Exhibit 10.5
1007 LAUREL OAK ROAD
AGREEMENT
THIS AGREEMENT is made and entered into as of the 5th day of
December, 1997 by and among Laurel Oak Road, L.L.C., a New Jersey limited
liability corporation having its principal office at Scarborough Properties,
20 East Clementon Road, Suite 201, Gibbsboro, New Jersey 08026 ("Laurel
Oak"), Sean Scarborough ("SS") and R. Randle Scarborough ("RRS"), the members
of Laurel Oak (together, the "Members"), BRANDYWINE REALTY TRUST, a Maryland
real estate investment trust (the "Trust"), and BRANDYWINE OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership or its nominee, having an
address at Newtown Square Corporate Campus, 16 Campus Boulevard, Suite 150,
Newtown Square, Pennsylvania 19073 (the "Partnership").
RECITALS
A. Laurel Oak is the owner of a certain tract of land being comprised
of two (2) parcels of property, being Lot 70 of Block 195.01 (formerly Lots
70 and 71), together with the building and improvements thereon, containing
approximately 78,205 rentable square feet, commonly known as 1007 Laurel Oak
Road, Voorhees, New Jersey as more fully described on Exhibit "A" attached
hereto; and
B. Laurel Oak desires and hereby agrees to sell or contribute, and the
Partnership desires and hereby agrees to acquire or accept, all of Laurel
Oak's right, title and interest in and to the Property (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", 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" shall have the meaning ascribed to that term in
Paragraph 4 hereof. The date upon which the Closing actually occurs shall be
the "Closing Date."
"Common Shares" shall mean the common shares of beneficial
interest, par value $.01 per share, of the Trust.
"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
Property, to the extent assignable by Laurel Oak, all as described in Exhibit
"B" attached hereto and made a part hereof.
"Deposit" shall mean the Deposit delivered by the Partnership
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
December 9, 1997.
"Effective Date" shall mean the date on which this Agreement
has been fully executed and delivered by all parties hereto to each other.
"Escrow Agent" shall mean Commonwealth Land Title Insurance
Company, 1700 Market Street, Philadelphia, Pennsylvania 19103.
"Escrow Terms" shall mean the escrow agreement to be entered of
even date herewith between the Escrow Agent, Laurel Oak and the Partnership.
"Improvements" shall mean those certain buildings and other
improvements constructed and located on the Land as described on Exhibit "A".
"Land" shall mean that certain parcel of real property located
at 1007 Laurel Oak Road, Voorhees, New Jersey.
"Leases" shall mean those certain leases (and guarantees
thereof, if any) listed on Exhibit "C" attached hereto and made a part
hereof, or hereafter entered into by Laurel Oak, 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 Property.
"Permitted Exceptions" shall mean with respect to any of the
Real Property (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 "D" to this Agreement, (iv) special assessments which become a lien
on any of the Real Property on or after the Closing Date, and (v) such other
title matters existing on the Closing Date which are accepted or deemed
accepted by the Partnership pursuant to Paragraph 5 hereof; and (vii) the
rights of Tenants of any of the Real Property pursuant to the Leases for all
or any portion of any of the Real Property.
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"Personal Property" shall (except as specifically excluded on
Exhibit "E" hereto) mean all of Laurel Oak'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 Laurel Oak, situated on
any of the Real Property on the Closing Date, and all artwork, renderings,
flags, awnings and trade dress; all architects', engineers', surveyors' and
other real estate 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 Laurel Oak's possession and are not proprietary in
nature, and all building names and Laurel Oak's rights, if any, in and to the
name "1007 Laurel Oak Road."
"Property" shall mean the Real Property and such of the
Contracts, Leases, Licenses, Personal Property and other rights, titles,
interests and obligations which pertain to the Real Property and are intended
to be contributed, conveyed, sold or otherwise transferred to the Partnership
by Laurel Oak pursuant to this Agreement.
"Real Property" shall mean the Land and the Improvements.
"Tenants" shall mean the tenants under the Leases.
"Trust" shall mean Brandywine Realty Trust, a Maryland real
estate investment trust, the sole general partner of the Partnership.
"Underlying Shares" shall mean the Common Shares issuable upon
the conversion or redemption of, or otherwise pursuant to, the Units issuable
hereunder.
2. Acquisition Of The Property. On the Closing Date, and subject
to the terms and conditions set forth in this Agreement, Laurel Oak shall
sell or contribute, at Laurel Oak's sole discretion, assign, transfer and
convey to the Partnership and the Partnership shall purchase or accept, as
the case may be, from Laurel Oak the following:
(a) All right, title and interest of Laurel Oak in and to all
of the Real Property;
(b) All right, title and interest of Laurel Oak, 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 Laurel Oak, if any, in
any easements, covenants, rights of way, privileges, hereditaments and other
rights appurtenant to any of the Real Property;
(d) to the extent assignable to the Partnership and approved
by the Partnership, all right, title and interest of Laurel Oak in and to the
Contracts and the Licenses relating to any of the Real Property;
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(e) all right, title and interest of Laurel Oak in and to the
Leases; and
(f) all right, title and interest of Laurel Oak in and to the
Personal Property.
3. Consideration And Time Of Payment. The consideration (the
"Consideration") to be received by Laurel Oak from the Partnership in
exchange for the Property shall be Six Million One Hundred Thousand Dollars
($6,100,000) less the amount of principal and accrued interest secured by a
mortgage on the Property if and to the extent such principal and accrued
interest is not repaid at the Closing, as adjusted pursuant to Paragraph 7 of
this Agreement which shall be paid to Laurel Oak in the following manner:
(a) On the Effective Date, the Partnership shall deliver a
check, subject to collection, in the amount of Twenty Thousand Dollars
($20,000) to the Escrow Agent, which check shall be payable to the order of
the Escrow Agent and shall be held and disbursed pursuant to the Escrow
Terms. Thereafter, within two (2) business days following the Due Diligence
Expiration Date, the Partnership shall deliver a check, subject to
collection, in the amount of Ten Thousand Dollars ($10,000) to the Escrow
Agent, which check shall be payable to the order of the Escrow Agent and
shall be held and disbursed pursuant to the Escrow Terms. In the event that
Laurel Oak elects, pursuant to subparagraph (c) below, to receive all of the
Consideration in Units in exchange for the contribution of the Property, the
Escrow Agent shall release the Deposit to the Partnership at the Closing.
(b) The balance of the Consideration shall be paid to Laurel
Oak at the Closing by wire transfer of immediately available funds to an
account designated by Laurel Oak.
(c) In lieu of receiving the Consideration pursuant to
subparagraphs (a) and (b) above, Laurel Oak may elect, at its option, to
receive all or a portion of the Consideration in the form of Class A Units of
Limited Partnership Interest ("Units") in the Partnership in exchange for the
contribution to the Partnership of all or a portion, as the case may be, of
the Property (such amount being estimated as approximately $1,530,000 worth
of units (i.e., $6,100,000 - $4,570,000). Laurel Oak may make such election
by providing the Partnership written notice no later than thirty (30) days
prior to the Closing Date. Such election notice shall state the dollar
amount of the Consideration to be received in Units. The number of Units
issuable in satisfaction of the applicable portion of the Consideration that
Laurel Oak elects to be so received shall be computed by dividing the
aggregate dollar amount of such applicable portion of the Consideration by
the Computed Market Price. The term "Computed Market Price" shall mean the
average closing price for the Common Shares as reported by the New York Stock
Exchange (the "NYSE") for the ten (10) trading day period immediately
preceding the Due Diligence Termination Date. The distributions declared by
the Partnership in respect of the Class A Units issuable pursuant to this
Agreement during the initial calendar quarter in which the Closing occurs
shall be pro-rated by the Partnership based on the number of days the Class A
Units are outstanding during such quarter. For example, if the Class A Units
issuable pursuant to this Agreement are issued on December 1, 1997, each of
such Class A Units shall be entitled to receive an amount equal to one-third
of the amount of the distribution payable to a Class A Unit that was
outstanding during the full quarter.
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(d) The transaction contemplated by this Agreement is
conditioned upon the closing of the sale of the other properties identified
on Exhibit "F" attached hereto (the "Other Properties"), so that no one or
more of the Other Properties and the Property hereunder may be sold without
all of the Property being sold unless expressly provided for in writing by
the parties hereto and in any event the Deposit hereunder and thereunder
shall be deemed a single deposit for the entire transaction.
4. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall be held on or before December 12, 1997, but
in any event no later than fifteen (15) days next following the Due Diligence
Termination Date, at the offices of the Partnership, Plaza 1000 at Main
Street, Suite 400, Voorhees, New Jersey, commencing at 10:00 a.m., time being
of the essence.
