AGREEMENT OF SALE
THIS AGREEMENT OF SALE is made and entered into as of the 15th
day of April, 1997 by and between EDB PROPERTY PARTNERS, L.P. I, a Delaware
limited partnership, having an address in care of Emmes & Company, LLC, 420
Lexington Avenue, New York, New York 10170 (hereinafter referred to as the
"Seller") and BRANDYWINE REALTY TRUST, a Maryland real estate investment trust,
having an address at Suite 150, 16 Campus Boulevard, Newtown Square,
Pennsylvania 19073 (hereinafter referred to as the "Buyer").
RECITALS
A. Seller is the owner of all of the Land (as hereinafter
defined) upon which are constructed the Improvements (as hereinafter defined)
commonly known as (i) 7000 Geerdes Boulevard, located in King of Prussia,
Pennsylvania and (ii) 2000/4000 Midlantic Drive, 9000 Midlantic Drive, 10000
Midlantic Drive and 15000 Midlantic Drive, located in Mount Laurel, New Jersey.
B. Seller desires and hereby agrees to sell, and Buyer desires
and hereby agrees to acquire, all of Seller's right, title and interest in and
to the Properties (as hereinafter defined), subject to and on the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual promises and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Definitions Of Certain Terms. For all purposes of this
Agreement, the following terms shall have the respective meanings set forth
below:
"Agreement" shall mean this document entitled
"Agreement of Sale", all exhibits and schedules attached hereto or made a part
hereof and all amendments to this Agreement which are agreed to in writing and
signed by all of the parties hereto.
"Assignments" shall have the meaning ascribed to that
term in Paragraph 5(f) hereof.
"Closing Date" shall have the meaning ascribed to
that term in Paragraph 4 hereof. The date upon which the Closing (as defined in
Paragraph 4 below) actually occurs shall be the Closing Date.
"Contracts" shall mean all contracts and agreements
with respect to the management (excluding property management agreements),
operation, supply, maintenance, repair or construction affecting any of the
Properties, to the extent assignable by Seller, all as described in Exhibit "B"
attached hereto and made a part hereof.
"Deposit" shall mean the Deposit delivered by Buyer
to Escrow Agent pursuant to Paragraph 3(a) hereof, together with all interest
earned thereon, if any.
"Due Diligence Termination Date" shall mean 5:00 p.m.
E.S.T. on May 15, 1997.
"Effective Date" shall mean the date on which this
Agreement has been fully executed and delivered by both parties hereto.
"Escrow Agent" shall mean Baer Marks & Upham LLP,
having an address of 805 Third Avenue, New York, New York 10022.
"Escrow Terms" shall mean the escrow terms attached
hereto as Exhibit "J" and made a part hereof by this reference, as if fully set
forth within the body of this Agreement.
"Geerdes Improvements" shall mean those certain
buildings and other improvements constructed and located on the Geerdes Land.
"Geerdes Land" shall mean that certain parcel of real
property located at 7000 Geerdes Boulevard, Upper Merion Township, Montgomery
County, Pennsylvania, all as more particularly described by metes and bounds on
Exhibit "A-1" attached hereto and made a part hereof.
"Geerdes Property" shall mean the Geerdes Real
Property and such of the Contracts, Leases, Licenses, Personal Property and
other rights, titles, interests and obligations which pertain to the Geerdes
Real Property and are intended to be conveyed, sold or otherwise transferred to
Buyer by Seller pursuant to this Agreement.
"Geerdes Real Property" shall mean the Geerdes Land
and the Geerdes Improvements.
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"Improvements" shall mean, collectively, the Geerdes
Improvements, the 2000/4000 Improvements, the 9000 Improvements, the 10000
Improvements and the 15000 Improvements.
"Land" shall mean, collectively, the Geerdes Land,
the 2000/4000 Land, the 9000 Land, the 10000 Land, and the 15000 Land.
"Leases" shall mean those certain leases (and
guarantees thereof, if any) listed on Exhibit "K" attached hereto and made a
part hereof, or hereafter entered into by Seller, as landlord, in accordance
with the terms of this Agreement, for any space within any of the Improvements
located on any of the Land.
"Licenses" shall mean the licenses, permits,
approvals and agreements affecting any of the Real Properties.
"New Jersey Real Properties" shall mean,
collectively, the 2000/4000 Real Property, 9000 Real Property, 10000 Real
Property, and 15000 Real Property.
"Partnership" shall mean Brandywine Operating
Partnership, L.P., a Delaware limited partnership whose sole general partner is
Buyer.
"Permitted Exceptions" shall mean with respect to any
of the Real Properties (i) the lien of real estate taxes, water rent and sewer
charges that are not due and payable on the Closing Date, (ii) the printed
exclusions, conditions and stipulations contained in the Commitment (as
hereinafter defined), (iii) additional exceptions to title set forth in Exhibit
"C" to this Agreement, (iv) special assessments which become a lien on any of
the Real Properties on or after the Closing Date, (v) matters set forth on the
surveys of the Real Properties listed on Exhibit "L" attached hereto and made a
part hereof, and any further state of facts which current and accurate surveys
for the Real Properties would reveal, provided, that the same would not
materially interfere with the use of the Real Properties for their current use
as office space and accessory parking; (vi) such other title matters existing on
the Closing Date which are accepted or deemed accepted by Buyer pursuant to
Paragraph 5 hereof; and (vii) the rights of Tenants of any of the Real
Properties pursuant to the Leases for all or any portion of any of the Real
Properties.
"Personal Property" shall (except as specifically
excluded on Exhibit "D" hereto) mean all of Seller's right, title and interest
in and to the tangible personal property including, without limitation,
furniture, furnishings, equipment, machinery and fixed and movable fixtures,
together with all component and replacement parts, owned by Seller, situated on
any of the Real Properties on the Closing Date, and all artwork, renderings,
flags, awnings and trade dress; all architects', engineers', surveyors' and
other real estate
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professionals' plans, specifications, certifications, reports, data or other
technical descriptions (including, without limitation, all environmental,
structural and mechanical inspection reports) to the extent the same are in
Sellers' possession and are not proprietary in nature, and all building names
and Seller's rights, if any, in and to the name "Laurel Corporate Center."
"Properties" shall mean, collectively, the Geerdes
Property, the 2000/4000 Property, the 9000 Property, the 10000 Property, and the
15000 Property.
"Real Properties" shall mean, collectively, the
Geerdes Real Property and the New Jersey Real Properties.
"Tenants" shall mean the tenants under the Leases.
"2000/4000 Improvements" shall mean those certain
buildings and other improvements constructed and located on the 2000/4000 Land.
"2000/4000 Land" shall mean that certain parcel of
real property located at 2000/4000 Midlantic Drive, Mount Laurel, Burlington
County, New Jersey all as more particularly described by metes and bounds on
Exhibit "A-2" attached hereto and made a part hereof.
"2000/4000 Property" shall mean the 2000/4000 Real
Property and such of the Contracts, Leases, Licenses, Personal Property and
other rights, titles, interests and obligations which pertain to the 2000/4000
Real Property which are intended to be conveyed, sold or otherwise transferred
to Buyer by Seller pursuant to this Agreement.
"2000/4000 Real Property" shall mean the 2000/4000
Land and the 2000/4000 Improvements.
"9000 Improvements" shall mean those certain
buildings and other improvements constructed and located on the 9000 Land.
"9000 Land" shall mean that certain parcel of real
property located at 9000 Midlantic Drive, Mount Laurel, Burlington County, New
Jersey all as more particularly described by metes and bounds on Exhibit "A-3"
attached hereto made a part hereof.
"9000 Property" shall mean the 9000 Real Property and
such of the Contracts, Leases, Licenses, Personal Property and other rights,
titles, interests and obligations which pertain to the 9000 Real Property and
are intended to be conveyed, sold or otherwise transferred to Buyer by Seller
pursuant to this Agreement.
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"9000 Real Property" shall mean the 9000 Land and the
9000 Improvements.
"10000 Improvements" shall mean those certain
buildings and other improvements constructed and located on the 10000 Land.
"10000 Land" shall mean that certain parcel of real
property located at 10000 Midlantic Drive, Mount Laurel, Burlington County, New
Jersey all as more particularly described by metes and bounds on Exhibit "A-4"
attached hereto and made a part hereof.
"10000 Property" shall mean the 10000 Real Property
and such of the Contracts, Leases, Licenses, Personal Property and other rights,
titles, interests and obligations which pertain to the 10000 Real Property and
are intended to be conveyed, sold or otherwise transferred to Buyer by Seller
pursuant to this Agreement.
"10000 Real Property" shall mean the 10000 Land and
the 10000 Improvements.
"15000 Improvements" shall mean those certain
buildings and other improvements constructed and located on the 15000 Land.
"15000 Land" shall mean that parcel of real property
located at 15000 Midlantic Drive, Mount Laurel, Burlington County, New Jersey
all as more particularly described by metes and bounds on Exhibit "A-5" attached
hereto made a part hereof.
"15000 Property" shall mean the 15000 Real Property
and such of the Contracts, Leases, Licenses, Personal Property and other rights,
titles, interests and obligations which pertain to the 15000 Real Property and
are intended to be conveyed, sold or otherwise transferred to Buyer by Seller
pursuant to this Agreement.
"15000 Real Property" shall mean the 15000 Land and
the 15000 Improvements.
2. Acquisition Of The Properties. On the Closing Date, and
subject to the terms and conditions set forth in this Agreement, Seller shall
sell, assign, transfer and convey to Buyer and Buyer shall purchase from Seller
the following:
(a) All right, title and interest of Seller
in and to all of the Real Properties;
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(b) All right, title and interest of Seller,
if any, in any land lying in the bed of any street, road, avenue or alley, open
or closed, in front of or adjoining any of the Land, to the center line thereof;
(c) All right, title and interest of Seller,
if any, in any easements, covenants, rights of way, privileges, hereditaments
and other rights appurtenant to any of the Real Properties;
(d) to the extent assignable to Buyer and
not canceled by Seller, all right, title and interest of Seller in and to the
Contracts and the Licenses relating to any of the Real Properties;
(e) all right, title and interest of Seller
in and to the Leases; and
(f) all right, title and interest of Seller
in and to the Personal Property.
3. Purchase Price And Time Of Payment. The Purchase Price (the
"Purchase Price") to be paid by Buyer to Seller for the Properties shall be
Sixty-Six Million Two Hundred Thousand ($66,200,000.00) Dollars, as adjusted
pursuant to Paragraph 7 of this Agreement, which shall be paid to Seller in the
following manner:
(a) Four Hundred Fifty Thousand ($450,000.00) Dollars
(the "Deposit") by check, subject to collection, payable to the order of the
Escrow Agent, which shall be held and disbursed pursuant to the Escrow Terms.
(b) The balance of the Purchase Price shall be paid
to Seller at the Closing by wire transfer of immediately available funds to an
account designated by Seller.
(c) The transaction contemplated by this Agreement is
for the sale of all of the Properties as a single transaction so that no one or
more of the Properties may be sold without all of the Properties being sold
unless expressly provided for in this Agreement to the contrary or agreed to in
writing by the parties hereto and in any event the Deposit shall be
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deemed a single deposit for the entire transaction which shall not be allocated
or prorated to any of the Properties regardless of whether all or less than all
of the Properties are to be conveyed to Buyer on the Closing Date pursuant to
this Agreement or as otherwise agreed by the parties hereto in writing.
4. Closing. The closing of the transaction contemplated by
this Agreement (the "Closing") shall be held on May 30, 1997 (the "Closing
Date") at the offices of Seller's attorneys, Baer Marks & Upham LLP, 805 Third
Avenue, New York, New York 10022, with TIME BEING OF THE ESSENCE AS TO THE
PERFORMANCE BY BUYER OF ITS OBLIGATIONS UNDER THIS AGREEMENT ON SAID CLOSING
DATE OF MAY 30, 1997. By written notice (the "Acceleration Notice") given to
Seller, Buyer may elect to accelerate the Closing to a date earlier than May 30,
1997, which accelerated date shall in no event be less than fifteen (15) days
after receipt by Seller of the Acceleration Notice.
5. Title And Conveyance Of The Property.
(a) At Closing, title to each of the Real Properties
shall be insurable at regular rates by Chicago Title Insurance Company (the
"Title Insurer"), free and clear of all liens, encumbrances and restrictions
other than the Permitted Exceptions; provided, however, that if title to any of
the Real Properties is not insurable as aforesaid, Buyer's sole right and remedy
shall be as set forth in paragraph 5(b) below. If Purchaser elects to purchase
fee title insurance, the Title Insurer shall be co-insurer for at least
one-third of the principal sum of insurance coverage purchased by Purchaser.
(b) (i) Promptly after execution of this Agreement,
Seller shall apply for a title insurance commitment (1992 ALTA Form with
Creditor's Rights Exclusion Deleted) to be issued by the Title Insurer
("Commitment"), agreeing to issue to Buyer, upon recording of the Deeds (as
hereinafter defined) for each of the Real Properties, an owner's policy of title
insurance as above specified ("Title Policy"). Said Commitments shall agree to
insure the proposed title of the Buyer to each of the Real Properties subject
only to the Permitted Exceptions and such other title exceptions as Buyer has
agreed to accept or is deemed to have accepted pursuant to this Paragraph. If
any of the Commitments disclose any title exceptions in addition to the
Permitted Exceptions and Buyer objects to such additional title exceptions (the
"Title Defects"), Buyer shall notify Seller of such Title Defects with
sufficient specificity to enable Seller to respond. Buyer's notice of any Title
Defects shall be given in writing to Seller no later than the date which is five
(5) business after Buyer's receipt of the Commitments and copies of all matters
of record raised therein as exceptions thereto, after which Buyer shall be
deemed to have waived any and all Title Defects not so raised, except for Title
Defects which are disclosed to Buyer in continuations of title issued
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subsequent to the issuance of the Commitments, unless Buyer fails to object to
same in writing within three (3) business days after Buyer's receipt of the
continuation of title in which the same is disclosed, in which case Buyer will
be deemed to have waived such additional Title Defects. Seller shall have the
right, but not the obligation (except as otherwise specifically provided), to
cure such Title Defects and, if Seller elects to attempt to cure the Title
Defects but has not cured same on or before the Closing Date, then the Closing
Date may be extended by Seller at its sole option for up to sixty (60) days to
enable Seller to effect such cure.
i) In the event that either (a) Seller is unable to
convey title in accordance with the terms of this Agreement, (b) Seller elects
not to cure or cause the removal of any exception to title, except as required
in (iii), below, or (c) if Seller is unable to satisfy any other conditions to
Buyer's obligations under this Agreement, then (except as otherwise specifically
provided in (iii), below) the sole liability of Seller shall be to (A) direct
the Escrow Agent to return to Buyer the Deposit and (B) reimburse Buyer for the
reasonable charges imposed by the Title Company for preparation of the
Commitments (without the issuance of a policy) and for the reasonable fees paid
by Buyer to update the existing surveys (collectively "Buyer's Reasonable
Costs"), and upon such payments being made, this Agreement shall be deemed
cancelled and the parties hereto shall be released of all obligations and
liabilities hereunder, except as to any provisions which expressly survive a
termination of this Agreement; and Buyer shall have no rights of action against
Seller in law or in equity, for damages or, except for the purpose of enforcing
Seller's contractual obligations under (iii), below, for specific performance.
