller in writing, if at all, on or before the date
which is nine (9) months after the date of the Closing and, if not brought to
the attention of Seller in writing on or before such date, thereafter shall be
void and of no force or effect; provided further that in the event Purchaser
notifies Seller of an alleged claim within said nine (9) month period pursuant
to this Section 7.3, Purchaser may commence an action with respect to such
claim, if at all, on or before that date which is twelve (12) months after the
date of the Closing and, if not commenced on or before such date, thereafter
shall be void and of no force or effect.
ARTICLE VIII.
Representations, Warranties and Covenants of Purchaser
8.1. REPRESENTATIONS AND WARRANTIES. Purchaser represents and warrants
to Seller that the following matters are true and correct as of the Effective
Date.
8.1.1. AUTHORITY. Purchaser is a real estate investment trust duly
organized and validly existing under the laws of the State of Maryland. This
Agreement has been duly authorized, executed and delivered by Purchaser, is the
legal, valid and binding obligation of Purchaser, and does not violate any
provision of any agreement or judicial order to which Purchaser is a party or to
which Purchaser is subject. All documents to be executed by Purchaser which are
to be delivered at Closing, at the time of Closing will be duly authorized,
executed and delivered by Purchaser, at the time of Closing will be legal, valid
and binding obligations of Purchaser, and at the time of Closing will not
violate any provision of any agreement or judicial order to which Purchaser is a
party or to which Purchaser is subject.
8.1.2. BANKRUPTCY OR DEBT OF PURCHASER. Purchaser represents and
warrants to Seller that Purchaser has not made a general assignment for the
benefit of creditors, filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by Purchaser's creditors, suffered the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser's assets, suffered the attachment or other judicial seizure of all, or
substantially all, of Purchaser's assets, admitted in writing its inability to
pay its debts as they come due or made an offer of settlement, extension or
composition to its creditors generally.
8.1.3. ERISA COMPLIANCE. Purchaser represents and warrants to Seller
that (i) Purchaser is not a "plan" nor an entity holding or deemed to hold "plan
assets" (as those terms are defined under the Employee Retirement Income
Security Act of 1974, as amended, and the applicable regulations issued
thereunder, collectively, "ERISA") and that upon the Closing under this
Agreement, the Property shall not constitute such "plan assets" and (ii)
Purchaser shall not assign the right to acquire the Property pursuant to this
Agreement unless such assignee is not a "plan" nor an entity holding or deemed
to hold "plan assets" (in each case, as defined above), nor a "fiduciary" (as
defined in section 3(21) of ERISA) of any "employee benefit plan" (as defined in
section 3(3) of ERISA), other than for a plan maintained for the benefit of such
assignee's employees, former employees or beneficiaries, or the employees,
former employees or beneficiaries of a member of the "controlled group" that
includes such assignee (as defined in section 412(n)(6)(B) of the Internal
Revenue Code of 1986, as amended). Seller shall not have any obligation to close
the transaction contemplated by this Agreement if the transaction for any reason
constitutes a prohibited transaction under ERISA or if Purchaser's
representation is found to be false or misleading in any respect or if Purchaser
breaches the foregoing covenant relating to assignment. The foregoing
representation, warranty and covenant shall survive the Closing.
8.2. NO FINANCING CONTINGENCY. It is expressly acknowledged by
Purchaser that this transaction is not subject to any financing contingency, and
no financing for this transaction shall be provided by Seller. Purchaser has
heretofore delivered to Seller true and correct copies of its most recent annual
financial statements.
8.3. PURCHASER'S ACKNOWLEDGMENT. Purchaser acknowledges and agrees
that, except as expressly provided in this Agreement, Seller has not made, does
not make and specifically disclaims any representations, warranties, promises,
covenants, agreements or guaranties of any kind or character whatsoever, whether
express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to (a) the nature, quality or condition of the
Property, including, without limitation, the water, soil and geology, (b) the
income to be derived from the Property, (c) the suitability of the Property for
any and all activities and uses which purchaser may conduct thereon, (d) the
compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
including, without limitation, the Americans with Disabilities Act and any rules
and regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchantability or fitness for a particular purpose of the
Property,
or (f) any other matter with respect to the Property, and specifically that
Seller has not made, does not make and specifically disclaims any
representations regarding solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Property, of any hazardous substance, as defined by the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, and applicable state laws, and regulations promulgated thereunder.
Purchaser further acknowledges and agrees that, except as expressly provided in
this Agreement, having been given the opportunity to inspect the Property,
Purchaser will be relying solely on its own investigation of the Property and
not on any information provided or to be provided by Seller other than as
expressly set forth herein. Purchaser further acknowledges and agrees that any
information provided or to be provided with respect to the Property was obtained
from a variety of sources and that Seller has not made any independent
investigation or verification of such information. Purchaser further
acknowledges and agrees that, except as expressly provided in this Agreement,
and as a material inducement to the execution and delivery of this Agreement by
Seller, the sale of the Property as provided for herein is made on an "AS IS,
WHERE IS" CONDITION AND BASIS "WITH ALL FAULTS." Purchaser acknowledges,
represents and warrants that Purchaser is not in a significantly disparate
bargaining position with respect to Seller in connection with the transaction
contemplated by this Agreement; that Purchaser freely and fairly agreed to this
acknowledgment as part of the negotiations for the transaction contemplated by
this Agreement; that Purchaser is represented by legal counsel in connection
with this transaction and Purchaser has conferred with such legal counsel
concerning this waiver.