5. Title And Conveyance Of The Property.
(a) At Closing, title to the Real Property shall be insurable
at regular rates by Commonwealth Land 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 Property is not insurable as aforesaid, the Partnership's sole right and
remedy shall be as set forth in Paragraph 5(b) below.
(b) (i) The Partnership has applied 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 the
Partnership, upon recording of the Deeds (as hereinafter defined) for each of
the Real Property, an owner's policy of title insurance as above specified
("Title Policy"). Said Commitments shall agree to insure the proposed title
of the Partnership to each of the Real Property subject only to the Permitted
Exceptions and such other title exceptions as the Partnership 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 the Partnership objects to such additional title exceptions
(the "Title Defects"), the Partnership shall notify Laurel Oak of such Title
Defects with sufficient specificity to enable Laurel Oak to respond. The
Partnership's notice of any Title Defects shall be given in writing to Laurel
Oak no later than the date which is five (5) business days prior to the Due
Diligence Termination Date, together with the Commitments and copies of all
matters of record raised therein as exceptions thereto, after which the
Partnership shall be deemed to have waived any and all Title Defects not so
raised, except for Title Defects which are disclosed to the Partnership in
continuations of title issued subsequent to the issuance of the Commitments,
unless the Partnership fails to object to same in writing within three (3)
business days after the Partnership's receipt of the continuation of title in
which the same is disclosed, in which case the Partnership will be deemed to
have waived such additional Title Defects. Laurel Oak shall have the right,
but not the obligation (except as otherwise specifically provided), to cure
such Title Defects and, if Laurel Oak 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 Laurel Oak at its sole option for up to
thirty (30) days to enable Laurel Oak to effect such cure.
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(ii) In the event that either (a) Laurel Oak is unable to
convey title in accordance with the terms of this Agreement, (b) Laurel Oak
elects not to cure or cause the removal of any exception to title, except as
required in subparagraph (iii) below, or (c) if Laurel Oak is unable to
satisfy any other conditions to the Partnership's obligations under this
Agreement, then (except as otherwise specifically provided in subparagraph
(iii) below) the sole liability of Laurel Oak shall be to (A) direct the
Escrow Agent to return the Deposit to the Partnership and (B) reimburse the
Partnership 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 the Partnership to update the existing surveys
(collectively "the Partnership's Reasonable Costs"), and upon such payments
being made, this Agreement shall be deemed canceled 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
the Partnership shall have no rights of action against Laurel Oak in law or
in equity, for damages or, except for the purpose of enforcing Laurel Oak's
contractual obligations under subparagraph (iii) below, for specific
performance. Notwithstanding the foregoing, the Partnership shall have the
right to waive any conditions to the Partnership's obligations hereunder, in
which event Laurel Oak shall make the deliveries provided for herein to the
Partnership to the extent that Laurel Oak is able so to do, and there shall
be no reduction in the Consideration in such event.
(iii) Notwithstanding the provisions of the foregoing
paragraph, if the condition of title to the Real Property at the Closing is
other than that which the Partnership is required or agrees to accept
hereunder solely by reason of any mortgages or other monetary liens
(hereinafter referred to as "Liens") which can be satisfied or remedied by
the payment of a liquidated amount of money not to exceed the Purchase Price,
Laurel Oak shall not have the right to cancel this Agreement and Laurel Oak
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.
(iv) Notwithstanding anything to the contrary contained in
this Agreement, Laurel Oak 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 subparagraph (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) The Partnership expressly understands, acknowledges and
agrees that any failure by the Partnership to notify Laurel Oak in writing of
any Title Defects on or before the expiration of the Due Diligence, shall for
all purposes be deemed to be an acceptance by the Partnership of such Title
Defects as if they were one or more of the Permitted Exceptions.
(d) At Closing, Laurel Oak will convey fee simple title to the
Real Property by a Bargain and Sale Deed with covenant against grantor's acts
(the "Deed"), subject in all cases to the Permitted Exceptions, in the forms
attached hereto and made a part hereof as Exhibit "G".
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(e) At Closing, Laurel Oak will transfer all of its right,
title and interest in and to the Personal Property to the Partnership by
executing a Bill of Sale ("Bill of Sale") in the form attached hereto and
made a part hereof as Exhibit "H".
(f) At Closing, Laurel Oak will assign all of Laurel Oak's
right, title, and interest, and the Partnership shall assume all of the
obligations from and after the Closing Date, in, to and under the Leases,
Licenses and the Contracts for the Property, by executing an Assignment and
Assumption Agreement in the form attached hereto and made a part hereof as
Exhibit "I" (the "Assignments").
6. Closing Documents.
(a) At the Closing, as a condition of the Partnership's
obligation to close hereunder, Laurel Oak shall deliver or cause to be
delivered the following:
(i) The Deed, executed by Laurel Oak, covering the Real
Property (and separate quitclaim deeds to the Real Property utilizing new
ALTA survey descriptions, if requested);
(ii) The Bills of Sale executed by Laurel Oak covering the
Personal Property;
(iii) The Assignments, executed by Laurel Oak;
(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 Laurel Oak;
(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 Laurel Oak;
(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 Laurel Oak;
(vii) Written notice from Laurel Oak or Laurel Oak's
managing agent to each Tenant in form reasonably satisfactory to the
Partnership stating that the Real Property have been sold to the Partnership
and that tenant security deposits (if any) in Laurel Oak's possession have
been transferred to the Partnership and directing the Tenants to make future
rental payments to the Partnership at the address designated by the
Partnership;
(viii) Non-foreign person certification in the form
attached hereto as Exhibit "J";
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(ix) All building records and Tenant lease files with
respect to the Real Property which are in the possession of Laurel Oak;
(x) Each bill of current real estate taxes, sewer charges
and assessments, water charges and other utilities and to the extent in
Laurel Oak'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 Laurel Oak or any property manager controlled by Laurel Oak;
(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 Laurel Oak to enable the Title Insurer to issue the Commitments
described in Paragraph 5(b)(i). The Partnership shall require affirmative
endorsements against mechanic's liens, consistent with Laurel Oak's
obligations under Paragraph 5(b)(iii), above;
(xiii) A letter, from the New Jersey Department of
Environmental Protection or its successor ("NJDEP") 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 Real Property (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
Laurel Oak to be correct and complete as of Closing Date;
(xvi) Proof as to the due authorization and execution
by Laurel Oak of the documents executed and delivered by Laurel Oak;
(xvii) Such affidavits of title or other certifications
as shall be required by the Title Company to insure the Partnership's title
to the Property as set forth in Section 3, and to provide affirmative
endorsements (a) against mechanic's liens, (b) insuring against any violation
of existing covenants, conditions or restrictions, and insuring that future
violation will not result in forfeiture of title, (c) insuring that all
foundations in place as of the date of such policy are within the lot lines
and applicable set back lines, (d) insuring that the buildings and structures
on the Property do not encroach onto adjoining land or onto any easements,
(e) insuring that confirming that there are no encroachments of improvements
from adjoining land onto the Property (f) removing any exceptions for matters
which an accurate survey would disclose, and (g) providing affirmative
insurance with respect to such other matters as the Partnership or its lender
shall specify;
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(xviii) A Registration Rights Agreement in the form
attached hereto as Exhibit "K" executed by Laurel Oak and the Members;
(xix) The closing certificate required pursuant to
this Agreement;
(xx) An executed counterpart to the Agreement of Limited
Partnership of the Partnership (the "Partnership Agreement") signed by each
of the Members;
(xxi) An executed Tax Indemnity Agreement in the form
of Exhibit "L" attached hereto;
(xiii) An executed $350,000 Guaranty by M. Sean
Scarborough in the form of Exhibit "M" attached hereto; and
(xxiii) An executed Investors Questionnaire in the form
attached hereto as Exhibit "N".
(b) At the Closing, as a condition of Laurel Oak's obligation
to close hereunder, the Partnership shall deliver or cause to be delivered
the following:
(i) The balance of the Consideration (in immediately
available funds or Units in accordance with Paragraph 3);
(ii) A replacement Maintenance Bond or Letter of Credit in
the amount of $80,491.14 benefitting Voorhees Township, New Jersey;
(iii) The Assignments, executed by the Partnership;
(iv) An agreement by the Partnership not to sell the
Property for four years, including an indemnity for the Partnership's breach
thereof;
(v) A Registration Rights Agreement in the form attached
hereto as Exhibit "K" and Tax Indemnity in the form of Exhibit "L" executed
by the Trust; and
(vi) The closing certificate required pursuant to
Paragraph 9.
