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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Filed pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 7, 1997
BRANDYWINE REALTY TRUST
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(Exact name of registrant as specified in its charter)
MARYLAND 1-9106 23-2413352
- ---------------------------- ----------- ----------------
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) file number) Identification Number)
16 CAMPUS BOULEVARD, NEWTOWN SQUARE, PENNSYLVANIA 19073
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(Address of principal executive offices)
(610) 325-5600
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(Registrant's telephone number, including area code)
Page 1 of 5 pages
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ITEM 5. OTHER EVENTS
On March 7, 1997 Brandywine Realty Trust (the "Company") acquired a
6.763 acre parcel of undeveloped land located in Horsham Business Center,
Horsham Township, Montgomery County, Pennsylvania for approximately $1.0
million. The seller was Horsham Valley, Inc. The purchase price was paid through
a combination of approximately $645,000 in cash and a promissory note for
$369,166 to be paid, without interest, upon the earlier of: (i) the issuance by
Horsham Township of a building permit in connection with the construction of the
second building on the parcel of land or (ii) March 1, 1998. The purchase price
for the property was determined by arm's-length negotiation between the Company
and the seller.
On April 18, 1997 the Company acquired Greentree Executive Campus and
Five Eves Drive (the "Acquisition Properties") aggregating approximately 202,000
net rentable square feet located in Marlton, New Jersey, for an aggregate cash
purchase price of approximately $14.5 million. The purchase prices for the
Acquisition Properties were determined by arm's-length negotiation between the
Company and the sellers. Set forth below are brief descriptions of the
Acquisition Properties.
o 1000 Greentree Executive Campus, Evesham, New Jersey, a multi-building
garden office complex, was acquired for approximately $2.1 million.
The seller was Ira M. Lubert and Karen L. Lubert. The property is
comprised of 31,846 net rentable square feet and, at April 30, 1997,
was 100% leased. Major tenants of the property include Nevyas Eye
Assoc. and Occupational TG Center.
o 2000 Greentree Executive Campus, Evesham, New Jersey, a multi-building
garden office complex, was acquired for approximately $2.1 million.
The seller was Howard E. Needleman. The property is comprised of
28,155 net rentable square feet and, at April 30, 1997, was 100%
leased. Major tenants of the property include Kam Marketing and First
Bankers Mortgage.
o 3001, 3002 and 3003 Greentree Executive Campus, Evesham, New Jersey, a
multi-building garden office complex, was acquired for approximately
$2.7 million. The seller was 3001-2-3 Greentree Associates, L.P. The
property is comprised of 36,070 net rentable square feet and, at April
30, 1997, was 100% leased. Major tenants of the property include Abo,
Uris and Allenburger and Medical Billing.
o 4000 and 5000 Greentree Executive Campus, Evesham, New Jersey, a
multi-building garden office complex, was acquired for approximately
$4.2 million. The seller was 4000-5000 Greentree Executive Campus
Associates, L.P. The property is comprised of 60,010 net rentable
square feet and, at April 30, 1997, was 90.5% leased. Major tenants of
the property include Vitro Corporation and JA Alternatives.
o 5 Eves Drive located in the Evesham Corporate Center, Marlton, New
Jersey, a three story mid-rise office building, was acquired for
approximately $3.4 million. The seller
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was LAKN Marlton Associates, L.P. The property is comprised of 45,889
net rentable square feet and, at April 30, 1997, was 65.1% leased.
Major tenants of the property include ADP Financial Information and
McCay Corporation.
The table set forth below shows scheduled lease expirations for leases
in place at April 30, 1997 for the Acquisition Properties for each of the next
ten years beginning May 1, 1997, assuming none of the tenants exercise renewal
options or termination rights, if any, at or prior to scheduled expirations:
Scheduled Lease Expirations
<TABLE>
<CAPTION>
Number of Net Rentable Square Final Percentage of Total Final
Year of Lease Leases Expiring Footage Subject Annualized Base Rent Annualized Base Rent Under Cumulative
Expiration Within the Year to Expiring Leases Under Expiring Leases(1) Expiring Leases %
---------- --------------- ------------------ ------------------------ --------------- ----------
<S> <C> <C> <C> <C> <C>
1997 25 38,750 508,626 22.00% 22%
1998 34 58,573 752,259 32.00% 54%
1999 17 33,663 455,728 19.00% 73%
2000 6 16,831 243,844 10.00% 83%
2001 5 16,738 194,324 8.00% 91%
2002 2 5,590 65,992 3.00% 94%
2003 - - - - 94%
2004 1 5,150 61,800 3.00% 97%
2005 - - - - 97%
2006 2 4,950 80,343 3.00% 100%
2007 & thereafter - - - - 100%
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92 180,245 $2,362,916 100.00%
================================================================================
</TABLE>
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1 "Final Annualized Base Rent" for each lease scheduled to expire represents
the cash rental rate of base rents, excluding tenant reimbursements, in the
final month prior to expiration multiplied by twelve. Tenant reimbursements
generally include payments on account of real estate taxes, operating
expense escalations and common area utility charges.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS.
(c) Exhibits.
1.1. Agreement of Sale for 1000 Greentree Executive Campus,
Evesham, New Jersey dated as of April 18, 1997, by and
between Brandywine Realty Trust, as Buyer, and Ira M. Lubert
and Karen L. Lubert, as Seller.
1.2 Agreement of Sale for 2000 Greentree Executive Campus,
Evesham, New Jersey dated as of April 18, 1997, by and
between Brandywine Realty Trust, as Buyer, and Howard E.
Needleman, as Seller.
1.3 Agreement of Sale for 3001, 3002 and 3003 Greentree
Executive Campus, Evesham, New Jersey dated as of April 8,
1997, by and between Brandywine Realty Trust, as Buyer, and
3001-2-3 Greentree Associates, L.P., a New Jersey limited
partnership, as Seller.
1.4 Agreement of Sale for 4000 and 5000 Greentree Executive
Campus, Evesham, New Jersey dated as of April 8, 1997, by
and between Brandywine Realty Trust, as Buyer, and 4000-5000
Greentree Executive Campus Associates, L.P., a New Jersey
limited partnership, as Seller.
1.5 Agreement of Sale for 5 Eves Drive and located in the
Evesham Corporate Center, Marlton, New Jersey dated as of
April 18, 1997, by and between Brandywine Realty Trust, as
Buyer, and LAKN Marlton Associates, L.P., a New Jersey
limited partnership, as Seller.
1.6 Agreement of sale for Parcel 8 Horsham Business Center,
Horsham, Montgomery County dated February 18, 1997, by and
between Brandywine Operating Partnership, L.P., a Delaware
limited Partnership, as buyer and Horsham Valley, Inc. a
Pennsylvania Corporation, as seller.
1.7 Promissory Note in the amount of $369,166 dated March 7,
1997 executed by Brandywine Operating Partnership to
Horsham Valley, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRANDYWINE REALTY TRUST
Date: May 1, 1997 By: /s/ Gerard H. Sweeney
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Title: President and Chief Executive Officer
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AGREEMENT OF SALE
Greentree Executive Campus
AGREEMENT OF SALE made this 18 day of April, 1997, between BRANDYWINE
REALTY TRUST, a Maryland Real Estate Investment Trust, its assignee or nominee,
having its principal office at 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania 19073 ("Buyer"), and IRA M. LUBERT AND KAREN L. LUBERT, with an
address of 9 Deerfield Terrace, Moorestown, New Jersey (collectively the
"Seller").
BACKGROUND
The Background of this Agreement is as follows:
A. Seller is the owner of a certain tract of land being comprised of
one (1) parcel of land together with the building and improvements thereon,
including three (3) one story office buildings commonly known as 1000 Greentree
Executive Campus, Evesham, New Jersey as more fully described on Exhibit A
attached hereto; and
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the property referred to in this Agreement, upon the terms and conditions
set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with the preceding Background paragraphs incorporated by
reference, the parties hereto, intending to be legally bound hereby, covenant
and agrees as follows:
1. PROPERTY BEING SOLD.
Seller shall sell, transfer and convey to Buyer on the Closing
Date (as hereinafter defined),
1.1 Real Property. Fee simple interest in the parcels of land,
all as more fully described on Exhibit "A", with the building and improvements
thereon, including the three (3), one-story office buildings commonly known as
1000 Greentree Executive Campus, Evesham, New Jersey, and all of the Seller's
right, title, and interest, if any, in any easements, licenses, rights of way,
privileges, hereditaments, appurtenances, and rights to any land lying in the
beds of any street, road or avenue, open or proposed, adjoining thereto, and
inuring to the benefit of said land (hereinafter collectively referred to as the
"Premises"); and
1.2 Personal Property. All of Seller's equipment, fixtures,
machinery and personalty of every description attached to or used in connection
with the Premises (and not owned by tenants under leases of the Premises),
including, without limitation, those listed on the Schedule of Inventory
attached hereto as Exhibit "B", and to the extent assignable and in Seller's
possession intangible personal property owned by the Seller and used in
connection with the
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ownership, operation and maintenance of the Premises, including without
limitation, all contract rights, guaranties and warranties of any nature, all
architects', engineers', surveyors' and other real estate professionals' plans,
specifications, certifications, contracts, reports, data or other technical
descriptions, reports or audits (including, without limitation, all
environmental, structural and mechanical inspection reports), and all marketing
materials ("Contract Documents"), all governmental permits, licenses,
certificates, and approvals in connection with the ownership of the Premises
("Licenses"), all escrow accounts, deposits, instruments, documents of title
pertaining to the Premises, and all of Seller's rights, claims, and causes of
action if any, to the extent they are assignable, under any warranties and/or
guarantees of manufacturers, contractors or installers, including to the extent
applicable, any warranties from any previous owners of the Premises (hereinafter
collectively referred to as "Personal Property"); and
1.3 Leases. All leases, licenses and other occupancy
agreements for any part of the Premises, and except as otherwise set forth
herein, all prepaid rent and unapplied security deposits (the "Leases"); and
1.4 Right to Names. Any and all right, title and interest of
Seller, if any, and without representation or warranty, in and to the name "1000
Greentree Executive Campus", and the Seller's right, if any, without
representation or warranty, to all printing styles, trademarks and logos (the
"Name").
The Premises, Personal Property, Leases and Name are sometimes
hereinafter referred to as "Property."
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 Purchase Price. Buyer shall pay the total sum of Two
Million One Hundred Twenty Five Thousand ($2,125,000.00) Dollars (hereinafter
referred to as the "Purchase Price") subject to adjustments as set forth herein.
2.2 Manner of Payment. The Purchase Price shall be paid in the
following manner:
2.2.1 Deposit. By delivery, upon Seller's execution
and delivery of this Agreement, of Buyer's good check in the amount of $12,500
to the Title Company (hereinafter referred to as "Escrow Agent" or "Escrowee").
This sum, the sum specified in Section 2.2.2 below, and all other sums paid by
Buyer to the Escrow Agent under this Agreement (hereinafter referred to as the
"Deposit") shall be held by Escrow Agent in a federally-insured, segregated
money market account at an institution to be designated by Buyer until
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or paid to the party otherwise entitled to the
Deposit in the event of the termination of this Agreement prior to Closing.
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2.2.2 Additional Deposit. By delivery, within two (2)
business days next following the Inspection Period Expiration Date (as
hereinafter defined), of Buyer's good check in the amount of $25,000.
2.2.3 Balance. The balance of the Purchase Price
shall be delivered to the Seller on the Closing Date, by wire transfer of
immediately available funds, subject to adjustments and apportionments as set
forth in this Agreement.
3. TITLE. On the Closing Date, Seller shall convey to Buyer good and
marketable fee simple title to the Property subject only to those rights of way,
easements, covenants restrictions, and objections to title (hereinafter
"Permitted Exceptions") listed on Exhibit "C" hereto, unless identified by Buyer
as "Title Objections" as hereinafter provided, and subject to the rights of
tenants listed on the rent roll attached hereto as Exhibit "D", which title
shall be insurable at regular rates by Commonwealth Land Title Insurance Company
("Title Company") under an ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title
insurance policy ("Title Policy").
4. COVENANTS. In addition to the covenants contained in the other
Sections of this Agreement, between the date hereof and Closing, Seller
covenants that it shall:
4.1 Maintenance. At all times prior to the Closing Date,
operate the Property in the same manner as it is currently being operated, and
pay in the normal course of business prior to Closing, all sums due for work,
materials or service furnished or otherwise incurred in the ownership and
operation prior to Closing.
4.2 Alterations. Not make or permit to be made any
alterations, improvements or additions to the Property without the prior written
consent of Buyer, which consent shall not be unreasonably withheld or delayed
except those made by or for tenants pursuant to the right to do so under their
Leases, or by Seller if required by applicable law or ordinance (subject to the
provisions of Section 4.8 of this Agreement), or as required under any Lease.
4.3 Lease. Not enter into any new lease without Buyer's
consent, which consent shall not be unreasonably withheld.
4.4 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.5 Bill Tenants. Timely bill all Tenants for all rent
billable under Leases, and use its commercially reasonable efforts consistent
with Seller's existing practices to collect any rent in arrears.
4.6 Notice to Buyer. Notify Buyer promptly of the occurrence
of any of the following:
(i) a fire or other casualty causing damage to the
Property, or any portion thereof;
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(ii) receipt of written notice of eminent domain
proceedings or condemnation of or affecting the Property, or any portion
thereof;
(iii) receipt of written notice from any governmental
authority or insurance underwriter relating to the condition, use or occupancy
of the Property, or any portion thereof, or setting forth any requirements with
respect thereto;
(iv) receipt of written notice of any actual or
threatened litigation against Seller or affecting or relating to the Property,
or any portion thereof;
(v) receipt of written notice of any termination
notice from any tenant;
(vi) the commencement of any strike, lock-out,
boycott or other labor trouble affecting the Property, or any portion thereof.
4.7 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.8 Comply with Leases. Perform all material obligations of
the landlord as required by the Leases or by any order or direction of any
governmental authority having jurisdiction thereof, provided that if the cost to
perform such obligation exceeds $12,500.00 (the "Seller Compliance Costs"),
Seller shall have the right to terminate this Agreement if Buyer is unwilling to
pay for the costs of such obligations in excess of the Seller Compliance Costs,
in which event the Deposit shall be returned to Buyer and neither party shall
owe any further obligation hereunder to the other; provided, however, if the
Seller Compliance Costs exceed $12,500, and Buyer agrees to pay for the second
$12,500 of such costs, the additional cost of such Seller Compliance Costs above
$25,000, if any, shall be evenly shared by Buyer and Seller, provided that in no
event shall Seller be obligated to pay more than $25,000 in connection with the
Seller Compliance Costs (e.g., if the total Seller Compliance Costs equal
$35,000 and Buyer agrees to pay for the second $12,500, the additional $10,000
above the $12,500 shall be shared by Buyer and Seller, so that Seller shall be
responsible for $17,500 and Buyer shall be responsible for $17,500). The parties
acknowledge and agree that Buyer is under no obligation to agree to pay for such
Seller Compliance Costs, but that the aforesaid cost allocation mechanism is an
agreed upon compromise in order to permit Buyer to avoid Seller's termination of
this Agreement.
4.9 No New Agreements. Except for agreements which can be
terminated on not more than thirty (30) days' notice, not enter into any other
agreements which affect the Property or the transactions contemplated by this
Agreement, without the prior written consent of Buyer which consent shall not be
unreasonably withheld or delayed; and except for the Permitted Exceptions, not
permit the creation of any liability which shall bind Buyer or the Premises
after Closing.
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4.10 Tax Disputes. Notify Buyer of any tax assessment disputes
(pending or threatened) with respect to the Property prior to Closing, and not
agree to any changes in the real estate tax assessment, nor settle, withdraw or
otherwise compromise any pending claims with respect to prior tax assessments,
without Buyer's prior written consent. 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. Any reduction relating to tax years prior to
the year in which the Closing occurs shall be payable to the Seller.
4.11 No Removal of Personalty. Not remove any non-consumable
Personal Property from the Premises without replacing it with similar personal
property, new or of equal or better quality.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to enter
into this Agreement, Seller hereby represents and warrants to Buyer that to the
best of the Seller's actual knowledge (which shall be deemed to mean the actual
knowledge of Howard E. Needleman) the following representations and warranties
are true now, and where the representation specifically provides, will be true
at Closing:
5.1 Seller's Authority For Binding Agreement. Seller has full
power, right and authority to own its properties, to carry on its business as
now conducted, and to enter into and fulfill its obligations under this
Agreement. Each of the persons executing this Agreement on behalf of Seller is
authorized to do so. This Agreement is the valid and legally binding obligation
of Seller, enforceable against Seller in accordance with its terms. The
execution and delivery of this Agreement and compliance with its terms will not
conflict with or result in the breach of any law, judgement, order, writ,
injunction, decree, rule or regulation, or conflict with or result in the breach
of any other agreement, document or instrument to which Seller is a party or by
which it or the Property is bound or affected. The representation contained in
this Section 5.1 shall be true at and as of Closing.
5.2 Employment on "At-Will" Basis. There are no employees of
Seller and Buyer assumes no obligations or responsibilities whatsoever for any
employees of Seller. The representation contained in this Section 5.2 shall be
true at and as of Closing.
5.3 Service Contracts. Exhibit "E" attached hereto is a
complete list of all existing service, equipment, supply and maintenance
contracts with respect to or affecting the Property (the "Service Contracts").
Seller has received no written notice of default or breach by Seller in the
terms of any of such Service Contracts. To the Seller's actual knowledge, Seller
has performed, and at Closing shall have performed, all obligations which it has
under said Service Contracts.
Anything in this Section 5.3 to the contrary notwithstanding, Seller
represents and warrants that any existing management agreements and exclusive
brokerage or leasing agreements
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shall be terminated as of Closing, Seller having fully paid and discharged any
and all obligations accruing thereunder, and Buyer shall assume no liability
under or in respect of any such agreements.
5.4 Condemnation. Seller has received no written notice of any
pending condemnation or eminent domain proceeding pending with regard to any
part of the Property.
5.5 No Lawsuits. Seller has received no written notice of any
claims, lawsuits or proceedings pending, or to the best of the Seller's
knowledge, threatened against or relating to Seller or the Property, or which
could affect them, or either of them, in any court or before any governmental
agency, except for actions for possession, damages and or rent, if any, against
defaulted tenants as disclosed in Exhibit "D", or except for actions which are
adequately covered or defended by an insurance carrier. The representation
contained in this Section 5.5 shall be true at and as of Closing.
5.6 No Tax Assessments. Seller has received no written notice
of any public improvements in the nature of off-site improvements, or otherwise,
which have been ordered to be made and/or which have not heretofore been
assessed, and, to Seller's knowledge, there are no special or general
assessments currently affecting or pending against the Property, except as set
forth in the Title Binder.
5.7 Leases. 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
Premises other than the leases (the "Leases") listed on the rent roll attached
hereto as Exhibit "D". Exhibit "D" identifies (i) each tenant of the Premises,
(ii) the date of that tenant's lease, (iii) the expiration date of that tenant's
lease, (iv) the annual and monthly minimum rental charge, the tenant's share of
building operating costs (including, without limitation, taxes) and any and all
costs, expenses and other charges payable by the tenant under the Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (viii) any options to renew, extend,
purchase, cancel or terminate; (ix) all unpaid tenant improvement allowances
and/or unpaid leasing commissions; and (x) any outstanding written notices of
defaults of any kind or nature whatsoever. Seller 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 Seller except as
additional collateral for the existing mortgage upon the Premises which shall be
satisfied at or before Closing. To the best of Seller's knowledge, 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 "D"
are the actual rents, income and charges being collected by Seller under the
Leases. Any tenant improvements which Seller is obligated to complete pursuant
to any Lease has been completed as of this date or shall be completed as of
Closing, and all costs for completed work has been or shall be paid by Seller.
The amount of each security deposit contains, where required by law or otherwise
applicable, interest which has accrued in accordance with law. Except as set
forth on Exhibit "D", no tenant of the Premises 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
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forth on Exhibit "D", no security deposits by tenants have heretofore been
returned or applied to charges against the tenants.
5.8 Compliance with Law.
(i) To the best of Seller's actual knowledge, there
are no outstanding notices of any violations issued by governmental authority
having jurisdiction over the Property.
(ii) To the best of Seller's actual knowledge, which
knowledge is based exclusively upon that certain Environmental Report prepared
by Killam Associates dated February 12, 1992 (the "Environmental Report") and
except as otherwise set forth in the Environmental Report, 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, except to the extent such substance or materials are used in
the ordinary course of the Seller's business or that of any Tenant in accordance
with applicable laws, and there has, to the best of Seller's knowledge, and
based exclusively upon the Environmental Report, 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
Premises any clean-up or other monetary obligation. Seller has received no
written notice that it has been identified in any litigation, administrative
proceeding or investigation 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, and no lien
or superlien has been recorded, filed or otherwise asserted against any real or
personal property of Seller for any clean-up costs or other responses costs
incurred in connection with any environmental contamination that is
attributable, in whole or in part, to Seller. 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 all applicable federal, state and local laws including the
New Jersey Industrial Site Recovery Act, as amended ("ISRA"); and "Hazardous
Wastes" means any hazardous waste, residential or household waste, solid waste,
or other waste as defined in applicable federal, state and local laws. Seller
has not received any written summons, citation, directive, letter or other
communication, written or oral, from any governmental or quasi-governmental
authority concerning any intentional or unintentional action or omission on
Seller's part which (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. The
representation contained in this Section 5.8(i) shall be true and correct at and
as of Closing.
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5.9 Insurance. Exhibit "F" attached hereto contains a true and
correct description of all insurance policies affecting the Property and the
operation thereof. All of said insurance policies shall remain in full force and
effect until the completion of Closing hereunder. Seller has not received any
written notice from any insurance company board of fire underwriters or rating
organization (or other body exercising similar functions) (i) claiming any
defects or deficiencies which have not been addressed and fully cured or
corrected, or (ii) requesting the performance of any repairs, alterations or
other work which have not been performed, or (iii) claiming any default which,
if not corrected, would result in a cancellation of insurance coverage. The
representation contained in this Section 5.9 shall be true at and as of Closing.
5.10 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.11 No Brokers. Except as set forth on Exhibit "D", no
brokerage or leasing commission or other compensation is now, or will at Closing
be, due or payable to any person, firm, corporation, or other entity with
respect to or on account of any of the Leases, or any extensions or renewals
thereof.
5.12 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.13 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.14 Good Title to Property. Seller holds good and marketable,
indefeasible fee simple title to the Property, free and clear of liens and
encumbrances, other than the Permitted Exceptions. The representation contained
in this Section 5.14 shall be true at and as of Closing.
5.15 All Taxes and Assessments Paid. Seller will have paid
prior to Closing, all taxes and assessments, including assessments payable in
installments, which are to become due and payable prior to Closing and/or a lien
on the Property, except for taxes for the current year which shall be prorated
at Closing or installments of current assessments which become due and payable
after Closing, which shall be the sole responsibility of the Buyer. The
representation contained in this Section 5.15 shall be true at and as of
Closing.
5.16 FIRPTA. Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended
(the "Code"). The representation contained in this Section 5.16 shall be true at
and as of Closing.
5.17 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.18 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.19 Inventory Schedule. The Schedule of Inventory contains a
correct and complete list of personal property owned by Seller and located at or
used in connection with the operation of the Property.
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5.20 Charges, Fees and Assessments. Any and all applicable
charges, fees and assessments pending as of the date of this Agreement 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, 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. The representation contained in this Section 5.20 shall be true
at and as of Closing.
5.21 Rights to Purchase. There are no outstanding agreements,
options, rights of first refusal, conditional sales agreements or other
agreements or arrangements, whether oral or written, regarding the purchase and
sale of the Property, or which otherwise affect any portion of or all the
Property. The representation contained in this Section 5.21 shall be true at and
as of Closing.
5.22 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.23 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.24 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.25 Development Agreements. Seller is in material compliance
with and has fully paid and discharged all obligations arising under any and all
development, tri-party and like agreements, and any and all other agreements
with county, municipal and other governmental and quasi-governmental agencies
and authorities respecting the ownership, development and operation of the
Property and all portions thereof. The representation contained herein shall be
true at and as of Closing.
5.26 Correct Copies of Documents. Where copies of any
documents have been delivered by Seller to Buyer, whether prior to or pursuant
to this Agreement, such copies: (i) are exact copies of the originals of said
documents, as executed and delivered by all of the parties thereto; (ii) to the
best of Seller's knowledge, constitute, in each case, the entire agreement
between the parties thereto with respect to the subject matter thereof, and the
original instruments in the form delivered to Buyer, are now in full force and
effect, and valid and enforceable in accordance with their respective terms, and
no party thereto is in default, and no claim of default by any party has been
made or is now pending and there does not now exist any default which, after
either the giving of notice or the passing of time, or both, will or may
constitute a default, or would excuse performance by any party thereto; and
(iii) have not been changed or amended except for amendments, if any,
specifically referred to therein.
6. POSSESSION. Possession of the Premises is to be given to Buyer,
subject to the right of tenants under the Leases on the Closing Date, by
delivery of the Deed, and all keys, combinations and security codes at Closing.
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
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7.1 Title Binder. On or before the execution of this
Agreement, Seller shall have made available to Buyer, without representation or
warranty, Seller's most recently dated title commitment for the Property
(complete with copies of all exceptions to title), and Buyer shall order a
current title commitment (the "Title Binder") from the Title Company. Buyer
shall promptly deliver to the Buyer a copy of the Title Binder, together with a
notice of any items disclosed on the Title Binder which is not a Permitted
Exception (a "Title Objection"). If prior to Closing, the Seller can not remove
the Title Objection, the Seller shall have the option of accepting the title to
the Property subject to the Title Objection or of terminating this Agreement, in
which event the Deposit shall be returned to the Buyer and neither party shall
owe any further obligation hereunder to the other. Notwithstanding the
foregoing, at Closing, Seller, so long as such amount does not exceed
$500,000.00 (exclusive of the mortgages currently encumbering the Property),
shall pay all monetary liens, which are not Permitted Exceptions.
7.2 Survey. Seller shall make available to Buyer, without
representation or warranty, within three (3) days of the date hereof, Seller's
most recent survey of Property (the "Survey"),
7.3 Physical and Financial Inspection. For a period (the
"Inspection Period") commencing on the second (2nd) business day next following
the date upon which Buyer shall receive from Seller a fully-executed counterpart
of this Agreement, and expiring on April 10, 1997 (such date is herein referred
to as the "Inspection Period Expiration Date"), Buyer shall have the right to
have performed a physical and mechanical inspection, measurement and audit of
the Property and an inspection of all books and records and financial
information pertaining thereto, and Seller shall cooperate with Buyer and shall
make available to Buyer such information, materials and documents as Buyer may
reasonably request and shall have its accountant available throughout such
period to assist in Buyer's inspection and review. The inspection, audit and
measurement of the Property's operation, condition and maintenance shall
include, without limitation, such environmental and engineering inspections,
reviews and assessments that Buyer deems appropriate. If Buyer, at Buyer's sole
and absolute discretion, shall find such inspection(s) to be unsatisfactory for
any reason whatsoever, Buyer shall have the right, at its option, to terminate
this Agreement on or before the Inspection Period Expiration Date, and upon such
termination, the Deposit shall be immediately refunded to the Buyer, and
thereupon the parties hereto shall have no further liabilities one to the other
with respect to the subject matter of this Agreement. Buyer agrees that it shall
not unreasonably interfere with tenants in performing its inspection. If Buyer
or its consultants exercises its rights under the provisions of this subsection,
it shall (i) provide Seller with prior verbal notice of Buyer's entry, (ii) keep
the Property free of any liens or third-party claims resulting therefrom except
as may be required by applicable law; (iii) maintain adequate liability
insurance in an amount of not less than $1,000,000.00 for a single occurrence
and $50,000.00 for property damage which insurance shall name Seller as an
additional insured; (iv) indemnify Seller against any liability or expense for
injuries to or death of persons or damage to property arising from the exercise
of the rights hereunder that are not the result of any act or omission of Seller
or Seller's agents, employees or contractors and (v) if Closing does not occur
for any reason restore as nearly as practicable the Property substantially to
its condition immediately before such exercise. The indemnification and
restoration provisions of this subsection shall survive the termination of this
Agreement. In connection with such
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inspection, Seller shall make available at the Property, or at the Seller's
management offices, without representation, or warranty, except as specifically
set forth herein, and to the extent the same are in the Seller's possession, the
following:
7.3.1 Leases. All Leases for the Property as of the
date hereof;
7.3.2 Contracts, and Licenses. Copies of the Contract
Documents, the Licenses, any certificates of occupancy, insurance policies
applicable to the Property and any other documents evidencing rights described
in Section 1.2 hereof;
7.3.3 Tax Bills. A copy of tax bills (i) for the
current year, and (ii) if available, for the preceding two years;
7.3.4 Operating Statements. Statements of operation
of the Property for the past year;
7.3.5 Notices of Violations. Copies of any
uncorrected written notices of violations of any law, ordinance, regulation,
rule or requirement of any governmental body having jurisdiction;
7.3.6 Takings or Changes. Copies of all written
notices to Seller of proposed or threatened takings or changes with respect to
the Property;
7.3.7 Tax Assessments, Appeals and Increases. Copies
of all written notices to Seller of all filed, proposed or threatened tax
assessment appeals or tax assessment increases related to the Premises;
7.3.8 Litigation. Copies of all pending and written
notices to Seller of threatened litigation, including litigation involving
tenants, affecting the Property or this transaction;
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer shall survive Closing and delivery of
the Deed for the statute of limitations pertaining thereto. The representations
and warranties of Seller set forth in Sections 5.1, 5.2, 5.6, 5.8 (i), 5.11,
5.16, and 5.21 shall survive Closing and delivery of the Deed for the applicable
period of the statute of limitations pertaining thereto. The representation and
warranties of Seller set forth in Sections 5.3, 5.5, 5.8(ii), 5.19, 5.20, 5.25,
and 5.26 shall survive Closing and delivery of the Deed for six (6) months from
Closing. The representations and warranties of Seller set forth in Section 5.7
shall survive Closing and delivery of the Deed for three (3) months from
Closing. The remaining representations and warranties shall not survive Closing
and delivery of the Deed. Notwithstanding anything contained in this Agreement
to the contrary, except as expressly set forth in this Agreement, Seller makes
no representation, either prior to or at the Closing, with respect to the
condition or character of the Property or the use or uses to which the Property
may be put. Buyer acknowledges that Buyer has or will carefully and
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thoroughly examine, inspect and investigate the Property, and the Seller's
operations (as to manner, income and expenses), and Buyer is or will be fully
satisfied with the same upon completion of the inspections and examinations; and
Buyer is purchasing the same on the basis of such examination, inspection and
investigation and not in reliance on any representation or warranty of Seller or
any agent, employee or representative of Seller of any kind or nature whatsoever
except as specifically set forth herein. Accordingly, Buyer hereby agrees to
accept all of the assets being acquired by Buyer hereunder, whether realty,
personalty or mixed, on an absolutely and unconditionally "as is" basis at the
time of Closing. Notwithstanding the time period for survival with respect to
Section 5.7, if prior to the expiration of such period, Seller delivers to Buyer
an estoppel certificate on Buyer's prescribed form, which certificate confirms
Seller's representations under Section 5.7 of this Agreement, Seller shall be
released from all liability with respect to its representations as they pertain
to such tenancy.