Notwithstanding the foregoing, Buyer shall have the right to waive any
conditions to Buyer's obligations hereunder, in which event Seller shall make
the deliveries provided for herein to Buyer to the extent that Seller is able so
to do, and there shall be no reduction in the Purchase Price in such event.
ii) Notwithstanding the provisions of the foregoing
paragraph, if the condition of title to the Real Properties at the Closing is
other than that which Buyer is required or agrees to accept hereunder solely by
reason of any mortgages or other liens (hereinafter referred to as "Liens")
which (a) can be satisfied or remedied by the payment of a liquidated amount of
money, and (b) will not in the aggregate require a payment in excess of
$1,000,000 to discharge the same, (except that as to (x) mortgages which are of
record as of the date hereof, and (y) Liens filed or recorded after the date
hereof, there shall be no monetary limit with respect to Seller's obligations
hereunder), Seller shall not have the right to cancel this Agreement and Seller
shall either (aa) discharge, satisfy, or bond the same or (bb) deliver such
funds to be held in escrow required by the Title Company, in either event so
that the Title Company shall affirmatively insure the full and complete
discharge of the foregoing and shall agree to omit the same as an exception to
its title insurance policy.
iii) Notwithstanding anything to the contrary
contained in this Agreement, Seller shall have no duty nor be required to take
any action, to institute any proceedings or to incur any expense (other than as
may be expressly required in paragraph
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(iii), above) in order to remedy or remove any objections to title or otherwise
to render title in accordance with the terms called for in this Agreement.
(c) Buyer expressly understands, acknowledges and
agrees that any failure by Buyer to notify Seller in writing of any Title
Defects on or before either the fifth (5th) or third (3rd) business day
following the Buyer's receipt of the Commitments or any continuation thereof,
respectively, shall for all purposes be deemed to be an acceptance by Buyer of
such Title Defects as if they were one or more of the Permitted Exceptions.
(d) At Closing, Seller will convey fee simple title
to the New Jersey Real Properties by a Bargain and Sale Deed with covenant
against grantor's acts, and will convey fee simple title to the Geerdes Real
Property by a Special Warranty Deed (collectively, the "Deeds"), subject in all
cases to the Permitted Exceptions, in the forms attached hereto and made a part
hereof as Exhibit "F".
(e) At Closing, Seller will transfer all of its
right, title and interest in and to the Personal Property to Buyer by executing
a Bill of Sale ("Bill of Sale") in the form attached hereto and made a part
hereof as Exhibit "G".
(f) At Closing, Seller will assign all of Seller's
right, title, and interest, and Buyer shall assume all of the obligations from
and after the Closing Date, in, to and under the Leases, Licenses and the
Contracts for each of the Real Properties, by executing an Assignment and
Assumption Agreement in the form attached hereto and made a part hereof as
Exhibit "M" (the "Assignments").
6. Closing Documents.
(a) At the Closing, as a condition of Buyer's
obligation to close hereunder, Seller shall deliver or cause to be delivered the
following:
i) The Deeds, executed by Seller, covering
the New Jersey Real Properties and the Deed covering the Geerdes Real Property
(and separate quitclaim deeds to each conveying the Real Properties utilizing
new ALTA survey descriptions, if requested);
ii) The Bills of Sale executed by Seller
covering the Personal Property;
iii) The Assignments, executed by Seller;
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iv) As many signed originals (or true and
correct copies of same) of the Contracts, Leases, Licenses, and other items
covered by the Assignments as are in the possession or control of Seller;
v) All machinery and/or equipment operating
manuals, technical data and other documentation relating to the building systems
and equipment, and all machinery, equipment and other building warranties and
guarantees, if any, but only to the extent that any of the same are in the
possession or control of Seller;
vi) All master and duplicate keys,
combinations and codes to all locks and security devices for the Improvements
which are in the possession or control of Seller;
vii) Written notice from Seller or Seller's
managing agent to each Tenant in form reasonably satisfactory to Buyer stating
that the Real Properties have been sold to Buyer and that tenant security
deposits (if any) in Seller's possession have been transferred to Buyer and
directing the Tenants to make future rental payments to Buyer at the address
designated by Buyer;
viii) Non-foreign person certification in
the form attached hereto as Exhibit "H";
ix) All building records and Tenant lease
files with respect to the Real Properties which are in the possession of Seller;
x) Each bill of current real estate taxes,
sewer charges and assessments, water charges and other utilities and to the
extent in Seller's possession or control, bills for each of the same for the
three (3) years, together with proof of payment thereof (to the extent same have
been paid);
xi) All plans, specifications, as-built
drawings, surveys, site plans, and final, written reports of architects,
engineers and surveyors, and any other Personal Property forming part of the
Property or any portion thereof, but only to the extent that the same exist and
are in the possession of Seller or any property manager controlled by Seller;
xii) An affidavit or affidavits of title in
favor of the Title Insurer on the form used by such Title Insurer, in form
reasonably acceptable to Seller to enable the Title Insurer to issue the
Commitments described in Paragraph 5(b)(i). Buyer shall require affirmative
endorsements against mechanic's liens, consistent with Seller's obligations
under Paragraph 5(b)(iii), above.
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xiii) A letter, from the New Jersey
Department of Environmental Protection and Energy or its successor stating that
the provisions of the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.,
the regulations promulgated thereunder and any successor legislation and
regulations are inapplicable to the New Jersey Properties (the
"Non-Applicability Letter");
xiv) Subject to the provisions of Paragraph
11(d), below, Estoppel Letters, if any, received from Tenants;
xv) Updated rent rolls, which shall be
certified by Seller to be correct and complete as of Closing Date; and
xvi) Proof as to the due authorization and
execution by Seller of the documents executed and delivered by Seller.
(b) At the Closing, as a condition of Seller's
obligation to close hereunder, Buyer shall deliver or cause to be delivered the
following:
i) The balance of the Purchase Price;
ii) The Assignments, executed by Buyer; and
iii) The documents and instruments required
pursuant to Exhibit "S" hereto.
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7. Prorations And Closing Costs. All matters involving
prorations or adjustments to be made in connection with the Closing and not
specifically provided for in any other provision of this Agreement shall be
adjusted as provided below. Except as otherwise set forth herein, all items to
be prorated pursuant to this Paragraph shall be prorated as of the Closing Date,
with Buyer to be treated as the owner of the Properties, for purposes of
prorations of income and expenses, on and after the Closing Date.
(a) Real estate taxes and all other ad valorem taxes,
if any, with respect to the Real Properties for the applicable fiscal or
calendar year in which the Closing occurs shall be prorated on a per diem basis.
If the amount of such taxes is not known on the Closing Date, taxes will be
prorated on the basis of the most recently ascertainable tax bill. There shall
be no proration of Seller's insurance premiums or assignment of Seller's
insurance policies and Seller shall be entitled to cancel all of its existing
policies as of the Closing Date. Buyer shall be obligated (at its own election)
to obtain any replacement policies. The amounts of all telephone, electric,
sewer, water and other utility bills, trash removal bills, janitorial and
maintenance service bills relating to each of the Real Properties 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 promptly thereafter by Seller or
adjusted between Buyer and Seller immediately after the same have been
determined. Buyer and Seller shall to the extent necessary enter into an
agreement to such effect at Closing. Seller shall attempt to have all utility
meters read as of the Closing Date. Seller shall further attempt to obtain from
the provider of same, all other service statements and bills of account adjusted
as of the Closing Date. Seller shall be entitled to refunds of all deposits, if
any, paid by Seller or Seller's predecessor-in-interest prior to Closing and
held by entities providing such service, or, at Seller's option, Seller shall
transfer all of Seller's right, title and interest in and to such deposits to
Buyer at Closing and shall receive a full credit for the amount of such
deposits. All Contracts and other obligations in connection with the Properties,
to the extent the same are intended to be assumed hereunder, shall be prorated
as of the Closing Date.
(b) Special assessments which have been filed as a
lien against any of the Real Properties on or before the Closing Date and are
not payable in installments shall be paid by Seller. Special assessments which
have been filed as a lien against any of the Real Properties but which are
payable in installments shall be adjusted based upon the installment payment for
the fiscal or calendar year in which Closing takes place and the remaining
unpaid assessments shall be assumed by Buyer. Special assessments which are or
may be pending, but which have not become a lien on the Real Properties as of
the Closing Date, and special assessments which are filed as a lien after the
Closing Date, shall be assumed and paid by Buyer.
(c) Seller shall pay the cost of State and County
transfer taxes or
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stamps imposed in connection with the recordation of the Deeds for the New
Jersey Real Properties and Buyer and Seller will share equally in the cost of
state and county transfer taxes or stamps imposed in connection with the
recordation of the Deed to the Geerdes Real Property. Buyer shall pay the
expense of the title searches, title premiums and any other title insurance
costs on the owner's title insurance policies and the cost of obtaining any
surveys, if desired by Buyer. Buyer agrees to pay the expense of the legal fees
of its own counsel. The cost of all of Buyer's Due Diligence Activities (as
defined below) shall be borne solely by Buyer.
(d) Any base, minimum or similar rents under the
Leases collected by Seller for a rental period or portion thereof from or after
the Closing Date shall be credited to Buyer at Closing on a per diem basis. In
addition, any security deposits held by Seller for any Lease, together with the
interest due thereon, if any and if required under the terms of the Lease or as
required by applicable law, shall either be credited or transferred to Buyer at
Closing at Seller's option. Any base, minimum or similar rents collected by
Buyer after Closing from a Tenant owing same at the time of Closing for a period
or portion thereof prior to the Closing Date shall be applied in the following
order: (A) first, on account of any amount then due Seller from such Tenant for
the two-month period prior to Closing, as reflected on the rent roll delivered
by Seller at Closing; (B) next, on account of any amount then due Buyer from
such Tenant for the period from and after the Closing; and (C) next, to Seller,
on account of any other pre-Closing arrearages, as reflected on the rent roll
delivered by Seller at Closing and (D) any balance then remaining to Buyer. Any
and all additional rents escalation or reimbursement payments for taxes,
operating or other expenses and other charges received from Tenants or other
occupants of any of the Real Properties whether or not due or payable on or
before the Closing Date but which relate in whole or in part to a period or
periods preceding the Closing Date shall be apportioned, if and when received,
as of the Closing Date and Buyer, to the extent any such sums are received after
the Closing Date, shall promptly pay to Seller its pro rata share of such
payments. Seller retains the right to pursue its remedies against Tenants after
Closing for any delinquent rents or other amounts owed to Seller (other than
proceedings to evict Tenant or terminate its lease). Buyer shall not enter into
any agreement pursuant to which any sums owed to Seller in respect of any Lease
for periods prior to the Closing are reduced, modified or waived. Buyer's
obligations to collect rent arrearages shall be limited to commercially
reasonable efforts, and Buyer shall under no circumstance be required to
commence litigation against any Tenant to collect the same.
(e) All leasing commissions due or to become due
prior to the Closing Date for any Leases entered into before the date hereof and
all amendments, renewals and modifications thereof entered into before the date
hereof, shall be paid by Seller without contribution by, or reimbursement from,
Buyer. At Closing, Buyer shall pay or reimburse Seller for any leasing
commissions due or to become due prior to Closing for any Leases and for any
amendments, modifications or renewals of any Leases entered into after the date
hereof which are entered into in accordance with the provisions of Paragraph
15(e) hereof. Buyer
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shall expressly assume and be solely obligated to pay all leasing commissions
payable under all Leases entered into prior to the date hereof (including all
amendments, renewals and modifications thereof) which are first due or payable
on or after the Closing Date, regardless of the date on which such Leases
(including all amendments, renewals and modifications thereof) were executed or
any of the leasing commissions therefor earned, subject only to Buyer's right to
approve any new Leases or amendments, discretionary renewals or modifications of
any Leases which are not otherwise permitted pursuant to Paragraph 15(e), below.
Seller shall be responsible for the costs of, and shall pay or perform prior to
Closing (i) any tenant improvements and allowances for work performed or
required to be performed (or paid, as applicable) prior to the Closing Date by
or on behalf of Seller for all Leases (including all amendments, renewals and
modifications thereof) entered into on or before the date of this Agreement for
any of the Real Properties; and (ii) all base building work ("Base Building
Work") which is to be performed at 4000 Midlantic Drive, Mount Laurel, New
Jersey, as described in Exhibit "E" annexed hereto and made a part hereof. Buyer
shall assume, pay or reimburse (as applicable) Seller on the Closing Date for
(i) the costs of any tenant improvements and allowances for work to first be
performed after the Closing Date pursuant to Leases (including all amendments,
renewals and modifications thereof) entered into prior to the date of this
Agreement; and (ii) except for the Base Building Work referred to above, all
costs of tenant improvements and allowances incurred by or on behalf of Seller
in connection with any Leases (including all amendments, renewals and
modifications thereof) entered into after the date of this Agreement for any of
the Real Properties, provided the same were approved by Buyer or are otherwise
permitted as set forth in Paragraph 15(e) hereof. The obligations of Buyer and
Seller hereunder shall survive the Closing.