7. Prorations And Closing Costs. All matters involving prorations
or adjustments to be made to the Consideration 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 the Partnership to be treated as the owner of the
Property, 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 Property 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
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Date, taxes will be prorated on the basis of the most recently ascertainable
tax bill. There shall be no proration of Laurel Oak's insurance premiums or
assignment of Laurel Oak's insurance policies and Laurel Oak shall be
entitled to cancel all of its existing policies as of the Closing Date. The
Partnership 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 the Property and allocable to the period prior to
the Closing Date shall be determined and paid by Laurel Oak before Closing,
if possible, or shall be paid promptly thereafter by Laurel Oak or adjusted
between the Partnership and Laurel Oak immediately after the same have been
determined. The Partnership and Laurel Oak shall to the extent necessary
enter into an agreement to such effect at Closing. Laurel Oak shall attempt
to have all utility meters read as of the Closing Date. Laurel Oak shall
further attempt to obtain from the provider of same, all other service
statements and bills of account adjusted as of the Closing Date. Laurel Oak
shall be entitled to refunds of all deposits, if any, paid by Laurel Oak or
Laurel Oak's predecessor-in-interest prior to Closing and held by entities
providing such service, or, at Laurel Oak's option, Laurel Oak shall transfer
all of Laurel Oak's right, title and interest in and to such deposits to the
Partnership at Closing and shall receive a full credit for the amount of such
deposits. All Contracts and other obligations in connection with the
Property, 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 Property on or before the Closing Date and are not
payable in installments shall be paid by Laurel Oak. Special assessments
which have been filed as a lien against any of the Real Property, 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 the Partnership. Special
assessments which are or may be pending, but which have not become a lien on
the Real Property as of the Closing Date, and special assessments which are
filed as a lien after the Closing Date, shall be assumed and paid by the
Partnership.
(c) Laurel Oak shall pay the cost of State and County transfer
taxes or stamps imposed in connection with the recordation of the Deeds for
the Real Property. The Partnership 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
the Partnership. The Partnership agrees to pay the expense of the legal fees
of its own counsel. The cost of all of the Partnership's Due Diligence
Activities (as defined below) shall be borne solely by the Partnership.
(d) Any base, minimum or similar rents under the Leases
collected by Laurel Oak for a rental period or portion thereof from or after
the Closing Date shall be credited to the Partnership at Closing on a per
diem basis. In addition, any security deposits held by Laurel Oak 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 the Partnership at Closing at Laurel Oak's option.
If any tenant is in arrears in the payment of rent or additional rent on the
Closing Date, rents received from such tenant ninety (90) days after the
Closing Date shall be applied in the following order of priority: (a) to the
Partnership, so long as
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such tenant is in arrears for current or prior rent arising after Closing,
then (b) to Laurel Oak for all rent in arrears prior to the Closing Date; and
then (c) to the Partnership with no further claim by Laurel Oak thereto.
Except as herein provided, the Partnership is not under any obligation to
collect rents in arrears for the benefit of Laurel Oak. Any rents which are
delinquent or otherwise not paid at the time of Closing, and collected by the
Partnership or Laurel Oak within ninety (90) days after Closing shall be
apportioned as aforesaid and the portion to which Laurel Oak is entitled
shall be promptly remitted by the Partnership to Laurel Oak. Laurel Oak
shall have no claim to rents collected ninety (90) days after the Closing
Date. Laurel Oak retains the right to pursue its remedies against Tenants
after Closing for any delinquent rents or other amounts owed to Laurel Oak
(other than proceedings to evict Tenant or terminate its lease). The
Partnership shall not enter into any agreement pursuant to which any sums
owed to Laurel Oak in respect of any Lease for periods prior to the Closing
are reduced, modified or waived. The Partnership's obligations to collect
rent arrearages shall be limited to commercially reasonable efforts, and the
Partnership 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 Laurel Oak without contribution by, or reimbursement
from, the Partnership. At Closing, the Partnership shall pay or reimburse
Laurel Oak 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. The Partnership
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
the Partnership'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. Laurel Oak shall be responsible
for the costs of, and shall pay or perform prior to Closing 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 Laurel
Oak 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 Property. The Partnership shall assume, pay or reimburse (as
applicable) Laurel Oak on the Closing Date for 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 all costs of
tenant improvements and allowances incurred by or on behalf of Laurel Oak 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 Property, provided the same were approved by the Partnership or
are otherwise permitted as set forth in Paragraph 15(e) hereof and provided
that such costs are set forth on Exhibit "C" hereto.
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(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 Laurel Oak.
(g) Laurel Oak shall be solely responsible for the payment of
any "roll back taxes" assessed or imposed upon any of the Real Property 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 otherwise, which relate to any period prior
to the Closing Date, and Laurel Oak agrees to indemnify, defend and save the
Partnership harmless (including attorneys' fees) from and against any claim
for such taxes.
(h) Miscellaneous income including, without limitation,
telephone and vending machine income, if any, shall be prorated as of the
Closing Date.
(i) All of the provisions of this Paragraph 7 and Laurel Oak's
and the Partnership's respective rights and obligations hereunder shall
survive the Closing.
8. Possession Of Property.
(a) Laurel Oak shall deliver possession to the Real Property
to the Partnership on the Closing Date, subject only to the Permitted
Exceptions.
(b) the Partnership shall assume, by execution of the
Assignments, all of Laurel Oak's obligations in, to and under the Contracts,
the Licenses and Leases. Notwithstanding the foregoing, the Partnership
shall not assume management, leasing or brokerage agreements provided,
however, that the Partnership shall remain liable for leasing commissions as
set forth in Paragraph 7(e), above.
(c) All of the provisions of this Paragraph 8 and Laurel Oak's
and the Partnership's respective rights and obligations hereunder shall
survive the Closing.
9. Representations Of Laurel Oak, the Members and the Partnership.
(a) Laurel Oak hereby represents and warrants, as follows, all
of which shall be true and correct at, and as of, the Effective Date:
(1) Laurel Oak is a limited liability company duly
organized and validly existing under the laws of the State of New Jersey, and
is in good standing in such state.
(2) Laurel Oak 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 Laurel Oak pursuant
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hereto when delivered will constitute, the legal, valid and binding
obligations of Laurel Oak, enforceable against Laurel Oak 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 Laurel Oak's knowledge, threatened against or
relating to Laurel Oak or its Property which might materially and adversely
affect Laurel Oak or its Property or which questions the validity of this
Agreement or any action taken or to be taken by Laurel Oak pursuant hereto.
Laurel Oak shall remain responsible to defend, and shall indemnify and hold
the Partnership harmless from and against all liability, cost and expense
relating to the litigation identified in on 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 Laurel Oak's limited liability agreement or any other
material agreement, instrument or lease to which Laurel Oak 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 Laurel Oak's possession or control, have
been or will be delivered, or made available, to the Partnership 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 Laurel Oak in connection with the ownership and
operation of the Property (the "Personal Property Leases"); (iv) Licenses;
(v) surveys; (vi) title reports; (vii) engineering reports; and (viii)
environmental reports.
(6) To the best of Laurel Oak's knowledge, (i) all
of the Leases, Contracts and Personal Property Leases and Licenses, are in
full force and effect, (ii) there has been no action or failure to act by
Laurel Oak 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) Laurel Oak has not
received from any other party written notice with respect to the condition of
the Property or the use or repair of the same or of any alleged default by
Laurel Oak under any such Lease, or Personal Property Lease or License.
Except as set forth on Exhibit "P", 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 the Partnership, the Contracts shall not be terminated
by Laurel Oak 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. The Partnership shall
assume all Contracts not terminated at Closing pursuant to the Assignment.
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(7) Laurel Oak shall indemnify and hold the
Partnership harmless of, from and against any and all claims and liabilities
arising out of the employment of any individuals by Laurel Oak and its
affiliates, whether as employees or independent contractors. As of the
Closing, there are and shall be no liens against the Real Property 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 the Partnership after the Closing. The
Partnership shall be under no obligation to assume any of Laurel Oak's
employees, it being Laurel Oak's sole responsibility and obligation to
provide severance arrangements, if any, for all such employees. This
Paragraph shall survive Closing.
(8) To Laurel Oak'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 Laurel Oak's actual knowledge, there are no special or
general assessments currently affecting or pending against the Real Property
or any portion thereof.
(9) Laurel Oak has not been served with written
notice that it has been named as a party in any litigation, administrative
proceeding or investigation naming Laurel Oak 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. Laurel
Oak 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 Laurel
Oak'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 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 Property, and a current rent roll certified by
Laurel Oak, will be delivered to the Partnership upon execution of this
Agreement.
(11) Laurel Oak 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 Laurel Oak and
related to the ownership or operation of the Property (collectively, the
"Permits"), and there is no pending or, to the actual knowledge or Laurel
Oak, threatened
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proceeding which could result in the revocation or cancellation of, or
inability of Laurel Oak to renew, any Permit.