9. FIRE OR OTHER CASUALTY.
9.1 Maintain Insurance. Seller shall maintain in effect until
the Closing Date the insurance policies (or like policies) now in effect with
respect to the Premises and Personal Property as set forth in Exhibit F".
9.2 Minimal Damage. If prior to the Closing Date any portion
of the Property is damaged or destroyed by fire or other casualty, and the cost
of repair or restoration thereof shall be $125,000 or less (as established by
good faith estimates obtained by Buyer), this Agreement shall remain in force.
9.3 Substantial Damage. If prior to the Closing Date any
portion of the Property is damaged or destroyed by fire or other casualty, and
the cost of repair or restoration thereof shall be more than $125,000 (as
established by good faith estimates obtained by Buyer), Buyer may terminate this
Agreement by giving written notice thereof to Seller ("Buyer's Notice of
Election"), and if this Agreement is so terminated, then the Deposit shall be
immediately refunded to Buyer, and thereafter neither party shall have any
further liability hereunder thereafter. If Buyer does not so terminate this
Agreement, it shall remain in full force and effect, and the provisions of
Section 9.4 below shall apply.
9.4 Closing After Substantial Damage. So long as this
Agreement shall remain in force under Section 9.2 or 9.3, then (i) all proceeds
of insurance collected prior to Closing, plus the amount of deductible under
Seller's insurance policy, shall be adjusted subject to Buyer's approval and
participation in any adjustment, and shall be credited to Buyer against the
Purchase Price payable by Buyer at Closing, and (ii) all unpaid claims and
rights in connection with losses shall be assigned to Buyer at Closing.
9.5 Rent Insurance. All rental loss insurance and the proceeds
thereof allocable to any period subsequent to Closing shall be paid or assigned
to Buyer at Closing.
10. CONDEMNATION. If, prior to the Closing Date, all or any material
portion of the Premises (being any taking affecting the building or any other
taking involving 10% or more
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of the Premises or the parking area) is taken by eminent domain or a notice of
any eminent domain proceedings with respect to the Premises or any part thereof
is received by the Seller, then Seller shall within five (5) days thereafter
give notice thereof to Buyer and Buyer shall have the option to (a) complete the
purchase hereunder or (b) if such taking, in Buyer's sole and absolute
discretion, adversely affects the Premises or its current economic viability,
terminate this Agreement, in which event the Deposit shall be immediately
refunded to Buyer, and this Agreement shall be null and void. Buyer shall
deliver written notice of its election to the Seller within two (2) days after
the date upon which the Buyer receives written notice of such eminent domain
proceedings. If notice of condemnation is received by Buyer and it fails to
deliver said written notice of its election within said time period, such
failure shall constitute a waiver by Buyer of its right to terminate this
Agreement. If this Agreement is not so terminated, Buyer shall be entitled to
all awards or damages by reason of any exercise of the power of eminent domain
or condemnation with respect to or for the taking of the Premises or any portion
thereof, and until such time as closing has occurred, or this Agreement
terminates. Any negotiation for, or agreement to, and all contests of any offers
and awards relating to eminent domain proceedings shall be conducted with the
joint approval and consent of the Seller and the Buyer.
11. Expense Allocations.
11.1 Seller shall pay for all applicable realty transfer taxes
related to the execution, delivery and recording of the Deed, Bill of Sale, and
other Closing Documents, and all related recording charges.
11.2 Subject to Section 13.3, Buyer shall pay for Buyer's
title examination for Buyer's title examination and premiums and for Buyer's due
diligence expenses, including survey, structural analysis and environmental
analysis.
11.3 Buyer and Seller shall be responsible for paying their
own attorney's fees in connection with this transaction.
12. CLOSING.
12.1 Time and Date and Place. The Closing on the sale of the
Property (herein referred to as the "Closing") shall take place on April 18,
1997, at the offices of Pepper, Hamilton & Scheetz LLP, Suite 500, 457
Haddonfield Road, Cherry Hill, New Jersey. Time is of the essence.
12.2 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
12.2.1 Seller's Documents and Other Items. Seller
shall execute and deliver or cause to be executed and delivered to Buyer in
proper form for recording:
12.2.1.1 Deed. A bargain and sale deed with
covenants against grantor's acts prepared by Buyer's counsel in form acceptable
to Seller (the "Deed"),
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conveying the Premises to Buyer, duly executed by Seller for recording. The Deed
description shall be based upon the metes and bounds description attached as
Exhibit "A",; in addition, if Buyer requests that Seller convey the Premises by
the metes and bounds description shown on the new survey, if any, obtained by
Buyer, Seller covenants to execute a Quit Claim Deed for such new description.
12.2.1.2 Bill of Sale. A bill of sale
prepared by Buyer's counsel in form acceptable to Seller, assigning, conveying
and transferring to Buyer, all of the Personal Property, without representation
or warranty.
12.2.1.3 Original Leases. All original
Leases, tenant files, tenant correspondence and repair records.
12.2.1.4 Original Licenses, Contract
Documents and Other Personal Property. All original Licenses, Contract
Documents, and other Personal Property described in Section 1.2 of this
Agreement, to the extent same are in the Seller's possession.
12.2.1.5 Assignment of Leases. An assignment
and assumption agreement with reciprocal indemnities, prepared by Buyer's
counsel in form acceptable to Seller (the "Assignment"), duly executed by Seller
and Buyer, assigning, conveying and transferring to Buyer the Leases.
12.2.1.6 Assignment of Licenses, Contract
Documents and Other Personal Property. An assignment agreement prepared by
Buyer's counsel, in form acceptable to Seller, assigning, conveying and
transferring to Buyer, to the extent the same are assignable the Licenses,
Contracts Documents and Other Personal Property, including, specifically, the
Names, without representation or warranty.
12.2.1.7 FIRPTA Certificates. All
certificate(s) required under Section 1445 of the Code.
12.2.1.8 Tenant Letter. Letters to each
tenant advising of the change in ownership and directing the payment of rent to
such party as the Buyer shall designate, said letter to be in form acceptable to
Buyer.
12.2.1.9 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.10 Title Insurance Certificates. Such
affidavits of title or other certifications as shall be required by the Title
Company to insure Buyer's title to the Premises as set forth in Section 3, and
to provide affirmative endorsements (a) against construction liens, (b) and
parties in possession other than tenants under the Leases.
12.2.1.11 Updated Rent Roll. An updated
schedule of Tenant Leases, containing all information required to be set forth
in Exhibit "D", which schedule is correct and complete as of the date of
Closing.
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12.2.1.12 Seller Certificate. A written
certification confirming that as of Closing the representations and warranties
which are required to be true at and as of Closing, are true at and as of
Closing.
12.2.1.13 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.14 Keys. All keys, combinations and
security codes for all locks and security devices on the Property;
12.2.1.15 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.16 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.17 ISRA Non-Applicability Letter. A
written non-applicability letter issued within 30 days prior to Closing by the
New Jersey Department of Environmental Protection stating that the transaction
and the Property is not subject to ISRA.
12.2.2 Buyer's Documents. Buyer shall deliver or
cause to be delivered to Seller:
12.2.2.1 The amounts required to be paid to
Seller pursuant to this Agreement;
12.2.2.2 Confirmation of the existence and
subsistence of Buyer, and the authority of those executing for Buyer, including,
without limitation, the following documents issued no earlier than thirty (30)
days prior to Closing: (a) good standing certificate in State of Maryland, (b)
Buyer's Amendment and Restatement of Declaration of Trust filed on August 27,
1996, as amended, (c) a certificate from any officer of Buyer confirming the
incumbency of the signatories and the current force and effect of the resolution
authorizing their execution of the documents required under this Agreement.
12.2.3 Title Insurance. As a condition to Buyer's
obligations at Closing, Title Company shall furnish Buyer at Closing with the
Title Policy, in the form approved by Buyer pursuant to Section 3, in the full
amount of the Purchase Price, wherein the Title Company shall insure fee simple
title to the Property in Buyer or its designee as of the Closing Date containing
no exceptions to title other than the Permitted Exceptions and those which have
been approved by Buyer pursuant to the provisions of this Agreement and
providing the title endorsements specified in Section 12.2.1.10 above.
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12.2.4 Necessary Documents. Buyer and Seller shall
execute and deliver such other documents and instruments as may be reasonably
necessary to complete the transaction contemplated by this Agreement.
13. DEFAULT; REMEDIES
13.1 Prior to title passing and the completion of
Closing, in the event of Seller's default hereunder, Buyer's sole remedies shall
be that of (i) specific performance without abatement of the Purchase Price or
(ii) termination of this Agreement and return of the Deposit. In no event shall
Buyer be entitled to damages of any kind or nature;
13.2 Prior to title passing and completion of
Closing, with respect to any representations or warranties of Seller contained
in this Agreement, Buyer's obligations hereunder are contingent upon such
representations and/or warranties contained in this Agreement being true and
correct as of the date hereof and where the context indicates, as of the date of
Closing, but recision of this Agreement and return of the Deposit, shall be
Buyer's exclusive remedy for any breach of any representation and/or warranty by
Seller.
13.3 Notwithstanding the foregoing, in the event of a
willful or intentional breach of a covenant, obligation or warranty by Seller
under this Agreement or if Seller makes a willful or intentional material
misrepresentation in this Agreement, Buyer shall be entitled to terminate this
Agreement and to the return of the Deposit and Buyer's reasonably documented
Transaction Costs sustained by Buyer in connection with this Agreement; and the
foregoing shall be Buyer's sole remedies under this subparagraph.
13.4 Subsequent to title passing and completion of
Closing, Buyer shall have recourse against Seller for its reasonably documented
actual damages, sustained solely for Seller's breach of representations and
warranties which survive Closing, which breach is discovered by Buyer after
Closing; the right to pursue said recourse shall expire and terminate, as to any
right on which action has not then been initiated, at the expiration of the
survival periods set forth herein.
13.5 Buyer recognizes that the Property will be
removed by Seller from the market during the existence of this Agreement and
that if this purchase and sale is not consummated because of Buyer's default
Seller shall be entitled to compensation for such detriment. Seller and Buyer
acknowledge that it is extremely difficult and impracticable ascertain the
extent of the detriment, and to avoid this problem, Seller and Buyer agree that
if the purchase and sale contemplated in this Agreement is not consummated
because of Buyer's default under this Agreement, Seller shall be entitled to
retain the Deposit (whether or not same has theretofore been paid) as its sole
and liquidated damages. The parties agree that the sum stated above as
liquidated damages shall be in lieu of any other relief to which Seller might
otherwise be entitled, Seller hereby specifically waiving any and all rights
which it may have to damages or specific performance as a result of Buyer's
default under this Agreement.
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13.6 Buyer's Out-of-Pocket Costs. In the event of
Seller's breach or default in accordance with Section 13.3 then, in any such
event, upon termination by Buyer hereunder, in addition to receiving the
immediate return of the Deposit, anything in the Agreement contained to the
contrary notwithstanding, Buyer shall also receive from Seller, upon demand,
Buyer's actual, documented out-of-pocket costs and expenses associated with this
Agreement and Buyer's anticipated acquisition of the Property including, without
limitation, Buyer's reasonable counsel fees and costs, title expenses, survey
costs, financial and accounting due diligence, Buyer's structural inspection of
the Property and Buyer's environmental assessment of the Property, and other
costs and expenses associated with Buyer's due diligence, (collectively,
"Transaction Costs"). The foregoing list is not intended to be exclusive, but
representative of the costs and expenses that the parties anticipate that Buyer
will incur in anticipation of this transaction. Seller's maximum reimbursement
liability under this Section 13 shall not exceed $7,500.
14. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer 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 Buyer at or prior to the Closing)
and in the event any of the conditions are not complied with, Buyer may
terminate this Agreement by notifying the Seller and Escrow Agent and thereupon
shall be returned the Deposit and thereafter this Agreement shall be null and
void:
14.1 Correctness of Warranties and Representations. The
warranties and representations made by Seller which specifically are required to
be true and correct at and as of Closing shall be true and correct on the
Closing Date in all material respects as though such representations and
warranties were made on the Closing Date except that (i) variations which occur
in the ordinary course of Seller's business, (ii) variations disclosed in
writing to Buyer prior to Closing, or (iii) any matter or occurrence discovered
by the Buyer prior to Closing shall not be construed as a failure of the
condition set forth in this Section 14.1.
14.2 Compliance with Terms and Conditions. Seller shall have
performed and complied in all respects with all of the terms and conditions
required by this Agreement to be performed and complied with by it prior to or
on the Closing Date, including delivery of all of the Seller Documents.
14.3 No Willful Default. There shall have been no willful or
intentional breach of a covenant, representation or obligation by the sellers
under either of the Agreements of Sale listed on Exhibit "G" (the "Greentree
Agreements") attached hereto and made a part hereof, which willful or
intentional breach results in the termination of either or both of the Greentree
Agreements, provided that in such event, the Buyer's remedy hereunder, shall be
expressly limited to recision of this Agreement and a return of the Deposit.
15. PRORATIONS.
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15.1 Operating Expenses. The following items shall be prorated
at Closing, as of close of business of the day immediately preceding Closing
"Adjustment Date":
15.1.1 Rents. All current collected rent, additional
rent, percentage rent (if any) and all other charges collected under the Leases
shall be apportioned on the Closing Date pro rata on a per diem basis. 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 Buyer, so long
as such tenant is in arrears for current or prior rent arising after Closing,
then (b) to Seller for all rent in arrears prior to the Closing Date; and then
(c) to Buyer with no further claim by Seller thereto. Except as herein provided,
Buyer is not under any obligation to collect rents in arrears for the benefit of
Seller. Any rents which are delinquent or otherwise not paid at the time of
Closing, and collected by Buyer within ninety (90) days after Closing shall be
apportioned as aforesaid and the portion to which Seller is entitled shall be
promptly remitted by Buyer to Seller. Seller shall have no claim to rents
collected ninety (90) days after the Closing Date.
15.1.2 Taxes. Real estate and personal property
taxes, if any, on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessment is fixed, the
apportionment of such real estate and personal property taxes at the Closing
shall be upon the basis of the tax rate for the next preceding year applied to
the latest assessed valuation. Final adjustment will be made upon the actual tax
amount, when determined.
15.1.3 Deposits. Tax and utility company deposits, if
any.
15.1.4 Water and Sewer Charges. Water and sewer
charges and fire protection and inspection services based upon meter readings to
be obtained by Seller effective as of the Adjustment Date, or if not so
obtainable, a date not more than ten (10) days prior to the Adjustment Date, and
the unfixed meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted and Seller or Buyer, as
the case may be, will promptly deliver to the other the amount determined to be
so due upon such readjustment. If Seller is unable to furnish such prior
reading, any reading subsequent to the Closing will be apportioned on a per diem
basis from the date of such reading immediately prior thereto and Seller shall
pay the proportionate charges due up to the date of Closing.
15.1.5 Assigned Contracts. Amounts paid or payable in
respect of any service and maintenance contracts assigned to Buyer in accordance
herewith.
15.1.6 Electricity, gas, steam and fuel. Electricity,
gas and steam and fuel oil, if any, based on meter readings or a fuel company
letter showing measurement on the day immediately preceding Closing, and valued
at current prices.
15.1.7 Security Deposits. Buyer shall receive a check
from Seller for the full amount of any security deposits, with accrued interest,
or a credit against the Purchase Price in said amount.
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15.2 Custom and Practice. Except as set forth in this
Agreement, the customs of the State and County in which the Premises are located
shall govern prorations.
15.3 Future Installments of Taxes. If at Closing, the Property
or any part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in installments, then for purposes
of this Agreement, all unpaid installments of any such assessment, including
those which are to become due and payable after Closing shall be assumed by the
Buyer from and after Closing.
15.4 Application of Prorations. If such prorations result in a
payment due Buyer, the cash payable at Closing shall be reduced by such sum. If
such prorations result in a payment due Seller, the same shall be paid by wire
transfer of immediately available funds at Closing.
15.5 Schedule of Prorations. The parties shall endeavor to
jointly prepare a schedule of prorations for the Property no less than five (5)
days prior to Closing.
15.6 Escalations. With respect to any sums due under leases
for operating expenses incurred by the Seller in excess of that billed and
collected by Seller for the calendar year 1996 (the "1996 Expense Escalations"),
the Seller shall after Closing provide to each tenant a statement of the amount
of the 1996 Expense Escalations due from such Tenant, and Seller shall be
entitled to retain the entire amount of such sum, notwithstanding anything
contained in this Section 15 to the contrary. Any 1996 Expense Escalations paid
to the Buyer after Closing shall be immediately remitted to the Seller. With
respect to any sums due under leases for operating expenses incurred by the
Seller in excess of that billed and collected by Seller during 1997 (the "1997
Expense Escalations"), at the time that the Buyer bills and collects the 1997
Expense Escalations, the Buyer shall reimburse the Seller for the actual amount
incurred by Seller for 1997 in excess of that billed and paid by tenants during
1997.
15.7 Readjustments. The parties shall correct any errors in
prorations as soon after the Closing as amounts are finally determined.
16. BROKERS. Each party hereby represents and warrants to the other
that it has not employed or retained any broker or finder in connection with the
transactions contemplated by this Agreement and that neither has had any
dealings with any other person or party which may entitle that person or party
to a fee or commission. Each party shall indemnify the other of and from any
claims for commissions by any person or party claiming such commission by or
through the indemnifying party.
17. ESCROW AGENT. The parties hereto have requested that the Deposit be
held in escrow by the Escrow Agent to be applied at the Closing or prior thereto
in accordance with this Agreement. The Escrow Agent will deliver the Deposit to
Seller or to Buyer, as the case may be under the following conditions:
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17.1 Payment to Seller. To Seller on the Closing Date upon the
consummation of Closing;
17.2 Notice of Dispute. If either Seller or Buyer believes
that it is entitled to the Deposit or any part thereof, it shall make written
demand therefor upon the Escrow Agent. The Escrow Agent shall promptly mail a
copy thereof to the other party in the manner specified in Section 18.1 below.
The other party shall have the right to object to the delivery of the Deposit,
by filing written notice of such objections with the Escrow Agent at any time
within ten (10) days after the mailing of such copy to it in the manner
specified in Section 18.1 below, but not thereafter. Such notice shall set forth
the basis for objection to the delivery of the Deposit. Upon receipt of such
notice, the Escrow Agent shall promptly deliver a copy thereof to the party who
filed the written demand.
17.3 Escrow Subject to Dispute. In the event the Escrow Agent
shall have received the notice of objection provided for in 17.2 above of this
Section, in the manner and within the time therein prescribed, the Escrow Agent
shall continue to hold the Deposit until (i) the Escrow Agent receives written
notice from both Seller and Buyer directing the disbursement of the Deposit in
which case the Escrow Agent shall then disburse said Deposit in accordance with
said direction, or (ii) litigation arises between Seller and Buyer, in which
event the Escrow Agent shall deposit the Deposit with the Clerk of the Court in
which said litigation is pending, or (iii) the Escrow Agent takes such
affirmative steps as the Escrow Agent may, at the Escrow Agent's option elect in
order to terminate the Escrow Agent's duties including, but not limited to,
deposit in Court and an action for interpleader.
17.4 Escrow Agent's Rights and Liabilities. Escrow Agent shall
not be required to determine questions of fact or law, and may act upon any
instrument or other writing believed by it in good faith to be genuine and to be
signed and presented by the proper person, and shall not be liable in connection
with the performance of any duties imposed upon Escrow Agent by the provisions
of this Agreement, except for Escrow Agent's own willful default or gross
negligence. Escrow Agent shall have no duties or responsibilities except those
set forth herein. Escrow Agent shall not be bound by any modification of this
Agreement, unless the same is in writing and signed by Buyer and Seller, and, if
Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have
given prior written consent thereto. In the event that Escrow Agent shall be
uncertain as to Escrow Agent's duties or rights hereunder, or shall receive
instructions from Buyer or Seller which, in Escrow Agent's opinion, are in
conflict with any of the provisions hereof, Escrow Agent shall be entitled to
hold and apply the Deposit, pursuant to Section 17.3, and may decline to take
any other action.
18. GENERAL PROVISIONS.
18.1 Notices. All notices or other communications required or
permitted to be given under the terms of this Agreement shall be in writing, and
shall be deemed effective when (i) personally delivered (ii) sent by
nationally-recognized overnight courier, (iii) facsimile with original following
by regular mail, or (iv) deposited in the United States mail and sent by
certified mail, postage prepaid, addressed as follows:
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18.1.1 If to Buyer, addressed to:
Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Gerard H. Sweeney,
President and Chief Executive Officer
with a copy in each instance to:
Brad A. Molotsky, Esquire
Pepper, Hamilton & Scheetz LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103
18.1.2 If to Seller, addressed to:
Needleman Management Co., Inc.
9 Deerfield Terrace
Moorestown, New Jersey
with a copy in each instance to:
Robert Schwartz, Esquire
Sherman, Silverstein, Kohl, Rose & Podolsky
4300 Haddonfield Road
Suite 311
Pennsauken, New Jersey 08109
18.1.3 If to Escrow Agent, addressed to:
M. Gordon Daniels
Commonwealth Land Title Insurance Company
1700 Market Street
Philadelphia, PA
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.
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18.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
18.3 Entire Agreement. All Exhibits attached to this Agreement
are incorporated herein and made a part hereof. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
18.4 Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey.
18.5 No Recording. This Agreement shall not be recorded in the
Clerk's Office for Burlington County or in any other office or place of public
record.
18.6 Tender. Tender of Deed by Seller and of the Purchase
Price by Buyer, are hereby mutually waived.
18.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
18.8 Further Instruments. Seller will, whenever and as often
as it shall be reasonably request so to do by Buyer, and Buyer will, whenever
and as often as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all conveyances, assignments, correction instruments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent and
purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The provisions of
this Article shall survive the Closing.
18.9 Time. Time is of the essence. In the event the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the State of New Jersey, the time for such performance will be extended to the
next succeeding business day. Time periods under this Agreement will exclude the
first day and include the last day of such time period.
18.10 Designation of Nominee; Assignment of Agreement. Buyer
shall have the right to designate one or more of its subsidiaries or affiliate
entities to acquire title to the Premises hereunder.
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18.11 Effective Date. Whenever the term or phrase "effective
date hereof" or "date hereof" or other similar phrases describing the date this
Agreement becomes binding on Seller and Buyer are used in this Agreement, such
terms or phrases shall mean and refer to the date on which a counterpart or
counterparts of this Agreement executed by Seller and Buyer.
18.12 Confidentiality. Each of the parties hereto covenants
and agrees to hold the nature and content of this Agreement, including without
limitation, the Purchase Price contained herein, in strict confidence, and other
than disclosure required by the SEC and except as may be necessary to comply
with this Agreement, neither party shall disclose the nature, content or the
Purchase Price of this Agreement without the express written consent of the
other party.
19. SEC REPORTING (8-K) REQUIREMENTS.
For the period of time commencing on the date hereof and
continuing through the first anniversary of the Closing Date, and without
limitation of other document production otherwise required of Seller hereunder,
Seller shall, from time to time, upon reasonable advance written notice from
Buyer, provide Buyer and its representatives, with (I) access to all financial
and other information pertaining to the period of Seller's ownership and
operation of the Property, which information is relevant and reasonably
necessary, in the opinion of Buyer's outside, third party accountants (the
"Accountants"), to enable Buyer and its Accountants to prepare financial
statements in compliance with any or all of (a) Rule 3-05 or 3-14 of Regulation
S-X of the Securities and Exchange Commission (the "Commission"), as applicable;
(b) any other rule issued by the Commission and applicable to Buyer; and (c) any
registration statement, report or disclosure statement filed with the Commission
by, or on behalf of Buyer; and (II) a representation letter, indicating (if such
be the case) that to the knowledge of the Seller, (i) although the financial
statements provided to the Buyer for the year ended 1996, in accordance with
this Section 19 are unaudited, and do not constitute full disclosure required by
generally accepted accounting principles, the net operating income of the Seller
set forth on such financial statement is in accordance with generally accepted
accounting principles, but the financial statements may not satisfy those
principles, and (ii) the Seller has made available to the Buyer all financial
records and related data requested by the Buyer.
20. INTENTIONALLY OMITTED PRIOR TO EXECUTION.
21. EXCULPATION.
No recourse shall be had for any obligation of Brandywine
Realty Trust under this Agreement or under any document executed in connection
herewith or pursuant hereto, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being expressly waived and released by the Seller and all
parties claiming by, through or under Seller.
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22. Tax Deferred Exchange. The Seller intends to effectuate a
"like-kind exchange" pursuant to Section 1031 of the Internal Revenue Code, and
to utilize the Property as "Relinquished Property" and the sale thereof in
connection with such like-kind exchange. The Buyer shall fully cooperate with
Seller in effectuating any like-kind exchange, including, Replacement Property
or other real property ("Replacement Parcel") identified by the Seller provided
that nothing herein contained is intended to require the Buyer to close title to
any Replacement Parcel. Seller's effectuation of a like-kind exchange prior to
any closing shall not be a condition or contingency to the Seller's obligations
hereunder. Seller shall be responsible for all costs and expenses incurred in
connection with the effectuation of a like-kind exchange over and above those
Buyer would incur in a straight purchase/sale. Seller shall indemnify and hold
harmless Buyer from any and all losses, costs, expenses and damages associated
with Buyer's participation in the exchange transaction. The Property subject to
this Agreement constitute Relinquished Property in the Internal Revenue Code
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Section 1031 exchange.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
BRANDYWINE REALTY TRUST,
a Maryland Real Estate Investment Trust
/s/ Ira M. Lubert By: /s/ Gerard H. Sweeney
- -------------------------- ----------------------------------
Ira M. Lubert Gerard H. Sweeney, President and
Chief Executive Officer
/s/ Karen L. Lubert
- --------------------------
Karen L. Lubert
Agreed to by Escrow Agent with regard
to the obligations, terms, covenants and
conditions contained in this Agreement
relating to Escrow Agent.
By: /s/ M. Gordon Daniels
--------------------------
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AGREEMENT OF SALE
Greentree Executive Campus
AGREEMENT OF SALE made this 18 day of April, 1997, between BRANDYWINE
REALTY TRUST, a Maryland Real Estate Investment Trust, its assignee or nominee,
having its principal office at 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania 19073 ("Buyer"), and HOWARD E. NEEDLEMAN, having its principal
office at 1060 N. Kings Highway, suite 250, Cherry Hill, New Jersey 08034
("Seller").
BACKGROUND
The Background of this Agreement is as follows:
A. Seller is the owner of a certain tract of land being comprised of
one (1) parcel of land together with the building and improvements thereon,
including three (3) one story office buildings commonly known as 2000 Greentree
Executive Campus, Evesham, New Jersey as more fully described on Exhibit A
attached hereto; and
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the property referred to in this Agreement, upon the terms and conditions
set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with the preceding Background paragraphs incorporated by
reference, the parties hereto, intending to be legally bound hereby, covenant
and agrees as follows:
1. PROPERTY BEING SOLD.
Seller shall sell, transfer and convey to Buyer on the
Closing Date (as hereinafter defined),
1.1 Real Property. Fee simple interest in the parcels of land,
all as more fully described on Exhibit "A", with the building and improvements
thereon, including the three (3), one-story office buildings commonly known as
2000 Greentree Executive Campus, Evesham, New Jersey, and all of the Seller's
right, title, and interest, if any, in any easements, licenses, rights of way,
privileges, hereditaments, appurtenances, and rights to any land lying in the
beds of any street, road or avenue, open or proposed, adjoining thereto, and
inuring to the benefit of said land (hereinafter collectively referred to as the
"Premises"); and
1.2 Personal Property. All of Seller's equipment, fixtures,
machinery and personalty of every description attached to or used in connection
with the Premises (and not owned by tenants under leases of the Premises),
including, without limitation, those listed on the Schedule of Inventory
attached hereto as Exhibit "B", and to the extent assignable and in Seller's
possession intangible personal property owned by the Seller and used in
connection with the
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ownership, operation and maintenance of the Premises, including without
limitation, all contract rights, guaranties and warranties of any nature, all
architects', engineers', surveyors' and other real estate professionals' plans,
specifications, certifications, contracts, reports, data or other technical
descriptions, reports or audits (including, without limitation, all
environmental, structural and mechanical inspection reports), and all marketing
materials ("Contract Documents"), all governmental permits, licenses,
certificates, and approvals in connection with the ownership of the Premises
("Licenses"), all escrow accounts, deposits, instruments, documents of title
pertaining to the Premises, and all of Seller's rights, claims, and causes of
action if any, to the extent they are assignable, under any warranties and/or
guarantees of manufacturers, contractors or installers, including to the extent
applicable, any warranties from any previous owners of the Premises (hereinafter
collectively referred to as "Personal Property"); and
1.3 Leases. All leases, licenses and other occupancy
agreements for any part of the Premises, and except as otherwise set forth
herein, all prepaid rent and unapplied security deposits (the "Leases"); and
1.4 Right to Names. Any and all right, title and interest of
Seller, if any, and without representation or warranty, in and to the name
"1,000 Greentree Executive Campus", and the Seller's right, if any, without
representation or warranty, to all printing styles, trademarks and logos (the
"Name").