(f) Amounts paid or payable as fees or expenses under
any of the Licenses assigned at Closing, shall be prorated as of the Closing
Date but all amounts refundable under unassigned and unassignable Licenses shall
belong to Seller.
(g) Seller shall be solely responsible for the
payment of any "roll back taxes" assessed or imposed upon any of the Real
Properties under the "Farmland Assessment Act of 1964," Chapter 58, Laws of
1964, N.J.S.A. 54:4 23-1 et seq., as amended, or the Pennsylvania Farmland and
Forest Land Assessment Act of 1974, or Act 515, as amended, or otherwise, which
relate to any period prior to the Closing Date, and Seller agrees to indemnify,
defend and save Buyer harmless (including attorneys' fees) from and against any
claim for such taxes. This Paragraph shall survive Closing.
(h) Miscellaneous income including, without
limitation, telephone and vending machine income, if any, shall be prorated as
of the Closing Date.
(i) The provisions of this Paragraph 7 shall survive
Closing hereunder.
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8. Possession Of Property.
(a) Seller shall deliver possession to the New Jersey
Real Properties and the Geerdes Real Property to Buyer on the Closing Date,
subject only to the Permitted Exceptions.
(b) Buyer shall assume, by execution of the
Assignments, all of Seller's obligations in, to and under the Contracts, the
Licenses and Leases. Notwithstanding the foregoing, Buyer shall not assume
management, leasing or brokerage agreements provided, however, that Buyer shall
remain liable for leasing commissions as set forth in Paragraph 7(e), above.
(c) Buyer acknowledges that certain maintenance
requirements have been imposed by Mount Laurel Township in connection with some
or all of the New Jersey Real Properties pursuant to the approvals and
agreements attached hereto as Exhibit "N" (the "Maintenance Requirements").
Buyer shall, at its sole cost and expense and without contribution or
reimbursement from Seller, comply with all such Maintenance Requirements
required to be performed after the Closing Date. Buyer further acknowledges that
Mount Laurel Township is presently the beneficiary of the maintenance bonds
listed in Exhibit "I-1" attached hereto (the "Maintenance Bonds").
(d) Subject to subparagraph (i) below, on or before
Closing, and as a condition precedent to Seller's obligation to consummate
Closing hereunder, Buyer shall deliver to the Township substitute maintenance
bonds and/or letters of credits (the "Substitute Maintenance Bonds") in form and
substance satisfactory to the Township in order to obtain, on or before Closing,
the consent of the Township to the release of the Maintenance Bonds. At Closing,
Buyer shall also reimburse Seller for all out-of-pocket costs expended by Seller
after the Closing Date in performing all or any of the Maintenance Requirements
and/or for all sums drawn under the Maintenance Bonds by the Township.
(e) Subject to subparagraph (i) below, prior to or at
Closing, and as a condition precedent to Seller's obligation to consummate the
Closing hereunder, Buyer shall deliver to Seller an agreement from the Township
providing for a complete release and termination (the "Releases") of all of
Seller's obligations under all Maintenance Requirements. Buyer agrees promptly
and timely to make all applications and submissions to the Township for approval
of the Substitute Maintenance Bonds, and issuance of the Releases in order to
obtain approval and issuance of same on or before the Closing Date. Seller shall
join in all applications and submissions and otherwise cooperate with Buyer in
seeking approval of the Substitute Maintenance Bonds and issuance of the
Releases. In furtherance of the foregoing, Buyer shall use its diligent efforts,
to have all such applications and other necessary documents
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prepared and submitted in time to be placed on the next regularly scheduled
meetings of the Township.
(f) At Closing, Buyer shall assume all obligations
arising from and after the Closing Date with respect to the maintenance and
development of the New Jersey Real Properties now existing or hereafter imposed
by the Township, the Board of Freeholders, or any other governmental,
quasi-governmental or utility authority having jurisdiction over the New Jersey
Real Properties and shall indemnify, hold harmless and defend Seller from and
against all damages, losses, liabilities, claims, costs and expenses (including
reasonable attorneys' fees) suffered by Seller by reason of Buyer's failure to
timely and properly comply with the provisions of any maintenance agreements or
any of the Maintenance Requirements imposed in connection with the development
of any of the New Jersey Real Properties. Seller shall indemnify, hold harmless
and defend Buyer from and against all damages, losses, liabilities, claims,
costs and expenses (including reasonable attorney's fees) suffered by Buyer by
reason of or in connection with work previously performed by Seller in
connection with the Maintenance Requirements.
(g) Notwithstanding anything to the contrary
contained in this Paragraph 8, if, despite diligent efforts, Buyer and Seller
have been unable to obtain the release of the Maintenance Bonds and the Releases
on or prior to the Closing Date, then, Buyer shall deposit with Seller at
Closing, letters of credit, cash escrows or other collateral acceptable to
Seller, in Seller's reasonable discretion, in an amount equal to the Maintenance
Bonds until such time as the Maintenance Bonds and the Releases have been
obtained, in which event Buyer shall diligently pursue the release of the
Maintenance Bonds and the Releases and indemnify, defend and hold harmless
Seller from and against all damages, losses, liabilities, claims, costs and
expenses (including reasonable attorneys' fees) suffered by Seller by reason of
Buyer's failure to timely and properly complete the Maintenance Requirements
arising after the Closing Date or comply with the provisions of any maintenance
agreements arising after the Closing Date or any draw down or demand for payment
upon the Maintenance Bonds.
(h) All of the provisions of this Paragraph 8 shall
survive Closing.
9. Representations Of Seller And Buyer.
(a) Seller hereby represents and warrants, as
follows, all of which shall be true and correct at and as of the date hereof:
(1) Seller is a limited partnership duly
organized and validly existing under the laws of the State of Delaware, and is
in good standing in such state.
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(2) Seller has all necessary power and
authority to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby, without the consent or
authorization of, or notice to, any third party, except those third parties to
whom such consents or authorizations have been or will be obtained, or to whom
notices have been or will be given, prior to the Closing. This Agreement
constitutes, and the other documents and instruments to be delivered by Seller
pursuant hereto when delivered will constitute, the legal, valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms.
(3) Except as set forth in Exhibit "O"
attached hereto and made a part hereof, there is no litigation, proceeding or
action pending or, to the best of Seller's knowledge, threatened against or
relating to Seller or its Property which might materially and adversely affect
Seller or its Property or which questions the validity of this Agreement or any
action taken or to be taken by Seller pursuant hereto. Seller shall remain
responsible to defend, and shall indemnify and hold Buyer harmless from and
against all liability, cost and expense relating to the litigation identified in
Paragraph 1 of Exhibit "O", which obligation shall survive the Closing.
(4) Neither the execution of this Agreement
nor the consummation of the transactions contemplated hereby will constitute a
violation or be in conflict with or constitute a default under any term or
provision of the Seller's partnership agreement or any other material agreement,
instrument or lease to which Seller is a party, subject to any required consents
or authorizations of, or notices to, third parties from whom such consents or
authorizations will be obtained or to whom notices will be given prior to
Closing.
(5) True, correct and complete copies of all
of the following, together with any modifications or amendments thereof, but
only if and to the extent the same are in Seller's possession or control, have
been or will be delivered, or made available, to Buyer within five (5) days
following the execution of this Agreement: (i) Leases and rent rolls; (ii)
Contracts; (iii) leases of equipment, vehicles and other tangible personal
property used by Seller in connection with the ownership and operation of the
Properties (the "Personal Property Leases"); (iv) Licenses; (v) Maintenance
Bonds; (vi) surveys; (vii) title reports; (viii) engineering reports; and (ix)
environmental reports.
(6) To the best of Seller's knowledge, (i)
all of the Leases, Contracts and Personal Property Leases, Licenses and
Maintenance Bonds, are in full force and effect, (ii) there has been no action
or failure to act by Seller or any other party to any Lease, Contract or
Personal Property Lease which, with the giving of notice or the passage of time
or both, would constitute a default in any material respect or otherwise entitle
either party to damages or a right to terminate; and (iii) Seller has not
received from any other party written notice with respect to the condition of
the Properties or the use or repair of the
-17-
same or of any alleged default by Seller under any such Lease, or Personal
Property Lease, License or Maintenance Bond. Each of the Contracts is terminable
at will without penalty or cancellation fee upon no more than thirty (30) days
prior written notice but, except as hereinafter expressly provided, unless
otherwise directed by Buyer, the Contracts shall not be terminated by Seller as
of Closing. Anything in this Agreement to the contrary notwithstanding, any and
all existing management agreements and brokerage or leasing agreements shall be
terminated as of Closing. Buyer shall assume all Contracts not terminated at
Closing pursuant to the Assignment.
(7) Seller does not employ any persons at
any of the Real Properties. Seller shall indemnify and hold Buyer harmless of,
from and against any and all claims and liabilities arising out of the
employment of any individuals by Seller and its affiliates, whether as employees
or independent contractors. As of the Closing, there are and shall be no liens
against the Real Properties arising under the Employee Retirement Income
Security Act of 1974, as amended, nor any other compensation or employment
related lien or liability that could become the responsibility of Buyer after
the Closing. This Paragraph shall survive Closing.
(8) To Seller's actual knowledge, there are
no public improvements in the nature of off-site improvements or otherwise,
which have been ordered to be made and/or which have not heretofore been
assessed and, to Seller's actual knowledge, there are no special or general
assessments currently affecting or pending against the Real Properties or any
portion thereof.
(9) Seller has not been served with written
notice that it has been named as a party in any litigation, administrative
proceeding or investigation naming Seller as a responsible party or potentially
responsible party for any liability for clean-up costs, natural resource damages
or other damages or liability for prior disposal or release of Hazardous
Substances, Hazardous Wastes or other environmental pollutants or contaminants.
For purposes of this Agreement, "Hazardous Substances" means those elements and
compounds which are designated as such in Section 101(14) of the Comprehensive
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Section 9601 (14),
as amended, all petroleum products and by-products, and any other hazardous
substances as that term may be further defined in any and all applicable
federal, state and local laws (including, in New Jersey, the New Jersey
Industrial Site Recovery Act (ISRA); and "Hazardous Wastes" means any hazardous
waste, residential or household waste, solid waste, or other waste as defined in
applicable federal, state and local laws. Seller has not received any summons,
citation, directive, letter or other written communication, from any
governmental or quasi-governmental authority concerning any intentional or
unintentional action or omission on Seller's part which either (a) resulted in
the releasing, spilling, leaking, pumping, pouring, emitting, emptying or
dumping of Hazardous Substances or Hazardous Wastes, or (b) related
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in any way to the generation, storage, transport, treatment or disposal of
Hazardous Substances or Hazardous Wastes.
(10) True and correct copies of the income
and expense statements for the Properties, and a current rent roll certified by
Seller, will be delivered to Buyer upon execution of this Agreement.
(11) Seller has received no written notice
of any violation of any of the licenses, permits, consents, authorizations,
approvals, and certificates of any regulatory, administrative or other
governmental agency or body, if any, issued to or held by the Seller and related
to the ownership or operation of the Properties (collectively, the "Permits"),
and there is no pending or, to the actual knowledge or Seller, threatened
proceeding which could result in the revocation or cancellation of, or inability
of Seller to renew, any Permit.
(12) To the best of Seller's knowledge,
except as set forth in Exhibit "P" attached hereto and made a part hereof, all
management fees are fully paid, there are no brokerage commissions owing by
Seller with respect to any of the Leases or otherwise related to the Properties
which have not been paid, and there are no ongoing commission or leasing fee
obligations.
(13) Seller has received no written notice
from any insurance company which has issued a policy with respect to the
Properties or by any board of fire underwriters (or other body exercising
similar functions) claiming any defects or deficiencies or requesting the
performance of any repairs, alterations or other work, and Seller will promptly
notify Buyer of any such notice or requirement if such notice is received prior
to the Closing.
(14) Seller is not a "foreign person" and
will deliver to Buyer, at the Closing, a statement certifying that it is not a
"foreign person" within the meaning of the Internal Revenue Code of 1986, as
amended.
(15) Seller has not received written notice
from any governmental agency or authority of outstanding material violations
issued by governmental authorities having jurisdiction over the Real Properties.
(16) Except as may be set forth in a Lease,
there are no options, rights of first refusal or conditional sales agreements
regarding the purchase and sale of the Real Properties.
It is agreed and understood that Buyer intends to perform its
own due diligence, investigation and analysis in connection with the transaction
contemplated by this Agreement.
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If and to the extent that Buyer determines prior to the Due Diligence
Termination Date that any or all of the representations and warranties made in
this Agreement by Seller shall be untrue as a result of such due diligence,
investigation or analysis, Buyer shall not be entitled to rely on such
representation(s) and warranty(ies) contained in this Agreement and the same
shall be deemed to have been deleted from this Agreement as to such matters.
Accordingly, in the event that the Buyer has now or hereafter acquires prior to
the Due Diligence Termination Date actual knowledge that one or more of the
representations and warranties of Seller are not true, no such fact or
circumstance known to Buyer shall be made the basis of a claim by the Buyer of a
breach of representation or warranty by Seller.
Notwithstanding anything to the contrary contained in this
Agreement, in the event any representation, agreement or undertaking made by
Seller in this Agreement shall prove to be false and the cost or expense
incurred or likely to be incurred by Buyer as a result thereof shall not exceed
$250,000 in the aggregate, such misrepresentation, agreement or undertaking
shall be deemed "immaterial" and shall not give rise to any right of Buyer to
terminate or refuse to close title under this Agreement or give rise to any
right of action for money damages or specific performance and Buyer hereby
waives all its rights, claims and remedies relating thereto. Buyer's sole remedy
in the event any representation, agreement or undertaking of Seller which is
discovered by Buyer at or prior to the Closing herein shall prove to be false
and the cost or expense incurred or likely to be incurred by Buyer as a result
thereof exceeds $250,000 shall be to terminate this Agreement by written notice
given at or prior to Closing, which notice shall specify in detail the nature of
the misrepresentation and identify in detail the costs incurred or likely to be
incurred by Buyer, and thereupon Buyer shall receive a refund of the Deposit,
and Seller shall reimburse Buyer for Buyer's Reasonable Costs and Due Diligence
Costs. To the extent Buyer has knowledge that any representation, agreement or
undertaking is false at or prior to the Closing, and does not or is not
permitted to terminate this Agreement, Buyer hereby waives all of its rights,
claims and remedies relating thereto.