8.4. PURCHASER'S RELEASE. Effective as of the date of Closing,
Purchaser on behalf of itself and its successors and assigns waives its right to
recover from, and forever releases and discharges, Seller, Seller's affiliates,
Seller's investment manager, property manager, the partners, trustees,
shareholders, beneficiaries, directors, officers, employees, attorneys and
agents of each of them, and their respective heirs, successors, personal
representatives and assigns from any and all demands, claims, legal or
administrative proceedings, losses, liabilities, damages, penalties, fines,
liens, judgments, costs or expenses known or unknown, foreseen or unforeseen,
that may arise on account of or in any way be connected with (i) the physical
condition of the Property, (ii) the condition of title to the Property, (iii)
the presence on, under or about the Property of any Hazardous Substance, or (iv)
the Property's compliance with any applicable federal, state or local law, rule
or regulation, except such as arises out of breach of any of the representations
and warranties of Seller set forth in Article VII or elsewhere in this
Agreement, or Seller's fraud or intentional tortious wrongdoing. The terms and
provisions of this Section 8.4 shall survive Closing and/or termination of this
Agreement.
8.5. SURVIVAL. The express representations and warranties made in this
Agreement by Purchaser shall not merge into any instrument of conveyance
delivered at the Closing; provided, however, that any alleged claim with respect
to the truth, accuracy or completeness of such representations and warranties
(except for the representation and warranty set forth in Section 8.1.3) shall be
brought to the attention of Purchaser in writing, if at all, on or before the
date which is nine (9) months after the date of the Closing and, if not brought
to the attention of Purchaser in writing on or before such date, thereafter
shall be void and of no force or effect; provided further that in the event
Seller notifies Purchaser of an alleged claim within said nine (9) month period
pursuant to this Section 8.5, Seller may commence an action with respect to such
claim, if at all, on or before that date which is twelve (12) months after the
date of the Closing and, if not commenced on or before such date, thereafter
shall be void and of no force or effect. The representation and warranty set
forth in Section 8.1.3 hereof shall survive Closing and/or termination of this
Agreement.
ARTICLE IX.
Seller's Interim Operating Covenants.
9.1. OPERATIONS. Seller agrees to continue to operate, manage and
maintain the Improvements through the Closing Date in the ordinary course of
Seller's business and substantially in accordance with Seller's present
practice, subject to ordinary wear and tear and further subject to Article XII
of this Agreement.
9.2. MAINTAIN INSURANCE. Seller agrees to maintain until the Closing
Date fire and extended coverage insurance and rent loss insurance on the
Property which is at least equivalent in all material respects to the insurance
policies covering the Real Property and the Improvements as of the Effective
Date. Subject to the provisions of Article IV and Article VI hereof, Seller
shall pay, in the ordinary course of business, prior to Closing, all sums due
for work, materials or services furnished to the Property.
9.3. PERSONAL PROPERTY. Seller agrees not to transfer or remove any
Personal Property from the Improvements after the Effective Date except for
repair or replacement thereof. Any items of Personal Property replaced after the
Effective Date shall be promptly installed prior to Closing and shall be of
substantially similar quality (and of at least comparable condition) to the item
of Personal Property being replaced.
9.4. NO SALES. Except for the execution of Leases pursuant to Section
9.5, Seller agrees that it shall not convey any interest in the Property to any
third party.
9.5. TENANT LEASES. Seller shall not, from and after the Effective
Date, (i) grant any consent or waive any material rights under the Leases, (ii)
terminate any Lease, or (iii) enter into a new lease, modify an existing Lease
or renew, extend or expand an existing Lease, in each case without the prior
written approval of Purchaser (an "Approved New Lease"), which in each case
shall not be unreasonably withheld, conditioned or delayed, and which shall be
deemed granted if the effective annual rent under such lease or lease
modification or renewal conforms to the effective annual rent set forth on the
Leasing Guidelines attached hereto as Exhibit N or if Purchaser fails to respond
to a request for approval within five (5) business days after receipt of the
request therefor together with a summary of lease terms and credit information
of the proposed tenant. In the event that Seller shall enter into, modify,
renew, grant concessions or terminate a Lease prior to the expiration of the
Feasibility Period, it shall promptly notify Purchaser in writing thereof.
Notwithstanding the foregoing, Seller may enter into tenant leases so long as
such leases are within the Leasing Guidelines.
9.6. ALTERATIONS. Seller shall not make or permit to be made any
alteration, improvement or addition with a value in excess of Fifty Thousand
Dollars ($50,000.00) to any of Oxford, Springhouse, Greentree or Highlands,
without the prior written consent of Purchaser, except those made by Seller
pursuant to the express requirements of this Agreement, those made by tenants
pursuant to the right to do so under their Leases, or by Seller if required by
applicable law or ordinance, or as required under any Lease or Approved New
Lease.
9.7. BILL TENANTS. Seller shall bill all tenants for all rent due and
payable under Leases, and shall use commercially reasonable efforts to collect
any rent in arrears.
9.8. NOTICE TO PURCHASER. Seller shall instruct the Property Manager to
notify Purchaser of the occurrence of any of the following:
(i) a fire or other casualty causing damage to the Property or
any portion thereof;
(ii) receipt of written notice of eminent domain proceedings
or condemnation of or affecting the Property, or any portion thereof;
(iii) receipt of written notice from any Governmental
Authority of a violation of law;
(iv) receipt of written notice of any actual or threatened
litigation which would affect the Property or any portion thereof after Closing;
or
(v) termination of any lease prior to the expiration of its
term.
9.9. COMPLY WITH LEASES. Seller shall timely perform all obligations of
landlord as required by the Leases or by any order or direction of any
governmental authority having jurisdiction thereof, subject to the provisions of
Article IV and Article VI hereof.