The Premises, Personal Property, Leases and Name are
sometimes hereinafter referred to as "Property."
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 Purchase Price. Buyer shall pay the total sum of Two
Million One Hundred Twenty Five Thousand ($2,125,000.00) Dollars (hereinafter
referred to as the "Purchase Price") subject to adjustments as set forth herein.
2.2 Manner of Payment. The Purchase Price shall be paid in the
following manner:
2.2.1 Deposit. By delivery, upon Seller's execution
and delivery of this Agreement, of Buyer's good check in the amount of $12,500
to the Title Company (hereinafter referred to as "Escrow Agent" or "Escrowee").
This sum, the sum specified in Section 2.2.2 below, and all other sums paid by
Buyer to the Escrow Agent under this Agreement (hereinafter referred to as the
"Deposit") shall be held by Escrow Agent in a federally-insured, segregated
money market account at an institution to be designated by Buyer until
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or paid to the party otherwise entitled to the
Deposit in the event of the termination of this Agreement prior to Closing.
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2.2.2 Additional Deposit. By delivery, within two (2)
business days next following the Inspection Period Expiration Date (as
hereinafter defined), of Buyer's good check in the amount of $25,000.
2.2.3 Balance. The balance of the Purchase Price
shall be delivered to the Seller on the Closing Date, by wire transfer of
immediately available funds, subject to adjustments and apportionments as set
forth in this Agreement.
3. TITLE. On the Closing Date, Seller shall convey to Buyer good and
marketable fee simple title to the Property subject only to those rights of way,
easements, covenants restrictions, and objections to title (hereinafter
"Permitted Exceptions") listed on Exhibit "C" hereto, unless identified by Buyer
as "Title Objections" as hereinafter provided, and subject to the rights of
tenants listed on the rent roll attached hereto as Exhibit "D", which title
shall be insurable at regular rates by Commonwealth Land Title Insurance Company
("Title Company") under an ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title
insurance policy ("Title Policy").
4. COVENANTS. In addition to the covenants contained in the other
Sections of this Agreement, between the date hereof and Closing, Seller
covenants that it shall:
4.1 Maintenance. At all times prior to the Closing Date,
operate the Property in the same manner as it is currently being operated, and
pay in the normal course of business prior to Closing, all sums due for work,
materials or service furnished or otherwise incurred in the ownership and
operation prior to Closing.
4.2 Alterations. Not make or permit to be made any
alterations, improvements or additions to the Property without the prior written
consent of Buyer, which consent shall not be unreasonably withheld or delayed
except those made by or for tenants pursuant to the right to do so under their
Leases, or by Seller if required by applicable law or ordinance (subject to the
provisions of Section 4.8 of this Agreement), or as required under any Lease.
4.3 Lease. Not enter into any new lease without Buyer's
consent, which consent shall not be unreasonably withheld.
4.4 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.5 Bill Tenants. Timely bill all Tenants for all rent
billable under Leases, and use its commercially reasonable efforts consistent
with Seller's existing practices to collect any rent in arrears.
4.6 Notice to Buyer. Notify Buyer promptly of the occurrence
of any of the following:
(i) a fire or other casualty causing damage to the
Property, or any portion thereof;
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(ii) receipt of written notice of eminent domain
proceedings or condemnation of or affecting the Property, or any portion
thereof;
(iii) receipt of written notice from any governmental
authority or insurance underwriter relating to the condition, use or occupancy
of the Property, or any portion thereof, or setting forth any requirements with
respect thereto;
(iv) receipt of written notice of any actual or
threatened litigation against Seller or affecting or relating to the Property,
or any portion thereof;
(v) receipt of written notice of any termination
notice from any tenant;
(vi) the commencement of any strike, lock-out,
boycott or other labor trouble affecting the Property, or any portion thereof.
4.7 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.8 Comply with Leases. Perform all material obligations of
the landlord as required by the Leases or by any order or direction of any
governmental authority having jurisdiction thereof, provided that if the cost to
perform such obligation exceeds $12,500.00 (the "Seller Compliance Costs"),
Seller shall have the right to terminate this Agreement if Buyer is unwilling to
pay for the costs of such obligations in excess of the Seller Compliance Costs,
in which event the Deposit shall be returned to Buyer and neither party shall
owe any further obligation hereunder to the other; provided, however, if the
Seller Compliance Costs exceed $12,500, and Buyer agrees to pay for the second
$12,500 of such costs, the additional cost of such Seller Compliance Costs above
$25,000, if any, shall be evenly shared by Buyer and Seller, provided that in no
event shall Seller be obligated to pay more than $25,000 in connection with the
Seller Compliance Costs (e.g., if the total Seller Compliance Costs equal
$35,000 and Buyer agrees to pay for the second $12,500, the additional $10,000
above the $12,500 shall be shared by Buyer and Seller, so that Seller shall be
responsible for $17,500 and Buyer shall be responsible for $17,500). The parties
acknowledge and agree that Buyer is under no obligation to agree to pay for such
Seller Compliance Costs, but that the aforesaid cost allocation mechanism is an
agreed upon compromise in order to permit Buyer to avoid Seller's termination of
this Agreement.
4.9 No New Agreements. Except for agreements which can be
terminated on not more than thirty (30) days' notice, not enter into any other
agreements which affect the Property or the transactions contemplated by this
Agreement, without the prior written consent of Buyer which consent shall not be
unreasonably withheld or delayed; and except for the Permitted Exceptions, not
permit the creation of any liability which shall bind Buyer or the Premises
after Closing.
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4.10 Tax Disputes. Notify Buyer of any tax assessment disputes
(pending or threatened) with respect to the Property prior to Closing, and not
agree to any changes in the real estate tax assessment, nor settle, withdraw or
otherwise compromise any pending claims with respect to prior tax assessments,
without Buyer's prior written consent. 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. Any reduction relating to tax years prior to
the year in which the Closing occurs shall be payable to the Seller.
4.11 No Removal of Personalty. Not remove any non-consumable
Personal Property from the Premises without replacing it with similar personal
property, new or of equal or better quality.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to enter
into this Agreement, Seller hereby represents and warrants to Buyer that to the
best of the Seller's actual knowledge (which shall be deemed to mean the actual
knowledge of Howard E. Needleman) the following representations and warranties
are true now, and where the representation specifically provides, will be true
at Closing:
5.1 Seller's Authority For Binding Agreement. Seller has full
power, right and authority to own its properties, to carry on its business as
now conducted, and to enter into and fulfill its obligations under this
Agreement. Each of the persons executing this Agreement on behalf of Seller is
authorized to do so. This Agreement is the valid and legally binding obligation
of Seller, enforceable against Seller in accordance with its terms. The
execution and delivery of this Agreement and compliance with its terms will not
conflict with or result in the breach of any law, judgement, order, writ,
injunction, decree, rule or regulation, or conflict with or result in the breach
of any other agreement, document or instrument to which Seller is a party or by
which it or the Property is bound or affected. The representation contained in
this Section 5.1 shall be true at and as of Closing.
5.2 Employment on "At-Will" Basis. There are no employees of
Seller and Buyer assumes no obligations or responsibilities whatsoever for any
employees of Seller. The representation contained in this Section 5.2 shall be
true at and as of Closing.
5.3 Service Contracts. Exhibit "E" attached hereto is a
complete list of all existing service, equipment, supply and maintenance
contracts with respect to or affecting the Property (the "Service Contracts").
Seller has received no written notice of default or breach by Seller in the
terms of any of such Service Contracts. To the Seller's actual knowledge, Seller
has performed, and at Closing shall have performed, all obligations which it has
under said Service Contracts.
Anything in this Section 5.3 to the contrary notwithstanding, Seller
represents and warrants that any existing management agreements and exclusive
brokerage or leasing agreements
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shall be terminated as of Closing, Seller having fully paid and discharged any
and all obligations accruing thereunder, and Buyer shall assume no liability
under or in respect of any such agreements.
5.4 Condemnation. Seller has received no written notice of any
pending condemnation or eminent domain proceeding pending with regard to any
part of the Property.
5.5 No Lawsuits. Seller has received no written notice of any
claims, lawsuits or proceedings pending, or to the best of the Seller's
knowledge, threatened against or relating to Seller or the Property, or which
could affect them, or either of them, in any court or before any governmental
agency, except for actions for possession, damages and or rent, if any, against
defaulted tenants as disclosed in Exhibit "D", or except for actions which are
adequately covered or defended by an insurance carrier. The representation
contained in this Section 5.5 shall be true at and as of Closing.
5.6 No Tax Assessments. Seller has received no written notice
of any public improvements in the nature of off-site improvements, or otherwise,
which have been ordered to be made and/or which have not heretofore been
assessed, and, to Seller's knowledge, there are no special or general
assessments currently affecting or pending against the Property, except as set
forth in the Title Binder.
5.7 Leases. 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
Premises other than the leases (the "Leases") listed on the rent roll attached
hereto as Exhibit "D". Exhibit "D" identifies (i) each tenant of the Premises,
(ii) the date of that tenant's lease, (iii) the expiration date of that tenant's
lease, (iv) the annual and monthly minimum rental charge, the tenant's share of
building operating costs (including, without limitation, taxes) and any and all
costs, expenses and other charges payable by the tenant under the Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (viii) any options to renew, extend,
purchase, cancel or terminate; (ix) all unpaid tenant improvement allowances
and/or unpaid leasing commissions; and (x) any outstanding written notices of
defaults of any kind or nature whatsoever. Seller 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 Seller except as
additional collateral for the existing mortgage upon the Premises which shall be
satisfied at or before Closing. To the best of Seller's knowledge, 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 "D"
are the actual rents, income and charges being collected by Seller under the
Leases. Any tenant improvements which Seller is obligated to complete pursuant
to any Lease has been completed as of this date or shall be completed as of
Closing, and all costs for completed work has been or shall be paid by Seller.
The amount of each security deposit contains, where required by law or otherwise
applicable, interest which has accrued in accordance with law. Except as set
forth on Exhibit "D", no tenant of the Premises 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
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forth on Exhibit "D", no security deposits by tenants have heretofore been
returned or applied to charges against the tenants.
5.8 Compliance with Law.
(i) To the best of Seller's actual knowledge, there
are no outstanding notices of any violations issued by governmental authority
having jurisdiction over the Property.
(ii) To the best of Seller's actual knowledge, which
knowledge is based exclusively upon that certain Environmental Report prepared
by Killam Associates dated February 12, 1992 (the "Environmental Report") and
except as otherwise set forth in the Environmental Report, 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, except to the extent such substance or materials are used in
the ordinary course of the Seller's business or that of any Tenant in accordance
with applicable laws, and there has, to the best of Seller's knowledge, and
based exclusively upon the Environmental Report, 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
Premises any clean-up or other monetary obligation. Seller has received no
written notice that it has been identified in any litigation, administrative
proceeding or investigation 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, and no lien
or superlien has been recorded, filed or otherwise asserted against any real or
personal property of Seller for any clean-up costs or other responses costs
incurred in connection with any environmental contamination that is
attributable, in whole or in part, to Seller. 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 all applicable federal, state and local laws including the
New Jersey Industrial Site Recovery Act, as amended ("ISRA"); and "Hazardous
Wastes" means any hazardous waste, residential or household waste, solid waste,
or other waste as defined in applicable federal, state and local laws. Seller
has not received any written summons, citation, directive, letter or other
communication, written or oral, from any governmental or quasi-governmental
authority concerning any intentional or unintentional action or omission on
Seller's part which (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. The
representation contained in this Section 5.8(i) shall be true and correct at and
as of Closing.
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5.9 Insurance. Exhibit "F" attached hereto contains a true and
correct description of all insurance policies affecting the Property and the
operation thereof. All of said insurance policies shall remain in full force and
effect until the completion of Closing hereunder. Seller has not received any
written notice from any insurance company board of fire underwriters or rating
organization (or other body exercising similar functions) (i) claiming any
defects or deficiencies which have not been addressed and fully cured or
corrected, or (ii) requesting the performance of any repairs, alterations or
other work which have not been performed, or (iii) claiming any default which,
if not corrected, would result in a cancellation of insurance coverage. The
representation contained in this Section 5.9 shall be true at and as of Closing.
5.10 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.11 No Brokers. Except as set forth on Exhibit "D", no
brokerage or leasing commission or other compensation is now, or will at Closing
be, due or payable to any person, firm, corporation, or other entity with
respect to or on account of any of the Leases, or any extensions or renewals
thereof.
5.12 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.13 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.14 Good Title to Property. Seller holds good and marketable,
indefeasible fee simple title to the Property, free and clear of liens and
encumbrances, other than the Permitted Exceptions. The representation contained
in this Section 5.14 shall be true at and as of Closing.
5.15 All Taxes and Assessments Paid. Seller will have paid
prior to Closing, all taxes and assessments, including assessments payable in
installments, which are to become due and payable prior to Closing and/or a lien
on the Property, except for taxes for the current year which shall be prorated
at Closing or installments of current assessments which become due and payable
after Closing, which shall be the sole responsibility of the Buyer. The
representation contained in this Section 5.15 shall be true at and as of
Closing.
5.16 FIRPTA. Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended
(the "Code"). The representation contained in this Section 5.16 shall be true at
and as of Closing.
5.17 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.18 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.19 Inventory Schedule. The Schedule of Inventory contains a
correct and complete list of personal property owned by Seller and located at or
used in connection with the operation of the Property.
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5.20 Charges, Fees and Assessments. Any and all applicable
charges, fees and assessments pending as of the date of this Agreement 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, 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. The representation contained in this Section 5.20 shall be true
at and as of Closing.
5.21 Rights to Purchase. There are no outstanding agreements,
options, rights of first refusal, conditional sales agreements or other
agreements or arrangements, whether oral or written, regarding the purchase and
sale of the Property, or which otherwise affect any portion of or all the
Property. The representation contained in this Section 5.21 shall be true at and
as of Closing.
5.22 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.23 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.24 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.25 Development Agreements. Seller is in material compliance
with and has fully paid and discharged all obligations arising under any and all
development, tri-party and like agreements, and any and all other agreements
with county, municipal and other governmental and quasi-governmental agencies
and authorities respecting the ownership, development and operation of the
Property and all portions thereof. The representation contained herein shall be
true at and as of Closing.
5.26 Correct Copies of Documents. Where copies of any
documents have been delivered by Seller to Buyer, whether prior to or pursuant
to this Agreement, such copies: (i) are exact copies of the originals of said
documents, as executed and delivered by all of the parties thereto; (ii) to the
best of Seller's knowledge, constitute, in each case, the entire agreement
between the parties thereto with respect to the subject matter thereof, and the
original instruments in the form delivered to Buyer, are now in full force and
effect, and valid and enforceable in accordance with their respective terms, and
no party thereto is in default, and no claim of default by any party has been
made or is now pending and there does not now exist any default which, after
either the giving of notice or the passing of time, or both, will or may
constitute a default, or would excuse performance by any party thereto; and
(iii) have not been changed or amended except for amendments, if any,
specifically referred to therein.
6. POSSESSION. Possession of the Premises is to be given to Buyer,
subject to the right of tenants under the Leases on the Closing Date, by
delivery of the Deed, and all keys, combinations and security codes at Closing.
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
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7.1 Title Binder. On or before the execution of this
Agreement, Seller shall have made available to Buyer, without representation or
warranty, Seller's most recently dated title commitment for the Property
(complete with copies of all exceptions to title), and Buyer shall order a
current title commitment (the "Title Binder") from the Title Company. Buyer
shall promptly deliver to the Buyer a copy of the Title Binder, together with a
notice of any items disclosed on the Title Binder which is not a Permitted
Exception (a "Title Objection"). If prior to Closing, the Seller can not remove
the Title Objection, the Seller shall have the option of accepting the title to
the Property subject to the Title Objection or of terminating this Agreement, in
which event the Deposit shall be returned to the Buyer and neither party shall
owe any further obligation hereunder to the other. Notwithstanding the
foregoing, at Closing, Seller, so long as such amount does not exceed
$500,000.00 (exclusive of the mortgages currently encumbering the Property),
shall pay all monetary liens, which are not Permitted Exceptions.
7.2 Survey. Seller shall make available to Buyer, without
representation or warranty, within three (3) days of the date hereof, Seller's
most recent survey of Property (the "Survey"),
7.3 Physical and Financial Inspection. For a period (the
"Inspection Period") commencing on the second (2nd) business day next following
the date upon which Buyer shall receive from Seller a fully-executed counterpart
of this Agreement, and expiring on April 10, 1997 (such date is herein referred
to as the "Inspection Period Expiration Date"), Buyer shall have the right to
have performed a physical and mechanical inspection, measurement and audit of
the Property and an inspection of all books and records and financial
information pertaining thereto, and Seller shall cooperate with Buyer and shall
make available to Buyer such information, materials and documents as Buyer may
reasonably request and shall have its accountant available throughout such
period to assist in Buyer's inspection and review. The inspection, audit and
measurement of the Property's operation, condition and maintenance shall
include, without limitation, such environmental and engineering inspections,
reviews and assessments that Buyer deems appropriate. If Buyer, at Buyer's sole
and absolute discretion, shall find such inspection(s) to be unsatisfactory for
any reason whatsoever, Buyer shall have the right, at its option, to terminate
this Agreement on or before the Inspection Period Expiration Date, and upon such
termination, the Deposit shall be immediately refunded to the Buyer, and
thereupon the parties hereto shall have no further liabilities one to the other
with respect to the subject matter of this Agreement. Buyer agrees that it shall
not unreasonably interfere with tenants in performing its inspection. If Buyer
or its consultants exercises its rights under the provisions of this subsection,
it shall (i) provide Seller with prior verbal notice of Buyer's entry, (ii) keep
the Property free of any liens or third-party claims resulting therefrom except
as may be required by applicable law; (iii) maintain adequate liability
insurance in an amount of not less than $1,000,000.00 for a single occurrence
and $50,000.00 for property damage which insurance shall name Seller as an
additional insured; (iv) indemnify Seller against any liability or expense for
injuries to or death of persons or damage to property arising from the exercise
of the rights hereunder that are not the result of any act or omission of Seller
or Seller's agents, employees or contractors and (v) if Closing does not occur
for any reason restore as nearly as practicable the Property substantially to
its condition immediately before such exercise. The indemnification and
restoration provisions of this subsection shall survive the termination of this
Agreement. In connection with such
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inspection, Seller shall make available at the Property, or at the Seller's
management offices, without representation, or warranty, except as specifically
set forth herein, and to the extent the same are in the Seller's possession, the
following:
7.3.1 Leases. All Leases for the Property as of the
date hereof;
7.3.2 Contracts, and Licenses. Copies of the Contract
Documents, the Licenses, any certificates of occupancy, insurance policies
applicable to the Property and any other documents evidencing rights described
in Section 1.2 hereof;
7.3.3 Tax Bills. A copy of tax bills (i) for the
current year, and (ii) if available, for the preceding two years;
7.3.4 Operating Statements. Statements of operation
of the Property for the past year;
7.3.5 Notices of Violations. Copies of any
uncorrected written notices of violations of any law, ordinance, regulation,
rule or requirement of any governmental body having jurisdiction;
7.3.6 Takings or Changes. Copies of all written
notices to Seller of proposed or threatened takings or changes with respect to
the Property;
7.3.7 Tax Assessments, Appeals and Increases. Copies
of all written notices to Seller of all filed, proposed or threatened tax
assessment appeals or tax assessment increases related to the Premises;
7.3.8 Litigation. Copies of all pending and written
notices to Seller of threatened litigation, including litigation involving
tenants, affecting the Property or this transaction;
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer shall survive Closing and delivery of
the Deed for the statute of limitations pertaining thereto. The representations
and warranties of Seller set forth in Sections 5.1, 5.2, 5.6, 5.8 (i), 5.11,
5.16, and 5.21 shall survive Closing and delivery of the Deed for the applicable
period of the statute of limitations pertaining thereto. The representation and
warranties of Seller set forth in Sections 5.3, 5.5, 5.8(ii), 5.19, 5.20, 5.25,
and 5.26 shall survive Closing and delivery of the Deed for six (6) months from
Closing. The representations and warranties of Seller set forth in Section 5.7
shall survive Closing and delivery of the Deed for three (3) months from
Closing. The remaining representations and warranties shall not survive Closing
and delivery of the Deed. Notwithstanding anything contained in this Agreement
to the contrary, except as expressly set forth in this Agreement, Seller makes
no representation, either prior to or at the Closing, with respect to the
condition or character of the Property or the use or uses to which the Property
may be put. Buyer acknowledges that Buyer has or will carefully and
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thoroughly examine, inspect and investigate the Property, and the Seller's
operations (as to manner, income and expenses), and Buyer is or will be fully
satisfied with the same upon completion of the inspections and examinations; and
Buyer is purchasing the same on the basis of such examination, inspection and
investigation and not in reliance on any representation or warranty of Seller or
any agent, employee or representative of Seller of any kind or nature whatsoever
except as specifically set forth herein. Accordingly, Buyer hereby agrees to
accept all of the assets being acquired by Buyer hereunder, whether realty,
personalty or mixed, on an absolutely and unconditionally "as is" basis at the
time of Closing. Notwithstanding the time period for survival with respect to
Section 5.7, if prior to the expiration of such period, Seller delivers to Buyer
an estoppel certificate on Buyer's prescribed form, which certificate confirms
Seller's representations under Section 5.7 of this Agreement, Seller shall be
released from all liability with respect to its representations as they pertain
to such tenancy.
9. FIRE OR OTHER CASUALTY.
9.1 Maintain Insurance. Seller shall maintain in effect until
the Closing Date the insurance policies (or like policies) now in effect with
respect to the Premises and Personal Property as set forth in Exhibit F".
9.2 Minimal Damage. If prior to the Closing Date any portion
of the Property is damaged or destroyed by fire or other casualty, and the cost
of repair or restoration thereof shall be $125,000 or less (as established by
good faith estimates obtained by Buyer), this Agreement shall remain in force.
9.3 Substantial Damage. If prior to the Closing Date any
portion of the Property is damaged or destroyed by fire or other casualty, and
the cost of repair or restoration thereof shall be more than $125,000 (as
established by good faith estimates obtained by Buyer), Buyer may terminate this
Agreement by giving written notice thereof to Seller ("Buyer's Notice of
Election"), and if this Agreement is so terminated, then the Deposit shall be
immediately refunded to Buyer, and thereafter neither party shall have any
further liability hereunder thereafter. If Buyer does not so terminate this
Agreement, it shall remain in full force and effect, and the provisions of
Section 9.4 below shall apply.
9.4 Closing After Substantial Damage. So long as this
Agreement shall remain in force under Section 9.2 or 9.3, then (i) all proceeds
of insurance collected prior to Closing, plus the amount of deductible under
Seller's insurance policy, shall be adjusted subject to Buyer's approval and
participation in any adjustment, and shall be credited to Buyer against the
Purchase Price payable by Buyer at Closing, and (ii) all unpaid claims and
rights in connection with losses shall be assigned to Buyer at Closing.
9.5 Rent Insurance. All rental loss insurance and the proceeds
thereof allocable to any period subsequent to Closing shall be paid or assigned
to Buyer at Closing.
10. CONDEMNATION. If, prior to the Closing Date, all or any material
portion of the Premises (being any taking affecting the building or any other
taking involving 10% or more
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of the Premises or the parking area) is taken by eminent domain or a notice of
any eminent domain proceedings with respect to the Premises or any part thereof
is received by the Seller, then Seller shall within five (5) days thereafter
give notice thereof to Buyer and Buyer shall have the option to (a) complete the
purchase hereunder or (b) if such taking, in Buyer's sole and absolute
discretion, adversely affects the Premises or its current economic viability,
terminate this Agreement, in which event the Deposit shall be immediately
refunded to Buyer, and this Agreement shall be null and void. Buyer shall
deliver written notice of its election to the Seller within two (2) days after
the date upon which the Buyer receives written notice of such eminent domain
proceedings. If notice of condemnation is received by Buyer and it fails to
deliver said written notice of its election within said time period, such
failure shall constitute a waiver by Buyer of its right to terminate this
Agreement. If this Agreement is not so terminated, Buyer shall be entitled to
all awards or damages by reason of any exercise of the power of eminent domain
or condemnation with respect to or for the taking of the Premises or any portion
thereof, and until such time as closing has occurred, or this Agreement
terminates. Any negotiation for, or agreement to, and all contests of any offers
and awards relating to eminent domain proceedings shall be conducted with the
joint approval and consent of the Seller and the Buyer.
11. Expense Allocations.
11.1 Seller shall pay for all applicable realty transfer taxes
related to the execution, delivery and recording of the Deed, Bill of Sale, and
other Closing Documents, and all related recording charges.
11.2 Subject to Section 13.3, Buyer shall pay for Buyer's
title examination for Buyer's title examination and premiums and for Buyer's due
diligence expenses, including survey, structural analysis and environmental
analysis.
11.3 Buyer and Seller shall be responsible for paying their
own attorney's fees in connection with this transaction.
12. CLOSING.
12.1 Time and Date and Place. The Closing on the sale of the
Property (herein referred to as the "Closing") shall take place on April 18,
1997, at the offices of Pepper, Hamilton & Scheetz LLP, Suite 500, 457
Haddonfield Road, Cherry Hill, New Jersey. Time is of the essence.
12.2 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
12.2.1 Seller's Documents and Other Items. Seller
shall execute and deliver or cause to be executed and delivered to Buyer in
proper form for recording:
12.2.1.1 Deed. A bargain and sale deed with
covenants against grantor's acts prepared by Buyer's counsel in form acceptable
to Seller (the "Deed"),
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conveying the Premises to Buyer, duly executed by Seller for recording. The Deed
description shall be based upon the metes and bounds description attached as
Exhibit "A", in addition, if Buyer requests that Seller convey the Premises by
the metes and bounds description shown on the new survey, if any, obtained by
Buyer, Seller covenants to execute a Quit Claim Deed for such new description.
12.2.1.2 Bill of Sale. A bill of sale
prepared by Buyer's counsel in form acceptable to Seller, assigning, conveying
and transferring to Buyer, all of the Personal Property, without representation
or warranty.
12.2.1.3 Original Leases. All original
Leases, tenant files, tenant correspondence and repair records.
12.2.1.4 Original Licenses, Contract
Documents and Other Personal Property. All original Licenses, Contract
Documents, and other Personal Property described in Section 1.2 of this
Agreement, to the extent same are in the Seller's possession.
12.2.1.5 Assignment of Leases. An assignment
and assumption agreement with reciprocal indemnities, prepared by Buyer's
counsel in form acceptable to Seller (the "Assignment"), duly executed by Seller
and Buyer, assigning, conveying and transferring to Buyer the Leases.
12.2.1.6 Assignment of Licenses, Contract
Documents and Other Personal Property. An assignment agreement prepared by
Buyer's counsel, in form acceptable to Seller, assigning, conveying and
transferring to Buyer, to the extent the same are assignable the Licenses,
Contracts Documents and Other Personal Property, including, specifically, the
Names, without representation or warranty.
12.2.1.7 FIRPTA Certificates. All
certificate(s) required under Section 1445 of the Code.
12.2.1.8 Tenant Letter. Letters to each
tenant advising of the change in ownership and directing the payment of rent to
such party as the Buyer shall designate, said letter to be in form acceptable to
Buyer.
12.2.1.9 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.10 Title Insurance Certificates. Such
affidavits of title or other certifications as shall be required by the Title
Company to insure Buyer's title to the Premises as set forth in Section 3, and
to provide affirmative endorsements (a) against construction liens, (b) and
parties in possession other than tenants under the Leases.
12.2.1.11 Updated Rent Roll. An updated
schedule of Tenant Leases, containing all information required to be set forth
in Exhibit "D", which schedule is correct and complete as of the date of
Closing.
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12.2.1.12 Seller Certificate. A written
certification confirming that as of Closing the representations and warranties
which are required to be true at and as of Closing, are true at and as of
Closing.
12.2.1.13 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.14 Keys. All keys, combinations and
security codes for all locks and security devices on the Property;
12.2.1.15 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.16 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.17 ISRA Non-Applicability Letter. A
written non-applicability letter issued within 30 days prior to Closing by the
New Jersey Department of Environmental Protection stating that the transaction
and the Property is not subject to ISRA.
12.2.2 Buyer's Documents. Buyer shall deliver or
cause to be delivered to Seller:
12.2.2.1 The amounts required to be paid to
Seller pursuant to this Agreement;
12.2.2.2 Confirmation of the existence and
subsistence of Buyer, and the authority of those executing for Buyer, including,
without limitation, the following documents issued no earlier than thirty (30)
days prior to Closing: (a) good standing certificate in State of Maryland, (b)
Buyer's Amendment and Restatement of Declaration of Trust filed on August 27,
1996, as amended, (c) a certificate from any officer of Buyer confirming the
incumbency of the signatories and the current force and effect of the resolution
authorizing their execution of the documents required under this Agreement.