As to any representation or warranty made in this Agreement
which is qualified as being to the best knowledge of Buyer or Seller, it is
agreed and understood that such party shall be under no obligation to conduct
any independent investigation or inquiry regarding the matters covered by such
representation and warranty. Buyer or Seller will be deemed to have knowledge of
a particular matter only if the facts and circumstances thereof are actually
known to such party making such representation or warranty.
(b) Buyer hereby represents and warrants as follows,
all of which shall be true and correct at, and as of, the date hereof:
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(17) Buyer is a real estate investment trust
duly formed and validly existing under the laws of the State of Maryland, and is
in good standing with the State Department of Assessments and Taxation of
Maryland.
(18) Subject to Paragraph 9(b)5, below,
Buyer has all necessary power and authority to enter into this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby, without the consent or authorization of, or notice to, any
third party, except those third parties to whom such consents or authorizations
have been or will be obtained, or to whom notices have been or will be given,
prior to the Closing. This Agreement constitutes, and the other documents and
instruments to be delivered by Buyer pursuant hereto when delivered will
constitute, the legal, valid and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective terms.
(19) Neither the execution of this Agreement
nor the consummation of the transactions contemplated hereby will (a) violate
any provision of any organizational document of Buyer, or (b) constitute a
violation of or be in conflict with or constitute a default under any term or
provision of any material agreement, instrument or lease to which Buyer is a
party.
(20) There is no litigation, proceeding or
action pending, or, to the best of Buyer's knowledge, threatened against or
relating to Buyer which might materially and adversely affect the ability of
Buyer to consummate the transactions contemplated hereby or which questions the
validity of this Agreement or any action taken or to be taken by Buyer pursuant
hereto.
(21) The execution and delivery of this
Agreement shall have been approved by the trustees of Buyer on or prior to the
Due Diligence Termination Date and no further action shall thereupon be required
on the part of Buyer to consummate the transaction contemplated hereby. The
signatories for Buyer are authorized and empowered to bind Buyer to this
Agreement and all transactions contemplated herein.
(22) Except as otherwise set forth in
Paragraph 9(b)5, above, no consent, approval or authorization of, or
declaration, filing or registration with, any governmental agency is required in
connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereunder by the Buyer or the
Partnership.
(23) Buyer has sufficient funds available to
consummate the transaction contemplated by this Agreement, without the necessity
of third-party financing other than other than Buyer's existing revolving credit
facility administered by Nationsbank,
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N.A. Buyer acknowledges that its obligations hereunder are not conditioned upon
any third party financing or capital infusion by another party.
(24) The information contained in Buyer's
Form 10-K for the year ended December 31, 1996, was prepared in all material
respects in accordance with and complied in all material respects with the
requirements of the rules of the Securities and Exchange Commission, and did not
at the time that it was filed contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
All of the representations and warranties set forth in this
Section 9 shall be deemed renewed by Seller and Buyer on the Closing Date and
shall, as a condition to each party's obligation to close hereunder, be
recertified by each party as being true and correct in all material respects as
of the Closing Date as if made at such time (it being understood that specific,
numbered representations and warranties that speak of a specified date shall
only continue to speak as of the date so specified), but shall not survive the
Closing.
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10. Access To The Property.
(a) Buyer and/or its agents and representatives, during normal
business hours and after reasonable advance notice to Seller, may enter upon any
of the Real Properties from time to time prior to the Closing Date, accompanied
by an agent of Seller, for purposes of conducting such inspections,
investigations and/or studies as Buyer deems necessary, including, without
limitation, financial reviews, physical inspections, lease reviews and
environmental reviews and testing, which activities may include test borings and
soil samplings ("Buyer's Due Diligence Activities"). Buyer's access to the Real
Properties shall be subject to the rights of the Tenants of any of the Real
Properties, who shall not be unreasonably disturbed during any such inspection
by Buyer. Buyer shall not engage in any activity in or about the Real Properties
which directly or indirectly violates the terms of any governmental or
quasi-governmental statute, rule, regulation, order or practice. Buyer shall not
make any physical changes to any of the Real Properties, except for test borings
and soil samplings which shall be performed only by licensed engineers
reasonably acceptable to Seller and only after three (3) business days' prior
notice to Seller. Buyer may contact any governmental or quasi-governmental
authorities concerning the Property without the prior written approval of
Seller. Seller shall have the opportunity to observe any and all action taken by
Buyer or its representatives, consultants, agents, etc. pursuant to this
paragraph 10. All information set forth in any document which Seller has granted
to Buyer the express right to review, if any, shall be held in strict confidence
until Closing and thereafter in the event Closing does not occur. If Buyer
violates its obligations under this Paragraph 10(a) or in the event of any
physical damage to any of the Real Properties or any Personal Property
resulting, directly or indirectly, from the exercise by Buyer of its rights
under this Paragraph 10(a), Buyer hereby agrees to restore the Real Properties
and Personal Property to their respective conditions prior to incurring such
damage. Buyer hereby agrees to indemnify, defend and hold harmless Seller from
and against all physical damage to any of the Real Properties and Personal
Property, personal injury and/or any other claims or liability which may occur
as a result of Buyer's (or Buyer's agents, employees, invitees or licensees)
entry or activities upon any of the Real Properties. The provisions of this
Paragraph 10(a) shall survive Closing or other termination of this Agreement.
(b) Buyer, or any of Buyer's consultants performing physical
tests on the Real Properties shall maintain public liability insurance policies
(naming Seller as an additional named insured with respect to any liability
occurring on the Real Properties), with combined single limit coverage of at
least $1,000,000, insuring against claims arising as a result of the inspections
of Buyer, its agents, employees or such contractors at any of the Real
Properties. A certificate of insurance evidencing the foregoing coverage shall
be delivered to Seller prior to Buyer's or any of Buyer's consultants' entry on
to any of the Real Properties.
(c) In the event Closing does not occur or this Agreement is
terminated, Buyer shall promptly return to Seller any documents obtained from
Seller or
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Seller's agents and deliver, to Seller without charge, copies of all written
test results, studies, reports and similar materials obtained by or on behalf of
Buyer relating to any of the Real Properties.
11 Due Diligence Period; Additional Provisions.
(a) During the period commencing on the Effective
Date and ending at 5:00 p.m. E.S.T. on the Due Diligence Termination Date, Buyer
may, subject to the provisions set forth in Paragraph 10 above, review all plans
and specifications, condition of title, agreements relating to and the
availability of utilities, environmental conditions, the physical condition of
the existing improvements, compliance by each of the Real Properties with
zoning, licensing and all other governmental requirements, Leases for any of the
Real Properties, operating statements pertaining to each of the Real Properties
and all other aspects and conditions of each of the Real Properties which Buyer
may decide to review (collectively, "Buyer's Due Diligence Activities"), all as
Buyer shall deem appropriate). In connection with Buyer's Due Diligence
Activities, Seller has delivered or will deliver to Buyer various documents,
reports and materials (collectively, the "Seller Due Diligence Materials").
BUYER UNDERSTANDS AND HEREBY ACKNOWLEDGES AND AGREES THAT THE SELLER DUE
DILIGENCE MATERIALS ARE BEING DELIVERED TO BUYER WITHOUT ANY REPRESENTATION OR
WARRANTY WHATSOEVER BY SELLER OR BY THE PREPARER OF SUCH SELLER DUE DILIGENCE
MATERIALS, WITH THE SOLE EXCEPTION OF ANY REPRESENTATION OR WARRANTY AS TO THE
CORRECTNESS, ACCURACY OR COMPLETENESS THEREOF WHICH IS EXPRESSLY SET FORTH IN
THIS AGREEMENT.
(b) If, as a result of Buyer's Due Diligence
Activities or otherwise, Buyer shall conclude, for any reason or for no reason,
that it does not wish to proceed with the transaction contemplated by this
Agreement, it may terminate this Agreement by written notice delivered to and
received by Seller on or before 5:00 P.M. E.S.T. on the Due Diligence
Termination Date (as to which date time shall be of the essence), with a
simultaneous copy thereof to the Escrow Agent. In the event of such timely
termination of this Agreement by the Buyer, the Escrow Agent shall make the
delivery of funds contemplated under Paragraph 1 of the Escrow Terms, and this
Agreement shall thereupon be null and void and of no further force or effect,
except as to those matters which expressly survive such termination.
(c) Seller agrees to use all reasonable and diligent
efforts to obtain, prior to the Closing, with respect to the New Jersey
Properties, (the Non-Applicability Letter) from the New Jersey Department of
Environmental Protection and Energy or its successor. In furtherance of the
foregoing, Seller shall apply for the Non-Applicability Letter promptly after
the Effective Date, and shall pursue the same diligently and in good faith.
-24-
(d) Buyer agrees to prepare and forward to Seller, at
Buyer's sole cost and expense, certificates (the "Estoppel Certificates") for
execution by the Tenants which shall at Buyer's election, either (i) be in such
form or contain such information as the Tenant from whom request is made is
obligated under its Lease to execute and deliver for execution by the Tenants
(the "Required Form"), or (ii) in the form annexed hereto as Exhibit "Q". Seller
agrees to deliver the Estoppel Certificates to the Tenants promptly after
Buyer's written election as to the form to be used (which election shall be made
not later than five (5) days after the date hereof), and to use all reasonable
and diligent efforts to obtain executed copies of same from such Tenants prior
to the Closing. It shall be a condition to Buyer's obligations hereunder that,
at or prior to Closing, Estoppel Certificates shall have been obtained from the
Tenants identified on Exhibit "T" annexed hereto and made a part hereof (the
"Identified Tenants"), BUT ONLY IF THE INITIAL REQUEST MADE OF SUCH TENANT WAS
FOR AN ESTOPPEL CERTIFICATE IN THE REQUIRED FORM, provided, however, that at
Seller's option, if an estoppel in the Required Form is not obtained from an
Identified Tenant, Seller may, in lieu thereof, deliver its certificate
containing the information set forth on the Required Form, which certificate
shall serve as Seller's representation as to the facts stated therein, which
representation shall survive for a period of six (6) months following the
Closing. In no event shall Buyer's obligations under this Agreement be
conditioned, in whole or in part, upon the delivery of Estoppel Certificates
from any Tenant in other than the Required Form.
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12. Condemnation. Seller covenants and warrants that Seller
has not received any written notice of any condemnation proceeding or other
proceeding in the nature of eminent domain in connection with the Real
Properties, and has no actual knowledge of any threatened condemnation. As used
herein, a "material taking" shall mean a taking of either an entire Real
Property, more than twenty percent (20%) of a Building or more than 10% of the
parking area of a Real Property. If, prior to the Closing, any such proceeding
affecting a material portion of any of the Real Properties is commenced, Seller
agrees promptly to notify Buyer thereof. In the event of a material taking of
one or more Real Properties or commencement of proceedings in connection with
such a taking, Buyer may, at its sole option exercised by delivery of written
notice thereof within ten (10) days after receipt of such written notice
thereof, (x) proceed to Closing as provided in this Paragraph 12 without an
abatement of the Purchase Price and at Closing Seller shall assign to Buyer,
without recourse, all condemnation proceeds paid or payable with respect
thereto; or (y) terminate this Agreement with respect to each of the Real
Properties as to which a material taking has occurred, whereupon this Agreement
shall terminate with respect to such Real Property and this Agreement shall
continue in full force and effect with respect to all of the remaining Real
Properties, and at Closing, Buyer shall pay to Seller the aggregate of the
Allocated Prices for the remaining Real Properties. Provided Buyer shall have
waived its right to terminate this Agreement with respect to the Real Property
so taken, as provided above, Seller shall not, from and after the Due Diligence
Termination Date, settle or adjust any claims relating to a condemnation without
Buyer's prior approval, which shall not be unreasonably withheld or delayed.
13. Damage By Fire Or Other Casualty.
(a) Seller shall promptly notify Buyer of damage to
the Improvements occurring by reason of casualty during the period between the
Effective Date and the Closing Date. Seller shall timely notify any insurance
companies with respect to any damage and shall promptly submit claims for such
damage. Provided Buyer shall have waived its right to terminate this Agreement
with respect to the Real Property so damaged, as provided below, Seller shall
not, from and after the Due Diligence Termination Date, settle or adjust any
claims relating to a casualty without Buyer's prior approval, which shall not be
unreasonably withheld or delayed.
(b) If (i) any portion of the Improvements is damaged
by fire or casualty after the Execution Date and the Improvements so damaged are
not repaired or restored on or before Closing to substantially the condition
existing prior to the damage, and (ii) at the time of Closing, the estimated
cost of repairs by reason of such fire or casualty to the Improvements, as
determined by an independent adjuster is, with respect to any of the Real
Properties so damaged, an amount equal to or less than ten percent (10%) of the
Allocated Price for such Real Property, there shall be no abatement or
adjustment in the Purchase Price
-26-
and, provided the loss or damage is a covered loss under Seller's insurance
policy, Buyer shall be required to purchase all of the Real Properties in
accordance with the terms of this Agreement and, at Closing, Seller shall assign
to Buyer, without recourse, all insurance claims and proceeds with respect
thereto (less sums theretofore expended, if any, by Seller for emergency repairs
or barricades) and Seller shall credit Buyer at Closing with the amount of any
applicable deductible. Seller shall have no liability or obligation with respect
to the condition of any of the Real Properties as a result of any such fire or
casualty. If the repair to, or the restoration of, the Improvements so damaged
has not been completed as aforesaid and, at the time of Closing, the estimated
cost of such repair or restoration, as determined by such independent adjuster,
for any of the Real Properties is an amount which is greater than ten percent
(10%) of the Allocated Price for the applicable Real Property, Buyer may, at its
sole option, (x) proceed to Closing as provided in this Paragraph 13(b) without
an abatement of the Purchase Price and at Closing Seller shall assign to Buyer,
without recourse, all insurance claims and proceeds with respect thereto (less
sums theretofore expended, if any, by Seller for emergency repairs or
barricades) and Seller shall credit Buyer at Closing with the amount of any
applicable deductible; or (y) terminate this Agreement with respect to each of
the Real Properties which have suffered damage to the Improvements by fire or
other casualty in an amount which exceeds ten percent (10%) of the Allocated
Price for such Real Property(s) whereupon this Agreement shall terminate with
respect to such damaged Real Property(s) and this Agreement shall continue in
full force and effect with respect to all of the remaining Real Properties, and
at Closing, Buyer shall pay to Seller the aggregate of the Allocated Prices for
the remaining Real Properties. Buyer shall assign all of its right, title and
interest in and to any and all insurance policies and insurance proceeds
relating to such of the Real Properties for which this Agreement has been
terminated.