9.10. NO NEW AGREEMENTS. Except for (i) agreements which can be
terminated upon not more than thirty (30) days' notice and (ii) tenant leases
(to the extent permitted under the terms of this Agreement), Seller shall not
enter into any other agreements which affect the Property or the transactions
contemplated by this Agreement, without the prior written consent of Purchaser.
9.11. TAX DISPUTES. Seller shall notify Purchaser of any tax assessment
disputes (pending or threatened) prior to Closing, and shall not consent to any
changes in the real estate tax assessment, nor settle, withdraw or otherwise
compromise any pending claims with respect to prior tax assessments, without
Purchaser's prior written consent. If any proceedings (either prior to or after
Closing) shall result in any reduction of assessment and/or tax for the tax year
in which the Closing occurs, it is agreed that the amount of tax savings or
refund for such tax year, less the reasonable fees and disbursements in
connection with such proceedings, shall be apportioned between the parties as of
the date real estate taxes are apportioned under this Agreement.
ARTICLE X.
Closing Conditions
10.1. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller
under this Agreement to sell the Property and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Closing Date except to the extent that any of such
conditions may be waived by Seller in writing at Closing.
10.1.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. All
representations and warranties of Purchaser in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such representations and warranties were made anew as of the
Closing Date. Any changes to such representations disclosed by Purchaser
pursuant to Section 11.1.5 shall be acceptable to Seller in its sole discretion,
and Purchaser shall have performed and complied with all covenants and
agreements required by this Agreement to be performed or complied with by
Purchaser prior to the Closing Date.
10.1.2. NO ORDERS. No order, writ, injunction or decree shall have been
entered and be in effect by any court of competent jurisdiction or any
Authority, and no statute, rule, regulation or other requirement shall have been
promulgated or enacted and be in effect, that restrains, enjoins or invalidates
the transactions contemplated hereby.
10.2. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser under this Agreement to purchase the Property and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.
10.2.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. All
representations and warranties of Seller in this Agreement shall be true and
correct in all material respects as of the Closing Date, with the same force and
effect as if such representations and warranties were made anew as of the
Closing Date. Any changes to such representations disclosed by Seller pursuant
to Section 11.2.5 shall be acceptable to Purchaser in its sole discretion, and
Seller shall have performed and complied in all material respects with all
covenants and agreement required by this Agreement to be performed or complied
with by Seller prior to the Closing Date.
10.2.2. NO ORDERS. No order, writ, injunction or decree shall have been
entered and be in effect by any court of competent jurisdiction or any
Governmental Authority, and no statute, rule, regulation or other requirement
shall have been promulgated or enacted and be in effect, that restrains, enjoins
or invalidates the transactions contemplated hereby.
10.2.3. ISRA NON-APPLICABILITY LETTER. Purchaser shall have received
from Seller a written non-applicability letter with respect to ISRA issued
within forty (40) days after the Effective Date by the New Jersey Department of
Environmental Protection in connection with the contemplated sale and purchase
of Greentree and Highlands.
10.2.4. TENANT ESTOPPELS. Purchaser shall have received estoppel
certificates substantially in the form attached hereto as Exhibit C (reporting
information consistent with Seller's representations herein, if any, the rent
rolls attached hereto, and the Leases heretofore delivered), from tenants
occupying at least eighty percent (80%) of the leased rentable space in each
Property specifically including the following tenants (the "Specified Tenants"):
(i) at Greentree: Counseling Program; (ii) at Oxford: Ecogen, Computer Hardware
Maintenance, DiMark, Inc.; (iii) at Springhouse: Bisys, Ecta Corp. and Siemens
Energy and (iv) at Highlands: U.S. Postal Service, Walpole, Inc., MBO Binder and
Pepsico. Notwithstanding the foregoing, at Seller's sole option, Seller may
provide its own estoppel ("Seller's Estoppel") in
the form attached as Exhibit L to Purchaser with respect to any or all tenants
other than the Specified Tenants in satisfaction of the foregoing requirements.
In the event that, after the Closing, Seller delivers to Purchaser a tenant
estoppel certificate from a tenant for whom Seller executed a Seller's Estoppel
at the Closing, and such tenant estoppel certificate contains no information
which is contradictory to or inconsistent with the information contained in the
Seller's Estoppel, then Seller thereafter shall be released from all liability
relating to Seller's Estoppel with respect to such tenant's Lease.
10.2.5. TITLE POLICY. Upon recordation of the Deed and payment of the
title insurance premiums, the Title Company shall be prepared to issue to
Purchaser an Owner's Policy of Title Insurance insuring Purchaser good and
marketable fee simple title to the Property subject only to the Permitted
Exceptions.
10.2.6. POSSESSION OF THE PROPERTY. Delivery by Seller of possession of
the Property, subject to the Permitted Exceptions and the rights of tenants
under the Leases.
ARTICLE XI.
Closing
11.1. PURCHASER'S CLOSING OBLIGATIONS. Purchaser, at its sole cost and
expense, shall deliver or cause to be delivered to Seller at Closing the
following:
11.1.1. The Purchase Price, after all adjustments are made at the
Closing as herein provided, by wire transfer or other immediately available
federal funds, which amount shall be received in escrow by the Title Company on
or before 11:00 a.m. local time.
11.1.2. A blanket conveyance and bill of sale, substantially in the
form attached hereto as Exhibit I (the "General Assignment"), duly executed by
Purchaser (with reciprocal indemnities by Purchaser and Seller), conveying and
assigning to Purchaser the Personal Property, the Leases, the Contracts, the
records and plans, and the Intangible Property.
11.1.3. Evidence reasonably satisfactory to Seller and the Title
Company that the person executing the Closing documents on behalf of Purchaser
has full right, power and authority to do so.