12.2.3 Title Insurance. As a condition to Buyer's
obligations at Closing, Title Company shall furnish Buyer at Closing with the
Title Policy, in the form approved by Buyer pursuant to Section 3, in the full
amount of the Purchase Price, wherein the Title Company shall insure fee simple
title to the Property in Buyer or its designee as of the Closing Date containing
no exceptions to title other than the Permitted Exceptions and those which have
been approved by Buyer pursuant to the provisions of this Agreement and
providing the title endorsements specified in Section 12.2.1.10 above.
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12.2.4 Necessary Documents. Buyer and Seller shall
execute and deliver such other documents and instruments as may be reasonably
necessary to complete the transaction contemplated by this Agreement.
13. DEFAULT; REMEDIES
13.1 Prior to title passing and the completion of
Closing, in the event of Seller's default hereunder, Buyer's sole remedies shall
be that of (i) specific performance without abatement of the Purchase Price or
(ii) termination of this Agreement and return of the Deposit. In no event shall
Buyer be entitled to damages of any kind or nature;
13.2 Prior to title passing and completion of
Closing, with respect to any representations or warranties of Seller contained
in this Agreement, Buyer's obligations hereunder are contingent upon such
representations and/or warranties contained in this Agreement being true and
correct as of the date hereof and where the context indicates, as of the date of
Closing, but recision of this Agreement and return of the Deposit, shall be
Buyer's exclusive remedy for any breach of any representation and/or warranty by
Seller.
13.3 Notwithstanding the foregoing, in the event of a
willful or intentional breach of a covenant, obligation or warranty by Seller
under this Agreement or if Seller makes a willful or intentional material
misrepresentation in this Agreement, Buyer shall be entitled to terminate this
Agreement and to the return of the Deposit and Buyer's reasonably documented
Transaction Costs sustained by Buyer in connection with this Agreement; and the
foregoing shall be Buyer's sole remedies under this subparagraph.
13.4 Subsequent to title passing and completion of
Closing, Buyer shall have recourse against Seller for its reasonably documented
actual damages, sustained solely for Seller's breach of representations and
warranties which survive Closing, which breach is discovered by Buyer after
Closing; the right to pursue said recourse shall expire and terminate, as to any
right on which action has not then been initiated, at the expiration of the
survival periods set forth herein.
13.5 Buyer recognizes that the Property will be
removed by Seller from the market during the existence of this Agreement and
that if this purchase and sale is not consummated because of Buyer's default
Seller shall be entitled to compensation for such detriment. Seller and Buyer
acknowledge that it is extremely difficult and impracticable ascertain the
extent of the detriment, and to avoid this problem, Seller and Buyer agree that
if the purchase and sale contemplated in this Agreement is not consummated
because of Buyer's default under this Agreement, Seller shall be entitled to
retain the Deposit (whether or not same has theretofore been paid) as its sole
and liquidated damages. The parties agree that the sum stated above as
liquidated damages shall be in lieu of any other relief to which Seller might
otherwise be entitled, Seller hereby specifically waiving any and all rights
which it may have to damages or specific performance as a result of Buyer's
default under this Agreement.
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13.6 Buyer's Out-of-Pocket Costs. In the event of
Seller's breach or default in accordance with Section 13.3 then, in any such
event, upon termination by Buyer hereunder, in addition to receiving the
immediate return of the Deposit, anything in the Agreement contained to the
contrary notwithstanding, Buyer shall also receive from Seller, upon demand,
Buyer's actual, documented out-of-pocket costs and expenses associated with this
Agreement and Buyer's anticipated acquisition of the Property including, without
limitation, Buyer's reasonable counsel fees and costs, title expenses, survey
costs, financial and accounting due diligence, Buyer's structural inspection of
the Property and Buyer's environmental assessment of the Property, and other
costs and expenses associated with Buyer's due diligence, (collectively,
"Transaction Costs"). The foregoing list is not intended to be exclusive, but
representative of the costs and expenses that the parties anticipate that Buyer
will incur in anticipation of this transaction. Seller's maximum reimbursement
liability under this Section 13 shall not exceed $7,500.
14. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer 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 Buyer at or prior to the Closing)
and in the event any of the conditions are not complied with, Buyer may
terminate this Agreement by notifying the Seller and Escrow Agent and thereupon
shall be returned the Deposit and thereafter this Agreement shall be null and
void:
14.1 Correctness of Warranties and Representations. The
warranties and representations made by Seller which specifically are required to
be true and correct at and as of Closing shall be true and correct on the
Closing Date in all material respects as though such representations and
warranties were made on the Closing Date except that (i) variations which occur
in the ordinary course of Seller's business, (ii) variations disclosed in
writing to Buyer prior to Closing, or (iii) any matter or occurrence discovered
by the Buyer prior to Closing shall not be construed as a failure of the
condition set forth in this Section 14.1.
14.2 Compliance with Terms and Conditions. Seller shall have
performed and complied in all respects with all of the terms and conditions
required by this Agreement to be performed and complied with by it prior to or
on the Closing Date, including delivery of all of the Seller Documents.
14.3 No Willful Default. There shall have been no willful or
intentional breach of a covenant, representation or obligation by the sellers
under either of the Agreements of Sale listed on Exhibit "G" (the "Greentree
Agreements") attached hereto and made a part hereof, which willful or
intentional breach results in the termination of either or both of the Greentree
Agreements, provided that in such event, the Buyer's remedy hereunder, shall be
expressly limited to recision of this Agreement and a return of the Deposit.
15. PRORATIONS.
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15.1 Operating Expenses. The following items shall be prorated
at Closing, as of close of business of the day immediately preceding Closing
"Adjustment Date":
15.1.1 Rents. All current collected rent, additional
rent, percentage rent (if any) and all other charges collected under the Leases
shall be apportioned on the Closing Date pro rata on a per diem basis. 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 Buyer, so long
as such tenant is in arrears for current or prior rent arising after Closing,
then (b) to Seller for all rent in arrears prior to the Closing Date; and then
(c) to Buyer with no further claim by Seller thereto. Except as herein provided,
Buyer is not under any obligation to collect rents in arrears for the benefit of
Seller. Any rents which are delinquent or otherwise not paid at the time of
Closing, and collected by Buyer within ninety (90) days after Closing shall be
apportioned as aforesaid and the portion to which Seller is entitled shall be
promptly remitted by Buyer to Seller. Seller shall have no claim to rents
collected ninety (90) days after the Closing Date.
15.1.2 Taxes. Real estate and personal property
taxes, if any, on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessment is fixed, the
apportionment of such real estate and personal property taxes at the Closing
shall be upon the basis of the tax rate for the next preceding year applied to
the latest assessed valuation. Final adjustment will be made upon the actual tax
amount, when determined.
15.1.3 Deposits. Tax and utility company deposits, if
any.
15.1.4 Water and Sewer Charges. Water and sewer
charges and fire protection and inspection services based upon meter readings to
be obtained by Seller effective as of the Adjustment Date, or if not so
obtainable, a date not more than ten (10) days prior to the Adjustment Date, and
the unfixed meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted and Seller or Buyer, as
the case may be, will promptly deliver to the other the amount determined to be
so due upon such readjustment. If Seller is unable to furnish such prior
reading, any reading subsequent to the Closing will be apportioned on a per diem
basis from the date of such reading immediately prior thereto and Seller shall
pay the proportionate charges due up to the date of Closing.
15.1.5 Assigned Contracts. Amounts paid or payable in
respect of any service and maintenance contracts assigned to Buyer in accordance
herewith.
15.1.6 Electricity, gas, steam and fuel. Electricity,
gas and steam and fuel oil, if any, based on meter readings or a fuel company
letter showing measurement on the day immediately preceding Closing, and valued
at current prices.
15.1.7 Security Deposits. Buyer shall receive a check
from Seller for the full amount of any security deposits, with accrued interest,
or a credit against the Purchase Price in said amount.
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15.2 Custom and Practice. Except as set forth in this
Agreement, the customs of the State and County in which the Premises are located
shall govern prorations.
15.3 Future Installments of Taxes. If at Closing, the Property
or any part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in installments, then for purposes
of this Agreement, all unpaid installments of any such assessment, including
those which are to become due and payable after Closing shall be assumed by the
Buyer from and after Closing.
15.4 Application of Prorations. If such prorations result in a
payment due Buyer, the cash payable at Closing shall be reduced by such sum. If
such prorations result in a payment due Seller, the same shall be paid by wire
transfer of immediately available funds at Closing.
15.5 Schedule of Prorations. The parties shall endeavor to
jointly prepare a schedule of prorations for the Property no less than five (5)
days prior to Closing.
15.6 Escalations. With respect to any sums due under leases
for operating expenses incurred by the Seller in excess of that billed and
collected by Seller for the calendar year 1996 (the "1996 Expense Escalations"),
the Seller shall after Closing provide to each tenant a statement of the amount
of the 1996 Expense Escalations due from such Tenant, and Seller shall be
entitled to retain the entire amount of such sum, notwithstanding anything
contained in this Section 15 to the contrary. Any 1996 Expense Escalations paid
to the Buyer after Closing shall be immediately remitted to the Seller. With
respect to any sums due under leases for operating expenses incurred by the
Seller in excess of that billed and collected by Seller during 1997 (the "1997
Expense Escalations"), at the time that the Buyer bills and collects the 1997
Expense Escalations, the Buyer shall reimburse the Seller for the actual amount
incurred by Seller for 1997 in excess of that billed and paid by tenants during
1997.
15.7 Readjustments. The parties shall correct any errors in
prorations as soon after the Closing as amounts are finally determined.
16. BROKERS. Each party hereby represents and warrants to the other
that it has not employed or retained any broker or finder in connection with the
transactions contemplated by this Agreement and that neither has had any
dealings with any other person or party which may entitle that person or party
to a fee or commission. Each party shall indemnify the other of and from any
claims for commissions by any person or party claiming such commission by or
through the indemnifying party.
17. ESCROW AGENT. The parties hereto have requested that the Deposit be
held in escrow by the Escrow Agent to be applied at the Closing or prior thereto
in accordance with this Agreement. The Escrow Agent will deliver the Deposit to
Seller or to Buyer, as the case may be under the following conditions:
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17.1 Payment to Seller. To Seller on the Closing Date upon the
consummation of Closing;
17.2 Notice of Dispute. If either Seller or Buyer believes
that it is entitled to the Deposit or any part thereof, it shall make written
demand therefor upon the Escrow Agent. The Escrow Agent shall promptly mail a
copy thereof to the other party in the manner specified in Section 18.1 below.
The other party shall have the right to object to the delivery of the Deposit,
by filing written notice of such objections with the Escrow Agent at any time
within ten (10) days after the mailing of such copy to it in the manner
specified in Section 18.1 below, but not thereafter. Such notice shall set forth
the basis for objection to the delivery of the Deposit. Upon receipt of such
notice, the Escrow Agent shall promptly deliver a copy thereof to the party who
filed the written demand.
17.3 Escrow Subject to Dispute. In the event the Escrow Agent
shall have received the notice of objection provided for in 17.2 above of this
Section, in the manner and within the time therein prescribed, the Escrow Agent
shall continue to hold the Deposit until (i) the Escrow Agent receives written
notice from both Seller and Buyer directing the disbursement of the Deposit in
which case the Escrow Agent shall then disburse said Deposit in accordance with
said direction, or (ii) litigation arises between Seller and Buyer, in which
event the Escrow Agent shall deposit the Deposit with the Clerk of the Court in
which said litigation is pending, or (iii) the Escrow Agent takes such
affirmative steps as the Escrow Agent may, at the Escrow Agent's option elect in
order to terminate the Escrow Agent's duties including, but not limited to,
deposit in Court and an action for interpleader.
17.4 Escrow Agent's Rights and Liabilities. Escrow Agent shall
not be required to determine questions of fact or law, and may act upon any
instrument or other writing believed by it in good faith to be genuine and to be
signed and presented by the proper person, and shall not be liable in connection
with the performance of any duties imposed upon Escrow Agent by the provisions
of this Agreement, except for Escrow Agent's own willful default or gross
negligence. Escrow Agent shall have no duties or responsibilities except those
set forth herein. Escrow Agent shall not be bound by any modification of this
Agreement, unless the same is in writing and signed by Buyer and Seller, and, if
Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have
given prior written consent thereto. In the event that Escrow Agent shall be
uncertain as to Escrow Agent's duties or rights hereunder, or shall receive
instructions from Buyer or Seller which, in Escrow Agent's opinion, are in
conflict with any of the provisions hereof, Escrow Agent shall be entitled to
hold and apply the Deposit, pursuant to Section 17.3, and may decline to take
any other action.
18. GENERAL PROVISIONS.
18.1 Notices. All notices or other communications required or
permitted to be given under the terms of this Agreement shall be in writing, and
shall be deemed effective when (i) personally delivered (ii) sent by
nationally-recognized overnight courier, (iii) facsimile with original following
by regular mail, or (iv) deposited in the United States mail and sent by
certified mail, postage prepaid, addressed as follows:
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18.1.1 If to Buyer, addressed to:
Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Gerard H. Sweeney,
President and Chief Executive Officer
with a copy in each instance to:
Brad A. Molotsky, Esquire
Pepper, Hamilton & Scheetz LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103
18.1.2 If to Seller, addressed to:
Needleman Management Co., Inc.
1060 N. Kings Highway
Suite 250
Cherry Hill, NJ 08034
with a copy in each instance to:
Robert Schwartz, Esquire
Sherman, Silverstein, Kohl, Rose & Podolsky
4300 Haddonfield Road
Suite 311
Pennsauken, New Jersey 08109
18.1.3 If to Escrow Agent, addressed to:
M. Gordon Daniels
Commonwealth Land Title Insurance Company
1700 Market Street
Philadelphia, PA
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.
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18.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
18.3 Entire Agreement. All Exhibits attached to this Agreement
are incorporated herein and made a part hereof. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
18.4 Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey.
18.5 No Recording. This Agreement shall not be recorded in the
Clerk's Office for Burlington County or in any other office or place of public
record.
18.6 Tender. Tender of Deed by Seller and of the Purchase
Price by Buyer, are hereby mutually waived.
18.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
18.8 Further Instruments. Seller will, whenever and as often
as it shall be reasonably request so to do by Buyer, and Buyer will, whenever
and as often as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all conveyances, assignments, correction instruments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent and
purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The provisions of
this Article shall survive the Closing.
18.9 Time. Time is of the essence. In the event the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the State of New Jersey, the time for such performance will be extended to the
next succeeding business day. Time periods under this Agreement will exclude the
first day and include the last day of such time period.
18.10 Designation of Nominee; Assignment of Agreement. Buyer
shall have the right to designate one or more of its subsidiaries or affiliate
entities to acquire title to the Premises hereunder.
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18.11 Effective Date. Whenever the term or phrase "effective
date hereof" or "date hereof" or other similar phrases describing the date this
Agreement becomes binding on Seller and Buyer are used in this Agreement, such
terms or phrases shall mean and refer to the date on which a counterpart or
counterparts of this Agreement executed by Seller and Buyer.
18.12 Confidentiality. Each of the parties hereto covenants
and agrees to hold the nature and content of this Agreement, including without
limitation, the Purchase Price contained herein, in strict confidence, and other
than disclosure required by the SEC and except as may be necessary to comply
with this Agreement, neither party shall disclose the nature, content or the
Purchase Price of this Agreement without the express written consent of the
other party.
19. SEC REPORTING (8-K) REQUIREMENTS.
For the period of time commencing on the date hereof and
continuing through the first anniversary of the Closing Date, and without
limitation of other document production otherwise required of Seller hereunder,
Seller shall, from time to time, upon reasonable advance written notice from
Buyer, provide Buyer and its representatives, with (I) access to all financial
and other information pertaining to the period of Seller's ownership and
operation of the Property, which information is relevant and reasonably
necessary, in the opinion of Buyer's outside, third party accountants (the
"Accountants"), to enable Buyer and its Accountants to prepare financial
statements in compliance with any or all of (a) Rule 3-05 or 3-14 of Regulation
S-X of the Securities and Exchange Commission (the "Commission"), as applicable;
(b) any other rule issued by the Commission and applicable to Buyer; and (c) any
registration statement, report or disclosure statement filed with the Commission
by, or on behalf of Buyer; and (II) a representation letter, indicating (if such
be the case) that to the knowledge of the Seller, (i) although the financial
statements provided to the Buyer for the year ended 1996, in accordance with
this Section 19 are unaudited, and do not constitute full disclosure required by
generally accepted accounting principles, the net operating income of the Seller
set forth on such financial statement is in accordance with generally accepted
accounting principles, but the financial statements may not satisfy those
principles, and (ii) the Seller has made available to the Buyer all financial
records and related data requested by the Buyer.
20. INTENTIONALLY OMITTED PRIOR TO EXECUTION.
21. EXCULPATION.
No recourse shall be had for any obligation of Brandywine
Realty Trust under this Agreement or under any document executed in connection
herewith or pursuant hereto, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being expressly waived and released by the Seller and all
parties claiming by, through or under Seller.
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22. Tax Deferred Exchange. The Seller intends to effectuate a
"like-kind exchange" pursuant to Section 1031 of the Internal Revenue Code, and
to utilize the Property as "Relinquished Property" and the sale thereof in
connection with such like-kind exchange. The Buyer shall fully cooperate with
Seller in effectuating any like-kind exchange, including, Replacement Property
or other real property ("Replacement Parcel") identified by the Seller provided
that nothing herein contained is intended to require the Buyer to close title to
any Replacement Parcel. Seller's effectuation of a like-kind exchange prior to
any closing shall not be a condition or contingency to the Seller's obligations
hereunder. Seller shall be responsible for all costs and expenses incurred in
connection with the effectuation of a like-kind exchange over and above those
Buyer would incur in a straight purchase/sale. Seller shall indemnify and hold
harmless Buyer from any and all losses, costs, expenses and damages associated
with Buyer's participation in the exchange transaction. The Property subject to
this Agreement constitute Relinquished Property in the Internal Revenue Code
Section 1031 exchange.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
BRANDYWINE REALTY TRUST,
a Maryland Real Estate Investment Trust
/s/ Howard E. Needleman By: /s/ Gerard H. Sweeney
- ------------------------ ------------------------------------
Howard E. Needleman Gerard H. Sweeney, President and
Chief Executive Officer
Agreed to by Escrow Agent with regard
to the obligations, terms, covenants
and conditions contained in this
Agreement relating to Escrow Agent.
By: /s/ M. Gordon Daniels
--------------------------
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AGREEMENT OF SALE
Greentree Executive Campus
AGREEMENT OF SALE made this 8th day of April, 1997, between BRANDYWINE
REALTY TRUST, a Maryland Real Estate Investment Trust, its assignee or nominee,
having its principal office at 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania 19073 ("Buyer"), and 3001-2-3 Greentree Associates, L.P., a New
Jersey limited partnership, having its principal office at 1060 N. Kings
Highway, suite 250, Cherry Hill, New Jersey 08034 ("Seller").
BACKGROUND
The Background of this Agreement is as follows:
A. Seller is the owner of a certain tract of land being comprised of
one (1) parcels of land together with the building and improvements thereon,
including three (3) one story office buildings, commonly known as 3,001, 3,002
and 3,003 Greentree Executive Campus, Evesham, New Jersey as more fully
described on Exhibit A attached hereto; and
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the property referred to in this Agreement, upon the terms and conditions
set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with the preceding Background paragraphs incorporated by
reference, the parties hereto, intending to be legally bound hereby, covenant
and agrees as follows:
1. PROPERTY BEING SOLD.
Seller shall sell, transfer and convey to Buyer on the Closing Date (as
hereinafter defined),
1.1 Real Property. Fee simple interest in the parcels of land,
all as more fully described on Exhibit "A", with the building and improvements
thereon, including the three (3), one-story office buildings commonly known as
3,001, 3,002, and 3,003 Greentree Executive Campus, Evesham, New Jersey, and all
of the Seller's right, title, and interest, if any, in any easements, licenses,
rights of way, privileges, hereditaments, appurtenances, and rights to any land
lying in the beds of any street, road or avenue, open or proposed, adjoining
thereto, and inuring to the benefit of said land (hereinafter collectively
referred to as the "Premises"); and
1.2 Personal Property. All of Seller's equipment, fixtures,
machinery and personalty of every description attached to or used in connection
with the Premises (and not owned by tenants under leases of the Premises),
including, without limitation, those listed on the Schedule of Inventory
attached hereto as Exhibit "B", and to the extent assignable and in Seller's
possession intangible personal property owned by the Seller and used in
connection with the
<PAGE>
ownership, operation and maintenance of the Premises, including without
limitation, all contract rights, guaranties and warranties of any nature, all
architects', engineers', surveyors' and other real estate professionals' plans,
specifications, certifications, contracts, reports, data or other technical
descriptions, reports or audits (including, without limitation, all
environmental, structural and mechanical inspection reports), and all marketing
materials ("Contract Documents"), all governmental permits, licenses,
certificates, and approvals in connection with the ownership of the Premises
("Licenses"), all escrow accounts, deposits, instruments, documents of title
pertaining to the Premises, and all of Seller's rights, claims, and causes of
action if any, to the extent they are assignable, under any warranties and/or
guarantees of manufacturers, contractors or installers, including to the extent
applicable, any warranties from any previous owners of the Premises (hereinafter
collectively referred to as "Personal Property"); and
1.3 Leases. All leases, licenses and other occupancy
agreements for any part of the Premises, and except as otherwise set forth
herein, all prepaid rent and unapplied security deposits (the "Leases"); and
1.4 Right to Names. Any and all right, title and interest of
Seller, if any, and without representation or warranty, in and to the name
"3,001, 3,002 and 3,003 Greentree Executive Campus", and the Seller's right, if
any, without representation or warranty, to all printing styles, trademarks and
logos (the "Name").
The Premises, Personal Property, Leases and Name are
sometimes hereinafter referred to as "Property."
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 Purchase Price. Buyer shall pay the total sum of Two
Million Seven Hundred Thousand ($2,700,000.00) Dollars (hereinafter referred to
as the "Purchase Price") subject to adjustments as set forth herein.
2.2 Manner of Payment. The Purchase Price shall be paid in the
following manner:
2.2.1 Deposit. By delivery, upon Seller's execution
and delivery of this Agreement, of Buyer's good check in the amount of $25,000
to the Title Company (hereinafter referred to as "Escrow Agent" or "Escrowee").
This sum, the sum specified in Section 2.2.2 below, and all other sums paid by
Buyer to the Escrow Agent under this Agreement (hereinafter referred to as the
"Deposit") shall be held by Escrow Agent in a federally-insured, segregated
money market account at an institution to be designated by Buyer until
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or paid to the party otherwise entitled to the
Deposit in the event of the termination of this Agreement prior to Closing.
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2.2.2 Additional Deposit. By delivery, within two (2)
business days next following the Inspection Period Expiration Date (as
hereinafter defined), of Buyer's good check in the amount of $50,000.
2.2.3 Balance. The balance of the Purchase Price
shall be delivered to the Seller on the Closing Date, by wire transfer of
immediately available funds, subject to adjustments and apportionments as set
forth in this Agreement.
2.2.4 Liberty Loan Prepayment Premium In addition to
the Purchase Price, the Buyer shall, at Closing pay any prepayment premium or
penalty due to Liberty Commercial Mortgage Corporation in connection with the
prepayment of that certain Note and security therefore dated April 2, 1996 in
the original principal amount of $1,600,000.00 in favor of Liberty Commercial
Mortgage Corporation.
3. TITLE. On the Closing Date, Seller shall convey to Buyer good and
marketable fee simple title to the Property subject only to those rights of way,
easements, covenants restrictions, and objections to title (hereinafter
"Permitted Exceptions") listed on Exhibit "C" hereto, unless identified by Buyer
as "Title Objections" as hereinafter provided, and subject to the rights of
tenants listed on the rent roll attached hereto as Exhibit "D", which title
shall be insurable at regular rates by Commonwealth Land Title Insurance Company
("Title Company") under an ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title
insurance policy ("Title Policy").
4. COVENANTS. In addition to the covenants contained in the other
Sections of this Agreement, between the date hereof and Closing, Seller
covenants that it shall:
4.1 Maintenance. At all times prior to the Closing Date,
operate the Property in the same manner as it is currently being operated, and
pay in the normal course of business prior to Closing, all sums due for work,
materials or service furnished or otherwise incurred in the ownership and
operation prior to Closing.
4.2 Alterations. Not make or permit to be made any
alterations, improvements or additions to the Property without the prior written
consent of Buyer, which consent shall not be unreasonably withheld or delayed
except those made by or for tenants pursuant to the right to do so under their
Leases, or by Seller if required by applicable law or ordinance (subject to the
provisions of Section 4.8 of this Agreement), or as required under any Lease.
4.3 Lease. Not enter into any new lease without Buyer's
consent, which consent shall not be unreasonably withheld.
4.4 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.5 Bill Tenants. Timely bill all Tenants for all rent
billable under Leases, and use its commercially reasonable efforts consistent
with Seller's existing practices to collect any rent in arrears.
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4.6 Notice to Buyer. Notify Buyer promptly of the occurrence
of any of the following:
(i) a fire or other casualty causing damage to the
Property, or any portion thereof;
(ii) receipt of written notice of eminent domain
proceedings or condemnation of or affecting the Property, or any portion
thereof;
(iii) receipt of written notice from any governmental
authority or insurance underwriter relating to the condition, use or occupancy
of the Property, or any portion thereof, or setting forth any requirements with
respect thereto;
(iv) receipt of written notice of any actual or
threatened litigation against Seller or affecting or relating to the Property,
or any portion thereof;
(v) receipt of written notice of any termination
notice from any tenant;
(vi) the commencement of any strike, lock-out,
boycott or other labor trouble affecting the Property, or any portion thereof.
4.7 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.8 Comply with Leases. Perform all material obligations of
the landlord as required by the Leases or by any order or direction of any
governmental authority having jurisdiction thereof, provided that if the cost to
perform such obligation exceeds $25,000.00 (the "Seller Compliance Costs"),
Seller shall have the right to terminate this Agreement if Buyer is unwilling to
pay for the costs of such obligations in excess of the Seller Compliance Costs,
in which event the Deposit shall be returned to Buyer and neither party shall
owe any further obligation hereunder to the other; provided, however, if the
Seller Compliance Costs exceed $25,000, and Buyer agrees to pay for the second
$25,000 of such costs, the additional cost of such Seller Compliance Costs above
$50,000, if any, shall be evenly shared by Buyer and Seller, provided that in no
event shall Seller be obligated to pay more than $50,000 in connection with the
Seller Compliance Costs (e.g., if the total Seller Compliance Costs equal
$70,000 and Buyer agrees to pay for the second $25,000, the additional $20,000
above the $50,000 shall be shared by Buyer and Seller, so that Seller shall be
responsible for $35,000 and Buyer shall be responsible for $35,000). The parties
acknowledge and agree that Buyer is under no obligation to agree to pay for such
Seller Compliance Costs, but that the aforesaid cost allocation mechanism is an
agreed upon compromise in order to permit Buyer to avoid Seller's termination of
this Agreement.
4.9 No New Agreements. Except for agreements which can be
terminated on not more than thirty (30) days' notice, not enter into any other
agreements which affect the Property or the transactions contemplated by this
Agreement, without the prior written consent of
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Buyer which consent shall not be unreasonably withheld or delayed; and except
for the Permitted Exceptions, not permit the creation of any liability which
shall bind Buyer or the Premises after Closing.
4.10 Tax Disputes. Notify Buyer of any tax assessment disputes
(pending or threatened) with respect to the Property prior to Closing, and not
agree to any changes in the real estate tax assessment, nor settle, withdraw or
otherwise compromise any pending claims with respect to prior tax assessments,
without Buyer's prior written consent. 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. Any reduction relating to tax years prior to
the year in which the Closing occurs shall be payable to the Seller.
4.11 No Removal of Personalty. Not remove any non-consumable
Personal Property from the Premises without replacing it with similar personal
property, new or of equal or better quality.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to enter
into this Agreement, Seller hereby represents and warrants to Buyer that to the
best of the Seller's actual knowledge (which shall be deemed to mean the actual
knowledge of Howard E. Needleman) the following representations and warranties
are true now, and where the representation specifically provides, will be true
at Closing:
5.1 Seller's Authority For Binding Agreement. Seller is a duly
authorized and validly existing limited partnership formed under the laws of
State of New Jersey. Seller has full power, right and authority to own its
properties, to carry on its business as now conducted, and to enter into and
fulfill its obligations under this Agreement. Each of the persons executing this
Agreement on behalf of Seller is authorized to do so. This Agreement is the
valid and legally binding obligation of Seller, enforceable against Seller in
accordance with its terms. The execution and delivery of this Agreement and
compliance with its terms will not conflict with or result in the breach of any
law, judgement, order, writ, injunction, decree, rule or regulation, or conflict
with or result in the breach of any other agreement, document or instrument to
which Seller is a party or by which it or the Property is bound or affected. The
representation contained in this Section 5.1 shall be true at and as of Closing.
5.2 Employment on "At-Will" Basis. There are no employees of
Seller and Buyer assumes no obligations or responsibilities whatsoever for any
employees of Seller. The representation contained in this Section 5.2 shall be
true at and as of Closing.
5.3 Service Contracts. Exhibit "E" attached hereto is a
complete list of all existing service, equipment, supply and maintenance
contracts with respect to or affecting the Property (the "Service Contracts").