14. Default.
(a) If Buyer shall default in its obligations to pay
the Purchase Price and complete Closing in accordance with the terms of this
Agreement, then, as Seller's sole and exclusive remedy therefor, Seller shall be
entitled to retain the Deposit as liquidated and agreed upon damages for the
losses and injuries which Seller shall have sustained and suffered as a result
of Buyer's default, and thereupon this Agreement and Buyer's obligations
hereunder shall be terminated except as expressly provided in this Agreement. It
is agreed that the provisions of this Paragraph 14(a) for liquidated and agreed
upon damages are a bona fide provision for such and are not a penalty, the
parties understanding that by reason of the withdrawal of the Real Properties
from sale to the general public at a time when other parties would be interested
in purchasing such Real Properties, that Seller shall have sustained damages
which will be substantial, but will not be capable of determination with
mathematical precision. Therefore, this provision for liquidated and agreed upon
damages has been incorporated as part of this Agreement as a provision
beneficial to both parties.
-27-
(b) If Seller shall default in its obligation to
deliver any of the Deeds or other items described in Paragraph 5 hereof, upon
Buyer's (i) tender of the full Purchase Price and (ii) compliance with all of
the material terms and conditions of this Agreement, Buyer shall have the sole
option of terminating this Agreement and receiving the return of the Deposit,
together with payment by Seller of (A) Buyer's Reasonable Costs, and (B) Buyer's
actual, documented out-of-pocket costs and expenses incurred in connection with
its Due Diligence Activity, not to exceed Seventy-Five Thousand Dollars
($75,000) ("Due Diligence Costs") or (Y) to seek specific performance of
Seller's obligation to convey the Real Properties in accordance with this
Agreement. If Purchaser elects to terminate this Agreement, upon payment of the
sums described above, Seller shall be released and relieved of any further
liability and this Agreement shall thereupon be null and void. Except as
expressly set forth above, Buyer hereby waives any right which Buyer may have to
any lis pendens or other lien or encumbrance against any of the Real Properties,
equitable relief, consequential or punitive damages, loss of profits, costs
related to in-house or other overhead allocations, and damages. The remedies set
forth herein shall be Buyer's sole remedies pursuant to this Agreement, or
otherwise at law or in equity shall become null and void if Closing occurs
(except as to obligations hereunder which by their terms expressly survive
Closing), and shall not apply to a defect in title, the remedies for which are
set forth in Paragraph 5(b) hereof, or to any inability on the part of Seller to
perform its obligations under this Agreement.
15. Operations Prior To Closing.
(a) Seller agrees to operate each of the Real
Properties between the Execution Date and the Closing Date in the same general
manner as Seller has operated each of the Real Properties during the immediately
preceding six (6) month period, paying all costs and expenses as they come due,
and in any event prior to Closing, and maintaining all insurance coverage
currently in force.
(b) Seller shall comply with all of the material
obligations of landlord under the Leases and all other agreements and
contractual arrangements affecting the Real Properties by which Seller is bound
or to which the Real Properties, or any of them, are subject, and which will be
binding upon Buyer or a lien upon such Real Property, after the Closing.
(c) Seller shall notify Buyer promptly of Seller's
receipt of any notice from any party alleging that Seller is in default of its
obligations under any of the Leases or any Permit or material agreement
affecting the Real Properties, or any portion or portions thereof.
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(d) No contract for or on behalf of or affecting the
Real Properties shall be negotiated or entered into which cannot be terminated
by Seller upon the Closing without the payment of a specific charge, cost,
penalty or premium for such termination.
(e) Except with the prior written consent of Buyer,
which Buyer agrees it shall not unreasonably withhold, condition or delay,
Seller shall not enter into any new leases for any portion of the Real
Properties, other than leases or amendments of existing Leases which comply with
the leasing parameters set forth in Exhibit "R" annexed hereto and made a part
hereof, as to which Buyer shall be given prior written notice, but as to which
Buyer's consent shall not be required. Any new lease shall be on Seller's
customary form (which may vary to reflect customary negotiated revisions
thereto), or such other form which is reasonably acceptable to Buyer. Further,
except with the prior written consent of Buyer, which Buyer agrees it shall not
unreasonably withhold, condition or delay, or as set forth above, Seller shall
not amend, extend (except where required under the terms of the Lease in
question), terminate (except by reason of a tenant's default), accept surrender
of, or permit any assignments or subleases of, any of the Leases (except as may
be required under such Lease), nor accept any rental more than one (1) month in
advance (exclusive of any security deposit).
(f) Seller shall not make or permit to be made any
capital improvements or additions to the Real Properties, or any portion
thereof, 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.
(g) Seller shall timely bill all tenants for all rent
billable under Leases, and use commercially reasonable efforts to collect any
rent in arrears.
(h) Seller shall notify Buyer of any tax assessment
disputes (pending or threatened) prior to Closing, and from and after the Due
Diligence Expiration Date, Seller not agree to any changes in the real estate
tax assessment, nor settle, withdraw or otherwise compromise any pending claims
with respect to tax assessments relating to the current or any subsequent year,
without Buyer's prior written consent, which shall not be unreasonably withheld,
delayed or conditioned. If any proceedings 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. All refunds relating to any tax year prior to the Closing shall be
the sole property of Seller, and all refunds relating to any year subsequent to
the year in which Closing occurs shall be the sole property of Buyer. Each party
agrees to promptly remit to the other any refund received by it which is the
property of the other.
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(i) Seller shall notify Buyer promptly of the
occurrence of any of the following:
i) Receipt of notice from any governmental
or quasi-governmental agency or authority or insurance underwriter relating to
the condition, use or occupancy of the Real Properties, or any portion thereof;
ii) Receipt of any notice of default from
any tenant or from the holder of any lien or security interest in or encumbering
the Real Properties, or any portion thereof;
iii) Notice of any actual or threatened
litigation against Seller or affecting or relating to the Real Properties, or
any portion thereof which may materially and adversely affect the Real
Properties or Seller's ability to consummate the transactions contemplated by
this Agreement; and
iv) Vacancy of any demised premises by a
tenant, other than in accordance with a scheduled lease termination.
-30-
16. Property Conveyed "AS-IS, WHERE IS". IT IS UNDERSTOOD AND
AGREED THAT, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, SELLER
IS NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE ECONOMICAL,
FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL CONDITION OF ALL OF THE PROPERTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF
TITLE, ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS,
AVAILABILITY OF ACCESS, INGRESS OR EGRESS, OPERATING HISTORY OR PROJECTIONS,
VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER
OR THING RELATING TO OR AFFECTING THE ECONOMICAL, FUNCTIONAL, ENVIRONMENTAL OR
PHYSICAL CONDITION OF THE PROPERTIES INCLUDING, WITHOUT LIMITATION: (i) THE
VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR
FITNESS FOR A PARTICULAR USE OR PURPOSE OF ANY OF THE PROPERTIES, (ii) THE
MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO ANY OF THE
PROPERTIES AND (iii) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF
ANY OF THE PROPERTIES. BUYER AGREES THAT WITH RESPECT TO EACH OF THE PROPERTIES,
BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY,
ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY AGENT OF SELLER NOT EXPRESSLY
SET FORTH IN THIS AGREEMENT. BUYER REPRESENTS THAT IT IS A KNOWLEDGEABLE
PURCHASER OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND
THAT OF BUYER'S CONSULTANTS, AND THE REPRESENTATIONS AND WARRANTIES OF SELLER
CONTAINED IN THIS AGREEMENT, SUBJECT, HOWEVER, TO THE LIMITATIONS CONTAINED
HEREIN UPON SUCH REPRESENTATIONS AND WARRANTIES, AND THAT SELLER HAS OR SHALL
HAVE AFFORDED BUYER WITH A FULL AND COMPLETE OPPORTUNITY TO MAKE ITS OWN
INDEPENDENT INVESTIGATION OF EACH OF THE PROPERTIES AND ALL MATTERS PERTAINING
THERETO INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS
THEREOF AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS,
MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER
ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER SHALL SELL AND CONVEY TO
BUYER AND BUYER SHALL ACCEPT EACH OF THE PROPERTIES "AS IS, WHERE IS," WITH ALL
FAULTS, AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS (EXCEPT
AS HEREIN SPECIFICALLY PROVIDED), COLLATERAL TO OR AFFECTING ANY OF THE
PROPERTIES BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. BUYER EXPRESSLY
AGREES THAT THE TERMS AND
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CONDITIONS OF THIS PARAGRAPH 16 SHALL EXPRESSLY SURVIVE THE CLOSING AND NOT
MERGE THEREIN AND SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO ANY OF THE
PROPERTIES FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR
OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO IN THIS
AGREEMENT.
17. Brokers.
(a) Seller and Buyer each represent to the other that
except for CB Commercial Real Estate Group, Inc., who represents Seller and is
Seller's real estate broker, and whose commission shall be paid by Seller,
neither Seller nor Buyer has dealt with any real estate broker, dealer or
salesman in connection with the subject transaction.
(b) Seller and Buyer shall and hereby each agree to
indemnify, defend, and hold harmless the other from and against any loss,
damage, or claim resulting from a breach of the representations of Seller and
Buyer set forth in Paragraph 17(a) hereof.
(c) The provisions of this Paragraph 17 shall survive
Closing hereunder, or any other termination of this Agreement.
(d) The Commonwealth of Pennsylvania has established
a Real Estate Recovery Fund, the purpose of which is to compensate persons who
obtain a final civil judgment against a Pennsylvania real estate licensee owing
to fraud, misrepresentation or deceit in a real estate transaction and who has
been unable to collect the judgment after exhausting all legal and equitable
remedies. For complete details, call: (717) 783-3658.
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18. Notices. All notices, requests and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be delivered (i) in person, or (ii) by certified mail, return receipt
requested, or (iii) by recognized overnight delivery service providing positive
tracking of items (for example, Federal Express), or (iv) by confirmed
telecopier, in each case addressed as follows (or at such other address of which
Seller or Buyer shall have given notice as herein provided):
If Intended For Seller: EDB Property Partners, L.P. I
c/o Emmes & Company LLC
420 Lexington Avenue
New York, New York 10170
Attention: Mr. Andrew Davidoff
Telecopier Number: (212) 293-8801
With A Copy To: Howard R. Shapiro, Esq.
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
Telecopier Number: (212) 702-5941
If Intended For Buyer: Brandywine Realty Trust
16 Campus Boulevard
Suite 150
Newtown Square, Pennsylvania 19073
Attention: Mr. Gerard H. Sweeney
Telecopier Number: (610) 325-5622
With A Copy To: Eric L. Stern, Esq.
Pepper Hamilton & Scheetz LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, Pennsylvania 19103
Telecopier Number: (215) 981-4750
All such notices, requests and other communications shall be
deemed to have been sufficiently given for all purposes hereof only if given
pursuant to the foregoing requirements as to both manner and address, and only
upon receipt (or refusal to accept
-33-
delivery) by the party to whom such notice is sent. Notices by the parties may
be given on their behalf by their respective attorneys.
19. Successors And Assigns. Buyer may not assign this
Agreement or any rights herein or any portion hereof without the prior written
consent of Seller, which may be withheld for any reason or for no reason, except
that no such consent shall be required to an assignment of this Agreement by
Buyer to the Partnership. This Agreement shall apply to, inure to the benefit of
and be binding upon and enforceable against the parties hereto and their
respective permitted successors and assigns, to the same extent as if specified
at length throughout this Agreement.
-34-
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which
counterparts together shall constitute one and the same Agreement.
21. Time Of The Essence. Time is of the essence of each and
every provision in this Agreement. If any time period or date ends on a day or
time which is a weekend, legal holiday or bank holiday, such period shall be
extended to the same time on the next business day.
22. Judicial Interpretation. Should any provision of this
Agreement require judicial interpretation, it is agreed that the court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against one party by reason of the rule
of construction that a document is to be construed more strictly against the
party who itself or through its agent prepared the same, it being agreed that
the agents of all parties have participated in the preparation of this
Agreement.
23. Captions And Recitals. The captions contained herein are
not a part of this Agreement and are included solely for the convenience of the
parties.
24. Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the acquisition of the Property, all
prior negotiations between the parties are merged by this Agreement and there
are no promises, agreements, conditions, undertakings, warranties or
representations, oral or written, express or implied, between them other than as
herein set forth. No change or modification of this Agreement shall be valid
unless the same is in writing and signed by the parties hereto. No waiver of any
of the provisions of this Agreement, or any other agreement referred to herein,
shall be valid unless in writing and signed by the party against whom it is
sought to be enforced.
25. Governing Law; Venue.
(a) This Agreement and the rights and duties of the
parties hereto and the validity, construction, enforcement and interpretation of
this Agreement shall be governed by the laws of the State of New Jersey, except
that the laws of the Commonwealth of Pennsylvania shall govern with respect to
title issues concerning the Geerdes Real Property.
-35-
(b) With regard to any litigation arising out of or
involving this Agreement, each party hereto: (i) irrevocably submits to the
jurisdiction of the state and federal courts of the State of New Jersey and
agrees and consents to service of process being made upon it in any legal
proceeding arising out of or in connection herewith by service of process
provided by the law of the State of New Jersey; (ii) irrevocably waives, to the
fullest extent permitted by law, any objection which it now or hereafter may
have to the laying of venue of any litigation arising out of or in connection
with this Agreement brought in the State Courts of New Jersey or the United
States District Court for the District of New Jersey; (iii) irrevocably waives
any claims that any litigation brought in any such court has been brought in an
inconvenient forum; and (iv) irrevocably agrees that any legal proceeding
against any party hereto arising out of or in connection with this Agreement
shall be brought in either the State Courts of New Jersey or the United States
District Court for the District of New Jersey, except insofar as the laws of New
Jersey lack jurisdiction in connection with an action relating to the Geerdes
Property.