(12) To the best of Laurel Oak's knowledge, except as
set forth in Exhibit "Q" attached hereto and made a part hereof, all
management fees, leasing commissions and tenant improvement allowances are
fully paid, there are no brokerage commissions owing by Laurel Oak with
respect to any of the Leases or otherwise related to the Property which have
not been paid, and there are no ongoing commission or leasing fee obligations.
(13) Laurel Oak has received no written notice from
any insurance company which has issued a policy with respect to the Property
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 Laurel Oak will promptly
notify the Partnership of any such notice or requirement if such notice is
received prior to the Closing.
(14) Laurel Oak is not a "foreign person" and will
deliver to the Partnership, 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) Laurel Oak has not received written notice from
any governmental agency or authority of outstanding material violations
issued by governmental authorities having jurisdiction over the Real Property.
(16) Except as may be set forth in a Lease as
specifically noted on Exhibit "C", there are no options, rights of first
refusal or conditional sales agreements regarding the purchase and sale of
the Real Property.
(17) There are no oral or written leases or rights of
occupancy or grants or claims of right, title or interest in any portion of
the Property other than the leases (the "Leases") listed on the rent roll
attached hereto as Exhibit "C". No tenant has advised Laurel Oak that Laurel
Oak is in default under any of the Leases, or asserted any claim or basis for
any claim for free or reduced rent or right of setoff against the landlord or
the rent under the Leases, and Laurel Oak and its agent have no actual
knowledge of any default or any event which has taken place which, with the
passage of time, or the delivery of notice, or both, could become an event of
default. Laurel Oak has the sole right to collect rents under the Leases,
and neither such right nor any of the Leases has been assigned, pledged,
hypothecated or otherwise encumbered by Laurel Oak except as additional
collateral for the existing mortgage upon the Property which shall be
satisfied at or before Closing. No holder of any such collateral assignment
has asserted or exercised any of its right to collect such rents. Each of
the Leases is valid and subsisting and in full force and effect, the tenant
is in actual possession in the normal course, and the rents set forth in
Exhibit "C" are the actual rents, income and charges being collected by
Laurel Oak under the Leases. Any tenant improvements which Laurel Oak is
obligated to complete pursuant to any Lease (or any unsigned lease proposal
or lease amendment) has been completed as of this date or shall be completed
as of Closing, and all costs therefore
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have been or shall be paid by Laurel Oak, and all of Laurel Oak's work has or
shall have been accepted by the Tenant without exception on or before
Closing, other than routine punch list items, which items shall remain the
responsibility of Laurel Oak following Closing, and which obligation shall
expressly survive Closing. The amount of each security deposit contains,
where required by law or otherwise applicable, interest which has accrued in
accordance with law. No tenant of the Property under any of the Leases has,
and shall not at Closing have, prepaid any rent under any of the Leases for
more than one (1) month. Except as otherwise set forth on Exhibit "C", no
security deposits by tenants have heretofore been returned or applied to
charges against the tenants.
(18) To the best of Laurel Oak's knowledge, the
Property and the continued operation and use thereof comply with all
applicable requirements of federal, state and local law, and all applicable
requirements of governmental bodies or agencies having jurisdiction thereof,
no portion of the Property lies within a flood hazard area, flood plain or
wetland; and there are no outstanding notices of any violations issued by
governmental authority having jurisdiction over the Property.
(19) To the best of Laurel Oak's knowledge, no
Hazardous Substances (defined below) and no Hazardous Wastes (defined below)
are present on the Property including, without limitation, asbestos,
flammable substances, explosives, radioactive materials, hazardous wastes,
toxic substances, pollutants, pollution, contaminant, polychlorinated
byphenyls ("PCBs"), urea formaldehyde foam insulation, radon, corrosive,
irritant, biologically infectious materials, petroleum product, garbage,
refuse, sludge, hazardous or waste materials, and there has been no use of
the Property that may, under any federal, state or local environmental
statute, ordinance or regulation, require, at any time, any closure or
cessation of the use or occupancy of the Property and/or impose, at any time,
upon the owner of the Property any clean-up or other monetary obligation.
Laurel Oak hereby indemnifies and holds the Partnership harmless of, from and
against any and all liability, loss or damage suffered or incurred as a
result of a claim, demand, cost or judgment in favor of a third party,
including, without limitation, any governmental authority, arising from the
deposit, storage, disposal, burial, dumping, injecting, spilling, leaking, or
other placement or release in or on the Property of Hazardous Substances or
Wastes during Laurel Oak's period of ownership. To the best of Laurel Oak's
knowledge, neither the Property nor any portion thereof, have been identified
on the federal CERLIS, the National Priorities List (40 C.F.R. Part 300, App.
B) or any state or local list of potential hazardous waste disposal sites or
as an industrial establishment. Laurel Oak has conducted a complete and
thorough inspection and test of the underground storage tanks located on the
Property, if any, and Laurel Oak has confirmed that, to the best of its
knowledge, the results thereof show compliance with all requirements of the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sections 6901 et
seq. and all other applicable federal, state and local laws, and Laurel Oak
has taken all other necessary and appropriate action to comply fully
therewith.
(20) To the best of Laurel Oak's knowledge, all
adequate utilities, useable public sanitary and storm sewers, public water
facilities, electric facilities and, if any, gas facilities (collectively,
the "Utilities"), are installed in, and are duly connected to, the Real
Property, the sanitary sewer system has been dedicated to, and accepted by,
the Municipal
-16-
Utilities Authority, and can be used without charge except the normal and
usual metered utility charges and water and sewer charges. All Utilities
required for the operation of the Property either enter the Property through
adjoining public streets or, if they pass through adjoining public land, do
so in accordance with valid public easements or private easements which will
inure to the benefit of the Partnership at no cost to the owner of the
Property. All of said Utilities are installed and operating and all
installation, connection and "tap-in" charges have been paid for in full.
(21) No work has been performed or is in progress at,
and no materials have been furnished to the Property which, though not
presently the subject of, might give rise to construction, mechanic's,
materialmen's, municipal or other liens against the Property or any portion
thereof, except that for which full and complete releases have been obtained.
If any lien for any such work is filed before or after Closing, Laurel Oak
shall promptly discharge the same.
(22) To the best of Laurel Oak's knowledge, none of
the artwork being a part of the Personal Property was prepared on a "work for
hire" basis and none of the artwork was commissioned after 1991.
(23) To the best of Laurel Oak's knowledge, all
applicable charges, fees and assessments (including condominium fees, to the
extent applicable) and any and all other sums due under declarations,
cross-easements and like agreements to which the Property or any portion
thereof may be subject, have been paid, and no special assessments thereunder
are pending, there is no constituted Board of Directors for the Laurel Oak
complex, no fees due to such Board, and all consents and approvals required
to be obtained under any such declarations, cross-easements and like
agreements have been obtained pursuant to the requirements of such
documentation.
(24) To the best of Laurel Oak's knowledge, all
debts, liabilities, and obligations of Laurel Oak arising out of the
construction, ownership, and operation of the Property including, but not
limited to, construction costs, salaries, taxes, accounts payable and the
like, have been paid as they became due and payable and shall continue to be
so paid from the date hereof until the Closing Date.