Seller has received no written notice of default or breach by Seller in the
terms of any of such Service Contracts. To the Seller's actual knowledge, Seller
has
5
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performed, and at Closing shall have performed, all obligations which it has
under said Service Contracts.
Anything in this Section 5.3 to the contrary notwithstanding, Seller
represents and warrants that any existing management agreements and exclusive
brokerage or leasing agreements shall be terminated as of Closing, Seller having
fully paid and discharged any and all obligations accruing thereunder, and Buyer
shall assume no liability under or in respect of any such agreements.
5.4 Condemnation. Seller has received no written notice of any
pending condemnation or eminent domain proceeding pending with regard to any
part of the Property.
5.5 No Lawsuits. Seller has received no written notice of any
claims, lawsuits or proceedings pending, or to the best of the Seller's
knowledge, threatened against or relating to Seller or the Property, or which
could affect them, or either of them, in any court or before any governmental
agency, except for actions for possession, damages and or rent, if any, against
defaulted tenants as disclosed in Exhibit "D", or except for actions which are
adequately covered or defended by an insurance carrier. The representation
contained in this Section 5.5 shall be true at and as of Closing.
5.6 No Tax Assessments. Seller has received no written notice
of any public improvements in the nature of off-site improvements, or otherwise,
which have been ordered to be made and/or which have not heretofore been
assessed, and, to Seller's knowledge, there are no special or general
assessments currently affecting or pending against the Property, except as set
forth in the Title Binder.
5.7 Leases. 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
Premises other than the leases (the "Leases") listed on the rent roll attached
hereto as Exhibit "D". Exhibit "D" identifies (i) each tenant of the Premises,
(ii) the date of that tenant's lease, (iii) the expiration date of that tenant's
lease, (iv) the annual and monthly minimum rental charge, the tenant's share of
building operating costs (including, without limitation, taxes) and any and all
costs, expenses and other charges payable by the tenant under the Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (viii) any options to renew, extend,
purchase, cancel or terminate; (ix) all unpaid tenant improvement allowances
and/or unpaid leasing commissions; and (x) any outstanding written notices of
defaults of any kind or nature whatsoever. Seller 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 Seller except as
additional collateral for the existing mortgage upon the Premises which shall be
satisfied at or before Closing. To the best of Seller's knowledge, 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 "D"
are the actual rents, income and charges being collected by Seller under the
Leases. Any tenant improvements which Seller is obligated to complete pursuant
to any Lease has been completed as
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of this date or shall be completed as of Closing, and all costs for completed
work has been or shall be paid by Seller. The amount of each security deposit
contains, where required by law or otherwise applicable, interest which has
accrued in accordance with law. Except as set forth on Exhibit "D", no tenant of
the Premises 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 "D", no security deposits by tenants have
heretofore been returned or applied to charges against the tenants.
5.8 Compliance with Law.
(i) To the best of Seller's actual knowledge, there
are no outstanding notices of any violations issued by governmental authority
having jurisdiction over the Property.
(ii) To the best of Seller's actual knowledge, which
knowledge is based exclusively upon that certain Environmental Report prepared
by Environmental Resolutions, Inc. dated March 1996 (the "Environmental Report")
and except as otherwise set forth in the Environmental Report, 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, except to the extent such substance or materials are used in
the ordinary course of the Seller's business or that of any Tenant in accordance
with applicable laws, and there has, to the best of Seller's knowledge, and
based exclusively upon the Environmental Report, 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
Premises any clean-up or other monetary obligation. Seller has received no
written notice that it has been identified in any litigation, administrative
proceeding or investigation 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, and no lien
or superlien has been recorded, filed or otherwise asserted against any real or
personal property of Seller for any clean-up costs or other responses costs
incurred in connection with any environmental contamination that is
attributable, in whole or in part, to Seller. 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 all applicable federal, state and local laws including the
New Jersey Industrial Site Recovery Act, as amended ("ISRA"); and "Hazardous
Wastes" means any hazardous waste, residential or household waste, solid waste,
or other waste as defined in applicable federal, state and local laws. Seller
has not received any written summons, citation, directive, letter or other
communication, written or oral, from any governmental or quasi-governmental
authority concerning any intentional or unintentional action or omission on
Seller's part which (a) resulted in the releasing, spilling, leaking, pumping,
pouring,
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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. The representation
contained in this Section 5.8(i) shall be true and correct at and as of Closing.
5.9 Insurance. Exhibit "F" attached hereto contains a true and
correct description of all insurance policies affecting the Property and the
operation thereof. All of said insurance policies shall remain in full force and
effect until the completion of Closing hereunder. Seller has not received any
written notice from any insurance company board of fire underwriters or rating
organization (or other body exercising similar functions) (i) claiming any
defects or deficiencies which have not been addressed and fully cured or
corrected, or (ii) requesting the performance of any repairs, alterations or
other work which have not been performed, or (iii) claiming any default which,
if not corrected, would result in a cancellation of insurance coverage. The
representation contained in this Section 5.9 shall be true at and as of Closing.
5.10 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.11 No Brokers. Except as set forth on Exhibit "D", no
brokerage or leasing commission or other compensation is now, or will at Closing
be, due or payable to any person, firm, corporation, or other entity with
respect to or on account of any of the Leases, or any extensions or renewals
thereof.
5.12 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.13 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.14 Good Title to Property. Seller holds good and marketable,
indefeasible fee simple title to the Property, free and clear of liens and
encumbrances, other than the Permitted Exceptions. The representation contained
in this Section 5.14 shall be true at and as of Closing.
5.15 All Taxes and Assessments Paid. Seller will have paid
prior to Closing, all taxes and assessments, including assessments payable in
installments, which are to become due and payable prior to Closing and/or a lien
on the Property, except for taxes for the current year which shall be prorated
at Closing or installments of current assessments which become due and payable
after Closing, which shall be the sole responsibility of the Buyer. The
representation contained in this Section 5.15 shall be true at and as of
Closing.
5.16 FIRPTA. Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended
(the "Code"). The representation contained in this Section 5.16 shall be true at
and as of Closing.
5.17 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.18 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
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5.19 Inventory Schedule. The Schedule of Inventory contains a
correct and complete list of personal property owned by Seller and located at or
used in connection with the operation of the Property.
5.20 Charges, Fees and Assessments. Any and all applicable
charges, fees and assessments pending as of the date of this Agreement 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, 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. The representation contained in this Section 5.20 shall be true
at and as of Closing.
5.21 Rights to Purchase. There are no outstanding agreements,
options, rights of first refusal, conditional sales agreements or other
agreements or arrangements, whether oral or written, regarding the purchase and
sale of the Property, or which otherwise affect any portion of or all the
Property. The representation contained in this Section 5.21 shall be true at and
as of Closing.
5.22 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.23 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.24 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.25 Development Agreements. Seller is in material compliance
with and has fully paid and discharged all obligations arising under any and all
development, tri-party and like agreements, and any and all other agreements
with county, municipal and other governmental and quasi-governmental agencies
and authorities respecting the ownership, development and operation of the
Property and all portions thereof. The representation contained herein shall be
true at and as of Closing.
5.26 Correct Copies of Documents. Where copies of any
documents have been delivered by Seller to Buyer, whether prior to or pursuant
to this Agreement, such copies: (i) are exact copies of the originals of said
documents, as executed and delivered by all of the parties thereto; (ii) to the
best of Seller's knowledge, constitute, in each case, the entire agreement
between the parties thereto with respect to the subject matter thereof, and the
original instruments in the form delivered to Buyer, are now in full force and
effect, and valid and enforceable in accordance with their respective terms, and
no party thereto is in default, and no claim of default by any party has been
made or is now pending and there does not now exist any default which, after
either the giving of notice or the passing of time, or both, will or may
constitute a default, or would excuse performance by any party thereto; and
(iii) have not been changed or amended except for amendments, if any,
specifically referred to therein.
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6. POSSESSION. Possession of the Premises is to be given to
Buyer, subject to the right of tenants under the Leases on the Closing Date, by
delivery of the Deed, and all keys, combinations and security codes at Closing.
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
7.1 Title Binder. On or before the execution of this
Agreement, Seller shall have made available to Buyer, without representation or
warranty, Seller's most recently dated title commitment for the Property
(complete with copies of all exceptions to title), and Buyer shall order a
current title commitment (the "Title Binder") from the Title Company. Buyer
shall promptly deliver to the Buyer a copy of the Title Binder, together with a
notice of any items disclosed on the Title Binder which is not a Permitted
Exception (a "Title Objection"). If prior to Closing, the Seller can not remove
the Title Objection, the Seller shall have the option of accepting the title to
the Property subject to the Title Objection or of terminating this Agreement, in
which event the Deposit shall be returned to the Buyer and neither party shall
owe any further obligation hereunder to the other. Notwithstanding the
foregoing, at Closing, Seller, so long as such amount does not exceed
$500,000.00 (exclusive of the mortgages currently encumbering the Property),
shall pay all monetary liens, which are not Permitted Exceptions.
7.2 Survey. Seller shall make available to Buyer, without
representation or warranty, within three (3) days of the date hereof, Seller's
most recent survey of Property (the "Survey"),
7.3 Physical and Financial Inspection. For a period (the
"Inspection Period") commencing on the second (2nd) business day next following
the date upon which Buyer shall receive from Seller a fully-executed counterpart
of this Agreement, and expiring on April 10, 1997 (such date is herein referred
to as the "Inspection Period Expiration Date"), Buyer shall have the right to
have performed a physical and mechanical inspection, measurement and audit of
the Property and an inspection of all books and records and financial
information pertaining thereto, and Seller shall cooperate with Buyer and shall
make available to Buyer such information, materials and documents as Buyer may
reasonably request and shall have its accountant available throughout such
period to assist in Buyer's inspection and review. The inspection, audit and
measurement of the Property's operation, condition and maintenance shall
include, without limitation, such environmental and engineering inspections,
reviews and assessments that Buyer deems appropriate. If Buyer, at Buyer's sole
and absolute discretion, shall find such inspection(s) to be unsatisfactory for
any reason whatsoever, Buyer shall have the right, at its option, to terminate
this Agreement on or before the Inspection Period Expiration Date, and upon such
termination, the Deposit shall be immediately refunded to the Buyer, and
thereupon the parties hereto shall have no further liabilities one to the other
with respect to the subject matter of this Agreement. Buyer agrees that it shall
not unreasonably interfere with tenants in performing its inspection. If Buyer
or its consultants exercises its rights under the provisions of this subsection,
it shall (i) provide Seller with prior verbal notice of Buyer's entry, (ii) keep
the Property free of any liens or third-party claims resulting therefrom except
as may be required by applicable law; (iii) maintain adequate liability
insurance in an amount of not less than $1,000,000.00 for a single occurrence
and $50,000.00 for property damage which insurance shall name Seller as an
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additional insured; (iv) indemnify Seller against any liability or expense for
injuries to or death of persons or damage to property arising from the exercise
of the rights hereunder that are not the result of any act or omission of Seller
or Seller's agents, employees or contractors and (v) if Closing does not occur
for any reason restore as nearly as practicable the Property substantially to
its condition immediately before such exercise. The indemnification and
restoration provisions of this subsection shall survive the termination of this
Agreement. In connection with such inspection, Seller shall make available at
the Property, or at the Seller's management offices, without representation, or
warranty, except as specifically set forth herein, and to the extent the same
are in the Seller's possession, the following:
7.3.1 Leases. All Leases for the Property as of the
date hereof;
7.3.2 Contracts, and Licenses. Copies of the Contract
Documents, the Licenses, any certificates of occupancy, insurance policies
applicable to the Property and any other documents evidencing rights described
in Section 1.2 hereof;
7.3.3 Tax Bills. A copy of tax bills (i) for the
current year, and (ii) if available, for the preceding two years;
7.3.4 Operating Statements. Statements of operation
of the Property for the past year;
7.3.5 Notices of Violations. Copies of any
uncorrected written notices of violations of any law, ordinance, regulation,
rule or requirement of any governmental body having jurisdiction;
7.3.6 Takings or Changes. Copies of all written
notices to Seller of proposed or threatened takings or changes with respect to
the Property;
7.3.7 Tax Assessments, Appeals and Increases. Copies
of all written notices to Seller of all filed, proposed or threatened tax
assessment appeals or tax assessment increases related to the Premises;
7.3.8 Litigation. Copies of all pending and written
notices to Seller of threatened litigation, including litigation involving
tenants, affecting the Property or this transaction;
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer shall survive Closing and delivery of
the Deed for the statute of limitations pertaining thereto. The representations
and warranties of Seller set forth in Sections 5.1, 5.2, 5.6, 5.8 (i), 5.11,
5.16, and 5.21 shall survive Closing and delivery of the Deed for the applicable
period of the statute of limitations pertaining thereto. The representation and
warranties of Seller set forth in Sections 5.3, 5.5, 5.8(ii), 5.19, 5.20, 5.25,
and 5.26 shall survive Closing and delivery of the Deed for six (6) months from
Closing. The representations and
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warranties of Seller set forth in Section 5.7 shall survive Closing and delivery
of the Deed for three (3) months from Closing. The remaining representations and
warranties shall not survive Closing and delivery of the Deed. Notwithstanding
anything contained in this Agreement to the contrary, except as expressly set
forth in this Agreement, Seller makes no representation, either prior to or at
the Closing, with respect to the condition or character of the Property or the
use or uses to which the Property may be put. Buyer acknowledges that Buyer has
or will carefully and thoroughly examine, inspect and investigate the Property,
and the Seller's operations (as to manner, income and expenses), and Buyer is or
will be fully satisfied with the same upon completion of the inspections and
examinations; and Buyer is purchasing the same on the basis of such examination,
inspection and investigation and not in reliance on any representation or
warranty of Seller or any agent, employee or representative of Seller of any
kind or nature whatsoever except as specifically set forth herein. Accordingly,
Buyer hereby agrees to accept all of the assets being acquired by Buyer
hereunder, whether realty, personalty or mixed, on an absolutely and
unconditionally "as is" basis at the time of Closing. Notwithstanding the time
period for survival with respect to Section 5.7, if prior to the expiration of
such period, Seller delivers to Buyer an estoppel certificate on Buyer's
prescribed form, which certificate confirms Seller's representations under
Section 5.7 of this Agreement, Seller shall be released from all liability with
respect to its representations as they pertain to such tenancy.
9. FIRE OR OTHER CASUALTY.
9.1 Maintain Insurance. Seller shall maintain in effect until
the Closing Date the insurance policies (or like policies) now in effect with
respect to the Premises and Personal Property as set forth in Exhibit F".
9.2 Minimal Damage. If prior to the Closing Date any portion
of the Property is damaged or destroyed by fire or other casualty, and the cost
of repair or restoration thereof shall be $250,000 or less (as established by
good faith estimates obtained by Buyer), this Agreement shall remain in force.
9.3 Substantial Damage. If prior to the Closing Date any
portion of the Property is damaged or destroyed by fire or other casualty, and
the cost of repair or restoration thereof shall be more than $250,000 (as
established by good faith estimates obtained by Buyer), Buyer may terminate this
Agreement by giving written notice thereof to Seller ("Buyer's Notice of
Election"), and if this Agreement is so terminated, then the Deposit shall be
immediately refunded to Buyer, and thereafter neither party shall have any
further liability hereunder thereafter. If Buyer does not so terminate this
Agreement, it shall remain in full force and effect, and the provisions of
Section 9.4 below shall apply.
9.4 Closing After Substantial Damage. So long as this
Agreement shall remain in force under Section 9.2 or 9.3, then (i) all proceeds
of insurance collected prior to Closing, plus the amount of deductible under
Seller's insurance policy, shall be adjusted subject to Buyer's approval and
participation in any adjustment, and shall be credited to Buyer against the
Purchase Price payable by Buyer at Closing, and (ii) all unpaid claims and
rights in connection with losses shall be assigned to Buyer at Closing.
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9.5 Rent Insurance. All rental loss insurance and the proceeds
thereof allocable to any period subsequent to Closing shall be paid or assigned
to Buyer at Closing.
10. CONDEMNATION. If, prior to the Closing Date, all or any
material portion of the Premises (being any taking affecting the building or any
other taking involving 10% or more of the Premises or the parking area) is taken
by eminent domain or a notice of any eminent domain proceedings with respect to
the Premises or any part thereof is received by the Seller, then Seller shall
within five (5) days thereafter give notice thereof to Buyer and Buyer shall
have the option to (a) complete the purchase hereunder or (b) if such taking, in
Buyer's sole and absolute discretion, adversely affects the Premises or its
current economic viability, terminate this Agreement, in which event the Deposit
shall be immediately refunded to Buyer, and this Agreement shall be null and
void. Buyer shall deliver written notice of its election to the Seller within
two (2) days after the date upon which the Buyer receives written notice of such
eminent domain proceedings. If notice of condemnation is received by Buyer and
it fails to deliver said written notice of its election within said time period,
such failure shall constitute a waiver by Buyer of its right to terminate this
Agreement. If this Agreement is not so terminated, Buyer shall be entitled to
all awards or damages by reason of any exercise of the power of eminent domain
or condemnation with respect to or for the taking of the Premises or any portion
thereof, and until such time as closing has occurred, or this Agreement
terminates. Any negotiation for, or agreement to, and all contests of any offers
and awards relating to eminent domain proceedings shall be conducted with the
joint approval and consent of the Seller and the Buyer.
11. Expense Allocations.
11.1 Seller shall pay for all applicable realty transfer taxes
related to the execution, delivery and recording of the Deed, Bill of Sale, and
other Closing Documents, and all related recording charges.
11.2 Subject to Section 13.3, Buyer shall pay for Buyer's
title examination for Buyer's title examination and premiums and for Buyer's due
diligence expenses, including survey, structural analysis and environmental
analysis.
11.3 Buyer and Seller shall be responsible for paying their
own attorney's fees in connection with this transaction.
12. CLOSING.
12.1 Time and Date and Place. The Closing on the sale of the
Property (herein referred to as the "Closing") shall take place on April 18,
1997, at the offices of Pepper, Hamilton & Scheetz LLP, Suite 500, 457
Haddonfield Road, Cherry Hill, New Jersey. Time is of the essence.
12.2 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
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12.2.1 Seller's Documents and Other Items. Seller
shall execute and deliver or cause to be executed and delivered to Buyer in
proper form for recording:
12.2.1.1 Deed. A bargain and sale deed with
covenants against grantor's acts prepared by Buyer's counsel in form acceptable
to Seller (the "Deed"), conveying the Premises to Buyer, duly executed by Seller
for recording. The Deed description shall be based upon the metes and bounds
description attached as Exhibit "A",; in addition, if Buyer requests that Seller
convey the Premises by the metes and bounds description shown on the new survey,
if any, obtained by Buyer, Seller covenants to execute a Quit Claim Deed for
such new description.
12.2.1.2 Bill of Sale. A bill of sale
prepared by Buyer's counsel in form acceptable to Seller, assigning, conveying
and transferring to Buyer, all of the Personal Property, without representation
or warranty.
12.2.1.3 Original Leases. All original
Leases, tenant files, tenant correspondence and repair records.
12.2.1.4 Original Licenses, Contract
Documents and Other Personal Property. All original Licenses, Contract
Documents, and other Personal Property described in Section 1.2 of this
Agreement, to the extent same are in the Seller's possession..
12.2.1.5 Assignment of Leases. An assignment
and assumption agreement with reciprocal indemnities, prepared by Buyer's
counsel in form acceptable to Seller (the "Assignment"), duly executed by Seller
and Buyer, assigning, conveying and transferring to Buyer the Leases.
12.2.1.6 Assignment of Licenses, Contract
Documents and Other Personal Property. An assignment agreement prepared by
Buyer's counsel, in form acceptable to Seller, assigning, conveying and
transferring to Buyer, to the extent the same are assignable the Licenses,
Contracts Documents and Other Personal Property, including, specifically, the
Names, without representation or warranty.
12.2.1.7 FIRPTA Certificates. All
certificate(s) required under Section 1445 of the Code.
12.2.1.8 Tenant Letter. Letters to each
tenant advising of the change in ownership and directing the payment of rent to
such party as the Buyer shall designate, said letter to be in form acceptable to
Buyer.
12.2.1.9 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.10 Title Insurance Certificates. Such
affidavits of title or other certifications as shall be required by the Title
Company to insure Buyer's title to the
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Premises as set forth in Section 3, and to provide affirmative endorsements (a)
against construction liens, (b) and parties in possession other than tenants
under the Leases.
12.2.1.11 Updated Rent Roll. An updated
schedule of Tenant Leases, containing all information required to be set forth
in Exhibit "D", which schedule is correct and complete as of the date of
Closing.
12.2.1.12 Seller Certificate. A written
certification confirming that as of Closing the representations and warranties
which are required to be true at and as of Closing, are true at and as of
Closing.
12.2.1.13 Organization Certifications.
Confirmation of the good standing and existence of Seller and the due authority
of those executing for them, including, without limitation, the following
documents issued no earlier than 30 days prior to Closing: (a) good standing
certificate in state of organization and in the State in which the Property is
located, and (b) partnership agreement.,
12.2.1.14 Keys. All keys, combinations and
security codes for all locks and security devices on the Property;
12.2.1.15 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.16 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.17 ISRA Non-Applicability Letter. A
written non-applicability letter issued within 30 days prior to Closing by the
New Jersey Department of Environmental Protection stating that the transaction
and the Property is not subject to ISRA.
12.2.2 Buyer's Documents. Buyer shall deliver or
cause to be delivered to Seller:
12.2.2.1 The amounts required to be paid to
Seller pursuant to this Agreement;
12.2.2.2 Confirmation of the existence and
subsistence of Buyer, and the authority of those executing for Buyer, including,
without limitation, the following documents issued no earlier than thirty (30)
days prior to Closing: (a) good standing certificate in State of Maryland, (b)
Buyer's Amendment and Restatement of Declaration of Trust filed on August 27,
1996, as amended, (c) a certificate from any officer of Buyer confirming the
incumbency of the signatories and the current force and effect of the resolution
authorizing their execution of the documents required under this Agreement.
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12.2.3 Title Insurance. As a condition to Buyer's
obligations at Closing, Title Company shall furnish Buyer at Closing with the
Title Policy, in the form approved by Buyer pursuant to Section 3, in the full
amount of the Purchase Price, wherein the Title Company shall insure fee simple
title to the Property in Buyer or its designee as of the Closing Date containing
no exceptions to title other than the Permitted Exceptions and those which have
been approved by Buyer pursuant to the provisions of this Agreement and
providing the title endorsements specified in Section 12.2.1.10 above.
12.2.4 Necessary Documents. Buyer and Seller shall
execute and deliver such other documents and instruments as may be reasonably
necessary to complete the transaction contemplated by this Agreement.
13. DEFAULT; REMEDIES
13.1 Prior to title passing and the completion of
Closing, in the event of Seller's default hereunder, Buyer's sole remedies shall
be that of (i) specific performance without abatement of the Purchase Price or
(ii) termination of this Agreement and return of the Deposit. In no event shall
Buyer be entitled to damages of any kind or nature;
13.2 Prior to title passing and completion of
Closing, with respect to any representations or warranties of Seller contained
in this Agreement, Buyer's obligations hereunder are contingent upon such
representations and/or warranties contained in this Agreement being true and
correct as of the date hereof and where the context indicates, as of the date of
Closing, but recision of this Agreement and return of the Deposit, shall be
Buyer's exclusive remedy for any breach of any representation and/or warranty by
Seller.
13.3 Notwithstanding the foregoing, in the event of a
willful or intentional breach of a covenant, obligation or warranty by Seller
under this Agreement or if Seller makes a willful or intentional material
misrepresentation in this Agreement, Buyer shall be entitled to terminate this
Agreement and to the return of the Deposit and Buyer's reasonably documented
Transaction Costs sustained by Buyer in connection with this Agreement; and the
foregoing shall be Buyer's sole remedies under this subparagraph.
13.4 Subsequent to title passing and completion of
Closing, Buyer shall have recourse against Seller for its reasonably documented
actual damages, sustained solely for Seller's breach of representations and
warranties which survive Closing, which breach is discovered by Buyer after
Closing; the right to pursue said recourse shall expire and terminate, as to any
right on which action has not then been initiated, at the expiration of the
survival periods set forth herein.
13.5 Buyer recognizes that the Property will be
removed by Seller from the market during the existence of this Agreement and
that if this purchase and sale is not consummated because of Buyer's default
Seller shall be entitled to compensation for such detriment. Seller and Buyer
acknowledge that it is extremely difficult and impracticable ascertain the
extent of the detriment, and to avoid this problem, Seller and Buyer agree that
if the purchase
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and sale contemplated in this Agreement is not consummated because of Buyer's
default under this Agreement, Seller shall be entitled to retain the Deposit
(whether or not same has theretofore been paid) as its sole and liquidated
damages. The parties agree that the sum stated above as liquidated damages shall
be in lieu of any other relief to which Seller might otherwise be entitled,
Seller hereby specifically waiving any and all rights which it may have to
damages or specific performance as a result of Buyer's default under this
Agreement.
13.6 Buyer's Out-of-Pocket Costs. In the event of
Seller's breach or default in accordance with Section 13.3 then, in any such
event, upon termination by Buyer hereunder, in addition to receiving the
immediate return of the Deposit, anything in the Agreement contained to the
contrary notwithstanding, Buyer shall also receive from Seller, upon demand,
Buyer's actual, documented out-of-pocket costs and expenses associated with this
Agreement and Buyer's anticipated acquisition of the Property including, without
limitation, Buyer's reasonable counsel fees and costs, title expenses, survey
costs, financial and accounting due diligence, Buyer's structural inspection of
the Property and Buyer's environmental assessment of the Property, and other
costs and expenses associated with Buyer's due diligence, (collectively,
"Transaction Costs"). The foregoing list is not intended to be exclusive, but
representative of the costs and expenses that the parties anticipate that Buyer
will incur in anticipation of this transaction. Seller's maximum reimbursement
liability under this Section 13 shall not exceed $15,000.
14. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer 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 Buyer at or prior to the Closing)
and in the event any of the conditions are not complied with, Buyer may
terminate this Agreement by notifying the Seller and Escrow Agent and thereupon
shall be returned the Deposit and thereafter this Agreement shall be null and
void:
14.1 Correctness of Warranties and Representations. The
warranties and representations made by Seller which specifically are required to
be true and correct at and as of Closing shall be true and correct on the
Closing Date in all material respects as though such representations and
warranties were made on the Closing Date except that (i) variations which occur
in the ordinary course of Seller's business, (ii) variations disclosed in
writing to Buyer prior to Closing, or (iii) any matter or occurrence discovered
by the Buyer prior to Closing shall not be construed as a failure of the
condition set forth in this Section 14.1.
14.2 Compliance with Terms and Conditions. Seller shall have
performed and complied in all respects with all of the terms and conditions
required by this Agreement to be performed and complied with by it prior to or
on the Closing Date, including delivery of all of the Seller Documents.
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14.3 Limited Partner Consent. Seller shall have obtained,
prior to the expiration of the Inspection Period, the consent of the requisite
percentage and/or number of limited partners as set forth in the Limited
Partnership Agreement of the Seller to the transaction contemplated by this
Agreement. In the event that the Seller does not obtain the consent required
herein, Seller shall have the option of (i) terminating this Agreement, or (ii)
extending the time for closing hereunder for a period of up to thirty (30) days.
If Seller elects to terminate this Agreement, or if Seller elects to extend the
time for Closing, but during such extended period, Seller does not obtain the
consents required herein, then in either such circumstance, this Agreement shall
be cancelled, the Deposit shall be returned to the Buyer, together with Buyer's
reasonably documented actual out of pocket expenses incurred in connection with
this Agreement subject to the maximum amount set forth in Section 13.6 above,
and neither party shall owe any further obligation hereunder to the other.
14.4 No Willful Default. There shall have been no willful or
intentional breach of a covenant, representation or obligation by the sellers
under either of the Agreements of Sale listed on Exhibit "G" (the "Greentree
Agreements") attached hereto and made a part hereof, which willful or
intentional breach results in the termination of either or both of the Greentree
Agreements, provided that in such event, the Buyer's remedy hereunder, shall be
expressly limited to recision of this Agreement and a return of the Deposit.
15. PRORATIONS.
15.1 Operating Expenses. The following items shall be prorated
at Closing, as of close of business of the day immediately preceding Closing
"Adjustment Date":
15.1.1 Rents. All current collected rent, additional
rent, percentage rent (if any) and all other charges collected under the Leases
shall be apportioned on the Closing Date pro rata on a per diem basis. 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 Buyer, so long
as such tenant is in arrears for current or prior rent arising after Closing,
then (b) to Seller for all rent in arrears prior to the Closing Date; and then
(c) to Buyer with no further claim by Seller thereto. Except as herein provided,
Buyer is not under any obligation to collect rents in arrears for the benefit of
Seller. Any rents which are delinquent or otherwise not paid at the time of
Closing, and collected by Buyer within ninety (90) days after Closing shall be
apportioned as aforesaid and the portion to which Seller is entitled shall be
promptly remitted by Buyer to Seller. Seller shall have no claim to rents
collected ninety (90) days after the Closing Date.
15.1.2 Taxes. Real estate and personal property
taxes, if any, on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessment is fixed, the
apportionment of such real estate and personal property taxes at the Closing
shall be upon the basis of the tax rate for the next preceding year applied to
the latest assessed valuation. Final adjustment will be made upon the actual tax
amount, when determined.
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15.1.3 Deposits. Tax and utility company deposits, if
any.