26. Confidentiality. Each of the parties to this Agreement
covenants that it shall not communicate the terms or any aspect of this
transaction prior to the Closing with any person or entity other than the other
parties to this Agreement, except for Seller's agents, consultants, counsel and
representatives of Buyer for Buyer's Due Diligence Activities and financing
purposes, unless Buyer is advised by its counsel that applicable securities laws
and regulations require. In addition, Buyer covenants that if it undertakes any
investigation of the Properties, it shall conduct such investigation of the
Properties as described herein and with the degree of confidentiality as Buyer
would apply with respect to its own proprietary information. Notwithstanding the
foregoing, at any time after expiration of the Due Diligence Period, Buyer may
issue one or more press releases (which shall not disclose financial terms), if
necessary or appropriate to comply with applicable securities laws and
regulations.
-36-
27. Limitation Of Liability.
(a) Each of the entities which comprise the Seller is
a limited partnership. In no event shall any individual partner of Seller or any
partner, officer, director, shareholder or employee of any corporate or
partnership partner of Seller be liable for any liabilities or obligations under
this Agreement or otherwise.
(b) No recourse shall be had for any obligation of
Brandywine Realty Trust under this Agreement or under any document executed in
connection herewith or pursuant hereto, or for any claim based thereon or
otherwise in respect thereof, against any past, present or future trustee,
shareholder, officer or employee of Brandywine Realty Trust, whether by virtue
of any statute or rule of law or by the enforcement of any assessment or penalty
or otherwise, all such liability being expressly waived and released by the
Seller and all parties claiming by, through or under Seller.
28. Like-Kind Exchange. Seller shall have the right, but not
the obligation, prior to the Closing and without notice to or the consent of
Buyer, to effect the liquidation of any or all of the limited partnerships
comprising Seller and, in connection therewith, to transfer title to any or all
of the Properties to the partners of each Seller as tenants-in-common (the "TIC
Sellers"). In the event of such liquidation and transfer, the TIC Sellers shall
expressly assume by written instrument the obligations of the Seller hereunder
to convey the Properties to Buyer; provided, however, that the Seller shall
remain a party to this Agreement for the purposes of the representations and
warranties made by Seller hereunder (which representations and warranties shall
not be made by the TIC Sellers, except as to those matters which are specific to
the status of the TIC Sellers and their authority to conclude the transaction).
In addition, Seller or, if the liquidation and transfer is effected, the TIC
Sellers shall have the right, at their sole option, to transfer, assign and
convey their interest in and to the Properties as part of a tax-free exchange
for other real property of like kind pursuant to Section 1031 of the Internal
Revenue Code of 1986. Buyer agrees to cooperate fully with Seller and the TIC
Sellers to accomplish such an exchange provided that Buyer shall incur no costs
(other than its own counsel fees in connection therewith) or be subject to any
liability as a result thereof. [In the event Seller or the TIC Sellers elect to
proceed with such exchange, Seller may assign its rights hereunder, but not its
obligations, to a Qualified Intermediary as provided in IRC Reg. 1.1031(k)-1
(g)(4) on or before the Closing.
-37-
29. SEC Reporting (8-K) 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 Buyer, provide Buyer and its representatives, with access to
all financial and other information then in Seller's possession pertaining to
the period of Seller's ownership and operation of the Real Properties, which
information is relevant and reasonably necessary, in the opinion of Buyer's
outside, third party accountants (the "Accountants"), to enable Buyer 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 Buyer; and (c) any registration statement, report or
disclosure statement filed with the Commission by, or on behalf of Buyer. Seller
shall deliver to Buyer's accountants a representation letter (the "Letter"), in
the form annexed hereto as Exhibit "U", provided that Buyer (and any assignee or
designee acquiring title to the Real Properties) shall indemnify and hold Seller
harmless from and against any claim, damage, loss or liability including,
without limitation, legal fees incurred by Seller in investigating, defending
against or settling any such matter and the amount of any such settlement to
which Seller is at any time subjected, bonafide or not, by any person who is not
a party to this Agreement as a result of its delivery of the information
described in this Paragraph, or delivery of the Letter. The Buyer acknowledges
that the Seller is not making any representation or warranty regarding such
information as is delivered in accordance with the terms of this Paragraph
except to the extent set forth in the Letter or otherwise expressly set forth in
this Agreement.
30. Partial Invalidity. If any term, covenant or condition of
this Agreement, or the application thereof, to any person or circumstance shall
be invalid or unenforceable at any time or to any extent, then the remainder of
this Agreement, or the application of such term, covenant or condition to
persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby. Each term, covenant and condition
of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
-38-
31. No Recordation. Buyer shall not be entitled to record
this Agreement or a memorandum or other notice of this Agreement in any public
office. This Paragraph shall be deemed to be a specific directive to the
officials of such public office NOT to accept this Agreement or a memorandum or
other notice of this Agreement for recordation in any form whatsoever. Any
violation of the provisions of this Paragraph 31 shall constitute an immediate
default by Buyer under this Agreement.
32. Tender. With respect to the Geerdes Real Property, formal
tender of an executed deed and purchase money is hereby waived by Buyer.
33. Further Assurances. After the Closing, at Buyer's sole
cost and expense, Seller shall execute, acknowledge and deliver, for no further
consideration, all assignments, transfers, deeds and other documents as Buyer
may reasonably request to vest in Buyer and perfect Buyer's right, title and
interest in and to the Property.
34. Jury Trial Waiver. BUYER AND SELLER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREE THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE
A JUDGE SITTING WITHOUT A JURY.
35. No Offer. THE DELIVERY OF THIS AGREEMENT DOES NOT
CONSTITUTE AN OFFER AND THIS AGREEMENT SHALL NOT BE BINDING AND SHALL HAVE NO
FORCE AND EFFECT UNLESS AND UNTIL A FULLY EXECUTED COUNTERPART HEREOF HAS BEEN
DELIVERED TO EACH OF THE PARTIES. IT IS EXPRESSLY UNDERSTOOD THAT SELLER HAS NO
OBLIGATION TO EXECUTE THIS AGREEMENT.
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36. Delivery of Documents. Promptly upon execution hereof by
the parties hereto, Seller shall deliver to Buyer one copy of this Agreement,
complete with all Exhibits or Schedules prepared or delivered by Seller, and a
copy of this Agreement (and said Exhibits and Schedules, if available) on disk,
compatible with WordPerfect 5.1.
37. Counterparts. This Agreement may be executed in one or
more counterparts, each of which, for all purposes, shall be deemed an original
and all of which, when taken together, shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
parties have duly executed this Agreement as of the day and year first above
stated.
SELLER:
EDB PROPERTY PARTNERS, L.P. I,
a Delaware limited partnership
By: Emmes Laurel Property Corp.,
a Delaware corporation,
a general partner
By: /s/ Andrew Davidoff
------------------------------
Name: Andrew Davidoff
Title: Vice President
BUYER:
BRANDYWINE REALTY TRUST, a
Maryland Real Estate Investment Trust
By: /s/ Gerard H. Sweeney
------------------------
Name: Gerard H. Sweeney
Title: President & CEO
The Undersigned Hereby Acknowledges
Receipt Of The Deposit And Agrees To
Hold And Apply The Same In Accordance
With The Provisions Of The Escrow Terms
Baer Marks & Upham LLP
By: /s/ Howard R. Shapiro, Esquire
----------------------------------
Partner
-40-
EXHIBIT C
Additional Exceptions To Title
"Geerdes Land"
38. Grant of right-of-way to Philadelphia Suburban Water Company as in Deed
Book 4794 page 669.
39. Rights granted to Philadelphia Suburban Water Company as in Deed Book 4766
page 1698, Deed Book 4766 page 1183 and Deed Book 3476 page 77.
40. Rights granted to Philadelphia Electric Company as in Deed Book 3230 page
324, Deed Book 3481 page 121 and Deed Book 4839 page 2336.
41. Rights granted to The Bell Telephone Company of Pennsylvania as in Deed
Book 4912 page 1257, Deed Book 4773 page 861, Deed Book 4763 page 865 and
Misc. Deed Book 71 page 252.
42. Deed of Dedication between Whitesell Enterprises, Ltd. and Upper Merion
Township Authority dated August 5, 1967 recorded in Deed Book 4917 page
1875.
43. Deed of Dedication between Whitesell Enterprises Ltd. (A New Jersey Limited
Partnership) and Manor Health Care Corp. (a Delaware Corporation) dated
December 14, 1987 recorded in Deed Book 4860 page 2040.
44. Deed of Sanitary Sewer Easement between Whitesell Construction Inc., and
Upper Merion Municipal Utility Authority dated September 24, 1987 recorded
in Deed Book 4854, page 100.
45. Storm Sewer Easement between Whitesell Enterprises Ltd., (a New Jersey
Limited Partnership) and Manor Healthcare Corp., (a Delaware Corporation)
dated December 14, 1987 recorded in Deed Book 4860 page 2033.
46. Land Development Agreement between Township of Upper Merion and Whitesell
Construction Co., Inc., dated November 1, 1988 recorded in Deed Book 4892
page 542.
C-1
EXHIBIT C (Continued)
47. Memorandum of Lease between Whitesell Enterprises Ltd., (a New Jersey
Limited Partnership) (Landlord) and General Electric Company (a New York
Corporation) (Tenant) dated February 25, 1985 recorded in Deed Book 4762
page 303.
48. Subject to a 10 feet wide Philadelphia Electric Easement.
49. Subject to the free and common use, right, liberty and privilege of a
certain roadway, passageway and watersource laid out, opened and as
described in Deed Book 4731 page 1728.
50. Subject to the proportionate share of the cost of maintaining the said
roadway and passageway referenced in number 13 above in good order and
repair, including removal of snow, ice and debris.
51. Subject to notes, conditions, set back lines, easements etc. as recorded in
Plan Book A-49 page 240, Plan Book A-49 page 138, 139 and 140, Plan Book
A-46 page 113 and Plan Book A-47 page 64.
52. Taxes or special assessments which are not shown as existing liens by the
public records.
"2000/4000 Land"
- ----------------
53. Easement in Deed Book 1874 Page 893.
54. Easement in Deed Book 3787 Page 111.
55. Slope and Drainage Rights in Deed Book 779 Page 223.
56. Slope and Drainage Rights in Deed Book 835 Page 98.
57. Slope and Drainage Rights in Deed Book 1642 Page 1100.
58. Liability for additional assessments for taxes in connection with new
Construction pursuant to N.J.S.A. 54:4-63.1 and the following sections.
C-2
EXHIBIT C (Continued)
"9000 Land"
- -----------
59. Slope and Drainage Rights in Deed Book 774 Page 184.
60. Slope and Drainage Rights in Deed Book 899 Page 155.
61. Slope and Drainage Rights in Deed Book 1338 Page 486.
62. Slope and Drainage Rights in Deed Book 1459 Page 671.
63. Slope and Drainage Rights in Deed Book 1579 Page 408.
64. Slope and Drainage Rights in Deed Book 1222 Page 135.
65. 20 foot wide sanitary sewer easement crossing said premises, as shown on
survey prepared by Lippincott Engineering Associates dated August 24, 1995,
last revised August 29, 1995.
66. Declaration of Access and Parking Easement as contained in Deed Book 4058
Page 190.
67. Liability for additional assessments for taxes in connection with new
Construction pursuant to N.J.S.A. 54:4-63.1 and the following sections.
"1000 Land"
- -----------
68. Easement in Deed Book 1222 Page 135.
69. 75 Foot Set Back Line and Utility and Access Easement.
70. Slope and Drainage Rights in Deed Book 774, Page 184.
71. Slope and Drainage Rights in Deed Book 899, Page 155.
72. Slope and Drainage Rights in Deed Book 1338, Page 486.
C-3
EXHIBIT C (Continued)
73. Slope and Drainage Rights in Deed Book 1459, Page 671.
74. Slope and Drainage Rights in Deed Book 1579 Page 408.
75. Liability for additional assessments for taxes in connection with new
Construction pursuant to N.J.S.A. 54:4-63.1 and the following sections.
"15000 Land"
- ------------
76. Easement in Deed Book 4041 Page 182.
77. Easement in Deed Book 4050 Page 155.
78. Access Easement as contained in Deed Book 4041 Page 188.
79. 75 foot set back line shown on map filed in the Burlington County Recording
Office
80. Memorandum of Lease by and between 15000 Midlantic Drive Associates,
Limited Partnership and New Jersey Bell Telephone Company dated June 14,
1990 and recorded July 20, 1990 in Deed Book 4072 Page 38.
81. Liability for additional assessments for taxes in connection with new
Construction pursuant to N.J.S.A. 54:4-63.1 and the following sections.
The Following Additional Exception To Title
Applies To Each Of The Above Mentioned Properties
- -------------------------------------------------
82. Rights or claims of parties in possession reflected as Tenants on Exhibit K
herein.
C-4
EXHIBIT F
---------
Special Warranty Deed
---------------------
THIS SPECIAL WARRANTY DEED is made the ____ day of 1997,
between EDB Property Partners, L.P. I, a Delaware limited partnership, having an
office c/o Emmes & Company, LLC, 420 Lexington Avenue, New York, New York 10170
(hereinafter called the Grantor) of the one part, and Brandywine Realty Trust, a
Real Estate Investment Trust organized under the laws of Maryland, having an
address at 16 Campus Boulevard, Suite 150, Newton Square, Pennsylvania 19073
(hereinafter called the Grantee) of the other part,
WITNESSETH, that the said Grantor for and in consideration of
the sum of ONE DOLLAR ($1.00) lawful money of the United States of America, paid
to the Grantor by the said Grantee, at or before the sealing and delivery
hereof, the receipt whereof is hereby acknowledged, has granted, bargained and
sold, alienated, enfeoffed, released and confirmed, and by these presents does
grant, bargain and sell, alien, enfeoff, release and confirm unto the said
Grantee, its successors and assigns, the land as more fully described in
Schedule "A" attached hereto and made a part hereof.