11.1.4. Written notice executed by Purchaser and addressed to the
tenants, (i) acknowledging the sale of the Property to Purchaser, (ii)
acknowledging that Purchaser has received and is responsible for any security
deposits identified in the rent roll, and (iii) indicating that rent should
thereafter be paid to Purchaser and giving instructions therefor.
11.1.5. A certificate indicating that the representations and
warranties set forth in Article VIII are true and correct on the Closing Date,
or, if there have been changes, describing such changes.
11.1.6. Such other documents as may be reasonably necessary or
appropriate to effect the consummation of the transactions which are the subject
of this Agreement.
11.2. SELLER'S CLOSING OBLIGATIONS. Seller, at its sole cost and
expense, shall deliver or cause to be delivered to Purchaser the following:
11.2.1. A deed (the "Deed") in recordable form properly executed by
Seller conveying to Purchaser the Land and Improvements in fee simple subject
only to the Permitted Exceptions, substantially in the forms attached hereto as
Exhibit H-1 and H-2, as appropriate.
11.2.2. The General Assignment, duly executed by Seller, conveying and
assigning to Purchaser the Personal Property, the Leases, the Contracts, the
records and plans and the Intangible Property.
11.2.3. Written notice executed by Seller and addressed to the tenants,
(i) acknowledging the sale of the Property to Purchaser, (ii) acknowledging that
Purchaser has received and is responsible for any security deposits identified
in the rent roll, and (iii) indicating that rent should thereafter be paid to
Purchaser. substantially in the form attached hereto as Exhibit J.
11.2.4. Evidence reasonably satisfactory to Purchaser and the Title
Company that the person executing the Closing documents on behalf of Seller has
full right, power and authority to do so.
11.2.5. A certificate indicating that the representations and
warranties set forth in Article VII are true and correct on the Closing Date,
or, if there have been changes, describing such changes.
11.2.6. A certificate substantially in the form attached hereto as
Exhibit K ("Non-foreign Entity Certification") certifying that Seller is not a
"foreign person" as defined in Section 1445 of the Internal Revenue Code of
1986, as amended.
11.2.7. The following items, to the extent in Seller's possession: (i)
all keys, combinations and security codes for all locks and security devices on
the Property which are in Seller's possession; (ii) all tenant
files, operating reports, plans and specifications and other materials
reasonably necessary to the continuity of operation of the Property; (iii) the
originals (or copies where originals are not available) of the Leases, the
service contracts and the licenses and permits; and (iv) certificates of
insurance from the tenants in Seller's possession. Seller shall certify that a
copy of a Lease is true, correct and complete to its knowledge with respect to
those Leases for which Purchaser has not received an original Lease, a tenant
estoppel certificate so certifying as to such Lease, or a Seller's Estoppel.
11.2.8. Such affidavits of title as shall be required by the Title
Company to insure Purchaser's title to the Property as set forth in Section
10.2.5, and to provide affirmative endorsements against mechanic's liens.
11.2.9. A rent roll updated as of not more than three (3) business days
prior to the Closing Date, certified by Seller as true and correct.
11.2.10. Evidence as required by the title company of the good standing
and existence of Seller and the due authority of those executing for Seller.
11.2.11. Current tax bills and, if available, tax bills for each of the
past two (2) years of Seller's ownership of the Property.
11.2.12. Such other documents as are specified in this Agreement, or as
may be reasonably necessary or appropriate to effect the consummation of the
transactions which are the subject of this Agreement.
ARTICLE XII.
Risk of Loss
12.1. CONDEMNATION AND CASUALTY. If, prior to the Closing Date, all or
any portion of the Property is taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such fact
promptly after Seller obtains knowledge thereof. If such condemnation or
casualty is "Material" (as hereinafter defined), Purchaser shall have the option
to terminate this Agreement upon notice to Seller given not later than fifteen
(15) days after receipt of Seller's notice, or the Closing Date, whichever is
earlier. If this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except with respect to the
Surviving Termination Obligations. If this Agreement is not terminated, Seller
shall not be obligated to repair any damage or destruction but (x) Seller shall
assign and turn over to Purchaser all of the insurance proceeds (and shall
credit Purchaser with the full amount of Seller's insurance deductible, if any,
as set forth below)
or condemnation proceeds, as applicable, net of any costs of repairs and net of
reasonable collection costs other than attorneys' fees (or, if such have not
been awarded, all of its right, title and interest therein) payable with respect
to such fire or other casualty or condemnation including any rent abatement
insurance for such casualty or condemnation and (y) the parties shall proceed to
Closing pursuant to the terms hereof without abatement of the Purchase Price
except for a credit in the amount of the applicable insurance deductible. Seller
hereby covenants and agrees that after the end of the Feasibility Period if
Purchaser has elected to proceed to Closing and has waived its right to
terminate this Agreement pursuant to Section 5.5, Seller shall be required to
obtain Purchaser's prior approval of the settlement of any insurance or
condemnation proceeds and repairs to the Property resulting from a casualty or
condemnation, such approval not to be unreasonably withheld, conditioned or
delayed and which shall be deemed granted if Purchaser fails to respond to a
request for approval within five (5) business days after receipt of the request
therefor.
12.2. CONDEMNATION NOT MATERIAL. If the condemnation is not Material,
then the Closing shall occur without abatement of the Purchase Price and, after
deducting Seller's reasonable costs and expenses incurred in collecting any
award, Seller shall assign all remaining awards or any rights to collect awards
to Purchaser on the Closing Date.
12.3. CASUALTY NOT MATERIAL. If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign and turn over to
Purchaser all of the insurance proceeds net of any costs of repairs and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or such
casualty including any rent abatement insurance for such casualty.