(b) Each of Laurel Oak, SS and RRS, on its own behalf, hereby
represents and warrants as follows, all of which shall be true and correct
on, and as of, the Effective Date:
(1) That it has received a copy of the Trust's
Annual Report on Form 10-K, as amended, for the fiscal year ended December
31, 1996, the Trust's Quarterly Reports on Form 10-Q, as amended, for the
fiscal quarters ended March 31, 1997, June 30, 1997 and September 30, 1997,
and all Current Reports on Form 8-K filed by the Trust during fiscal 1997,
the Trust's proxy statement for its annual meeting of shareholders held on
May 12, 1997 and a copy of the Partnership Agreement;
-17-
(2) That the Units and the Underlying Shares
(collectively, the "Securities"), are being acquired for its own account
without a view to public distribution or resale and that it has no contract,
undertaking, agreement or arrangement to sell or otherwise transfer or
dispose of any Securities or any portion thereof to any other person (other
than from Laurel Oak to the Members);
(3) That it understands that the Securities have not
been registered under the Securities Act or the securities laws of any state,
and, as a result thereof, the Securities are "restricted securities" as
defined in Rule 144 under the Securities Act of 1933, as amended (the
"Securities Act"), and are subject to substantial restrictions on transfer;
(4) That it understands that the certificates
evidencing the Securities shall bear a legend indicating that such Securities
have not been registered under the Securities Act or any applicable state
securities laws and the transferability thereof is subject to compliance with
the Securities Act and applicable state securities laws;
(5) That it will not sell or otherwise transfer or
dispose of any Securities or any portion thereof unless the Securities are
registered under the Securities Act and any applicable state securities laws
or it obtains an opinion of counsel which is satisfactory to the Partnership
or the Trust, as appropriate, that the Securities may be sold in reliance on
an exemption from such registration requirements, and that the Securities and
certificates evidencing the same will bear a legend reflecting such
restrictions;
(6) That it understands that (i) except as expressly
set forth in the Registration Rights Agreement attached hereto as Exhibit
"K", neither the Partnership nor the Trust has any obligation or intention to
register the Securities for resale under any federal or state securities laws
and (ii) it therefore may be precluded from selling or otherwise transferring
or disposing of any Securities or any portion thereof for an indefinite
period of time or at any particular time;
(7) That in determining to acquire the Securities,
it has relied solely upon its independent investigation, including the advice
of its legal counsel and accountants or other financial and tax advisers or
Laurel Oak representatives and has, during the course of discussions
concerning the acquisition of the Securities, been offered the opportunity to
ask such questions and inspect such documents concerning the Partnership and
the Trust and their respective businesses and affairs as it has requested so
as to more fully understand the nature of the investment and to verify the
accuracy of the information supplied;
(8) THAT IT UNDERSTANDS THAT THE ACQUISITION OF THE
SECURITIES INVOLVES A HIGH DEGREE OF RISK, and that it can bear the economic
risk of the acquisition of the Securities, including the total loss of its
investment;
(9) That (i) it has adequate means of providing for
its current needs and financial contingencies, (ii) it has no need for
liquidity in this investment, (iii) it has no debts or other obligations, and
cannot reasonably foresee any other circumstances, that
-18-
are likely in the future to require it to dispose of the Securities, (iv) all
its investments in and commitments to non-liquid investments are, and after
its acquisition of the Securities will be, reasonable in relation to its net
worth and current needs, and (v) it was not formed for the specific purpose
of making an investment in the Securities;
(10) That it understands that no federal or state
agency has approved or disapproved the Securities, passed upon or endorsed
the merits of the offering of the Securities hereunder, or made any finding
or determination as to the fairness of the Securities for investment; and
(11) That it understands that the Securities are
being offered and distributed in reliance on specific exemptions from the
registration requirements of federal and state securities laws and that each
of the Partnership and the Trust is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and
understandings set forth herein in order to determine the applicability of
such exemption and the suitability of Laurel Oak and the Members to acquire
the Securities. In this regard, it understands that Common Shares will only
be issued upon the conversion or redemption of, or otherwise pursuant to, the
Units, if an exception from the registration requirements of the Securities
Act is then available for such issuance;
(12) It is an accredited investor, as defined in Rule
501(a) of Regulation D adopted under the Securities Act.
(c) It is agreed and understood that the Partnership intends
to perform its own due diligence, investigation and analysis in connection
with the transaction contemplated by this Agreement. If and to the extent
that the Partnership determines prior to the Due Diligence Termination Date
that any or all of the representations and warranties made in this Agreement
by Laurel Oak or the Members shall be untrue as a result of such due
diligence, investigation or analysis, the Partnership 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 Partnership
has now or hereafter acquires prior to the Due Diligence Termination Date
actual knowledge that one or more of the representations and warranties of
Laurel Oak or the Members are not true, no such fact or circumstance known to
the Partnership shall be made the basis of a claim by the Partnership of a
breach of representation or warranty by Laurel Oak or a Member, as the case
may be.
(d) Notwithstanding anything to the contrary contained in this
Agreement, in the event any representation, agreement or undertaking made by
Laurel Oak or the Members in this Agreement shall prove to be false and the
cost or expense incurred or likely to be incurred by the Partnership as a
result thereof shall not exceed $50,000 in the aggregate, such
misrepresentation, agreement or undertaking shall be deemed "immaterial" and
shall not give rise to any right of the Partnership 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 the Partnership hereby waives all
its rights, claims and remedies relating thereto. The Partnership's sole
remedy in the event any representation, agreement or undertaking of Laurel
Oak or the Members which is
-19-
discovered by the Partnership at or prior to the Closing herein shall prove
to be false and the cost or expense incurred or likely to be incurred by the
Partnership as a result thereof exceeds $50,000 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 the Partnership, and thereupon
the Partnership shall receive a refund of the Deposit, and Laurel Oak shall
reimburse the Partnership for the Partnership's Reasonable Costs and Due
Diligence Costs. To the extent the Partnership has actual 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, the Partnership
hereby waives all of its rights, claims and remedies relating thereto.
(e) The Partnership and the Trust hereby represent and warrant
as follows, all of which shall be true and correct at, and as of, the
Effective Date:
(1) The Partnership is a limited partnership duly formed
and validly existing under the laws of the State of Delaware, and is in good
standing with the State of Delaware. The Trust 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.
(2) Subject to Paragraph 9(e)(5), below, the Partnership
and the Trust have all necessary power and authority to enter into this
Agreement, to perform their 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 the Partnership and the
Trust pursuant hereto when delivered will constitute, the legal, valid and
binding obligations of the Partnership and the Trust, enforceable against the
Partnership and the Trust in accordance with their respective terms.
(3) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will (a) violate any
provision of any organizational document of the Partnership or the Trust, 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 the Partnership or the Trust is a party.
(4) There is no litigation, proceeding or action pending,
or, to the best of the Partnership's or the Trust's knowledge, threatened
against or relating to the Partnership or the Trust which might materially
and adversely affect the ability of the Partnership or the Trust to
consummate the transactions contemplated hereby or which questions the
validity of this Agreement or any action taken or to be taken by the
Partnership or the Trust pursuant hereto.
(5) The execution and delivery of this Agreement shall
have been approved by the Board of Trustees of the Trust on or prior to the
Due Diligence Termination Date and no further action shall thereupon be
required on the part of the Partnership
-20-
or the Trust to consummate the transaction contemplated hereby. The
signatories for the Partnership and the Trust are authorized and empowered to
bind the Partnership and the Trust to this Agreement and all transactions
contemplated herein.
(6) Except as otherwise set forth in Paragraph 9(e)(5)
above, in connection with the listing application with the NYSE pursuant to
Paragraph 17(d) and the registration of the Underlying Shares pursuant to the
Registration Rights Agreement attached hereto as Exhibit "K" and as required
by any applicable state securities or "blue sky laws", 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 Trust or the Partnership.
(7) The Partnership has sufficient funds available to
consummate the transactions contemplated by this Agreement, without the
necessity of third-party financing other than other than the Partnership's
existing revolving credit facility administered by Nationsbank, N.A. The
Partnership and the Trust acknowledge that their obligations hereunder are
not conditioned upon any third party financing or capital infusion by another
party.
(8) The Securities, upon issuance, if any, will be duly
and validly issued, fully-paid and non-assessable.
(9) The information contained in the Trust's Annual
Report on 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.
(f) As to any representation or warranty made in this
Agreement which is qualified as being to the best knowledge of the
Partnership or Laurel Oak, 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. The
Partnership or Laurel Oak 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.
(g) Each of the representations and warranties set forth in
this Paragraph 9 shall be deemed renewed by Laurel Oak, the Members and the
Partnership, as the case may be, 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), and all such
representations shall survive for a period of one year from the Closing.
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10. Access To The Property.
(a) The Partnership and/or its agents and representatives,
during normal business hours and after reasonable advance notice to Laurel
Oak, may enter upon any of the Real Property from time to time prior to the
Closing Date, accompanied by an agent of Laurel Oak, for purposes of
conducting such inspections, investigations and/or studies as the Partnership
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 ("the Partnership's
Due Diligence Activities"). The Partnership's access to the Real Property
shall be subject to the rights of the Tenants of any of the Real Property,
who shall not be unreasonably disturbed during any such inspection by the
Partnership. The Partnership shall not engage in any activity in or about
the Real Property which directly or indirectly violates the terms of any
governmental or quasi-governmental statute, rule, regulation, order or
practice. The Partnership shall not make any physical changes to any of the
Real Property, except for test borings and soil samplings which shall be
performed only by licensed engineers reasonably acceptable to Laurel Oak and
only after three (3) business days' prior notice to Laurel Oak. The
Partnership may contact any governmental or quasi-governmental authorities
concerning the Property without the prior written approval of Laurel Oak.
Laurel Oak shall have the opportunity to observe any and all action taken by
the Partnership or its representatives, consultants, agents, etc. pursuant to
this Paragraph 10. All information set forth in any document which Laurel
Oak has granted to the Partnership 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 the Partnership violates its obligations under
this Paragraph 10(a) or in the event of any physical damage to any of the
Real Property or any Personal Property resulting, directly or indirectly,
from the exercise by the Partnership of its rights under this Paragraph
10(a), the Partnership hereby agrees to restore the Real Property and
Personal Property to their respective conditions prior to incurring such
damage. The Partnership hereby agrees to indemnify, defend and hold harmless
Laurel Oak from and against all physical damage to any of the Real Property
and Personal Property, personal injury and/or any other claims or liability
which may occur as a result of the Partnership's (or the Partnership's
agents, employees, invitees or licensees) entry or activities upon any of the
Real Property. The provisions of this Paragraph 10(a) shall survive Closing
or other termination of this Agreement.