TOGETHER with all and singular the buildings, improvements,
ways, streets, alleys, passages, waters, water-courses, rights, liberties,
privileges, hereditaments and appurtenances, whatsoever thereunto belonging, or
in any wise appertaining, and the reversions and remainders, rents, issues and
profits thereof; and all the estate, right, title, interest, property, claim and
demand whatsoever of it, the said Grantor in law as in equity, or otherwise
howsoever of, in, and to the same and every part thereof.
TO HAVE AND TO HOLD the property described herein, with the
buildings and improvements thereon erected, hereditaments and premises hereby
granted, or mentioned and intended so to be, with the appurtenances, unto the
said Grantee
F-1
EXHIBIT F (Continued)
and its successors and assigns, to and for the only proper use and behoof of the
said Grantee and its successors and assigns, forever.
AND the said Grantor, for itself and its successors and
assigns does by these presents, covenant, grant and agree, to and with the said
Grantee and its assigns, that it, the said Grantor and its successors and
assigns, all and singular the hereditaments and premises herein described and
granted, or mentioned and intended so to be, with the appurtenances, unto the
said Grantee and its successors and assigns, against it, the said Grantor and
its successors and against all and every person or persons whomsoever lawfully
claiming or to claim the same or any part thereof, by, from or under it, them or
any of them, shall and will WARRANT and forever DEFEND.
IN WITNESS WHEREOF, the said Grantor has caused this Special
Warranty Deed to be executed as of the day and year first above written.
EDB Property Partners, L.P. I,
a Delaware limited partnership
By: Emmes Laurel Property Corp.
a Delaware Corporation,
a general partner
By: _____________________________
Name:
Title:
RECORD AND RETURN TO:
Eric L. Stern, Esq.
Pepper, Hamilton & Scheetz LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, Pennsylvania 19103-2799
F-2
EXHIBIT F (Continued)
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this ____ day of _________, 1997, before me personally came
__________________________ to me known and known by me to be the person who
executed the foregoing instrument, and who being by me duly sworn, did depose
and say that he resides at _______________________________; that he is the
________ President of Emmes Laurel Property Corp., a corporation duly organized
under the laws of the State of Delaware, having its principal place of business
at c/o Emmes & Company LLC, 420 Lexington Avenue, New York, New York 10170 that
said corporation is a general partner of EDB Property Partners, L.P.I a Delaware
limited partnership, the partnership described in and which executed the
foregoing instrument; that he signed his name thereto by like authority of the
board of directors of said corporation; and he acknowledged to me that the said
instrument was executed by said corporation for and on behalf of said
partnership for the use and purposes therein mentioned.
_______________________________
NOTARY PUBLIC
F-3
EXHIBIT F
---------
Bargain And Sale Deed
---------------------
PREPARED BY:
_______________________________
Howard R. Shapiro, Esq.
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
THIS DEED is made on _______________, 1997, between EDB
Property Partners, L.P. I, a Delaware limited partnership, having an address c/o
Emmes & Company LLC, 420 Lexington Avenue, Suite 2702, New York, New York 10170,
referred to in this Deed as the Grantor,
AND Brandywine Realty Trust, a Real Estate Investment Trust
organized under the laws of Maryland, having an address at 16 Campus Boulevard,
Suite 150, Newtown Square, Pennsylvania 19073, referred to in this Deed as the
Grantee.
Transfer Of Ownership. The Grantor grants and conveys
(transfers ownership of) the property described below to the Grantee. This
transfer is made for the sum of _______________________________. The Grantor
acknowledges receipt of this money.
Tax Map Reference. (N.J.S.A. 46:15-2.1) Township of Mount
Laurel Block No. ____ Lot No. ____ Account No. ____.
Property. The property consists of the land and all the
buildings and structures on the land in the Township of Mount Laurel, County of
Burlington and State of
F-4
EXHIBIT F (Continued)
New Jersey. The legal description is set forth on Schedule "A" attached hereto
and made a part hereof.
The Grantor promises that the Grantor has done no act to
encumber the property. This promise is called a "Covenant as to Grantor's Acts"
(N.J.S.A. 46:4-6). This promise means that the Grantor has not allowed anyone
else to obtain any legal rights which affect the Property (such as by making a
mortgage or allowing a judgment to be entered against the Grantor).
Signatures. The Grantor signs this Deed as of the date at the
top of the first page.
WITNESSED BY: EDB Property Partners, L.P. I
a Delaware limited partnership
By: Emmes Laurel Property Corp.
Name: _______________________ a Delaware Corporation,
a general partner
Title: _________________________ By: ________________________ (Seal)
Name:
Title:
F-5
EXHIBIT F (Continued)
STATE OF )
)ss.:
COUNTY OF )
I certify that on __________, 1997, ___________________
personally came before me and this person acknowledged under oath, to my
satisfaction, that:
(a) This person is the _____________ of Emmes Laurel Property
Corp., a Delaware corporation and a general partner of EDB Property Partners,
L.P. I, a Delaware limited partnership;
(b) This person is the attesting witness to the signing of
this Deed by the proper corporate officer who is _____________, the _____
President of said corporation;
(c) This Deed was signed by the corporation, as its voluntary
act duly authorized by a proper resolution of its sole Director and the Deed was
delivered by the limited partnership;
(d) This person knows the proper seal of the corporation which
was affixed to this Deed;
(e) This person signed this proof to attest to the truth of
these facts; and
F-6
EXHIBIT F (Continued)
(f) The full and actual consideration paid or to be paid for
the transfer of title is ___________________.
Sworn and subscribed before
this ____ day of________, 1997
_______________________________________
____________________________________
(Print Name of Attesting Witness)
F-7
EXHIBIT G
---------
Bill Of Sale
------------
KNOW ALL MEN BY THESE PRESENTS, That EDB Property Partners,
L.P. I, a Delaware limited partnership, having an address c/o Emmes & Company,
LLC, 420 Lexington Avenue, New York, New York 10170 (hereinafter called the
"Transferor"), for and in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration paid to Transferor by Brandywine Realty
Trust, a Real Estate Investment Trust organized under the laws of Maryland,
having an address at Suite 150, 16 Campus Boulevard, Newtown Square,
Pennsylvania 19073 (hereinafter called the "Transferee"), the receipt whereof is
hereby acknowledged has bargained, sold, assigned, transferred and set over and
by these presents does hereby bargain, sell, assign, transfer and set over,
without recourse, warranty or representation of any kind or nature, all of
Transferor's interest in and to those items of personal property as enumerated
in the Agreement of Sale owned by Transferor, which are located on, in or under
certain land and improvements being conveyed to Transferee by Transferor
concurrently herewith (the "Property") used solely in connection with the
Property.
TO HAVE AND TO HOLD the said personal property unto the said
Transferee, its successors and assigns, forever.
IN WITNESS WHEREOF, the Transferor has hereunto set its hand
or caused these presents to be signed by its proper corporate officer on the
____ day of ___________, 1997.
Signed Sealed And Delivered EDB Property Partners, L.P. I
in the Presence of By: Emmes Laurel Property Corp., a
Delaware corporation,
a General Partner
______________________________ By: _____________________________
Andrew Davidoff
Vice President
G-1
EXHIBIT G (Continued)
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this ____ day of _________, 1997, before me personally came
__________________________ to me known and known by me to be the person who
executed the foregoing instrument, and who being by me duly sworn, did depose
and say that he resides at _______________________________; that he is the _____
President of Emmes Laurel Property Corp., a corporation duly organized under the
laws of the State of Delaware, having its principal place of business at
_________________ that said corporation is a general partner of EDB Property
Partners, L.P. I, a Delaware limited partnership, the partnership described in
and which executed the foregoing instrument; that he signed his name thereto by
authority of the board of directors of said corporation; and he acknowledged to
me that the said instrument was executed by said corporation for and on behalf
of said partnership for the use and purposes therein mentioned.
____________________________________
NOTARY PUBLIC
G-2
EXHIBIT H
---------
Form Of Non-Foreign Person Certification
----------------------------------------
CERTIFICATION OF NONFOREIGN STATUS
----------------------------------
(Corporation, Partnership, Trust or Estate)
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax if the transferor
is a foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by EDB Property
Partners, L.P., I the undersigned hereby certifies the following on behalf of
EDB Property Partners, L.P. I.
83. EDB Property Partners, L.P. I is not a foreign
corporation, foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax Regulations);
84. EDB Property Partners, L.P. I's U.S. employer.
Identification number is ____________________, and
85. EDB Property Partners, L.P. I's office address is c/o
Emmes & Company, LLC, 420 Lexington Avenue, New York, New York 10170 understands
that this certification may be disclosed to the Internal Revenue Service by
transferee and that any false statement contained herein could be punished by
fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of EDB Property Partners, L.P. I.
Dated: , 1997
__________________________________
(Signature)
H-1
EXHIBIT I-1
-----------
Maintenance Bonds
-----------------
Maintenance And Performance Bonds For
Subdivision #244 For Laurel Corporate Center
--------------------------------------------
1. $27,600 Performance Bond in favor of Mount Laurel Township
to cover the cost of tree plantings along the Midlantic Drive Extension required
under subdivision approval.
2. $43,800 Performance Bond with Mt. Laurel Township for
completion of top paving of Walt Whitman Drive required under subdivision
approval.
3. $7,000 escrow posted with Mr. Laurel Twp.
H-2
EXHIBIT J
---------
"Escrow Terms"
--------------
86. The Deposit shall be held in escrow by Baer Marks & Upham
LLP, attorneys for Seller ["Escrowee"] under and subject to the provisions
hereof. Escrowee shall deposit the Deposit in an interest bearing account at a
Federally insured bank selected by Escrowee, in its sole discretion,
notwithstanding that another institution or investment may pay more interest
than the one selected, or at the option of Seller used to purchase United States
Government securities or deposited in a money market fund designated by Seller
and reasonably satisfactory to Buyer and Escrowee. Interest or other income if
any (collectively "interest") earned on the Deposit shall be paid to Seller (i)
if Buyer defaults under this Agreement, or (ii) on the Closing of title. In any
case any earned interest shall be credited to Buyer or applied on account of the
Purchase Price. In the event the Buyer exercises its right to terminate this
Agreement pursuant to Paragraph 11(b), the Deposit and any earned interest will
be returned to Buyer. The tax identification numbers of the parties shall be
furnished to the Escrowee upon request and the party receiving the interest
shall pay all income taxes thereon. If for any reason this Agreement is
cancelled or terminated and the Closing does not occur and if either party
and/or any other person asserting a claim against the Deposit makes a demand
upon Escrowee for payment of the Deposit, Escrowee shall give written notice to
the other party or parties of such demand except in the event the Buyer
exercises its right to terminate this Agreement pursuant to Paragraph 11(b),
whereupon such written notice shall not be required. If Escrowee does not
receive a written objection from the other party or parties to the proposed
payment within ten (10) business days after the giving of such notice, Escrowee
is hereby irrevocably authorized to make such payment. If Escrowee does receive
such written objection within such ten (10) day period or if for any other
reason Escrowee in good faith elects not to make such payment, Escrowee, in its
sole discretion and without liability to Seller or Buyer or any other person,
may do any of the following specified in (a) (b) or (c) below;
(a) Refuse to comply with any demands on it and continue to
hold the Deposit until it receives either (i) a written notice signed by Seller
and Buyer directing the disbursement of the Deposit, or (ii) a final order of a
court of competent jurisdiction thereover, directing the disbursement of the
Deposit, or
(b) On notice to Seller and Buyer, take such affirmative
action as it may deem appropriate to determine its duties as Escrowee including,
but not limited to, the deposit of the Deposit with a court of competent
jurisdiction and the commencement of an action for interpleader, or
J-1
EXHIBIT J (Continued)
(c) If Seller or Buyer, or any other person, shall have
commenced litigation relating to the Deposit, to deposit it with the clerk of
the court in which said litigation is pending or a substitute escrow agent.
Upon disbursing or depositing the Deposit under the provisions
of (a) (b) or (c) above, the Escrowee shall be released from all liability with
respect to the Deposit. Escrowee has endorsed this Agreement to acknowledge
receipt of the Deposit and to confirm its agreement to adhere to the provisions
hereof.
The parties acknowledge that Escrowee is acting solely as a
stakeholder at their request and for their convenience; that Escrowee shall not
be deemed to be the agent of either of the parties, and that Escrowee shall not
be liable to either of the parties for any mistake of fact or of law or error of
judgment or any acts or omissions of any kind unless they constitute gross
negligence on the part of Escrowee or they are taken or suffered in willful
disregard of this Agreement. Escrowee shall be entitled to rely on any
instrument or signature believed by it to be genuine and may assume that any
person purporting to give any written notice or instruction in connection
herewith is fully authorized to do so by the party on whose behalf such written
notice or instruction is given. Escrowee shall have no duties or
responsibilities except those set forth herein. Escrowee shall not be bound by
any modification of this Agreement, unless the same is in writing and signed by
Seller and Buyer, and if Escrowee's duties are affected, unless Escrowee shall
have given prior written consent thereto. Seller and Buyer, jointly and
severally, indemnify and hold Escrowee harmless from and against all costs,
claims, losses, liabilities and expenses, including reasonable attorneys' fees,
incurred in connection with or arising from the performance of Escrowee's duties
hereunder, except for Escrowee's gross negligence or acts or omissions taken or
suffered by Escrowee in willful disregard of this Agreement. Such indemnity
shall survive the delivery of the Deeds. Buyer acknowledges that Escrowee is
acting as counsel to Seller and in the event of any dispute arising under this
Agreement, Escrowee may continue to represent Seller; provided that Escrowee
shall either transfer the Deposit to another escrow agent mutually acceptable to
Seller and Buyer, or deposits it into court.