12.4. MATERIALITY. For purposes of this Article XII (i) with respect to
a taking by condemnation or eminent domain, the term "Material" shall mean any
taking whatsoever, regardless of the amount of the award or the amount of the
Property taken, excluding, however, any taking solely of (x) subsurface rights
or takings for utility easements or right of way easements, if the surface of
the Property, after such taking, may be used in substantially the same manner as
though such rights had not been taken, or (y) a lease of less than 25,000
rentable square feet for a term of less than five years, and (ii) with respect
to a casualty, the term "Material" shall mean any casualty such that the cost of
repair, as reasonably estimated by Seller's engineer, is in excess of One
Million Dollars ($1,000,000.00).
ARTICLE XIII.
Default
13.1. DAFAULT BY SELLER. In the event the Closing and the transactions
contemplated hereby do not occur as provided herein by reason of the default of
Seller, Purchaser may elect, as the sole and exclusive remedy of Purchaser, to
(i) terminate this Agreement and receive the Deposit from the Escrow Agent, and
in such event Seller shall not have any liability whatsoever to Purchaser
hereunder other than with respect to the Surviving Termination Obligations or
(ii) enforce specific performance of this Agreement. If specific performance is
not available as a remedy hereunder due solely to Seller's willful or
intentional breach hereunder, then, upon termination of this Agreement by
Purchaser, in addition to receiving the immediate return of the Deposit,
anything in the Agreement contained to the contrary notwithstanding, Purchaser
shall also receive from Seller, upon demand, Purchaser's actual, documented
out-of-pocket costs and expenses associated with conducting its due diligence
relating to the Property (but expressly excluding legal fees incurred in
connection with negotiating this Agreement). Seller's maximum reimbursement
liability under this Section 13.1 shall not exceed Seventy Five Thousand Dollars
($75,000.00).
13.2. DEFAULT BY PURCHASER. In the event the Closing and the
transactions contemplated hereby do not occur as provided herein by reason of
any default of Purchaser, Purchaser and Seller agree it would be impractical and
extremely difficult to fix the damages which Seller may suffer. Therefore,
Purchaser and Seller hereby agree a reasonable estimate of the total net
detriment Seller would suffer in the event Purchaser defaults and fails to
complete the purchase of the Property is and shall be, as Seller's sole and
exclusive remedy (whether at law or in equity), a sum equal to the Deposit. Upon
such default by Purchaser, Seller shall have the right to receive the Deposit
from the Escrow Agent as its sole and exclusive remedy and thereupon this
Agreement shall be terminated and neither Seller nor Purchaser shall have any
further rights or obligations hereunder except with respect to the Surviving
Termination Obligations. The amount of the Deposit shall be the full, agreed and
liquidated damages for Purchaser's default and failure to complete the purchase
of the Property, all other claims to damages or other remedies being hereby
expressly waived by Seller. Notwithstanding the foregoing, nothing contained
herein shall limit Seller's remedies at law or in equity as to the Surviving
Termination Obligations.
ARTICLE XIV.
Brokers
14.1. BROKERS. Purchaser and Seller each represents and warrants to the
other that it has not dealt with any person or entity entitled to a
brokerage commission, finder's fee or other compensation with respect to the
transaction contemplated hereby other than The Flynn Company whose compensation
shall be the sole responsibility of Purchaser, and who shall be paid only upon
the Closing of the purchase and sale contemplated hereby pursuant to a separate
agreement. Purchaser hereby agrees to indemnify, defend, and hold Seller
harmless from and against any losses, damages, costs and expenses (including,
but not limited to, reasonable attorneys' fees and costs) incurred by Seller by
reason of any breach or inaccuracy of the Purchaser's (or its nominee's)
representations and warranties contained in this Article XIV. Seller hereby
agrees to indemnify, defend, and hold Purchaser harmless from and against any
losses, damages, costs and expenses (including, but not limited to, reasonable
attorneys' fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller's representations and warranties contained in this Article
XIV. Seller and Purchaser agree that it is their specific intent that no broker
shall be a party to or a third party beneficiary of this Agreement or the
Deposit, that no broker shall have any rights or cause of action hereunder, and
further that the consent of a broker shall not be necessary to any agreement,
amendment, or document with respect to the transaction contemplated by this
Agreement. The provisions of this Article XIV shall survive the Closing and/or
termination of this Agreement.
ARTICLE XV.
Confidentiality
15.1. CONFIDENTIALITY. Seller and Purchaser each expressly acknowledges
and agrees that the transactions contemplated by this Agreement, the Documents
that are not otherwise known by or readily available to the public and the
terms, conditions and negotiations concerning the same shall be held in the
strictest confidence by each of them and shall not be disclosed by either party
except to its respective legal counsel, surveyor, title company, broker,
accountants, consultants, lenders and their counsel, officers, partners,
directors, trustees and shareholders, (the "Authorized Representatives") and
except and only to the extent that such disclosure may be necessary for such
party's performance hereunder. Purchaser agrees that it shall instruct in
writing each of its Authorized Representatives to maintain the confidentiality
of such information and that it shall promptly inform Seller of the identity of
each such Authorized Representative. Purchaser further acknowledges and agrees
that, unless and until the Closing occurs, all information and materials
obtained by Purchaser in connection with the Property that are not otherwise
known by or readily available to the public will not be disclosed by Purchaser
to any third persons (other than to its Authorized Representatives) without the
prior written consent of Seller. If the transaction contemplated by this
Agreement does not occur for any reason whatsoever, Purchaser shall promptly
return to Seller, and shall instruct its Authorized Representatives to return to
Seller, all copies and
originals of all documents and information provided to Purchaser. Nothing
contained in this Section 15.1 or elsewhere in this Agreement shall preclude or
limit either party from disclosing or accessing any information otherwise deemed
confidential under this Section 15.1 in connection with the party's enforcement
of its rights following a disagreement hereunder or in response to lawful
process or subpoena or other valid or enforceable order of a court of competent
jurisdiction or any filings with Authorities required by reason of the
transactions provided for herein. The provisions of this Section 15.1 shall
survive any termination of this Agreement.