(b) The Partnership, or any of the Partnership's consultants
performing physical tests on the Real Property shall maintain public
liability insurance policies (naming Laurel Oak as an additional named
insured with respect to any liability occurring on the Real Property), with
combined single limit coverage of at least $1,000,000, insuring against
claims arising as a result of the inspections of the Partnership, its agents,
employees or such contractors at any of the Real Property. A certificate of
insurance evidencing the foregoing coverage shall be delivered to Laurel Oak
prior to the Partnership's or any of the Partnership's consultants' entry on
to any of the Real Property.
(c) In the event Closing does not occur or this Agreement is
terminated, the Partnership shall promptly return to Laurel Oak any documents
obtained from Laurel Oak or Laurel Oak's agents and deliver to Laurel Oak,
without charge, copies of all
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written test results, studies, reports and similar materials obtained by or
on behalf of the Partnership relating to any of the Real Property.
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, the
Partnership 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 the Property with
zoning, licensing and all other governmental requirements, Leases for any of
the Real Property, operating statements pertaining to the Property and all
other aspects and conditions of the Property which the Partnership may decide
to review (collectively, "the Partnership's Due Diligence Activities"), all
as the Partnership shall deem appropriate). In connection with the
Partnership's Due Diligence Activities, Laurel Oak has delivered or will
deliver to the Partnership various documents, reports and materials
(collectively, the "Laurel Oak Due Diligence Materials"). THE PARTNERSHIP
UNDERSTANDS AND HEREBY ACKNOWLEDGES AND AGREES THAT THE LAUREL OAK DUE
DILIGENCE MATERIALS ARE BEING DELIVERED TO THE PARTNERSHIP WITHOUT ANY
REPRESENTATION OR WARRANTY WHATSOEVER BY LAUREL OAK OR BY THE PREPARER OF
SUCH LAUREL OAK 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 the Partnership's Due Diligence
Activities or otherwise, the Partnership 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 Laurel Oak 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 Partnership, 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) Laurel Oak shall obtain, prior to the Closing the
Non-Applicability Letter from the NJDEP or its successor. In furtherance of
the foregoing, Laurel Oak shall apply for the Non-Applicability Letter
promptly after the Effective Date, and shall pursue the same diligently and
in good faith.
(d) The Partnership agrees to prepare and forward to Laurel
Oak, at the Partnership's sole cost and expense, certificates (the "Estoppel
Certificates") for execution by the Tenants which shall, at the Partnership'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 "R". Laurel Oak agrees to deliver the Estoppel
Certificates to the Tenants promptly after the Partnership's written election
as to the form to be used (which election shall be made not
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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 the Partnership's
obligations hereunder that, at or prior to Closing, Estoppel Certificates
shall have been obtained from at least 75% of the Tenants at each Property,
including those identified on Exhibit "S" 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, if an estoppel in the Required Form is not obtained from an
Identified Tenant, Laurel Oak may, in lieu thereof, deliver its certificate
containing the information set forth on the Required Form, which certificate
shall serve as Laurel Oak'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 the Partnership'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.
12. Condemnation. Laurel Oak covenants and warrants that Laurel
Oak has not received any written notice of any condemnation proceeding or
other proceeding in the nature of eminent domain in connection with the Real
Property, 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 Property is
commenced, Laurel Oak agrees promptly to notify the Partnership thereof. In
the event of a material taking of one or more Real Property or commencement
of proceedings in connection with such a taking, the Partnership 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 Consideration and
at Closing Laurel Oak shall assign to the Partnership, without recourse, all
condemnation proceeds paid or payable with respect thereto; or (y) terminate
this Agreement with respect to the Property 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 Property, and at Closing, the
Partnership shall pay to Laurel Oak the aggregate of the Allocated Prices for
the remaining Real Property. Provided the Partnership shall have waived its
right to terminate this Agreement with respect to the Real Property so taken,
as provided above, Laurel Oak shall not, from and after the Due Diligence
Termination Date, settle or adjust any claims relating to a condemnation
without the Partnership's prior approval, which shall not be unreasonably
withheld or delayed.
13. Damage By Fire Or Other Casualty.
(a) Laurel Oak shall promptly notify the Partnership of damage
to the Improvements occurring by reason of casualty during the period between
the Effective Date and the Closing Date. Laurel Oak shall timely notify any
insurance companies with respect to any damage and shall promptly submit
claims for such damage. Provided the Partnership shall have waived its right
to terminate this Agreement with respect to the Real Property so damaged, as
provided below, Laurel Oak shall not, from and after the Due Diligence
Termination Date, settle
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or adjust any claims relating to a casualty without the Partnership'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
Property so damaged, an amount equal to or less than ten percent (10%) of the
Consideration allocated for such Real Property, there shall be no abatement
or adjustment in the Consideration and, provided the loss or damage is a
covered loss under Laurel Oak's insurance policy, the Partnership shall be
required to purchase all of the Real Property in accordance with the terms of
this Agreement and, at Closing, Laurel Oak shall assign to the Partnership,
without recourse, all insurance claims and proceeds with respect thereto
(less sums theretofore expended, if any, by Laurel Oak for emergency repairs
or barricades) and Laurel Oak shall credit the Partnership at Closing with
the amount of any applicable deductible. Laurel Oak shall have no liability
or obligation with respect to the condition of any of the Real Property 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 Property is an
amount which is greater than ten percent (10%) of the Consideration allocated
for the applicable Real Property, the Partnership may, at its sole option,
(x) proceed to Closing as provided in this Paragraph 13(b) without an
abatement of the Consideration and at Closing Laurel Oak shall assign to the
Partnership, without recourse, all insurance claims and proceeds with respect
thereto (less sums theretofore expended, if any, by Laurel Oak for emergency
repairs or barricades) and Laurel Oak shall credit the Partnership at Closing
with the amount of any applicable deductible; or (y) terminate this Agreement
with respect to the Property which have suffered damage to the Improvements
by fire or other casualty in an amount which exceeds ten percent (10%) of the
Consideration allocated 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 Property, and at Closing, the Partnership shall pay to Laurel
Oak the aggregate of the Considerations for the remaining Real Property. The
Partnership 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 Property for which this Agreement has been terminated.
14. Default.
(a) If the Partnership shall default in its obligations to pay
the Consideration and complete Closing in accordance with the terms of this
Agreement, then, as Laurel Oak's sole and exclusive remedy therefor, Laurel
Oak shall be entitled to retain the Deposit as liquidated and agreed upon
damages for the losses and injuries which Laurel Oak shall have sustained and
suffered as a result of the Partnership's default, and thereupon this
Agreement and the Partnership'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
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understanding that by reason of the withdrawal of the Real Property from sale
to the general public at a time when other parties would be interested in
purchasing such Real Property, that Laurel Oak 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.
(b) If Laurel Oak shall default in its obligation to deliver
any of the Deeds or other items described in Paragraph 5 hereof, upon the
Partnership's (i) tender of the full Consideration and (ii) compliance with
all of the material terms and conditions of this Agreement, the Partnership
shall have the sole option of terminating this Agreement and receiving the
return of the Deposit, together with payment by Laurel Oak of (A) the
Partnership's Reasonable Costs, and (B) the Partnership's actual, documented
out-of-pocket costs and expenses incurred in connection with its Due
Diligence Activity, not to exceed Fifteen Thousand Dollars ($15,000) ("Due
Diligence Costs") for the Property and the Other Properties or (Y) to seek
specific performance of Laurel Oak's obligation to convey the Real Property
in accordance with this Agreement. If the Partnership elects to terminate
this Agreement, upon payment of the sums described above, Laurel Oak shall be
released and relieved of any further liability and this Agreement shall
thereupon be null and void. Except as expressly set forth above, the
Partnership hereby waives any right which the Partnership may have to any lis
pendens or other lien or encumbrance against any of the Real Property,
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 the Partnership'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 Laurel Oak to perform its obligations under this
Agreement.
15. Operations Prior To Closing.
(a) Laurel Oak agrees to operate the Property between the
Effective Date and the Closing Date in the same general manner as Laurel Oak
has operated the Property 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) Laurel Oak shall comply with all of the obligations of
landlord under the Leases and all other agreements and contractual
arrangements affecting the Real Property by which Laurel Oak is bound or to
which the Real Property, or any of them, are subject, and which will be
binding upon the Partnership or a lien upon such Real Property, after the
Closing.