15.1.4 Water and Sewer Charges. Water and sewer
charges and fire protection and inspection services based upon meter readings to
be obtained by Seller effective as of the Adjustment Date, or if not so
obtainable, a date not more than ten (10) days prior to the Adjustment Date, and
the unfixed meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted and Seller or Buyer, as
the case may be, will promptly deliver to the other the amount determined to be
so due upon such readjustment. If Seller is unable to furnish such prior
reading, any reading subsequent to the Closing will be apportioned on a per diem
basis from the date of such reading immediately prior thereto and Seller shall
pay the proportionate charges due up to the date of Closing.
15.1.5 Assigned Contracts. Amounts paid or payable in
respect of any service and maintenance contracts assigned to Buyer in accordance
herewith.
15.1.6 Electricity, gas, steam and fuel. Electricity,
gas and steam and fuel oil, if any, based on meter readings or a fuel company
letter showing measurement on the day immediately preceding Closing, and valued
at current prices.
15.1.7 Security Deposits. Buyer shall receive a check
from Seller for the full amount of any security deposits, with accrued interest,
or a credit against the Purchase Price in said amount.
15.2 Custom and Practice. Except as set forth in this
Agreement, the customs of the State and County in which the Premises are located
shall govern prorations.
15.3 Future Installments of Taxes. If at Closing, the Property
or any part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in installments, then for purposes
of this Agreement, all unpaid installments of any such assessment, including
those which are to become due and payable after Closing shall be assumed by the
Buyer from and after Closing.
15.4 Application of Prorations. If such prorations result in a
payment due Buyer, the cash payable at Closing shall be reduced by such sum. If
such prorations result in a payment due Seller, the same shall be paid by wire
transfer of immediately available funds at Closing.
15.5 Schedule of Prorations. The parties shall endeavor to
jointly prepare a schedule of prorations for the Property no less than five (5)
days prior to Closing.
15.6 Escalations. With respect to any sums due under leases
for operating expenses incurred by the Seller in excess of that billed and
collected by Seller for the calendar year 1996 (the "1996 Expense Escalations"),
the Seller shall after Closing provide to each tenant a statement of the amount
of the 1996 Expense Escalations due from such Tenant, and Seller shall
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be entitled to retain the entire amount of such sum, notwithstanding anything
contained in this Section 15 to the contrary. Any 1996 Expense Escalations paid
to the Buyer after Closing shall be immediately remitted to the Seller. With
respect to any sums due under leases for operating expenses incurred by the
Seller in excess of that billed and collected by Seller during 1997 (the "1997
Expense Escalations"), at the time that the Buyer bills and collects the 1997
Expense Escalations, the Buyer shall reimburse the Seller for the actual amount
incurred by Seller for 1997 in excess of that billed and paid by tenants during
1997.
15.7 Readjustments. The parties shall correct any errors in
prorations as soon after the Closing as amounts are finally determined.
16. BROKERS. Each party hereby represents and warrants to the other
that it has not employed or retained any broker or finder in connection with the
transactions contemplated by this Agreement and that neither has had any
dealings with any other person or party which may entitle that person or party
to a fee or commission. Each party shall indemnify the other of and from any
claims for commissions by any person or party claiming such commission by or
through the indemnifying party.
17. ESCROW AGENT. The parties hereto have requested that the Deposit be
held in escrow by the Escrow Agent to be applied at the Closing or prior thereto
in accordance with this Agreement. The Escrow Agent will deliver the Deposit to
Seller or to Buyer, as the case may be under the following conditions:
17.1 Payment to Seller. To Seller on the Closing Date upon the
consummation of Closing;
17.2 Notice of Dispute. If either Seller or Buyer believes
that it is entitled to the Deposit or any part thereof, it shall make written
demand therefor upon the Escrow Agent. The Escrow Agent shall promptly mail a
copy thereof to the other party in the manner specified in Section 18.1 below.
The other party shall have the right to object to the delivery of the Deposit,
by filing written notice of such objections with the Escrow Agent at any time
within ten (10) days after the mailing of such copy to it in the manner
specified in Section 18.1 below, but not thereafter. Such notice shall set forth
the basis for objection to the delivery of the Deposit. Upon receipt of such
notice, the Escrow Agent shall promptly deliver a copy thereof to the party who
filed the written demand.
17.3 Escrow Subject to Dispute. In the event the Escrow Agent
shall have received the notice of objection provided for in 17.2 above of this
Section, in the manner and within the time therein prescribed, the Escrow Agent
shall continue to hold the Deposit until (i) the Escrow Agent receives written
notice from both Seller and Buyer directing the disbursement of the Deposit in
which case the Escrow Agent shall then disburse said Deposit in accordance with
said direction, or (ii) litigation arises between Seller and Buyer, in which
event the Escrow Agent shall deposit the Deposit with the Clerk of the Court in
which said litigation is pending, or (iii) the Escrow Agent takes such
affirmative steps as the Escrow Agent may, at the Escrow
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Agent's option elect in order to terminate the Escrow Agent's duties including,
but not limited to, deposit in Court and an action for interpleader.
17.4 Escrow Agent's Rights and Liabilities. Escrow Agent shall
not be required to determine questions of fact or law, and may act upon any
instrument or other writing believed by it in good faith to be genuine and to be
signed and presented by the proper person, and shall not be liable in connection
with the performance of any duties imposed upon Escrow Agent by the provisions
of this Agreement, except for Escrow Agent's own willful default or gross
negligence. Escrow Agent shall have no duties or responsibilities except those
set forth herein. Escrow Agent shall not be bound by any modification of this
Agreement, unless the same is in writing and signed by Buyer and Seller, and, if
Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have
given prior written consent thereto. In the event that Escrow Agent shall be
uncertain as to Escrow Agent's duties or rights hereunder, or shall receive
instructions from Buyer or Seller which, in Escrow Agent's opinion, are in
conflict with any of the provisions hereof, Escrow Agent shall be entitled to
hold and apply the Deposit, pursuant to Section 17.3, and may decline to take
any other action.
18. GENERAL PROVISIONS.
18.1 Notices. All notices or other communications required or
permitted to be given under the terms of this Agreement shall be in writing, and
shall be deemed effective when (i) personally delivered (ii) sent by
nationally-recognized overnight courier, (iii) facsimile with original following
by regular mail, or (iv) deposited in the United States mail and sent by
certified mail, postage prepaid, addressed as follows:
18.1.1 If to Buyer, addressed to:
Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Gerard H. Sweeney,
President and Chief Executive Officer
with a copy in each instance to:
Brad A. Molotsky, Esquire
Pepper, Hamilton & Scheetz LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103
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18.1.2 If to Seller, addressed to:
3001-2-3 Greentree Associates, L.P.
c/o Needleman Management Co., Inc.
1060 N. Kings Highway
Suite 250
Cherry Hill, NJ 08034
with a copy in each instance to:
Robert Schwartz, Esquire
Sherman, Silverstein, Kohl, Rose & Podolsky
4300 Haddonfield Road
Suite 311
Pennsauken, New Jersey 08109
18.1.3 If to Escrow Agent, addressed to:
M. Gordon Daniels
Commonwealth Land Title Insurance Company
1700 Market Street
Philadelphia, PA
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.
18.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
18.3 Entire Agreement. All Exhibits attached to this Agreement
are incorporated herein and made a part hereof. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
18.4 Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey.
18.5 No Recording. This Agreement shall not be recorded in the
Clerk's Office for Burlington County or in any other office or place of public
record.
18.6 Tender. Tender of Deed by Seller and of the Purchase
Price by Buyer, are hereby mutually waived.
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18.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
18.8 Further Instruments. Seller will, whenever and as often
as it shall be reasonably request so to do by Buyer, and Buyer will, whenever
and as often as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all conveyances, assignments, correction instruments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent and
purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The provisions of
this Article shall survive the Closing.
18.9 Time. Time is of the essence. In the event the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the State of New Jersey, the time for such performance will be extended to the
next succeeding business day. Time periods under this Agreement will exclude the
first day and include the last day of such time period.
18.10 Designation of Nominee; Assignment of Agreement. Buyer
shall have the right to designate one or more of its subsidiaries or affiliate
entities to acquire title to the Premises hereunder.
18.11 Effective Date. Whenever the term or phrase "effective
date hereof" or "date hereof" or other similar phrases describing the date this
Agreement becomes binding on Seller and Buyer are used in this Agreement, such
terms or phrases shall mean and refer to the date on which a counterpart or
counterparts of this Agreement executed by Seller and Buyer.
18.12 Confidentiality. Each of the parties hereto covenants
and agrees to hold the nature and content of this Agreement, including without
limitation, the Purchase Price contained herein, in strict confidence, and other
than disclosure required by the SEC and except as may be necessary to comply
with this Agreement, neither party shall disclose the nature, content or the
Purchase Price of this Agreement without the express written consent of the
other party.
19. SEC REPORTING (8-K) REQUIREMENTS.
For the period of time commencing on the date hereof and continuing
through the first anniversary of the Closing Date, and without limitation of
other document production otherwise required of Seller hereunder, Seller shall,
from time to time, upon reasonable advance written notice from Buyer, provide
Buyer and its representatives, with (I) access to all financial and other
information pertaining to the period of Seller's ownership and operation of the
Property, which information is relevant and reasonably necessary, in the opinion
of Buyer's outside, third party
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accountants (the "Accountants"), to enable Buyer and its Accountants to prepare
financial statements in compliance with any or all of (a) Rule 3-05 or 3-14 of
Regulation S-X of the Securities and Exchange Commission (the "Commission"), as
applicable; (b) any other rule issued by the Commission and applicable to Buyer;
and (c) any registration statement, report or disclosure statement filed with
the Commission by, or on behalf of Buyer; and (II) a representation letter,
indicating (if such be the case) that to the knowledge of the Seller, (i)
although the financial statements provided to the Buyer for the year ended 1996,
in accordance with this Section 19 are unaudited, and do not constitute full
disclosure required by generally accepted accounting principles, the net
operating income of the Seller set forth on such financial statement is in
accordance with generally accepted accounting principles, but the financial
statements may not satisfy those principles, and (ii) the Seller has made
available to the Buyer all financial records and related data requested by the
Buyer.
20. INTENTIONALLY OMITTED PRIOR TO EXECUTION.
21. EXCULPATION.
No recourse shall be had for any obligation of Brandywine
Realty Trust under this Agreement or under any document executed in connection
herewith or pursuant hereto, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being expressly waived and released by the Seller and all
parties claiming by, through or under Seller.
22. Tax Deferred Exchange. The Seller intends to effectuate a
"like-kind exchange" pursuant to Section 1031 of the Internal Revenue Code, and
to utilize the Property as "Relinquished Property" and the sale thereof in
connection with such like-kind exchange. The Buyer shall fully cooperate with
Seller in effectuating any like-kind exchange, including, Replacement Property
or other real property ("Replacement Parcel") identified by the Seller provided
that nothing herein contained is intended to require the Buyer to close title to
any Replacement Parcel. Seller's effectuation of a like-kind exchange prior to
any closing shall not be a condition or contingency to the Seller's obligations
hereunder. Seller shall be responsible for all costs and expenses incurred in
connection with the effectuation of a like-kind exchange over and above those
Buyer would incur in a straight purchase/sale. Seller shall indemnify and hold
harmless Buyer from any and all losses, costs, expenses and damages associated
with Buyer's participation in the exchange transaction. The Property subject to
this Agreement constitute Relinquished Property in the Internal Revenue Code
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Section 1031 exchange.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
3001-2-3 Greentree Associates, L.P., BRANDYWINE REALTY TRUST,
a New Jersey Limited Partnership, a Maryland Real Estate Investment Trust
By: The Needleman Partnership,
general partner By: /s/ Gerard H. Sweeney
-------------------------------------
Gerard H. Sweeney,
President and Chief Executive Officer
By: /s/ Howard E. Needleman
--------------------------------------
Howard E. Needleman, managing general
partner
JOINDER:
Howard Needleman (the "Guarantor"), hereby specifically joins in this
Agreement for the sole purpose of guarantying the accuracy of the representation
and warranty contained in Section 5.7 of this Agreement. The Guarantor shall
indemnify, defend and save the Buyer harmless from any loss, cost, damage and
expense actually incurred by the Buyer after the Closing as a result of a breach
of any of the representations and warranties contained in Section 5.7 of the
Agreement, provided that (i) the Guarantor's shall have no liability hereunder
unless and until the Buyer's losses as a result of such a breach exceeds $5,000;
(ii) the Guarantor's liability hereunder shall terminate and be of no further
effect with respect to any claim not made within three months from the date of
Closing; and (iii) with respect to any tenant for which, Seller delivers to
Buyer an estoppel certificate on Buyer's prescribed form, which certificate
confirms Seller's representations under Section 5.7 of this Agreement, Seller
shall be released from all liability with respect to its representations as they
pertain to such tenancy.
/s/ Howard E. Needleman
-----------------------------
HOWARD E. NEEDLEMAN
Agreed to by Escrow Agent with regard
to the obligations, terms, covenants
and conditions contained in this
Agreement relating to Escrow Agent.
By: /s/ M. Gordon Daniels
----------------------
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AGREEMENT OF SALE
Greentree Executive Campus
AGREEMENT OF SALE made this 8th day of April, 1997, between BRANDYWINE
REALTY TRUST, a Maryland Real Estate Investment Trust, its assignee or nominee,
having its principal office at 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania 19073 ("Buyer"), and 4000-5000 Greentree Executive Campus
Associates, L.P., a New Jersey limited partnership, having its principal office
at 1060 N. Kings Highway, suite 250, Cherry Hill, New Jersey 08034 ("Seller").
BACKGROUND
The Background of this Agreement is as follows:
A. Seller is the owner of a certain tract of land being comprised of
two (2) parcels of land together with the building and improvements thereon,
including five (5) one story office buildings containing approximately 60,000
net rentable square feet, commonly known as 4000 and 5000 Greentree Executive
Campus, Evesham, New Jersey as more fully described on Exhibit A attached
hereto; and
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the property referred to in this Agreement, upon the terms and conditions
set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with the preceding Background paragraphs incorporated by
reference, the parties hereto, intending to be legally bound hereby, covenant
and agrees as follows:
1. PROPERTY BEING SOLD.
Seller shall sell, transfer and convey to Buyer on the Closing
Date (as hereinafter defined),
1.1 Real Property. Fee simple interest in the parcels of land,
all as more fully described on Exhibit "A", with the building and improvements
thereon, including the five (5), one-story office buildings containing
approximately 60,000 net rentable square feet commonly known as 4000 and 5000
Greentree Executive Campus, Evesham, New Jersey, and all of the Seller's right,
title, and interest, if any, in any easements, licenses, rights of way,
privileges, hereditaments, appurtenances, and rights to any land lying in the
beds of any street, road or avenue, open or proposed, adjoining thereto, and
inuring to the benefit of said land (hereinafter collectively referred to as the
"Premises"); and
1.2 Personal Property. All of Seller's equipment, fixtures,
machinery and personalty of every description attached to or used in connection
with the Premises (and not
<PAGE>
owned by tenants under leases of the Premises), including, without limitation,
those listed on the Schedule of Inventory attached hereto as Exhibit "B", and to
the extent assignable and in Seller's possession intangible personal property
owned by the Seller and used in connection with the ownership, operation and
maintenance of the Premises, including without limitation, all contract rights,
guaranties and warranties of any nature, all architects', engineers', surveyors'
and other real estate professionals' plans, specifications, certifications,
contracts, reports, data or other technical descriptions, reports or audits
(including, without limitation, all environmental, structural and mechanical
inspection reports), and all marketing materials ("Contract Documents"), all
governmental permits, licenses, certificates, and approvals in connection with
the ownership of the Premises ("Licenses"), all escrow accounts, deposits,
instruments, documents of title pertaining to the Premises, and all of Seller's
rights, claims, and causes of action if any, to the extent they are assignable,
under any warranties and/or guarantees of manufacturers, contractors or
installers, including to the extent applicable, any warranties from any previous
owners of the Premises (hereinafter collectively referred to as "Personal
Property"); and
1.3 Leases. All leases, licenses and other occupancy
agreements for any part of the Premises, and except as otherwise set forth
herein, all prepaid rent and unapplied security deposits (the "Leases"); and
1.4 Right to Names. Any and all right, title and interest of
Seller, if any, and without representation or warranty, in and to the name
"4000-5000 Greentree Executive Campus", and the Seller's right, if any, without
representation or warranty, to all printing styles, trademarks and logos (the
"Name").
The Premises, Personal Property, Leases and Name are
sometimes hereinafter referred to as "Property."
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 Purchase Price. Buyer shall pay the total sum of Four
Million Two Hundred Thousand ($4,200,000.00) Dollars (hereinafter referred to as
the "Purchase Price") subject to adjustments as set forth herein.
2.2 Manner of Payment. The Purchase Price shall be paid in the
following manner:
2.2.1 Deposit. By delivery, upon Seller's execution
and delivery of this Agreement, of Buyer's good check in the amount of $25,000
to the Title Company (hereinafter referred to as "Escrow Agent" or "Escrowee").
This sum, the sum specified in Section 2.2.2 below, and all other sums paid by
Buyer to the Escrow Agent under this Agreement (hereinafter referred to as the
"Deposit") shall be held by Escrow Agent in a federally-insured, segregated
money market account at an institution to be designated by Buyer until
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or
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paid to the party otherwise entitled to the Deposit in the event of the
termination of this Agreement prior to Closing.
2.2.2 Additional Deposit. By delivery, within two (2)
business days next following the Inspection Period Expiration Date (as
hereinafter defined), of Buyer's good check in the amount of $50,000.
2.2.3 Balance. The balance of the Purchase Price
shall be delivered to the Seller on the Closing Date, by wire transfer of
immediately available funds, subject to adjustments and apportionments as set
forth in this Agreement.
3. TITLE. On the Closing Date, Seller shall convey to Buyer good and
marketable fee simple title to the Property subject only to those rights of way,
easements, covenants restrictions, and objections to title (hereinafter
"Permitted Exceptions") listed on Exhibit "C" hereto, unless identified by Buyer
as "Title Objections" as hereinafter provided, and subject to the rights of
tenants listed on the rent roll attached hereto as Exhibit "D", which title
shall be insurable at regular rates by Commonwealth Land Title Insurance Company
("Title Company") under an ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title
insurance policy ("Title Policy").
4. COVENANTS. In addition to the covenants contained in the other
Sections of this Agreement, between the date hereof and Closing, Seller
covenants that it shall:
4.1 Maintenance. At all times prior to the Closing Date,
operate the Property in the same manner as it is currently being operated, and
pay in the normal course of business prior to Closing, all sums due for work,
materials or service furnished or otherwise incurred in the ownership and
operation prior to Closing.
4.2 Alterations. Not make or permit to be made any
alterations, improvements or additions to the Property without the prior written
consent of Buyer, which consent shall not be unreasonably withheld or delayed
except those made by or for tenants pursuant to the right to do so under their
Leases, or by Seller if required by applicable law or ordinance (subject to the
provisions of Section 4.8 of this Agreement), or as required under any Lease.
4.3 Lease. Not enter into any new lease without Buyer's
consent, which consent shall not be unreasonably withheld.
4.4 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.5 Bill Tenants. Timely bill all Tenants for all rent
billable under Leases, and use its commercially reasonable efforts consistent
with Seller's existing practices to collect any rent in arrears.
4.6 Notice to Buyer. Notify Buyer promptly of the occurrence
of any of the following:
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(i) a fire or other casualty causing damage to the
Property, or any portion thereof;
(ii) receipt of written notice of eminent domain
proceedings or condemnation of or affecting the Property, or any portion
thereof;
(iii) receipt of written notice from any governmental
authority or insurance underwriter relating to the condition, use or occupancy
of the Property, or any portion thereof, or setting forth any requirements with
respect thereto;
(iv) receipt of written notice of any actual or
threatened litigation against Seller or affecting or relating to the Property,
or any portion thereof;
(v) receipt of written notice of any termination
notice from any tenant;
(vi) the commencement of any strike, lock-out,
boycott or other labor trouble affecting the Property, or any portion thereof.
4.7 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.8 Comply with Leases. Perform all material obligations of
the landlord as required by the Leases or by any order or direction of any
governmental authority having jurisdiction thereof, provided that if the cost to
perform such obligation exceeds $25,000.00 (the "Seller Compliance Costs"),
Seller shall have the right to terminate this Agreement if Buyer is unwilling to
pay for the costs of such obligations in excess of the Seller Compliance Costs,
in which event the Deposit shall be returned to Buyer and neither party shall
owe any further obligation hereunder to the other; provided, however, if the
Seller Compliance Costs exceed $25,000, and Buyer agrees to pay for the second
$25,000 of such costs, the additional cost of such Seller Compliance Costs above
$50,000, if any, shall be evenly shared by Buyer and Seller, provided that in no
event shall Seller be obligated to pay more than $50,000 in connection with the
Seller Compliance Costs (e.g., if the total Seller Compliance Costs equal
$70,000 and Buyer agrees to pay for the second $25,000, the additional $20,000
above the $50,000 shall be shared by Buyer and Seller, so that Seller shall be
responsible for $35,000 and Buyer shall be responsible for $35,000). The parties
acknowledge and agree that Buyer is under no obligation to agree to pay for such
Seller Compliance Costs, but that the aforesaid cost allocation mechanism is an
agreed upon compromise in order to permit Buyer to avoid Seller's termination of
this Agreement.
4.9 No New Agreements. Except for agreements which can be
terminated on not more than thirty (30) days' notice, not enter into any other
agreements which affect the Property or the transactions contemplated by this
Agreement, without the prior written consent of Buyer which consent shall not be
unreasonably withheld or delayed; and except for the Permitted Exceptions, not
permit the creation of any liability which shall bind Buyer or the Premises
after Closing.
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4.10 Tax Disputes. Notify Buyer of any tax assessment disputes
(pending or threatened) with respect to the Property prior to Closing, and not
agree to any changes in the real estate tax assessment, nor settle, withdraw or
otherwise compromise any pending claims with respect to prior tax assessments,
without Buyer's prior written consent. 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. Any reduction relating to tax years prior to
the year in which the Closing occurs shall be payable to the Seller.
4.11 No Removal of Personalty. Not remove any non-consumable
Personal Property from the Premises without replacing it with similar personal
property, new or of equal or better quality.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to enter
into this Agreement, Seller hereby represents and warrants to Buyer that to the
best of the Seller's actual knowledge (which shall be deemed to mean the actual
knowledge of Howard E. Needleman) the following representations and warranties
are true now, and where the representation specifically provides, will be true
at Closing:
5.1 Seller's Authority For Binding Agreement. Seller is a duly
authorized and validly existing limited partnership formed under the laws of
State of New Jersey. Seller has full power, right and authority to own its
properties, to carry on its business as now conducted, and to enter into and
fulfill its obligations under this Agreement. Each of the persons executing this
Agreement on behalf of Seller is authorized to do so. This Agreement is the
valid and legally binding obligation of Seller, enforceable against Seller in
accordance with its terms. The execution and delivery of this Agreement and
compliance with its terms will not conflict with or result in the breach of any
law, judgement, order, writ, injunction, decree, rule or regulation, or conflict
with or result in the breach of any other agreement, document or instrument to
which Seller is a party or by which it or the Property is bound or affected. The
representation contained in this Section 5.1 shall be true at and as of Closing.
5.2 Employment on "At-Will" Basis. There are no employees of
Seller and Buyer assumes no obligations or responsibilities whatsoever for any
employees of Seller. The representation contained in this Section 5.2 shall be
true at and as of Closing.
5.3 Service Contracts. Exhibit "E" attached hereto is a
complete list of all existing service, equipment, supply and maintenance
contracts with respect to or affecting the Property (the "Service Contracts").
Seller has received no written notice of default or breach by Seller in the
terms of any of such Service Contracts. To the Seller's actual knowledge, Seller
has performed, and at Closing shall have performed, all obligations which it has
under said Service Contracts.
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Anything in this Section 5.3 to the contrary notwithstanding, Seller
represents and warrants that any existing management agreements and exclusive
brokerage or leasing agreements shall be terminated as of Closing, Seller having
fully paid and discharged any and all obligations accruing thereunder, and Buyer
shall assume no liability under or in respect of any such agreements.
5.4 Condemnation. Seller has received no written notice of any
pending condemnation or eminent domain proceeding pending with regard to any
part of the Property.
5.5 No Lawsuits. Seller has received no written notice of any
claims, lawsuits or proceedings pending, or to the best of the Seller's
knowledge, threatened against or relating to Seller or the Property, or which
could affect them, or either of them, in any court or before any governmental
agency, except for actions for possession, damages and or rent, if any, against
defaulted tenants as disclosed in Exhibit "D", or except for actions which are
adequately covered or defended by an insurance carrier. The representation
contained in this Section 5.5 shall be true at and as of Closing.
5.6 No Tax Assessments. Seller has received no written notice
of any public improvements in the nature of off-site improvements, or otherwise,
which have been ordered to be made and/or which have not heretofore been
assessed, and, to Seller's knowledge, there are no special or general
assessments currently affecting or pending against the Property, except as set
forth in the Title Binder.
5.7 Leases. 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
Premises other than the leases (the "Leases") listed on the rent roll attached
hereto as Exhibit "D". Exhibit "D" identifies (i) each tenant of the Premises,
(ii) the date of that tenant's lease, (iii) the expiration date of that tenant's
lease, (iv) the annual and monthly minimum rental charge, the tenant's share of
building operating costs (including, without limitation, taxes) and any and all
costs, expenses and other charges payable by the tenant under the Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (viii) any options to renew, extend,
purchase, cancel or terminate; (ix) all unpaid tenant improvement allowances
and/or unpaid leasing commissions; and (x) any outstanding written notices of
defaults of any kind or nature whatsoever. Seller 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 Seller except as
additional collateral for the existing mortgage upon the Premises which shall be
satisfied at or before Closing. To the best of Seller's knowledge, 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 "D"
are the actual rents, income and charges being collected by Seller under the
Leases. Any tenant improvements which Seller is obligated to complete pursuant
to any Lease has been completed as of this date or shall be completed as of
Closing, and all costs for completed work has been or shall be paid by Seller.
The amount of each security deposit contains, where required by law or otherwise
applicable, interest which has accrued in accordance with law. Except as set
forth on
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Exhibit "D", no tenant of the Premises 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 "D", no security deposits by
tenants have heretofore been returned or applied to charges against the tenants.
5.8 Compliance with Law.
(i) To the best of Seller's actual knowledge, there
are no outstanding notices of any violations issued by governmental authority
having jurisdiction over the Property.
(ii) To the best of Seller's actual knowledge, which
knowledge is based exclusively upon that certain Environmental Report prepared
by BCM dated April , 1991 (the "Environmental Report") and except as otherwise
set forth in the Environmental Report, 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, except
to the extent such substance or materials are used in the ordinary course of the
Seller's business or that of any Tenant in accordance with applicable laws, and
there has, to the best of Seller's knowledge, and based exclusively upon the
Environmental Report, 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 Premises any clean-up or other
monetary obligation. Seller has received no written notice that it has been
identified in any litigation, administrative proceeding or investigation 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, and no lien or superlien has been
recorded, filed or otherwise asserted against any real or personal property of
Seller for any clean-up costs or other responses costs incurred in connection
with any environmental contamination that is attributable, in whole or in part,
to Seller. 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 all applicable
federal, state and local laws including the New Jersey Industrial Site Recovery
Act, as amended ("ISRA"); and "Hazardous Wastes" means any hazardous waste,
residential or household waste, solid waste, or other waste as defined in
applicable federal, state and local laws. Seller has not received any written
summons, citation, directive, letter or other communication, written or oral,
from any governmental or quasi-governmental authority concerning any intentional
or unintentional action or omission on Seller's part which (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. The representation contained in this Section 5.8(i) shall be
true and correct at and as of Closing.
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5.9 Insurance. Exhibit "F" attached hereto contains a true and
correct description of all insurance policies affecting the Property and the
operation thereof. All of said insurance policies shall remain in full force and
effect until the completion of Closing hereunder. Seller has not received any
written notice from any insurance company board of fire underwriters or rating
organization (or other body exercising similar functions) (i) claiming any
defects or deficiencies which have not been addressed and fully cured or
corrected, or (ii) requesting the performance of any repairs, alterations or
other work which have not been performed, or (iii) claiming any default which,
if not corrected, would result in a cancellation of insurance coverage. The
representation contained in this Section 5.9 shall be true at and as of Closing.
5.10 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.11 No Brokers. Except as set forth on Exhibit "D", no
brokerage or leasing commission or other compensation is now, or will at Closing
be, due or payable to any person, firm, corporation, or other entity with
respect to or on account of any of the Leases, or any extensions or renewals
thereof.
5.12 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.13 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.14 Good Title to Property. Seller holds good and marketable,
indefeasible fee simple title to the Property, free and clear of liens and
encumbrances, other than the Permitted Exceptions. The representation contained
in this Section 5.14 shall be true at and as of Closing.
5.15 All Taxes and Assessments Paid. Seller will have paid
prior to Closing, all taxes and assessments, including assessments payable in
installments, which are to become due and payable prior to Closing and/or a lien
on the Property, except for taxes for the current year which shall be prorated
at Closing or installments of current assessments which become due and payable
after Closing, which shall be the sole responsibility of the Buyer. The
representation contained in this Section 5.15 shall be true at and as of
Closing.
5.16 FIRPTA. Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended
(the "Code"). The representation contained in this Section 5.16 shall be true at
and as of Closing.
5.17 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.18 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.19 Inventory Schedule. The Schedule of Inventory contains a
correct and complete list of personal property owned by Seller and located at or
used in connection with the operation of the Property.
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5.20 Charges, Fees and Assessments. Any and all applicable
charges, fees and assessments pending as of the date of this Agreement 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, 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. The representation contained in this Section 5.20 shall be true
at and as of Closing.