15.2. POST CLOSING PUBLICATIONS. Notwithstanding the foregoing,
following Closing, Purchaser shall have the right to announce the acquisition of
the Property in newspapers and real estate trade publications (including
"tombstones") publicizing the purchase provided that Purchaser shall consult
with Seller with respect to any such notice or publication, and shall reasonably
consider any comments or objections of Seller. The provisions of this Section
15.2 shall survive Closing and/or any termination of this Agreement.
ARTICLE XVI.
Miscellaneous
16.1. NOTICES. Any and all notices, requests, demands or other
communications hereunder shall be deemed to have been duly given if in writing
and if transmitted by hand delivery with receipt therefor, by facsimile delivery
(with confirmation by hard copy), by overnight courier, or by registered or
certified mail, return receipt requested, first class postage prepaid addressed
as follows (or to such new address as the addressee of such a communication may
have notified the sender thereof) (the date of such notice shall be the date of
actual delivery to the recipient thereof):
To Purchaser: Brandywine Realty Trust
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Mr. Gerard H. Sweeney,
President and CEO
Fax No.: (610) 325-5622
With a copy to: Pepper, Hamilton & Scheetz LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 10103
Attn: Eric L. Stern, Esquire
Fax No.: (215) 981-4750
To Seller: Advent Realty Limited Partnership and
Advent Realty Limited Partnership II
c/o TA Associates Realty
45 Milk Street
6th Floor
Boston, MA 02109
Attn: Mr. Andrew M. Neher
Fax No.: (617) 338-5054
With a copy to: Bingham, Dana & Gould LLP
1200 Nineteenth Street, N.W.
Suite 400
Washington, D.C. 20036
Attn: Barry P. Rosenthal, Esq.
Fax No.: (202) 778-6155
To Escrow Agent: Commonwealth Land Title Insurance Company
1700 Market Street - 22nd Floor
Philadelphia, PA 19103
Attn: M. Gordon Daniels, VP
Fax No.: (215) 241-1641
16.2. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey.
16.3. HEADINGS. The captions and headings herein are for convenience
and reference only and in no way define or limit the scope or content of this
Agreement or in any way affect its provisions.
16.4. EFFECTIVE DATE. This Agreement shall be effective upon delivery
of this Agreement fully executed by the Seller and Purchaser, which date shall
be deemed the Effective Date hereof. Either party may request that the other
party promptly execute a memorandum specifying the Effective Date.
16.5. BUSINESS DAYS. If any date herein set forth for the performance
of any obligations of Seller or Purchaser or for the delivery of any instrument
or notice as herein provided should be on a Saturday, Sunday or legal holiday,
the compliance with such obligations or delivery shall be deemed acceptable on
the next business day following such Saturday, Sunday or legal holiday. As used
herein, the term "legal holiday" means any state or Federal holiday for which
financial institutions or post offices are generally closed in the state where
the Property is located.
16.6. COUNTERPART COPIES. This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same
force and effect as if all parties hereto had executed a single copy of this
Agreement.
16.7. BINDING EFFECT. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.
16.8. ASSIGNMENT. Purchaser may assign this Agreement to a subsidiary
or affiliate entity, including without limitation, Brandywine Operating
Partnership, L.P., but otherwise shall not have the right to assign the
Agreement without Seller's prior written consent, which consent may be given or
withheld in Seller's sole and absolute discretion; provided that Purchaser shall
in no event be released from any of its obligations or liabilities hereunder as
a result of any such approved or deemed-approved assignment. Whenever reference
is made in this Agreement to Seller or Purchaser, such reference shall include
the successors and assigns of such party under this Agreement.
16.9. INTERPRETATION. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue of the fact
that it may have been prepared by counsel for one of the parties, it being
recognized that both Seller and Purchaser have contributed substantially and
materially to the preparation of this Agreement.
16.10. ENTIRE AGREEMENT. This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto with
respect to the sale and purchase of the Property and are intended to be an
integration of all prior negotiations and understandings. Purchaser, Seller and
their agents shall not be bound by any terms, conditions, statements, warranties
or representations, oral or written, not contained herein. No change or
modifications to this Agreement shall be valid unless the same is in writing and
signed by the parties hereto. Each party reserves the right to waive any of the
terms or conditions of this Agreement which are for their respective benefit and
to consummate the transaction contemplated by this Agreement in accordance with
the terms and conditions of this Agreement which have not been so waived. Any
such waiver must be in writing signed by the party for whose benefit the
provision is being waived.
16.11. SEVERABILITY. If any one or more of the provisions hereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
16.12. SURVIVAL. Except as otherwise specifically provided for in
Sections 5.1, 5.2, 5.3, 5.4, 7.3, 8.3, 8.7, 12.1, 14, 15.1, 15.2 and 16.16
(collectively, the "Surviving Termination Obligations"), the provisions of this
Agreement and the representations and warranties herein shall not survive after
the conveyance of title and payment of the Purchase Price but be merged therein.
16.13. EXHIBITS. Exhibits A through O attached hereto are incorporated
herein by reference.
16.14. TIME. Time is of the essence in the performance of each of the
parties' respective obligations contained herein.