(c) Laurel Oak shall notify the Partnership promptly of Laurel
Oak's receipt of any notice from any party alleging that Laurel Oak is in
default of its obligations under any of the Leases or any Permit or agreement
affecting the Real Property, or any portion or portions thereof.
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(d) No contract for or on behalf of or affecting the Real
Property shall be negotiated or entered into which cannot be terminated by
Laurel Oak 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 the Partnership,
which the Partnership agrees it shall not unreasonably withhold, condition or
delay, Laurel Oak shall not enter into any new leases for any portion of the
Real Property. Any new lease shall be on the Partnership's customary form
(which may vary to reflect customary negotiated revisions thereto), or such
other form which is reasonably acceptable to the Partnership. Further,
except with the prior written consent of the Partnership, which the
Partnership agrees it shall not unreasonably withhold, condition or delay, or
as set forth above, Laurel Oak 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) Laurel Oak shall not make or permit to be made any capital
improvements or additions to the Real Property, or any portion thereof,
without the prior written consent of the Partnership, except those made by
Laurel Oak pursuant to the express requirements of this Agreement, those made
by tenants pursuant to the right to do so under their Leases, or by Laurel
Oak if required by applicable law or ordinance, or as required under any
Lease.
(g) Laurel Oak shall timely bill all tenants for all rent
billable under Leases, and use commercially reasonable efforts to collect any
rent in arrears.
(h) Laurel Oak shall notify the Partnership of any tax
assessment disputes (pending or threatened) prior to Closing, and from and
after the Due Diligence Expiration Date, Laurel Oak 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 the Partnership'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 Laurel Oak, and all refunds relating to any
year subsequent to the year in which Closing occurs shall be the sole
property of the Partnership. Each party agrees to promptly remit to the
other any refund received by it which is the property of the other.
(i) Laurel Oak shall notify the Partnership promptly of the
occurrence of any of the following:
(i) Receipt of notice from any governmental or
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quasi-governmental agency or authority or insurance underwriter relating to
the condition, use or occupancy of the Real Property, 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
Property, or any portion thereof;
(iii) Notice of any actual or threatened litigation
against Laurel Oak or affecting or relating to the Real Property, or any
portion thereof which may materially and adversely affect the Real Property
or Laurel Oak's ability to consummate the transactions contemplated by this
Agreement; or
(iv) Vacancy of any demised Property by a tenant, other
than in accordance with a scheduled lease termination.
16. PROPERTY CONVEYED "AS-IS, WHERE IS". IT IS UNDERSTOOD AND
AGREED THAT, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT,
LAUREL OAK 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
PROPERTY, 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 PROPERTY INCLUDING,
WITHOUT LIMITATION: (I) THE VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OF ANY
OF THE PROPERTY, (II) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS
INCORPORATED INTO ANY OF THE PROPERTY AND (III) THE MANNER, QUALITY, STATE OF
REPAIR OR LACK OF REPAIR OF ANY OF THE PROPERTY. THE PARTNERSHIP AGREES THAT
WITH RESPECT TO THE PROPERTY, THE PARTNERSHIP HAS NOT RELIED UPON AND WILL
NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY
OF LAUREL OAK OR ANY AGENT OF LAUREL OAK NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT. THE PARTNERSHIP REPRESENTS THAT IT IS A KNOWLEDGEABLE THE
PARTNERSHIP OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE
AND THAT OF THE PARTNERSHIP'S CONSULTANTS, AND THE REPRESENTATIONS AND
WARRANTIES OF LAUREL OAK CONTAINED IN THIS AGREEMENT, SUBJECT, HOWEVER, TO
THE LIMITATIONS CONTAINED HEREIN UPON SUCH REPRESENTATIONS AND WARRANTIES,
AND THAT LAUREL OAK HAS OR SHALL HAVE AFFORDED THE PARTNERSHIP WITH A FULL
AND COMPLETE OPPORTUNITY TO MAKE ITS OWN INDEPENDENT INVESTIGATION OF THE
PROPERTY AND ALL MATTERS PERTAINING THERETO INCLUDING, BUT NOT
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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 THE PARTNERSHIP'S INSPECTIONS AND INVESTIGATIONS. THE
PARTNERSHIP ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, LAUREL OAK SHALL SELL
AND CONVEY TO THE PARTNERSHIP AND THE PARTNERSHIP SHALL ACCEPT THE PROPERTY
"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 PROPERTY BY LAUREL OAK, ANY AGENT OF
LAUREL OAK OR ANY THIRD PARTY. THE PARTNERSHIP EXPRESSLY AGREES THAT THE
TERMS AND CONDITIONS OF THIS PARAGRAPH 16 SHALL EXPRESSLY SURVIVE THE CLOSING
AND NOT MERGE THEREIN AND LAUREL OAK IS NOT LIABLE OR BOUND IN ANY MANNER BY
ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING
TO ANY OF THE PROPERTY 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. Conditions Precedent to Closing.
The obligations of the Partnership hereunder are subject to the
fulfillment of the following conditions prior to or on the Closing Date (any
one of which may be waived in whole or in part by the Partnership at or prior
to the Closing) and in the event any of the conditions are not complied with,
the Partnership may terminate this Agreement by notifying the Laurel Oak and
Escrow Agent and thereupon shall be returned the Deposit and thereafter this
Agreement shall be null and void:
(a) Correctness of Warranties and Representations. The
warranties and representations made by Laurel Oak and the Members in this
Agreement shall be true and correct on the Closing Date as though such
representations and warranties were made on the Closing Date (except for
changes in the Leases permitted under the terms of this Agreement).
(b) Compliance with Terms and Conditions. Laurel Oak shall
have performed and complied with all of the terms and conditions required by
this Agreement, including, without limitation, the delivery of all required
documents pursuant to Paragraph 6(a), to be performed and complied with by it
prior to or on the Closing Date.
(c) The Partnership's Satisfaction with Inspection. The
Partnership shall have notified Laurel Oak of the Partnership's satisfaction
with the inspection performed under Paragraph 11 of this Agreement, or shall
fail to notify Laurel Oak on or before the Due Diligence Expiration Date, of
the Partnership's dissatisfaction with the results of such review.
(d) Exchange Approval. On or prior to the Closing Date, the
Underlying Shares shall have been approved for listing with the NYSE, upon
official notice of issuance.
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(e) Shareholder Approval. The Partnership shall have received
confirmation that the issuance of the Securities will not require approval of
the Trust's security holders under the rules of the NYSE.
(f) 9.8% Limitation. The number of Underlying Shares shall
not exceed that number that is equal to 9.8% of the number of outstanding
Common Shares of the Trust.
(g) Issuance of the Units. The issuance of the Units, if any,
shall be (i) exempt from the registration requirements of the Securities Act
and (ii) either exempt from, or registered pursuant to, any applicable state
securities or "blue sky" registration requirements.
18. Brokers.
(a) Laurel Oak and the Partnership each represent to the other
that neither Laurel Oak nor the Partnership has dealt with any real estate
broker, dealer or salesman in connection with the subject transaction.
(b) Laurel Oak and the Partnership 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 Laurel Oak
and the Partnership set forth in Paragraph 18(a) hereof.
(c) The provisions of this Paragraph 18 shall survive Closing
hereunder, or any other termination of this Agreement.
19. 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 Laurel Oak or the Partnership shall have given notice as
herein provided):
If to the Partnership, addressed to:
Brandywine Operating Partnership, L.P.
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Gerard H. Sweeney,
President and Chief Executive Officer
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with a copy in each instance to:
Brad A. Molotsky, General Counsel
Brandywine Operating Partnership, L.P.
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
If to Laurel Oak or Member, addressed to:
Laurel Oak Road, L.L.C.
20 E. Clementon Road, Suite 201
Gibbsboro, NJ 08026
Attention: R. Randle Scarborough
with a copy in each instance to:
Kelly Young, Esquire
20 East Clementon Road, Suite 202
Gibbsboro, NJ 08026
If to Escrow Agent, addressed to:
M. Gordon Daniels, Esquire
Commonwealth Land Title Insurance Company
1700 Market Street
Philadelphia, PA 19103
or to such other address or addresses and to the attention of such other
person or persons as any of the parties may notify the other in accordance
with the provisions of this Agreement. 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
delivery) by the party to whom such notice is sent. Notices by the parties
may be given on their behalf by their respective attorneys.
20. Successors And Assigns. Except to a subsidiary or related
party, the Partnership may not assign this Agreement or any rights herein or
any portion hereof without the prior written consent of Laurel Oak, 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 the Partnership to
the Trust or a subsidiary of 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.
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21. 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.
22. 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.
23. 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.
24. Captions And Recitals. The captions contained herein are not a
part of this Agreement and are included solely for the convenience of the
parties.
25. Entire Agreement. This Agreement and the Exhibits and
Schedules attached hereto 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.
26. 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.
(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.