J-2
EXHIBIT L
---------
Permitted Survey Exceptions
---------------------------
Geerdes Land
- ------------
Conditions as shown on Plan of Survey Lot 2-A-1 situated in
Upper Merion Township, Montgomery County, Pennsylvania prepared for Baer Marks &
Upham (Job Number 7758.04) dated August 18, 1995 prepared by Vincent Schulte, a
registered land surveyor of Lippincott Engineering Associates, Consulting
Engineers (hereinafter the "Survey") and any additional state of facts disclosed
by a redated version of the Survey (redated after the date hereof), provided
such additional state of facts do not materially interfere with the use of the
Real Property as an office building.
2000/4000 Land
- --------------
Conditions as shown on Plan of Survey Lot 2, Block 503
situated in Mount Laurel Township, Burlington County, New Jersey prepared for
Baer Marks & Upham (Job Number 7758.04) dated August 24, 1995 prepared by
Vincent Schulte, a registered land surveyor of Lippincott Engineering
Associates, Consulting Engineer (hereinafter the "Survey") and any additional
state of facts disclosed by a redated version of the Survey (redated after the
date hereof), provided such additional state of facts do not materially
interfere with use of the Real Property as an office building.
9000 Land
- ---------
Conditions as shown on Plan of Survey Lot 3 and 4, Block 516
situated in Mount Laurel Township, Burlington County, New Jersey prepared for
Baer Marks & Upham (Job Number 7758.04) dated August 24, 1995 prepared by
Vincent Schulte, a registered land surveyor of Lippincott Engineering
Associates, Consulting Engineer (hereinafter the "Survey") and any additional
state of facts disclosed by a redated version of the Survey (redated after the
date hereof), provided such additional state of facts do not materially
interfere with use of the Real Property as an office building.
L-1
EXHIBIT L (Continued)
15000 Land
- ----------
Conditions as shown on Plan of Survey Lot 6, Block 516
situated in Mount Laurel Township, Burlington County, New Jersey dated August
23, 1995 prepared for Baer Marks & Upham (Job Number 7758.04) prepared by
Vincent Schulte, a registered land surveyor of Lippincott Engineering
Associates, Consulting Engineer (hereinafter the "Survey") and any additional
state of facts disclosed by a redated version of the Survey (redated after the
date hereof), provided such additional state of facts do not materially
interfere with use of the Real Property as an office building.
10000 Land
- ----------
Conditions as shown on Plan of Survey Lot 6, Block 501
situated in Mount Laurel Township, Burlington County, New Jersey dated August
22, 1995 prepared for Baer Marks & Upham (Job Number 7758.04) prepared by
Vincent Schulte, a registered land surveyor of Lippincott Engineering
Associates, Consulting Engineer (hereinafter the "Survey") and any additional
state of facts disclosed by a redated version of the Survey (redated after the
date hereof), provided such additional state of facts do not materially
interfere with use of the Real Property as an office building.
L-2
EXHIBIT M
---------
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
---------------------------------------------------------
KNOW ALL ME BY THESE PRESENTS, EDB Property Partners, L.P. I,
a Delaware limited partnership having an address c/o Emmes & Company LLC, 420
Lexington Avenue, New York, New York 10170 ("Assignor"), for and in
consideration of the sum of Ten ($10.00) Dollars lawful money of the United
States to it in hand paid by Brandywine Realty Trust, a Maryland real estate
investment trust having an address at 16 Campus Boulevard, Suite 150, Newtown
Square, Pennsylvania 19073 ("Assignee"), hereby assigns to Assignee without
warranty or representation of any kind or nature all of its right, title and
interest as landlord, in and to those tenant leases (the "Leases") affecting
those certain parcels of real property more fully described on Schedule A
annexed hereto and made a part hereof and to those lease security deposits (the
"Security Deposits") given by the tenants to Assignor pursuant to the Leases
described on Schedule B annexed hereto and made a part hereof. Nothing contained
herein is intended to modify any of the obligations arising under that certain
Agreement of Sale between the parties hereto which are expressly stated therein
to survive Closing.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns from the date hereof.
Assignee, by the acceptance of this Assignment and the
execution of this Assignment at the foot hereof, hereby assumes from and after
the date hereof, all of the obligations of Assignor as landlord hereafter
arising, under the Leases and with respect to such Security Deposits and hereby
agrees to indemnify, defend and hold the Assignor harmless from and against any
and all loss, liability, cost or expense, including reasonable attorneys' fees
imposed upon, incurred or claimed against Assignor by reason of Assignee's
failure to observe or perform (or claims of failure to observe or perform) any
of the obligations of the owner of those certain parcels of real property more
fully described on Schedule A under the aforesaid Leases or with respect to such
Security Deposits accruing or arising subsequent to the date hereof. Assignor,
by the delivery of this Assignment and the execution of this Assignment at the
foot hereof, hereby agrees to indemnify, defend and hold the Assignee, its
successors and assigns, harmless from and against any and all loss, liability,
cost or expense, including reasonable attorneys' fees, imposed upon, incurred or
claimed against Assignee by reason of Assignor's failure to observe or perform
(or claims of failure to observe or perform) any of the obligations of the owner
of those certain parcels of real
M-1
EXHIBIT M (Continued)
property more fully described on Schedule A under the aforesaid Leases or with
respect to such Security Deposits accruing or arising prior to the date hereof.
IN WITNESS WHEREOF, the parties hereto have set their hands
the ____ of _______________, 1997.
[SEAL] ASSIGNOR:
ATTEST:
EDB Property Partners, L.P. I
By: Emmes Laurel Property Corp., a
Delaware Corporation,
By: _____________________________ a General Partner
Name: ___________________________
Title: __________________________
By: _____________________________
By: _____________________________ Andrew Davidoff
Name: ____________________________ Vice President
Title: __________________________
[SEAL]
ATTEST: ASSIGNEE:
Brandywine Realty Trust
By: _____________________________
Name: ___________________________
Title: __________________________ By: _____________________________
Gerald H. Sweeney
President and CEO
By: _____________________________
Name: ___________________________
Title: __________________________
M-2
EXHIBIT M (Continued)
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this ____ day of _________, 1997, before me personally came
__________________________ to me known and known by me to be the person who
executed the foregoing instrument, and who being by me duly sworn, did depose
and say that he resides at _______________________________; that he is the
________ President of Emmes Laurel Property Corp., a corporation duly organized
under the laws of the State of Delaware, having its principal place of business
at _________________ that said corporation is a general partner of EDB Property
Partners, L.P.I a Delaware limited partnership, the partnership described in and
which executed the foregoing instrument; that he signed his name thereto by like
authority of the board of directors of said corporation; and he acknowledged to
me that the said instrument was executed by said corporation for and on behalf
of said partnership for the use and purposes therein mentioned.
____________________________________
NOTARY PUBLIC
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On the ____ day of ____________, 1997, before me personally
came ___________________________ to be known who, being by me duly sworn did
depose and say that he resides at
________________________________________________, that he is the
_________________ of Brandywine Realty Trust, the Maryland real estate
investment trust described in and which executed the foregoing instrument; and
that he signed his name thereto by authority of the board of directors of said
real estate investment trust.
____________________________________
NOTARY PUBLIC
M-3
EXHIBIT M
---------
ASSIGNMENT AND ASSUMPTION OF SELLER'S INTEREST IN CONTRACTS
-----------------------------------------------------------
KNOW ALL ME BY THESE PRESENTS, EDB Property Partners, L.P. I,
a Delaware limited partnership having an address c/o Emmes & Company LLC, 420
Lexington Avenue, New York, New York 10170 ("Assignor"), for and in
consideration of the sum of Ten ($10.00) Dollars lawful money of the United
States to it in hand paid by Brandywine Realty Trust, a Maryland real estate
investment trust having an address at 16 Campus Boulevard, Suite 150, Newtown
Square, Pennsylvania 19073 ("Assignee"), hereby assigns to Assignee without
warranty or representation of any kind or nature all of its right, title and
interest in and to those certain contracts described on Schedule B annexed
hereto and made a part hereof (the "Contracts") affecting those certain parcels
of real property more fully described on Schedule A annexed hereto and made a
part hereof. Nothing contained herein is intended to modify any of the
obligations arising under that certain Agreement of Sale between the parties
hereto which are expressly stated therein to survive Closing.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns from the date hereof.
Assignee, by the acceptance of this Assignment and the
execution of this Assignment at the foot hereof, hereby assumes from and after
the date hereof, all of the obligations of Assignor hereafter arising, under the
Contracts and hereby agrees to indemnify, defend and hold the Assignor harmless
from and against any and all loss, liability, cost or expense, including
reasonable attorneys' fees imposed upon, incurred or claimed against Assignor by
reason of Assignee's failure to observe or perform (or claims of failure to
observe or perform) any of the obligations under the aforesaid Contracts
accruing or arising subsequent to the date hereof. Assignor, by the delivery of
this Assignment and the execution of this Assignment at the foot hereof, hereby
agrees to indemnify, defend and hold the Assignee, its successors and assigns,
harmless from and against any and all loss, liability, cost or expense,
including reasonable attorneys' fees, imposed upon, incurred or claimed against
Assignee by reason of Assignor's failure to observe or perform (or claims of
failure to observe or perform) any of the obligations under the aforesaid
Contracts accruing or arising prior to the date hereof.
M-4
EXHIBIT M (Continued)
IN WITNESS WHEREOF, the parties hereto have set their hands
the ____ of _______________, 1997.
[SEAL] ASSIGNOR:
ATTEST:
EDB Property Partners, L.P. I
By: Emmes Laurel Property Corp., a
Delaware Corporation,
By: _____________________________ a General Partner
Name: ___________________________
Title: __________________________
By: _____________________________
By: _____________________________ Andrew Davidoff
Name: ____________________________ Vice President
Title: __________________________
[SEAL]
ATTEST: ASSIGNEE:
Brandywine Realty Trust
By: _____________________________
Name: ___________________________
Title: __________________________ By: _____________________________
Gerald H. Sweeney
President and CEO
By: _____________________________
Name: ___________________________
Title: __________________________
M-5
EXHIBIT M (Continued)
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this ____ day of _________, 1997, before me personally came
__________________________ to me known and known by me to be the person who
executed the foregoing instrument, and who being by me duly sworn, did depose
and say that he resides at _______________________________; that he is the
________ President of Emmes Laurel Property Corp., a corporation duly organized
under the laws of the State of Delaware, having its principal place of business
at _________________ that said corporation is a general partner of EDB Property
Partners, L.P.I a Delaware limited partnership, the partnership described in and
which executed the foregoing instrument; that he signed his name thereto by like
authority of the board of directors of said corporation; and he acknowledged to
me that the said instrument was executed by said corporation for and on behalf
of said partnership for the use and purposes therein mentioned.
____________________________________
NOTARY PUBLIC
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On the ____ day of ____________, 1997, before me personally
came ___________________________ to be known who, being by me duly sworn did
depose and say that he resides at
________________________________________________, that he is the
_________________ of Brandywine Realty Trust, the Maryland real estate
investment trust described in and which executed the foregoing instrument; and
that he signed his name thereto by authority of the board of directors of said
real estate investment trust.
____________________________________
NOTARY PUBLIC
M-6
AGREEMENT OF SALE
Between
EDB PROPERTY PARTNERS, L.P. I
and
BRANDYWINE REALTY TRUST
Dated as of April 15, 1997
TABLE OF CONTENTS
Page
----
AGREEMENT OF SALE.........................................................-1-
RECITALS..................................................................-1-
1. Definitions Of Certain Terms............................-1-
2. Acquisition Of The Properties...........................-5-
3. Purchase Price And Time Of Payment......................-6-
4. Closing.................................................-6-
5. Title And Conveyance Of The Property....................-7-
6. Closing Documents.......................................-9-
7. Prorations And Closing Costs...........................-11-
8. Possession Of Property.................................-14-
9. Representations Of Seller And Buyer....................-15-
10. Access To The Property.................................-21-
11. Due Diligence Period; Additional Provisions............-22-
12. Condemnation...........................................-23-
13. Damage By Fire Or Other Casualty.......................-24-
14. Default................................................-25-
15. Operations Prior To Closing............................-26-
16. Property Conveyed "AS-IS, WHERE IS"....................-28-
17. Brokers................................................-29-
18. Notices................................................-29-
19. Successors And Assigns.................................-30-
20. Counterparts...........................................-31-
21. Time Of The Essence....................................-31-
22. Judicial Interpretation................................-31-
23. Captions And Recitals..................................-31-
24. Entire Agreement.......................................-31-
25. Governing Law; Venue...................................-31-
26. Confidentiality........................................-32-
27. Limitation Of Liability................................-32-
28. Like-Kind Exchange.....................................-33-
29. SEC Reporting (8-K) Requirements.......................-33-
30. Partial Invalidity.....................................-34-
31. No Recordation.........................................-34-
32. Tender.................................................-34-
33. Further Assurances.....................................-34-
34. Jury Trial Waiver......................................-34-
35. No Offer...............................................-34-
36. Delivery of Documents..................................-35-
37. Counterparts...........................................-35-
-i-
LIST OF EXHIBITS
Exhibit A-1 Description of "Geerdes Land"
Exhibit A-2 Description of "2000/4000 Land"
Exhibit A-3 Description of "9000 Land"
Exhibit A-4 Description of "10000 Land"
Exhibit A-5 Description of "15000 Land"
Exhibit B List of "Contracts"
Exhibit C Additional Exceptions to Title
Exhibit D Personal Property Not Included in Sale
Exhibit E Base Building Work
Exhibit F Form of "Deeds"
Exhibit G "Bill of Sale"
Exhibit H Form of Non-Foreign Person Certification
Exhibit I-1 Maintenance Bonds (Mount Laurel Township)
Exhibit "J" "Escrow Terms"
Exhibit "K" List of "Leases"
Exhibit "L" Permitted Survey Exceptions
Exhibit "M" Form of Assignment(s)
Exhibit "N" Maintenance Requirements of Mount Laurel Township
Exhibit "O" Pending Litigation
Exhibit "P" Outstanding Brokerage Commissions
Exhibit "Q" Intentionally Omitted
Exhibit "R" Leasing Parameters
Exhibit "S" Intentionally Omitted
Exhibit "T" Identified Tenants
Exhibit "U" Representation Letter