16.15. LIMITATION OF LIABILITY. The obligations of Seller are binding
only on Seller and Seller's assets and shall not be personally binding upon, nor
shall any resort be had to, the private properties of any of the partners,
officers, directors, shareholders or beneficiaries of Seller, or of any
partners, officers, directors, shareholders or beneficiaries of any partners of
Seller, or of any of Seller's employees or agents. All documents to be executed
by Seller shall also contain the foregoing exculpation. The obligations of
Purchaser are binding only on Purchaser and Purchaser's assets and shall not be
personally binding upon, nor shall any resort be had to, the private properties
of any of the trustees, partners, officers, directors, shareholders or
beneficiaries of Purchaser, or of any trustees, partners, officers, directors,
shareholders or beneficiaries of any partners of Purchaser, or of any of
Purchaser's employees or agents. All documents to be executed by Purchaser shall
also contain the foregoing exculpation.
16.16. PREVAILING PARTY. Should either party employ an attorney to
enforce any of the provisions hereof, (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
non-prevailing party in any final judgment agrees to pay the other party's
reasonable expenses, including reasonable attorneys' fees and expenses in or out
of litigation and, if in litigation, trial, appellate, bankruptcy or other
proceedings, expended or incurred in connection therewith, as determined by a
court of competent jurisdiction. The provisions of this Section 16.16 shall
survive Closing and/or any termination of this Agreement.
16.17. ESCROW AGREEMENT. 16.17.1 INSTRUCTIONS. Within two (2) days
after execution of this Agreement, Purchaser and Seller each shall deposit a
copy of this Agreement executed by such party (or either of them shall deposit a
copy executed by both Purchaser and Seller) with Escrow Agent, and upon receipt
of the Initial Deposit from Purchaser, Escrow Agent shall immediately execute
this Agreement where provided below. This Agreement, together with such further
instructions, if any, as the parties shall provide to Escrow Agent by written
agreement, shall constitute the escrow instructions. If any requirements
relating to the duties or obligations of Escrow Agent hereunder are not
acceptable to Escrow Agent, or if Escrow Agent requires additional
instructions, the parties hereto agree to make such deletions, substitutions and
additions hereto as counsel for Purchaser and Seller shall mutually approve,
which additional instructions shall not substantially alter the terms of this
Agreement unless otherwise expressly agreed to by Seller and Purchaser.
16.17.2. REAL ESTATE REPORTING PERSON. Escrow Agent is hereby
designated the "real estate reporting person" for purposes of Section 6045 of
Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any
instructions or settlement statement prepared by Escrow Agent shall so provide.
Upon the consummation of the transaction contemplated by this Agreement, Escrow
Agent shall file Form 1099 information return and send the statement to Seller
as required under the aforementioned statute and regulation. Seller and
Purchaser shall promptly furnish their federal tax identification numbers to
Escrow Agent and shall otherwise reasonably cooperate with Escrow Agent in
connection with Escrow Agent's duties as real estate reporting person.
16.18. LIABILITY OF ESCROW AGENT. The parties acknowledge that the
Escrow Agent shall be conclusively entitled to rely, except as hereinafter set
forth, upon a certificate from Purchaser or Seller as to how the Deposit (which,
for purposes of this Section shall be deemed to also include any other escrowed
funds held by the Escrow Agent pursuant to this Agreement) should be disbursed.
Any notice sent by Seller or Purchaser (the "Notifying Party") to the Escrow
Agent shall be sent simultaneously to the other noticed parties pursuant to
Section 16.1 herein (the "Notice Parties"). If the Notice Parties do not object
to the Notifying Party's notice to the Escrow Agent within ten (10) days after
the Notice Parties' receipt of the Notifying Party's certificate to the Escrow
Agent, the Escrow Agent shall be able to rely on the same. If the Notice Parties
send, within such ten (10) days, written notice to the Escrow Agent disputing
the Notifying Party's certificate, a dispute shall exist and the Escrow Agent
shall hold the Deposit as hereinafter provided. The parties hereto hereby
acknowledge that Escrow Agent shall have no liability to any party on account of
Escrow Agent's failure to disburse the Deposit if a dispute shall have arisen
with respect to the propriety of such disbursement and, in the event of any
dispute as to who is entitled to receive the Deposit, disburse them in
accordance with the final order of a court of competent jurisdiction, or to
deposit or interplead such funds into a court of competent jurisdiction pending
a final decision of such controversy. The parties hereto further agree that
Escrow Agent shall not be liable for failure to any depository and shall not be
otherwise liable except in the event of Escrow Agent's gross negligence or
willful misconduct. The Escrow Agent shall be reimbursed on an equal basis by
Purchaser and Seller for any reasonable expenses incurred by the Escrow Agent
arising from a dispute with respect to the Deposit. The obligations of Seller
and Purchaser with respect to the Escrow Agent are intended to be binding only
on such parties and their respective assets and shall not be personally binding
upon, nor shall any resort be had to, the private properties of any of the
partners, officers,
trustees, directors, shareholders or beneficiaries of Seller or Purchaser, or of
any partners, officers, trustees, directors, shareholders or beneficiaries of
any partners of Seller or Purchaser, or of any of Seller's or Purchaser's
employees or agents.
16.19. NO RECORDING. Neither this Agreement nor any memorandum or short
form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
16.20. WAIVER OF TRIAL BY JURY. The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.
16.21. [INTENTIONALLY OMITTED.]