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27. 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 the Trust, and the Partnership's
agents, consultants, counsel and representatives in connection with the
Partnership's Due Diligence Activities and financing purposes, unless the
Trust is advised by its counsel that applicable securities laws and
regulations require. In addition, the Partnership covenants that if it
undertakes any investigation of the Property, it shall conduct such
investigation of the Property as described herein and with the degree of
confidentiality as the Partnership would apply with respect to its own
proprietary information. Notwithstanding the foregoing, at any time after
expiration of the Due Diligence Period, the Partnership 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.
28. Limitation Of Liability. No recourse shall be had for any
obligation of the Partnership of the 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, partner, officer or employee of 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 Laurel Oak and all parties claiming by, through or under Laurel
Oak.
Except for breaches of the representations and warranties set forth
in Section 9 and 18 herein which shall be full recourse obligations of the
members of Laurel Oak, no recourse shall be had for any obligation of Laurel
Oak 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 member or employee of
Laurel Oak 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 Partnership and all parties
claiming by, through or under the Partnership.
29. SEC Reporting Requirements. For the period of time commencing
on the date hereof and continuing through the first anniversary of the
Closing Date, Laurel Oak shall, from time to time, upon reasonable advance
written notice from the Partnership, provide the Trust and its
representatives, with access to all financial and other information then in
Laurel Oak's possession pertaining to the period of Laurel Oak's ownership
and operation of the Real Property, which information is relevant and
reasonably necessary, in the opinion of the Trust's outside, third party
accountants (the "Accountants"), to enable the Trust and its Accountants to
prepare financial statements in compliance with any or all of (a) Rule 3-05
or 3-14 of Regulation S-X of the Securities and Exchange Commission (the
"Commission"), as applicable; (b) any other rule issued by the Commission and
applicable to the Trust; and (c) any registration statement, report or
disclosure statement filed with the Commission by, or on behalf of the Trust.
Laurel Oak shall deliver to the Trust's accountants a representation letter
(the "Letter"), in the form annexed hereto as Exhibit "T", provided that the
Partnership (and any assignee or designee acquiring title to the Real
Property) shall indemnify and hold Laurel Oak harmless from and against any
claim, damage, loss or liability including, without limitation, legal fees
incurred by Laurel Oak in investigating, defending against or settling any
such matter and the amount of any
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such settlement to which Laurel Oak 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 Partnership acknowledges that Laurel Oak 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.
31. No Recordation. The Partnership 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 the Partnership under this Agreement.
32. Tender. Formal tender of an executed deed and purchase money
is hereby waived by the Partnership.
33. Further Assurances. After the Closing, Laurel Oak shall
execute, acknowledge and deliver, for no further consideration, all
assignments, transfers, deeds and other documents as the Partnership may
reasonably request to vest in the Partnership and perfect the Partnership's
right, title and interest in and to the Property.
34. Jury Trial Waiver. THE PARTNERSHIP AND LAUREL OAK 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 LAUREL OAK
HAS NO OBLIGATION TO EXECUTE THIS AGREEMENT.
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36. Indemnification.
Without limitation of any other Laurel Oak indemnity
obligations set forth herein, from and after the Closing Date, Laurel Oak
shall indemnify, defend and save and hold harmless the Partnership and the
Trust, and their respective partners, trustees, directors, officers and
employees, of, from and against any and all loss, cost, expense, damage,
claim, and liability, including reasonable attorney's fees and court costs,
including, without limitation, attorney's fees and costs associated with the
enforcement of Laurel Oak's indemnification obligations for all claims
brought within one year of such Closing (hereinafter collectively, "Losses")
which the Partnership or the Trust may suffer or incur, resulting from,
relating to, or arising in whole or in part, from or out of (i) any
misrepresentation or breach of a representation or warranty by Laurel Oak
contained in this Agreement; (ii) any failure to fulfill any covenant or
agreement of Laurel Oak contained in this Agreement; (iii) all litigation set
forth in this Agreement and on Exhibits hereto; (iv) any and all actions,
suits, investigations, proceedings, demands, assessments, audits, judgments,
and/or claims arising out of or relating to any of the foregoing.
Promptly after receipt by the Partnership or the Trust of
written notice of the commencement of any suit, audit, demand, judgment,
action, investigation or proceeding (a "Third Party Action") or promptly
after the Partnership or the Trust incurs a Loss or has knowledge of the
existence of a Loss, the Partnership or the Trust, as the case may be, will,
if a claim with respect thereto is to be made against Laurel Oak due to
Laurel Oak's obligation to provide indemnification hereunder, give Laurel Oak
written notice of such Loss or the commencement of any Third Party Action;
provided, however, that the failure to provide such notice within a
reasonable period of time shall not relieve Laurel Oak of any of its
obligations hereunder. Promptly after receiving such notice, Laurel Oak
will, upon notice to the Partnership or the Trust, as the case may be, have
the right to assume and control the defense and settlement of any such Third
Party Action at its own cost and expense; provided, however, that it shall be
a condition precedent to the exercise of such right by Laurel Oak that Laurel
Oak shall agree in writing that the Loss, or Third Party Action, as the case
may be, is properly within the scope of the indemnification obligation and
that as between the parties, Laurel Oak shall be responsible to satisfy and
discharge such Third Party Action. Laurel Oak shall not enter into any
resolution or other compromise of a Third Party Action without obtaining the
complete release of the Partnership or the Trust, as appropriate, for any
liability to all claimants under or pursuant to such Third Party Action. The
Partnership or the Trust, as the case may be, shall have the right to
participate in any such defense, contest or other protective action at its
own cost and expense.
Notwithstanding the foregoing, the Partnership or the Trust, as the
case may be, shall have the right to assume and control the defense and
settlement of a Third Party Action (a) if such action includes claims for
equitable relief which, if determined adversely to the Partnership or the
Trust, as the case may be, could reasonably be expected to interfere with its
intended business operations or damage its business reputation or (b) if
Laurel Oak fails to do so in a timely manner. In any circumstances in which
the Partnership or the Trust, as the case may be, undertakes to control the
Third Party Action as provided in this paragraph, it shall (i) not enter into
any resolution or other compromise involving monetary damages without
obtaining the prior written consent of Laurel Oak provided that such written
consent may not be withheld if it would interfere with the Partnership's or
the Trust's, as the case may be, business operation and
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(ii) keep Laurel Oak informed on an ongoing basis of the status of such Third
Party Action and shall deliver to Laurel Oak, copies of all documents related
to the Third Party Action reasonably requested by Laurel Oak. The
Partnership or the Trust, as the case may be, shall act to assure that all
attorneys' fees and expenses incurred in connection therewith are reasonable.
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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.
LAUREL OAK:
LAUREL OAK ROAD, L.L.C.
By: /s/Sean Scarborough
------------------------------------
Sean Scarborough, authorized
member
By: /s/R. Randle Scarborough
------------------------------------
R. Randle Scarborough, authorized
member
/s/Sean Scarborough
---------------------------------------
Sean Scarborough
/s/R. Randle Scarborough
---------------------------------------
R. Randle Scarborough
THE PARTNERSHIP:
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: BRANDYWINE REALTY TRUST, its sole
general partner
By: /s/Gerard H. Sweeney
------------------------------------
Name: Gerard H. Sweeney
Title: President & CEO
[EXECUTIONS CONTINUED]
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THE TRUST:
BRANDYWINE REALTY 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
Commonwealth Land Title Insurance Company:
By: /s/M. Gordon Daniels
------------------------------------
M. Gordon Daniels
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EXECUTION
1007 LAUREL OAK ROAD
AGREEMENT
AMONG
LAUREL OAK ROAD, L.L.C.,
SEAN SCARBOROUGH,
R. RANDLE SCARBOROUGH,
BRANDYWINE REALTY TRUST
AND
BRANDYWINE OPERATING PARTNERSHIP, L.P.
Dated as of December 5, 1997
LIST OF EXHIBITS
Exhibit A - Description of Land
Exhibit B - List of Contracts
Exhibit C - Certified Rent Roll
Exhibit D - Permitted Exceptions
Exhibit E - Excluded Personal Property
Exhibit F - The Other Properties
Exhibit G - Form of Deed
Exhibit H - Bill of Sale
Exhibit I - Form of Assignment(s)
Exhibit J - Form of Non-Foreign Person Certification
Exhibit K - Registration Rights Agreement
Exhibit L - Tax Indemnity Agreement
Exhibit M - $350,000 Guaranty
Exhibit N - Investor's Questionnaire
Exhibit O - Pending Litigation
Exhibit P - Contracts Not Terminable with 30 days Notice
Exhibit Q - Outstanding Brokerage Commissions and TI
Exhibit R - Form of Estoppel Certificate
Exhibit S - Identified Tenants
Exhibit T - Representation Letter