5.21 Rights to Purchase. There are no outstanding agreements,
options, rights of first refusal, conditional sales agreements or other
agreements or arrangements, whether oral or written, regarding the purchase and
sale of the Property, or which otherwise affect any portion of or all the
Property. The representation contained in this Section 5.21 shall be true at and
as of Closing.
5.22 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.23 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.24 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.25 Development Agreements. Seller is in material compliance
with and has fully paid and discharged all obligations arising under any and all
development, tri-party and like agreements, and any and all other agreements
with county, municipal and other governmental and quasi-governmental agencies
and authorities respecting the ownership, development and operation of the
Property and all portions thereof. The representation contained herein shall be
true at and as of Closing.
5.26 Correct Copies of Documents. Where copies of any
documents have been delivered by Seller to Buyer, whether prior to or pursuant
to this Agreement, such copies: (i) are exact copies of the originals of said
documents, as executed and delivered by all of the parties thereto; (ii) to the
best of Seller's knowledge, constitute, in each case, the entire agreement
between the parties thereto with respect to the subject matter thereof, and the
original instruments in the form delivered to Buyer, are now in full force and
effect, and valid and enforceable in accordance with their respective terms, and
no party thereto is in default, and no claim of default by any party has been
made or is now pending and there does not now exist any default which, after
either the giving of notice or the passing of time, or both, will or may
constitute a default, or would excuse performance by any party thereto; and
(iii) have not been changed or amended except for amendments, if any,
specifically referred to therein.
6. POSSESSION. Possession of the Premises is to be given to Buyer,
subject to the right of tenants under the Leases on the Closing Date, by
delivery of the Deed, and all keys, combinations and security codes at Closing.
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
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7.1 Title Binder. On or before the execution of this
Agreement, Seller shall have made available to Buyer, without representation or
warranty, Seller's most recently dated title commitment for the Property
(complete with copies of all exceptions to title), and Buyer shall order a
current title commitment (the "Title Binder") from the Title Company. Buyer
shall promptly deliver to the Buyer a copy of the Title Binder, together with a
notice of any items disclosed on the Title Binder which is not a Permitted
Exception (a "Title Objection"). If prior to Closing, the Seller can not remove
the Title Objection, the Seller shall have the option of accepting the title to
the Property subject to the Title Objection or of terminating this Agreement, in
which event the Deposit shall be returned to the Buyer and neither party shall
owe any further obligation hereunder to the other. Notwithstanding the
foregoing, at Closing, Seller, so long as such amount does not exceed
$500,000.00 (exclusive of the mortgages currently encumbering the Property),
shall pay all monetary liens, which are not Permitted Exceptions.
7.2 Survey. Seller shall make available to Buyer, without
representation or warranty, within three (3) days of the date hereof, Seller's
most recent survey of Property (the "Survey"),
7.3 Physical and Financial Inspection. For a period (the
"Inspection Period") commencing on the second (2nd) business day next following
the date upon which Buyer shall receive from Seller a fully-executed counterpart
of this Agreement, and expiring on April 10, 1997 (such date is herein referred
to as the "Inspection Period Expiration Date"), Buyer shall have the right to
have performed a physical and mechanical inspection, measurement and audit of
the Property and an inspection of all books and records and financial
information pertaining thereto, and Seller shall cooperate with Buyer and shall
make available to Buyer such information, materials and documents as Buyer may
reasonably request and shall have its accountant available throughout such
period to assist in Buyer's inspection and review. The inspection, audit and
measurement of the Property's operation, condition and maintenance shall
include, without limitation, such environmental and engineering inspections,
reviews and assessments that Buyer deems appropriate. If Buyer, at Buyer's sole
and absolute discretion, shall find such inspection(s) to be unsatisfactory for
any reason whatsoever, Buyer shall have the right, at its option, to terminate
this Agreement on or before the Inspection Period Expiration Date, and upon such
termination, the Deposit shall be immediately refunded to the Buyer, and
thereupon the parties hereto shall have no further liabilities one to the other
with respect to the subject matter of this Agreement. Buyer agrees that it shall
not unreasonably interfere with tenants in performing its inspection. If Buyer
or its consultants exercises its rights under the provisions of this subsection,
it shall (i) provide Seller with prior verbal notice of Buyer's entry, (ii) keep
the Property free of any liens or third-party claims resulting therefrom except
as may be required by applicable law; (iii) maintain adequate liability
insurance in an amount of not less than $1,000,000.00 for a single occurrence
and $50,000.00 for property damage which insurance shall name Seller as an
additional insured; (iv) indemnify Seller against any liability or expense for
injuries to or death of persons or damage to property arising from the exercise
of the rights hereunder that are not the result of any act or omission of Seller
or Seller's agents, employees or contractors and (v) if Closing does not occur
for any reason restore as nearly as practicable the Property substantially to
its condition immediately before such exercise. The indemnification and
restoration provisions of this subsection shall survive the termination of this
Agreement. In connection with such
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inspection, Seller shall make available at the Property, or at the Seller's
management offices, without representation, or warranty, except as specifically
set forth herein, and to the extent the same are in the Seller's possession, the
following:
7.3.1 Leases. All Leases for the Property as of the
date hereof;
7.3.2 Contracts, and Licenses. Copies of the Contract
Documents, the Licenses, any certificates of occupancy, insurance policies
applicable to the Property and any other documents evidencing rights described
in Section 1.2 hereof;
7.3.3 Tax Bills. A copy of tax bills (i) for the
current year, and (ii) if available, for the preceding two years;
7.3.4 Operating Statements. Statements of operation
of the Property for the past year;
7.3.5 Notices of Violations. Copies of any
uncorrected written notices of violations of any law, ordinance, regulation,
rule or requirement of any governmental body having jurisdiction;
7.3.6 Takings or Changes. Copies of all written
notices to Seller of proposed or threatened takings or changes with respect to
the Property;
7.3.7 Tax Assessments, Appeals and Increases. Copies
of all written notices to Seller of all filed, proposed or threatened tax
assessment appeals or tax assessment increases related to the Premises;
7.3.8 Litigation. Copies of all pending and written
notices to Seller of threatened litigation, including litigation involving
tenants, affecting the Property or this transaction;
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer shall survive Closing and delivery of
the Deed for the statute of limitations pertaining thereto. The representations
and warranties of Seller set forth in Sections 5.1, 5.2, 5.6, 5.8 (i), 5.11,
5.16, and 5.21 shall survive Closing and delivery of the Deed for the applicable
period of the statute of limitations pertaining thereto. The representation and
warranties of Seller set forth in Sections 5.3, 5.5, 5.8(ii), 5.19, 5.20, 5.25,
and 5.26 shall survive Closing and delivery of the Deed for six (6) months from
Closing. The representations and warranties of Seller set forth in Section 5.7
shall survive Closing and delivery of the Deed for three (3) months from
Closing. The remaining representations and warranties shall not survive Closing
and delivery of the Deed. Notwithstanding anything contained in this Agreement
to the contrary, except as expressly set forth in this Agreement, Seller makes
no representation, either prior to or at the Closing, with respect to the
condition or character of the Property or the use or uses to which the Property
may be put. Buyer acknowledges that Buyer has or will carefully and
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thoroughly examine, inspect and investigate the Property, and the Seller's
operations (as to manner, income and expenses), and Buyer is or will be fully
satisfied with the same upon completion of the inspections and examinations; and
Buyer is purchasing the same on the basis of such examination, inspection and
investigation and not in reliance on any representation or warranty of Seller or
any agent, employee or representative of Seller of any kind or nature whatsoever
except as specifically set forth herein. Accordingly, Buyer hereby agrees to
accept all of the assets being acquired by Buyer hereunder, whether realty,
personalty or mixed, on an absolutely and unconditionally "as is" basis at the
time of Closing. Notwithstanding the time period for survival with respect to
Section 5.7, if prior to the expiration of such period, Seller delivers to Buyer
an estoppel certificate on Buyer's prescribed form, which certificate confirms
Seller's representations under Section 5.7 of this Agreement, Seller shall be
released from all liability with respect to its representations as they pertain
to such tenancy.
9. FIRE OR OTHER CASUALTY.
9.1 Maintain Insurance. Seller shall maintain in effect until
the Closing Date the insurance policies (or like policies) now in effect with
respect to the Premises and Personal Property as set forth in Exhibit F".
9.2 Minimal Damage. If prior to the Closing Date any portion
of the Property is damaged or destroyed by fire or other casualty, and the cost
of repair or restoration thereof shall be $250,000 or less (as established by
good faith estimates obtained by Buyer), this Agreement shall remain in force.
9.3 Substantial Damage. If prior to the Closing Date any
portion of the Property is damaged or destroyed by fire or other casualty, and
the cost of repair or restoration thereof shall be more than $250,000 (as
established by good faith estimates obtained by Buyer), Buyer may terminate this
Agreement by giving written notice thereof to Seller ("Buyer's Notice of
Election"), and if this Agreement is so terminated, then the Deposit shall be
immediately refunded to Buyer, and thereafter neither party shall have any
further liability hereunder thereafter. If Buyer does not so terminate this
Agreement, it shall remain in full force and effect, and the provisions of
Section 9.4 below shall apply.
9.4 Closing After Substantial Damage. So long as this
Agreement shall remain in force under Section 9.2 or 9.3, then (i) all proceeds
of insurance collected prior to Closing, plus the amount of deductible under
Seller's insurance policy, shall be adjusted subject to Buyer's approval and
participation in any adjustment, and shall be credited to Buyer against the
Purchase Price payable by Buyer at Closing, and (ii) all unpaid claims and
rights in connection with losses shall be assigned to Buyer at Closing.
9.5 Rent Insurance. All rental loss insurance and the proceeds
thereof allocable to any period subsequent to Closing shall be paid or assigned
to Buyer at Closing.
10. CONDEMNATION. If, prior to the Closing Date, all or any material
portion of the Premises (being any taking affecting the building or any other
taking involving 10% or more
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of the Premises or the parking area) is taken by eminent domain or a notice of
any eminent domain proceedings with respect to the Premises or any part thereof
is received by the Seller, then Seller shall within five (5) days thereafter
give notice thereof to Buyer and Buyer shall have the option to (a) complete the
purchase hereunder or (b) if such taking, in Buyer's sole and absolute
discretion, adversely affects the Premises or its current economic viability,
terminate this Agreement, in which event the Deposit shall be immediately
refunded to Buyer, and this Agreement shall be null and void. Buyer shall
deliver written notice of its election to the Seller within two (2) days after
the date upon which the Buyer receives written notice of such eminent domain
proceedings. If notice of condemnation is received by Buyer and it fails to
deliver said written notice of its election within said time period, such
failure shall constitute a waiver by Buyer of its right to terminate this
Agreement. If this Agreement is not so terminated, Buyer shall be entitled to
all awards or damages by reason of any exercise of the power of eminent domain
or condemnation with respect to or for the taking of the Premises or any portion
thereof, and until such time as closing has occurred, or this Agreement
terminates. Any negotiation for, or agreement to, and all contests of any offers
and awards relating to eminent domain proceedings shall be conducted with the
joint approval and consent of the Seller and the Buyer.
11. Expense Allocations.
11.1 Seller shall pay for all applicable realty transfer taxes
related to the execution, delivery and recording of the Deed, Bill of Sale, and
other Closing Documents, and all related recording charges.
11.2 Subject to Section 13.3, Buyer shall pay for Buyer's
title examination for Buyer's title examination and premiums and for Buyer's due
diligence expenses, including survey, structural analysis and environmental
analysis.
11.3 Buyer and Seller shall be responsible for paying their
own attorney's fees in connection with this transaction.
12. CLOSING.
12.1 Time and Date and Place. The Closing on the sale of the
Property (herein referred to as the "Closing") shall take place on April 18,
1997, at the offices of Pepper, Hamilton & Scheetz LLP, Suite 500, 457
Haddonfield Road, Cherry Hill, New Jersey. Time is of the essence.
12.2 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
12.2.1 Seller's Documents and Other Items. Seller
shall execute and deliver or cause to be executed and delivered to Buyer in
proper form for recording:
12.2.1.1 Deed. A bargain and sale deed with covenants
against grantor's acts prepared by Buyer's counsel in form acceptable to Seller
(the "Deed"),
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conveying the Premises to Buyer, duly executed by Seller for recording. The Deed
description shall be based upon the metes and bounds description attached as
Exhibit "A",; in addition, if Buyer requests that Seller convey the Premises by
the metes and bounds description shown on the new survey, if any, obtained by
Buyer, Seller covenants to execute a Quit Claim Deed for such new description.
12.2.1.2 Bill of Sale. A bill of sale
prepared by Buyer's counsel in form acceptable to Seller, assigning, conveying
and transferring to Buyer, all of the Personal Property, without representation
or warranty.
12.2.1.3 Original Leases. All original
Leases, tenant files, tenant correspondence and repair records.
12.2.1.4 Original Licenses, Contract
Documents and Other Personal Property. All original Licenses, Contract
Documents, and other Personal Property described in Section 1.2 of this
Agreement, to the extent same are in the Seller's possession..
12.2.1.5 Assignment of Leases. An assignment
and assumption agreement with reciprocal indemnities, prepared by Buyer's
counsel in form acceptable to Seller (the "Assignment"), duly executed by Seller
and Buyer, assigning, conveying and transferring to Buyer the Leases.
12.2.1.6 Assignment of Licenses, Contract
Documents and Other Personal Property. An assignment agreement prepared by
Buyer's counsel, in form acceptable to Seller, assigning, conveying and
transferring to Buyer, to the extent the same are assignable the Licenses,
Contracts Documents and Other Personal Property, including, specifically, the
Names, without representation or warranty.
12.2.1.7 FIRPTA Certificates. All
certificate(s) required under Section 1445 of the Code.
12.2.1.8 Tenant Letter. Letters to each
tenant advising of the change in ownership and directing the payment of rent to
such party as the Buyer shall designate, said letter to be in form acceptable to
Buyer.
12.2.1.9 INTENTIONALLY OMITTED PRIOR TO
EXECUTION. 12.2.1.10 Title Insurance Certificates. Such affidavits of title or
other certifications as shall be required by the Title Company to insure Buyer's
title to the Premises as set forth in Section 3, and to provide affirmative
endorsements (a) against construction liens, (b) and parties in possession other
than tenants under the Leases.
12.2.1.11 Updated Rent Roll. An updated
schedule of Tenant Leases, containing all information required to be set forth
in Exhibit "D", which schedule is correct and complete as of the date of
Closing.
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12.2.1.12 Seller Certificate. A written
certification confirming that as of Closing the representations and warranties
which are required to be true at and as of Closing, are true at and as of
Closing.
12.2.1.13 Organization Certifications.
Confirmation of the good standing and existence of Seller and the due authority
of those executing for them, including, without limitation, the following
documents issued no earlier than 30 days prior to Closing: (a) good standing
certificate in state of organization and in the State in which the Property is
located, and (b) partnership agreement.
12.2.1.14 Keys. All keys, combinations and
security codes for all locks and security devices on the Property;
12.2.1.15 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.16 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.17 ISRA Non-Applicability Letter. A
written non-applicability letter issued within 30 days prior to Closing by the
New Jersey Department of Environmental Protection stating that the transaction
and the Property is not subject to ISRA.
12.2.2 Buyer's Documents. Buyer shall deliver or
cause to be delivered to Seller:
12.2.2.1 The amounts required to be paid to
Seller pursuant to this Agreement;
12.2.2.2 Confirmation of the existence and
subsistence of Buyer, and the authority of those executing for Buyer, including,
without limitation, the following documents issued no earlier than thirty (30)
days prior to Closing: (a) good standing certificate in State of Maryland, (b)
Buyer's Amendment and Restatement of Declaration of Trust filed on August 27,
1996, as amended, (c) a certificate from any officer of Buyer confirming the
incumbency of the signatories and the current force and effect of the resolution
authorizing their execution of the documents required under this Agreement.
12.2.3 Title Insurance. As a condition to Buyer's
obligations at Closing, Title Company shall furnish Buyer at Closing with the
Title Policy, in the form approved by Buyer pursuant to Section 3, in the full
amount of the Purchase Price, wherein the Title Company shall insure fee simple
title to the Property in Buyer or its designee as of the Closing Date containing
no exceptions to title other than the Permitted Exceptions and those which have
been approved by Buyer pursuant to the provisions of this Agreement and
providing the title endorsements specified in Section 12.2.1.10 above.
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12.2.4 Necessary Documents. Buyer and Seller shall
execute and deliver such other documents and instruments as may be reasonably
necessary to complete the transaction contemplated by this Agreement.
13. DEFAULT; REMEDIES
13.1 Prior to title passing and the completion of
Closing, in the event of Seller's default hereunder, Buyer's sole remedies shall
be that of (i) specific performance without abatement of the Purchase Price or
(ii) termination of this Agreement and return of the Deposit. In no event shall
Buyer be entitled to damages of any kind or nature;
13.2 Prior to title passing and completion of
Closing, with respect to any representations or warranties of Seller contained
in this Agreement, Buyer's obligations hereunder are contingent upon such
representations and/or warranties contained in this Agreement being true and
correct as of the date hereof and where the context indicates, as of the date of
Closing, but recision of this Agreement and return of the Deposit, shall be
Buyer's exclusive remedy for any breach of any representation and/or warranty by
Seller.
13.3 Notwithstanding the foregoing, in the event of a
willful or intentional breach of a covenant, obligation or warranty by Seller
under this Agreement or if Seller makes a willful or intentional material
misrepresentation in this Agreement, Buyer shall be entitled to terminate this
Agreement and to the return of the Deposit and Buyer's reasonably documented
Transaction Costs sustained by Buyer in connection with this Agreement; and the
foregoing shall be Buyer's sole remedies under this subparagraph.
13.4 Subsequent to title passing and completion of
Closing, Buyer shall have recourse against Seller for its reasonably documented
actual damages, sustained solely for Seller's breach of representations and
warranties which survive Closing, which breach is discovered by Buyer after
Closing; the right to pursue said recourse shall expire and terminate, as to any
right on which action has not then been initiated, at the expiration of the
survival periods set forth herein.
13.5 Buyer recognizes that the Property will be
removed by Seller from the market during the existence of this Agreement and
that if this purchase and sale is not consummated because of Buyer's default
Seller shall be entitled to compensation for such detriment. Seller and Buyer
acknowledge that it is extremely difficult and impracticable ascertain the
extent of the detriment, and to avoid this problem, Seller and Buyer agree that
if the purchase and sale contemplated in this Agreement is not consummated
because of Buyer's default under this Agreement, Seller shall be entitled to
retain the Deposit (whether or not same has theretofore been paid) as its sole
and liquidated damages. The parties agree that the sum stated above as
liquidated damages shall be in lieu of any other relief to which Seller might
otherwise be entitled, Seller hereby specifically waiving any and all rights
which it may have to damages or specific performance as a result of Buyer's
default under this Agreement.
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13.6 Buyer's Out-of-Pocket Costs. In the event of
Seller's breach or default in accordance with Section 13.3 then, in any such
event, upon termination by Buyer hereunder, in addition to receiving the
immediate return of the Deposit, anything in the Agreement contained to the
contrary notwithstanding, Buyer shall also receive from Seller, upon demand,
Buyer's actual, documented out-of-pocket costs and expenses associated with this
Agreement and Buyer's anticipated acquisition of the Property including, without
limitation, Buyer's reasonable counsel fees and costs, title expenses, survey
costs, financial and accounting due diligence, Buyer's structural inspection of
the Property and Buyer's environmental assessment of the Property, and other
costs and expenses associated with Buyer's due diligence, (collectively,
"Transaction Costs"). The foregoing list is not intended to be exclusive, but
representative of the costs and expenses that the parties anticipate that Buyer
will incur in anticipation of this transaction. Seller's maximum reimbursement
liability under this Section 13 shall not exceed $15,000.
14. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer 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 Buyer at or prior to the Closing)
and in the event any of the conditions are not complied with, Buyer may
terminate this Agreement by notifying the Seller and Escrow Agent and thereupon
shall be returned the Deposit and thereafter this Agreement shall be null and
void:
14.1 Correctness of Warranties and Representations. The
warranties and representations made by Seller which specifically are required to
be true and correct at and as of Closing shall be true and correct on the
Closing Date in all material respects as though such representations and
warranties were made on the Closing Date except that (i) variations which occur
in the ordinary course of Seller's business, (ii) variations disclosed in
writing to Buyer prior to Closing, or (iii) any matter or occurrence discovered
by the Buyer prior to Closing shall not be construed as a failure of the
condition set forth in this Section 14.1.
14.2 Compliance with Terms and Conditions. Seller shall have
performed and complied in all respects with all of the terms and conditions
required by this Agreement to be performed and complied with by it prior to or
on the Closing Date, including delivery of all of the Seller Documents.
14.3 No Willful Default. There shall have been no willful or
intentional breach of a covenant, representation or obligation by the sellers
under either of the Agreements of Sale listed on Exhibit "G" (the "Greentree
Agreements") attached hereto and made a part hereof, which willful or
intentional breach results in the termination of either or both of the Greentree
Agreements, provided that in such event, the Buyer's remedy hereunder, shall be
expressly limited to recision of this Agreement and a return of the Deposit.
15. PRORATIONS.
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15.1 Operating Expenses. The following items shall be prorated
at Closing, as of close of business of the day immediately preceding Closing
"Adjustment Date":
15.1.1 Rents. All current collected rent, additional
rent, percentage rent (if any) and all other charges collected under the Leases
shall be apportioned on the Closing Date pro rata on a per diem basis. 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 Buyer, so long
as such tenant is in arrears for current or prior rent arising after Closing,
then (b) to Seller for all rent in arrears prior to the Closing Date; and then
(c) to Buyer with no further claim by Seller thereto. Except as herein provided,
Buyer is not under any obligation to collect rents in arrears for the benefit of
Seller. Any rents which are delinquent or otherwise not paid at the time of
Closing, and collected by Buyer within ninety (90) days after Closing shall be
apportioned as aforesaid and the portion to which Seller is entitled shall be
promptly remitted by Buyer to Seller. Seller shall have no claim to rents
collected ninety (90) days after the Closing Date.
15.1.2 Taxes. Real estate and personal property
taxes, if any, on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessment is fixed, the
apportionment of such real estate and personal property taxes at the Closing
shall be upon the basis of the tax rate for the next preceding year applied to
the latest assessed valuation. Final adjustment will be made upon the actual tax
amount, when determined.
15.1.3 Deposits. Tax and utility company deposits, if
any.
15.1.4 Water and Sewer Charges. Water and sewer
charges and fire protection and inspection services based upon meter readings to
be obtained by Seller effective as of the Adjustment Date, or if not so
obtainable, a date not more than ten (10) days prior to the Adjustment Date, and
the unfixed meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted and Seller or Buyer, as
the case may be, will promptly deliver to the other the amount determined to be
so due upon such readjustment. If Seller is unable to furnish such prior
reading, any reading subsequent to the Closing will be apportioned on a per diem
basis from the date of such reading immediately prior thereto and Seller shall
pay the proportionate charges due up to the date of Closing.
15.1.5 Assigned Contracts. Amounts paid or payable in
respect of any service and maintenance contracts assigned to Buyer in accordance
herewith.
15.1.6 Electricity, gas, steam and fuel. Electricity,
gas and steam and fuel oil, if any, based on meter readings or a fuel company
letter showing measurement on the day immediately preceding Closing, and valued
at current prices.
15.1.7 Security Deposits. Buyer shall receive a check
from Seller for the full amount of any security deposits, with accrued interest,
or a credit against the Purchase Price in said amount.
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15.2 Custom and Practice. Except as set forth in this
Agreement, the customs of the State and County in which the Premises are located
shall govern prorations.
15.3 Future Installments of Taxes. If at Closing, the Property
or any part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in installments, then for purposes
of this Agreement, all unpaid installments of any such assessment, including
those which are to become due and payable after Closing shall be assumed by the
Buyer from and after Closing.
15.4 Application of Prorations. If such prorations result in a
payment due Buyer, the cash payable at Closing shall be reduced by such sum. If
such prorations result in a payment due Seller, the same shall be paid by wire
transfer of immediately available funds at Closing.
15.5 Schedule of Prorations. The parties shall endeavor to
jointly prepare a schedule of prorations for the Property no less than five (5)
days prior to Closing.
15.6 Escalations. With respect to any sums due under leases
for operating expenses incurred by the Seller in excess of that billed and
collected by Seller for the calendar year 1996 (the "1996 Expense Escalations"),
the Seller shall after Closing provide to each tenant a statement of the amount
of the 1996 Expense Escalations due from such Tenant, and Seller shall be
entitled to retain the entire amount of such sum, notwithstanding anything
contained in this Section 15 to the contrary. Any 1996 Expense Escalations paid
to the Buyer after Closing shall be immediately remitted to the Seller. With
respect to any sums due under leases for operating expenses incurred by the
Seller in excess of that billed and collected by Seller during 1997 (the "1997
Expense Escalations"), at the time that the Buyer bills and collects the 1997
Expense Escalations, the Buyer shall reimburse the Seller for the actual amount
incurred by Seller for 1997 in excess of that billed and paid by tenants during
1997.
15.7 Readjustments. The parties shall correct any errors in
prorations as soon after the Closing as amounts are finally determined.
16. BROKERS. Each party hereby represents and warrants to the other
that it has not employed or retained any broker or finder in connection with the
transactions contemplated by this Agreement and that neither has had any
dealings with any other person or party which may entitle that person or party
to a fee or commission. Each party shall indemnify the other of and from any
claims for commissions by any person or party claiming such commission by or
through the indemnifying party.
17. ESCROW AGENT. The parties hereto have requested that the Deposit be
held in escrow by the Escrow Agent to be applied at the Closing or prior thereto
in accordance with this Agreement. The Escrow Agent will deliver the Deposit to
Seller or to Buyer, as the case may be under the following conditions:
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17.1 Payment to Seller. To Seller on the Closing Date upon the
consummation of Closing;
17.2 Notice of Dispute. If either Seller or Buyer believes
that it is entitled to the Deposit or any part thereof, it shall make written
demand therefor upon the Escrow Agent. The Escrow Agent shall promptly mail a
copy thereof to the other party in the manner specified in Section 18.1 below.
The other party shall have the right to object to the delivery of the Deposit,
by filing written notice of such objections with the Escrow Agent at any time
within ten (10) days after the mailing of such copy to it in the manner
specified in Section 18.1 below, but not thereafter. Such notice shall set forth
the basis for objection to the delivery of the Deposit. Upon receipt of such
notice, the Escrow Agent shall promptly deliver a copy thereof to the party who
filed the written demand.
17.3 Escrow Subject to Dispute. In the event the Escrow Agent
shall have received the notice of objection provided for in 17.2 above of this
Section, in the manner and within the time therein prescribed, the Escrow Agent
shall continue to hold the Deposit until (i) the Escrow Agent receives written
notice from both Seller and Buyer directing the disbursement of the Deposit in
which case the Escrow Agent shall then disburse said Deposit in accordance with
said direction, or (ii) litigation arises between Seller and Buyer, in which
event the Escrow Agent shall deposit the Deposit with the Clerk of the Court in
which said litigation is pending, or (iii) the Escrow Agent takes such
affirmative steps as the Escrow Agent may, at the Escrow Agent's option elect in
order to terminate the Escrow Agent's duties including, but not limited to,
deposit in Court and an action for interpleader.
17.4 Escrow Agent's Rights and Liabilities. Escrow Agent shall
not be required to determine questions of fact or law, and may act upon any
instrument or other writing believed by it in good faith to be genuine and to be
signed and presented by the proper person, and shall not be liable in connection
with the performance of any duties imposed upon Escrow Agent by the provisions
of this Agreement, except for Escrow Agent's own willful default or gross
negligence. Escrow Agent shall have no duties or responsibilities except those
set forth herein. Escrow Agent shall not be bound by any modification of this
Agreement, unless the same is in writing and signed by Buyer and Seller, and, if
Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have
given prior written consent thereto. In the event that Escrow Agent shall be
uncertain as to Escrow Agent's duties or rights hereunder, or shall receive
instructions from Buyer or Seller which, in Escrow Agent's opinion, are in
conflict with any of the provisions hereof, Escrow Agent shall be entitled to
hold and apply the Deposit, pursuant to Section 17.3, and may decline to take
any other action.
18. GENERAL PROVISIONS.
18.1 Notices. All notices or other communications required or
permitted to be given under the terms of this Agreement shall be in writing, and
shall be deemed effective when (i) personally delivered (ii) sent by
nationally-recognized overnight courier, (iii) facsimile with original following
by regular mail, or (iv) deposited in the United States mail and sent by
certified mail, postage prepaid, addressed as follows:
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18.1.1 If to Buyer, addressed to:
Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Gerard H. Sweeney,
President and Chief Executive Officer
with a copy in each instance to:
Brad A. Molotsky, Esquire
Pepper, Hamilton & Scheetz LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103
18.1.2 If to Seller, addressed to:
4000-5000 Greentree Executive Campus Associates, L.P.
c/o Needleman Management Co., Inc.
1060 N. Kings Highway
Suite 250
Cherry Hill, NJ 08034
with a copy in each instance to:
Robert Schwartz, Esquire
Sherman, Silverstein, Kohl, Rose & Podolsky
4300 Haddonfield Road
Suite 311
Pennsauken, New Jersey 08109
18.1.3 If to Escrow Agent, addressed to:
M. Gordon Daniels
Commonwealth Land Title Insurance Company
1700 Market Street
Philadelphia, PA
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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.
18.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
18.3 Entire Agreement. All Exhibits attached to this Agreement
are incorporated herein and made a part hereof. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
18.4 Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey.
18.5 No Recording. This Agreement shall not be recorded in the
Clerk's Office for Burlington County or in any other office or place of public
record.