16.22. SEVERAL OBLIGATIONS OF SELLER. Purchaser hereby acknowledges and
agrees that Fund I and Fund II are referred to collectively in this Agreement as
Seller merely for the sake of convenience. Notwithstanding any provision to the
contrary in this Agreement, the parties agree and acknowledge that the
obligations of Fund I and Fund II under this Agreement are several obligations
only and not joint obligations. Fund I makes the representations and warranties
contained herein, including, without limitation, the representations and
warranties contained in Article VII of this Agreement, and undertakes the
covenants and obligations contained herein, including, without limitation, the
covenants set forth in Articles V, IX, XI and XIV of this Agreement, on its own
behalf and solely with respect to Springhouse, Oxford and Greentree. Fund II
makes the representations and warranties contained herein, including, without
limitation, the representations and warranties contained in Article VII of this
Agreement, and undertakes the covenants and obligations contained herein,
including, without limitation, the covenants set forth in Articles V, IX, XI and
XIV of this Agreement, on its own behalf and solely with respect to Highlands.
Nothing contained in this Agreement shall make Fund I and Fund II obligated for
the representations, warranties, covenants, obligations or liabilities of the
other. Notwithstanding the foregoing, the parties hereby acknowledge that
Purchaser need not seek the approval, consent or waiver of both Fund I and Fund
II with respect to any approval, consent or waiver required hereunder; rather it
shall be adequate if Purchaser obtains the approval, consent or waiver of the
entity which owns the Property so affected.
16.23. PORTFOLIO SALE. Seller and Purchaser hereby acknowledge that the
Property is to be purchased in its entirety. In furtherance thereof, in the
event that any condition precedent is not satisfied with respect to less than
all of the Property, or any other condition arises with respect to less than all
of the Property which entitles Purchaser to exercise its remedies under this
Agreement, Purchaser shall have no right to purchase less than all of the
Property. Notwithstanding the foregoing, the parties acknowledge that Seller
must obtain the release from Seller's lender on or before Closing of the
mortgage currently encumbering Highlands. In the event that Seller has not
obtained such release prior to Closing, Seller shall have the right, to be
exercised by delivering written notice to Purchaser not less than three (3) days
prior to Closing, to extend the Closing Date, with respect to Highlands only,
for a period not to exceed thirty (30) days in order to enable Seller to obtain
said release. Said extension of time shall not apply to the Closing with respect
to Oxford, Springhouse or Greentree, which shall take place in the time period
and the manner and on such other terms as are set forth in this Agreement. If
Seller has not obtained the release within said additional thirty (30) day
period, then, Purchaser shall have the right, to be exercised by delivering
written notice to Seller not less than three (3) days prior to the end of said
thirty (30) day period, to extend the Closing Date, with respect to Highlands
only, for a period not to exceed an additional thirty (30) days in order to
enable Seller to obtain said release. In the event that Purchaser elects not to
extend the Closing Date as set forth in the preceding sentence then this
Agreement shall be deemed terminated and of no further force and effect with
respect to Highlands.
16.24. SEC REPORTING REQUIREMENTS. For the period of time commencing on
the date hereof and continuing through the first anniversary of the Closing
Date, 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 the period of Seller's ownership
and operation of the Property, which information is relevant and necessary, in
the opinion of Purchaser's outside third party accountants (the "Accountants")
to enable Purchaser and its Accountants 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; (b) any
other rule issued by the Commission and applicable to the Purchaser; and (c) any
registration statement, report or disclosure statement filed with the Commission
by, or on behalf of Purchaser; and (ii) a representation letter, in form
specified by, or otherwise reasonably satisfactory to the Accountants, signed by
the individual(s) responsible for Seller's financial reporting, as prescribed by
generally accepted auditing standards promulgated by the Auditing Standards
Division of the American Institute of Certified Public Accountants, which
representation letter may be required by the Accountants in order to render an
opinion concerning Seller's financial statements. Purchaser shall indemnify
Seller upon demand for all liabilities, obligations, costs and expenses actually
incurred by Seller in connection with (i) Seller's compliance with its
obligations under this Section 16.24, (ii) any claims made under this Section
16.24 and (iii) any claims made with respect to the representation letter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal on the date or dates set forth below.
WITNESS: SELLER:
ADVENT REALTY LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Advent Realty G.P. Limited
Partnership, a Delaware limited
partnership, general partner
By: TA Associates Realty Group
Limited Partnership, a
Delaware limited partnership,
its sole general partner
/s/ Erica H. Weiss By: /s/ Michael Ruane
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Michael Ruane
General Partner
DATE: April 7, 1997
Tax I.D. No. 51-0305555
ADVENT REALTY LIMITED
PARTNERSHIP II, a Delaware limited
partnership
By: Advent Realty G.P. II Limited
Partnership, a Delaware limited
partnership, general partner
By: Advent Realty, Inc., a
Massachusetts corporation, its
sole general partner
/s/ Erica H. Weiss By: /s/ Andrew M. Neher
- --------------------------- --------------------
Andrew M. Neher
Senior Vice President
By: Advent Real Estate Investment
Texas Corporation, a Texas
corporation, general partner
/s/ Erica H. Weiss By: /s/ Andrew M. Neher
- --------------------------- --------------------
Andrew M. Neher
Senior Vice President
DATE: April 7, 1997
Tax I.D. No. 04-3092357
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
PURCHASER:
WITNESS:
BRANDYWINE REALTY TRUST,
a Maryland real estate investment trust
/s/ Brian A. Belcher By: /s/ Gerard H. Sweeney
- --------------------------- -----------------------
Gerard H. Sweeney
President and CEO
DATE: April 7, 1997
Tax I.D. #23-2862640
The Escrow Agent hereby executes this Agreement for the sole purpose of
acknowledging receipt of the Deposit and its responsibilities hereunder and to
evidence its consent to serve as Escrow Agent in accordance with the terms of
this Agreement.
ESCROW AGENT:
COMMONWEALTH LAND TITLE
INSURANCE COMPANY
By: /s/ M. Gordon Daniels
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Title: Vice President
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Date: 4/7/97
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