18.6 Tender. Tender of Deed by Seller and of the Purchase
Price by Buyer, are hereby mutually waived.
18.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
18.8 Further Instruments. Seller will, whenever and as often
as it shall be reasonably request so to do by Buyer, and Buyer will, whenever
and as often as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all conveyances, assignments, correction instruments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent and
purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The provisions of
this Article shall survive the Closing.
18.9 Time. Time is of the essence. In the event the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the State of New Jersey, the time for such performance will be extended to the
next succeeding business day. Time periods under this Agreement will exclude the
first day and include the last day of such time period.
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18.10 Designation of Nominee; Assignment of Agreement. Buyer
shall have the right to designate one or more of its subsidiaries or affiliate
entities to acquire title to the Premises hereunder.
18.11 Effective Date. Whenever the term or phrase "effective
date hereof" or "date hereof" or other similar phrases describing the date this
Agreement becomes binding on Seller and Buyer are used in this Agreement, such
terms or phrases shall mean and refer to the date on which a counterpart or
counterparts of this Agreement executed by Seller and Buyer.
18.12 Confidentiality. Each of the parties hereto covenants
and agrees to hold the nature and content of this Agreement, including without
limitation, the Purchase Price contained herein, in strict confidence, and other
than disclosure required by the SEC and except as may be necessary to comply
with this Agreement, neither party shall disclose the nature, content or the
Purchase Price of this Agreement without the express written consent of the
other party.
19. SEC REPORTING (8-K) REQUIREMENTS. For the period of time commencing
on the date hereof and continuing through the first anniversary of the Closing
Date, and without limitation of other document production otherwise required of
Seller hereunder, Seller shall, from time to time, upon reasonable advance
written notice from Buyer, provide Buyer and its representatives, with (I)
access to all financial and other information pertaining to the period of
Seller's ownership and operation of the Property, which information is relevant
and reasonably necessary, in the opinion of Buyer's outside, third party
accountants (the "Accountants"), to enable Buyer and its Accountants to prepare
financial statements in compliance with any or all of (a) Rule 3-05 or 3-14 of
Regulation S-X of the Securities and Exchange Commission (the "Commission"), as
applicable; (b) any other rule issued by the Commission and applicable to Buyer;
and (c) any registration statement, report or disclosure statement filed with
the Commission by, or on behalf of Buyer; and (II) a representation letter,
indicating (if such be the case) that to the knowledge of the Seller, (i)
although the financial statements provided to the Buyer for the year ended 1996,
in accordance with this Section 19 are unaudited, and do not constitute full
disclosure required by generally accepted accounting principles, the net
operating income of the Seller set forth on such financial statement is in
accordance with generally accepted accounting principles, but the financial
statements may not satisfy those principles, and (ii) the Seller has made
available to the Buyer all financial records and related data requested by the
Buyer.
20. INTENTIONALLY OMITTED PRIOR TO EXECUTION.
21. EXCULPATION.
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No recourse shall be had for any obligation of Brandywine
Realty Trust under this Agreement or under any document executed in connection
herewith or pursuant hereto, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being expressly waived and released by the Seller and all
parties claiming by, through or under Seller.
22. Tax Deferred Exchange. The Seller intends to effectuate a
"like-kind exchange" pursuant to Section 1031 of the Internal Revenue Code, and
to utilize the Property as "Relinquished Property" and the sale thereof in
connection with such like-kind exchange. The Buyer shall fully cooperate with
Seller in effectuating any like-kind exchange, including, Replacement Property
or other real property ("Replacement Parcel") identified by the Seller provided
that nothing herein contained is intended to require the Buyer to close title to
any Replacement Parcel. Seller's effectuation of a like-kind exchange prior to
any closing shall not be a condition or contingency to the Seller's obligations
hereunder. Seller shall be responsible for all costs and expenses incurred in
connection with the effectuation of a like-kind exchange over and above those
Buyer would incur in a straight purchase/sale. Seller shall indemnify and hold
harmless Buyer from any and all losses, costs, expenses and damages associated
with Buyer's participation in the exchange transaction. The Property subject to
this Agreement constitute Relinquished Property in the Internal Revenue Code
Section 1031 exchange.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
4000-5000 Greentree Executive BRANDYWINE REALTY TRUST,
Campus Associates, L.P. a Maryland Real Estate Investment Trust
By: By:
-------------------------------------- -----------------------------
Howard E. Needleman, general partner Gerard H. Sweeney,
President and Chief
Executive Officer
JOINDER:
Howard Needleman (the "Guarantor"), hereby specifically joins in this
Agreement for the sole purpose of guarantying the accuracy of the representation
and warranty contained in Section 5.7 of this Agreement. The Guarantor shall
indemnify, defend and save the Buyer harmless from any loss, cost, damage and
expense actually incurred by the Buyer after the Closing as a result of
a breach of any of the representations and warranties contained in Section 5.7
of the Agreement, provided that (i) the Guarantor shall have no liability
hereunder
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unless and until the Buyer's losses as a result of such a breach exceeds
$5,000.00; (ii) the Guarantor's liability hereunder shall terminate and be of no
further effect with respect to any claim not made within three months from the
date of Closing; and (iii) with respect to any tenant for which, Seller delivers
to Buyer an estoppel certificate on Buyer's prescribed form, which certificate
confirms Seller's representations under Section 5.7 of this Agreement, Seller
shall be released from all liability with respect to its representations as they
pertain to such tenancy.
/s/ Howard E. Needleman
-----------------------------
HOWARD E. NEEDLEMAN
Agreed to by Escrow Agent with regard
to the obligations, terms, covenants
and conditions contained in this
Agreement relating to Escrow Agent.
By: /s/ M. Gordon Daniels
----------------------
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AGREEMENT OF SALE
Five Eves Drive Campus
AGREEMENT OF SALE made this 18 day of April, 1997, between BRANDYWINE
REALTY TRUST, a Maryland Real Estate Investment Trust, its assignee or nominee,
having its principal office at 16 Campus Boulevard, Suite 150, Newtown Square,
Pennsylvania 19073 ("Buyer"), and LAKN Marlton Associates, L.P., a New Jersey
limited partnership having its principal office at 1060 N. Kings Highway, Suite
250, Cherry Hill, New Jersey 08034 ("Seller").
BACKGROUND
The Background of this Agreement is as follows:
A. Seller is the owner of a certain tract of land being comprised of
one (1) parcel of land together with the building and improvements thereon,
including a three (3) story mid-rise office building containing approximately
48,000 net rentable square feet, commonly known as 5 Eves Drive and located in
the Evesham Corporate Center, Marlton, New Jersey as more fully described on
Exhibit A attached hereto; and
B. Seller desires to sell to Buyer and Buyer desires to purchase from
Seller the property referred to in this Agreement, upon the terms and conditions
set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with the preceding Background paragraphs incorporated by
reference, the parties hereto, intending to be legally bound hereby, covenant
and agrees as follows:
1. PROPERTY BEING SOLD.
Seller shall sell, transfer and convey to Buyer on the Closing Date (as
hereinafter defined),
1.1 Real Property. Fee simple interest in the parcels of land,
all as more fully described on Exhibit "A", being Lot 3, block 2.07, with the
building and improvements thereon, including the three (3) story mid-rise office
building commonly known as 5 Eves Drive, Marlton, New Jersey, and all of the
Seller's right, title, and interest, if any, in any easements, licenses, rights
of way, privileges, hereditaments, appurtenances, and rights to any land lying
in the beds of any street, road or avenue, open or proposed, adjoining thereto,
and inuring to the benefit of said land (hereinafter collectively referred to as
the "Premises"); and
1.2 Personal Property. All of Seller's equipment, fixtures,
machinery and personalty of every description attached to or used in connection
with the Premises (and not owned by tenants under leases of the Premises),
including, without limitation, those listed on the
-1-
<PAGE>
Schedule of Inventory attached hereto as Exhibit "B", and to the extent
assignable and in Seller's possession intangible personal property owned by the
Seller and used in connection with the ownership, operation and maintenance of
the Premises, including without limitation, all contract rights, guaranties and
warranties of any nature, all architects', engineers', surveyors' and other real
estate professionals' plans, specifications, certifications, contracts, reports,
data or other technical descriptions, reports or audits (including, without
limitation, all environmental, structural and mechanical inspection reports),
and all marketing materials ("Contract Documents"), all governmental permits,
licenses, certificates, and approvals in connection with the ownership of the
Premises ("Licenses"), all escrow accounts, deposits, instruments, documents of
title pertaining to the Premises, and all of Seller's rights, claims, and causes
of action if any, to the extent they are assignable, under any warranties and/or
guarantees of manufacturers, contractors or installers, including to the extent
applicable, any warranties from any previous owners of the Premises (hereinafter
collectively referred to as "Personal Property"); and
1.3 Leases. All leases, licenses and other occupancy
agreements for any part of the Premises, and except as otherwise set forth
herein, all prepaid rent and unapplied security deposits (the "Leases"); and
1.4 Right to Names. Any and all right, title and interest of
Seller, if any, and without representation or warranty, in and to the name "Five
Eves Drive" and "Evesham Corporate Center", and the Seller's right, if any,
without representation or warranty, to all printing styles, trademarks and logos
(the "Name").
The Premises, Personal Property, Leases and Name are sometimes
hereinafter referred to as "Property."
2. PURCHASE PRICE AND MANNER OF PAYMENT.
2.1 Purchase Price. Buyer shall pay the total sum of Three
Million three Hundred Thousand Dollars ($3,375,000) (hereinafter referred to as
the "Purchase Price") subject to adjustments as set forth herein.
2.2 Manner of Payment. The Purchase Price shall be paid in the
following manner:
2.2.1 Deposit. By delivery, upon Seller's execution
and delivery of this Agreement, of Buyer's good check in the amount of $25,000
to the Title Company (hereinafter referred to as "Escrow Agent" or "Escrowee").
This sum, the sum specified in Section 2.2.2 below, and all other sums paid by
Buyer to the Escrow Agent under this Agreement (hereinafter referred to as the
"Deposit") shall be held by Escrow Agent in a federally-insured, segregated
money market account at an institution to be designated by Buyer until
termination or consummation of this Agreement. Interest on the Deposit shall be
credited to Buyer at Closing, or
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paid to the party otherwise entitled to the Deposit in the event of the
termination of this Agreement prior to Closing.
2.2.2 Additional Deposit. By delivery, within two (2)
business days next following the Inspection Period Expiration Date (as
hereinafter defined), of Buyer's good check in the amount of $25,000.
2.2.3 Balance. The balance of the Purchase Price
shall be delivered to the Seller on the Closing Date, by wire transfer of
immediately available funds, subject to adjustments and apportionments as set
forth in this Agreement.
3. TITLE. On the Closing Date, Seller shall convey to Buyer good and
marketable fee simple title to the Property subject only to those rights of way,
easements, covenants restrictions, and objections to title (hereinafter
"Permitted Exceptions") listed on Exhibit "C" hereto, unless identified by Buyer
as "Title Objections" as hereinafter provided, and subject to the rights of
tenants listed on the rent roll attached hereto as Exhibit "D", which title
shall be insurable at regular rates by Commonwealth Land Title Insurance Company
("Title Company") under an ALTA 1970 Form B (Revised 10/17/70 and 3/30/84) title
insurance policy ("Title Policy").
4. COVENANTS. In addition to the covenants contained in the other
Sections of this Agreement, between the date hereof and Closing, Seller
covenants that it shall:
4.1 Maintenance. At all times prior to the Closing Date,
operate the Property in the same manner as it is currently being operated, and
pay in the normal course of business prior to Closing, all sums due for work,
materials or service furnished or otherwise incurred in the ownership and
operation prior to Closing.
4.2 Alterations. Not make or permit to be made any
alterations, improvements or additions to the Property without the prior written
consent of Buyer, which consent shall not be unreasonably withheld or delayed
except those made by or for tenants pursuant to the right to do so under their
Leases, or by Seller if required by applicable law or ordinance (subject to the
provisions of Section 4.8 of this Agreement), or as required under any Lease.
4.3 Lease. Not enter into any new lease without Buyer's
consent, which consent shall not be unreasonably withheld.
4.4 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.5 Bill Tenants. Timely bill all Tenants for all rent
billable under Leases, and use its commercially reasonable efforts consistent
with Seller's existing practices to collect any rent in arrears.
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4.6 Notice to Buyer. Notify Buyer promptly of the occurrence
of any of the following:
(i) a fire or other casualty causing damage to the
Property, or any portion thereof;
(ii) receipt of written notice of eminent domain
proceedings or condemnation of or affecting the Property, or any portion
thereof;
(iii) receipt of written notice from any governmental
authority or insurance underwriter relating to the condition, use or occupancy
of the Property, or any portion thereof, or setting forth any requirements with
respect thereto;
(iv) receipt of written notice of any actual or
threatened litigation against Seller or affecting or relating to the Property,
or any portion thereof;
(v) receipt of written notice of any termination
notice from any tenant;
(vi) the commencement of any strike, lock-out,
boycott or other labor trouble affecting the Property, or any portion thereof.
4.7 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
4.8 Comply with Leases. Perform all material obligations of
the landlord as required by the Leases or by any order or direction of any
governmental authority having jurisdiction thereof, provided that if the cost to
perform such obligation exceeds $25,000.00 (the "Seller Compliance Costs"),
Seller shall have the right to terminate this Agreement if Buyer is unwilling to
pay for the costs of such obligations in excess of the Seller Compliance Costs,
in which event the Deposit shall be returned to Buyer and neither party shall
owe any further obligation hereunder to the other; provided, however, if the
Seller Compliance Costs exceed $25,000, and Buyer agrees to pay for the second
$25,000 of such costs, the additional cost of such Seller Compliance Costs above
$50,000, if any, shall be evenly shared by Buyer and Seller, provided that in no
event shall Seller be obligated to pay more than $50,000 in connection with the
Seller Compliance Costs (e.g., if the total Seller Compliance Costs equal
$70,000 and Buyer agrees to pay for the second $25,000, the additional $20,000
above the $50,000 shall be shared by Buyer and Seller, so that Seller shall be
responsible for $35,000 and Buyer shall be responsible for $35,000). The parties
acknowledge and agree that Buyer is under no obligation to agree to pay for such
Seller Compliance Costs, but that the aforesaid cost allocation mechanism is an
agreed upon compromise in order to permit Buyer to avoid Seller's termination of
this Agreement.
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4.9 No New Agreements. Except for agreements which can be
terminated on not more than thirty (30) days' notice, not enter into any other
agreements which affect the Property or the transactions contemplated by this
Agreement, without the prior written consent of Buyer which consent shall not be
unreasonably withheld or delayed; and except for the Permitted Exceptions, not
permit the creation of any liability which shall bind Buyer or the Premises
after Closing.
4.10 Tax Disputes. Notify Buyer of any tax assessment disputes
(pending or threatened) with respect to the Property prior to Closing, and not
agree to any changes in the real estate tax assessment, nor settle, withdraw or
otherwise compromise any pending claims with respect to prior tax assessments,
without Buyer's prior written consent. 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. Any reduction relating to tax years prior to
the year in which the Closing occurs shall be payable to the Seller.
4.11 No Removal of Personalty. Not remove any non-consumable
Personal Property from the Premises without replacing it with similar personal
property, new or of equal or better quality.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Buyer to enter
into this Agreement, Seller hereby represents and warrants to Buyer that to the
best of the Seller's actual knowledge (which shall be deemed to mean the actual
knowledge of Howard E. Needleman) the following representations and warranties
are true now, and where the representation specifically provides, will be true
at Closing:
5.1 Seller's Authority For Binding Agreement. Seller is a duly
authorized and validly existing limited liability company formed under the laws
of State of New Jersey. Seller has full power, right and authority to own its
properties, to carry on its business as now conducted, and to enter into and
fulfill its obligations under this Agreement. Each of the persons executing this
Agreement on behalf of Seller is authorized to do so. This Agreement is the
valid and legally binding obligation of Seller, enforceable against Seller in
accordance with its terms. The execution and delivery of this Agreement and
compliance with its terms will not conflict with or result in the breach of any
law, judgement, order, writ, injunction, decree, rule or regulation, or conflict
with or result in the breach of any other agreement, document or instrument to
which Seller is a party or by which it or the Property is bound or affected. The
representation contained in this Section 5.1 shall be true at and as of Closing.
5.2 Employment on "At-Will" Basis. There are no employees of
Seller and Buyer assumes no obligations or responsibilities whatsoever for any
employees of Seller. The representation contained in this Section 5.2 shall be
true at and as of Closing.
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5.3 Service Contracts. Exhibit "E" attached hereto is a
complete list of all existing service, equipment, supply and maintenance
contracts with respect to or affecting the Property (the "Service Contracts").
Seller has received no written notice of default or breach by Seller in the
terms of any of such Service Contracts. To the Seller's actual knowledge, Seller
has performed, and at Closing shall have performed, all obligations which it has
under said Service Contracts.
Anything in this Section 5.3 to the contrary notwithstanding, Seller
represents and warrants that any existing management agreements and exclusive
brokerage or leasing agreements shall be terminated as of Closing, Seller having
fully paid and discharged any and all obligations accruing thereunder, and Buyer
shall assume no liability under or in respect of any such agreements.
5.4 Condemnation. Seller has received no written notice of any
pending condemnation or eminent domain proceeding pending with regard to any
part of the Property.
5.5 No Lawsuits. Seller has received no written notice of any
claims, lawsuits or proceedings pending, or to the best of the Seller's
knowledge, threatened against or relating to Seller or the Property, or which
could affect them, or either of them, in any court or before any governmental
agency, except for actions for possession, damages and or rent, if any, against
defaulted tenants as disclosed in Exhibit "D", or except for actions which are
adequately covered or defended by an insurance carrier. The representation
contained in this Section 5.5 shall be true at and as of Closing.
5.6 No Tax Assessments. Seller has received no written notice
of any public improvements in the nature of off-site improvements, or otherwise,
which have been ordered to be made and/or which have not heretofore been
assessed, and, to Seller's knowledge, there are no special or general
assessments currently affecting or pending against the Property, except as set
forth in the Title Binder.
5.7 Leases. 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
Premises other than the leases (the "Leases") listed on the rent roll attached
hereto as Exhibit "D". Exhibit "D" identifies (i) each tenant of the Premises,
(ii) the date of that tenant's lease, (iii) the expiration date of that tenant's
lease, (iv) the annual and monthly minimum rental charge, the tenant's share of
building operating costs (including, without limitation, taxes) and any and all
costs, expenses and other charges payable by the tenant under the Lease, (v)
arrearages, if any, and whether the latest rent due has been paid, (vi) the
amount of prepaid rent, if any, (vii) the amount or description of any
concessions, allowances, rebates, refunds, escrow or security deposits made by
the tenant under said tenant's Lease; (viii) any options to renew, extend,
purchase, cancel or terminate; (ix) all unpaid tenant improvement allowances
and/or unpaid leasing commissions; and (x) any outstanding written notices of
defaults of any kind or nature whatsoever. Seller has the sole right
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to collect rents under the Leases, and neither such right nor any of the Leases
has been assigned, pledged, hypothecated or otherwise encumbered by Seller
except as additional collateral for the existing mortgage upon the Premises
which shall be satisfied at or before Closing. To the best of Seller's
knowledge, 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 "D" are the actual rents, income and charges being
collected by Seller under the Leases. Any tenant improvements which Seller is
obligated to complete pursuant to any Lease has been completed as of this date
or shall be completed as of Closing, and all costs for completed work has been
or shall be paid by Seller. The amount of each security deposit contains, where
required by law or otherwise applicable, interest which has accrued in
accordance with law. Except as set forth on Exhibit "D", no tenant of the
Premises 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 "D", no security deposits by tenants have heretofore been
returned or applied to charges against the tenants.
5.8 Compliance with Law.
(i) To the best of Seller's actual knowledge, there
are no outstanding notices of any violations issued by governmental authority
having jurisdiction over the Property.
(ii) To the best of Seller's actual knowledge, which
knowledge is based exclusively upon that certain Environmental Report prepared
by _____________ dated ___________ __, 19__ (the "Environmental Report") and
except as otherwise set forth in the Environmental Report, 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, except to the extent such substance or materials are used in
the ordinary course of the Seller's business or that of any Tenant in accordance
with applicable laws, and there has, to the best of Seller's knowledge, and
based exclusively upon the Environmental Report, 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
Premises any clean-up or other monetary obligation. Seller has received no
written notice that it has been identified in any litigation, administrative
proceeding or investigation 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, and no lien
or superlien has been recorded, filed or otherwise asserted against any real or
personal property of Seller for any clean-up costs or other responses costs
incurred in connection with any environmental contamination that is
attributable, in whole or in part, to Seller. For purposes of this Agreement,
"Hazardous Substances" means those elements and compounds which are designated
as such in Section
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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 all
applicable federal, state and local laws including the New Jersey Industrial
Site Recovery Act, as amended ("ISRA"); and "Hazardous Wastes" means any
hazardous waste, residential or household waste, solid waste, or other waste as
defined in applicable federal, state and local laws. Seller has not received any
written summons, citation, directive, letter or other communication, written or
oral, from any governmental or quasi-governmental authority concerning any
intentional or unintentional action or omission on Seller's part which (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. The representation contained in this
Section 5.8(i) shall be true and correct at and as of Closing.
5.9 Insurance. Exhibit "F" attached hereto contains a true and
correct description of all insurance policies affecting the Property and the
operation thereof. All of said insurance policies shall remain in full force and
effect until the completion of Closing hereunder. Seller has not received any
written notice from any insurance company board of fire underwriters or rating
organization (or other body exercising similar functions) (i) claiming any
defects or deficiencies which have not been addressed and fully cured or
corrected, or (ii) requesting the performance of any repairs, alterations or
other work which have not been performed, or (iii) claiming any default which,
if not corrected, would result in a cancellation of insurance coverage. The
representation contained in this Section 5.9 shall be true at and as of Closing.
5.10 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.11 No Brokers. Except as set forth on Exhibit "D", no
brokerage or leasing commission or other compensation is now, or will at Closing
be, due or payable to any person, firm, corporation, or other entity with
respect to or on account of any of the Leases, or any extensions or renewals
thereof.
5.12 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.13 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.14 Good Title to Property. Seller holds good and marketable,
indefeasible fee simple title to the Property, free and clear of liens and
encumbrances, other than the Permitted Exceptions. The representation contained
in this Section 5.14 shall be true at and as of Closing.
5.15 All Taxes and Assessments Paid. Seller will have paid
prior to Closing, all taxes and assessments, including assessments payable in
installments, which are to become due and payable prior to Closing and/or a lien
on the Property, except for taxes for the current year which shall be prorated
at Closing or installments of current assessments which become due and
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payable after Closing, which shall be the sole responsibility of the Buyer. The
representation contained in this Section 5.15 shall be true at and as of
Closing.
5.16 FIRPTA. Seller is not a "foreign person" as such term is
defined in Section 1445(f)(3) of the Internal Revenue Code of 1954, as amended
(the "Code"). The representation contained in this Section 5.16 shall be true at
and as of Closing.
5.17 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.18 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.19 Inventory Schedule. The Schedule of Inventory contains a
correct and complete list of personal property owned by Seller and located at or
used in connection with the operation of the Property.
5.20 Charges, Fees and Assessments. Any and all applicable
charges, fees and assessments pending as of the date of this Agreement 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, 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. The representation contained in this Section 5.20 shall be true
at and as of Closing.
5.21 Rights to Purchase. There are no outstanding agreements,
options, rights of first refusal, conditional sales agreements or other
agreements or arrangements, whether oral or written, regarding the purchase and
sale of the Property, or which otherwise affect any portion of or all the
Property. The representation contained in this Section 5.21 shall be true at and
as of Closing.
5.22 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.23 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.24 INTENTIONALLY OMITTED PRIOR TO EXECUTION.
5.25 Development Agreements. Seller is in material compliance
with and has fully paid and discharged all obligations arising under any and all
development, tri-party and like agreements, and any and all other agreements
with county, municipal and other governmental and quasi-governmental agencies
and authorities respecting the ownership, development and operation of the
Property and all portions thereof. The representation contained herein shall be
true at and as of Closing.
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5.26 Correct Copies of Documents. Where copies of any
documents have been delivered by Seller to Buyer, whether prior to or pursuant
to this Agreement, such copies: (i) are exact copies of the originals of said
documents, as executed and delivered by all of the parties thereto; (ii) to the
best of Seller's knowledge, constitute, in each case, the entire agreement
between the parties thereto with respect to the subject matter thereof, and the
original instruments in the form delivered to Buyer, are now in full force and
effect, and valid and enforceable in accordance with their respective terms, and
no party thereto is in default, and no claim of default by any party has been
made or is now pending and there does not now exist any default which, after
either the giving of notice or the passing of time, or both, will or may
constitute a default, or would excuse performance by any party thereto; and
(iii) have not been changed or amended except for amendments, if any,
specifically referred to therein.
6. POSSESSION. Possession of the Premises is to be given to Buyer,
subject to the right of tenants under the Leases on the Closing Date, by
delivery of the Deed, and all keys, combinations and security codes at Closing.
7. BUYER'S REVIEW AND APPROVAL OF TITLE AND SURVEY.
7.1 Title Binder. On or before the execution of this
Agreement, Seller shall have made available to Buyer, without representation or
warranty, Seller's most recently dated title commitment for the Property
(complete with copies of all exceptions to title), and Buyer shall order a
current title commitment (the "Title Binder") from the Title Company. Buyer
shall promptly deliver to the Buyer a copy of the Title Binder, together with a
notice of any items disclosed on the Title Binder which is not a Permitted
Exception (a "Title Objection"). If prior to Closing, the Seller can not remove
the Title Objection, the Seller shall have the option of accepting the title to
the Property subject to the Title Objection or of terminating this Agreement, in
which event the Deposit shall be returned to the Buyer and neither party shall
owe any further obligation hereunder to the other. Notwithstanding the
foregoing, at Closing, Seller, so long as such amount does not exceed
$500,000.00 (exclusive of the mortgages currently encumbering the Property),
shall pay all monetary liens, which are not Permitted Exceptions.
7.2 Survey. Seller shall make available to Buyer, if within
Seller's possession, without representation or warranty, within three (3) days
of the date hereof, Seller's most recent survey of Property (the "Survey"),
7.3 Physical and Financial Inspection. For a period (the
"Inspection Period") commencing on the second (2nd) business day next following
the date upon which Buyer shall receive from Seller a fully-executed counterpart
of this Agreement, and expiring on April 15, 1997 (such date is herein referred
to as the "Inspection Period Expiration Date"), Buyer shall have the right to
have performed a physical and mechanical inspection, measurement and audit of
the Property and an inspection of all books and records and financial
information pertaining thereto, and Seller shall cooperate with Buyer and shall
make available to Buyer such information, materials and documents as Buyer may
reasonably request and shall have its accountant available
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throughout such period to assist in Buyer's inspection and review. The
inspection, audit and measurement of the Property's operation, condition and
maintenance shall include, without limitation, such environmental and
engineering inspections, reviews and assessments that Buyer deems appropriate.
If Buyer, at Buyer's sole and absolute discretion, shall find such inspection(s)
to be unsatisfactory for any reason whatsoever, Buyer shall have the right, at
its option, to terminate this Agreement on or before the Inspection Period
Expiration Date, and upon such termination, the Deposit shall be immediately
refunded to the Buyer, and thereupon the parties hereto shall have no further
liabilities one to the other with respect to the subject matter of this
Agreement. Buyer agrees that it shall not unreasonably interfere with tenants in
performing its inspection. If Buyer or its consultants exercises its rights
under the provisions of this subsection, it shall (i) provide Seller with prior
verbal notice of Buyer's entry, (ii) keep the Property free of any liens or
third-party claims resulting therefrom except as may be required by applicable
law; (iii) maintain adequate liability insurance in an amount of not less than
$1,000,000.00 for a single occurrence and $50,000.00 for property damage which
insurance shall name Seller as an additional insured; (iv) indemnify Seller
against any liability or expense for injuries to or death of persons or damage
to property arising from the exercise of the rights hereunder that are not the
result of any act or omission of Seller or Seller's agents, employees or
contractors and (v) if Closing does not occur for any reason restore as nearly
as practicable the Property substantially to its condition immediately before
such exercise. The indemnification and restoration provisions of this subsection
shall survive the termination of this Agreement. In connection with such
inspection, Seller shall make available at the Property, or at the Seller's
management offices, without representation, or warranty, except as specifically
set forth herein, and to the extent the same are in the Seller's possession, the
following:
7.3.1 Leases. All Leases for the Property as of the
date hereof;
7.3.2 Contracts, and Licenses. Copies of the Contract
Documents, the Licenses, any certificates of occupancy, insurance policies
applicable to the Property and any other documents evidencing rights described
in Section 1.2 hereof;
7.3.3 Tax Bills. A copy of tax bills (i) for the
current year, and (ii) if available, for the preceding two years;
7.3.4 Operating Statements. Statements of operation
of the Property for the past year;
7.3.5 Notices of Violations. Copies of any
uncorrected written notices of violations of any law, ordinance, regulation,
rule or requirement of any governmental body having jurisdiction;
7.3.6 Takings or Changes. Copies of all written
notices to Seller of proposed or threatened takings or changes with respect to
the Property;
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7.3.7 Tax Assessments, Appeals and Increases. Copies
of all written notices to Seller of all filed, proposed or threatened tax
assessment appeals or tax assessment increases related to the Premises;
7.3.8 Litigation. Copies of all pending and written
notices to Seller of threatened litigation, including litigation involving
tenants, affecting the Property or this transaction;
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer shall survive Closing and delivery of
the Deed for the statute of limitations pertaining thereto. The representations
and warranties of Seller set forth in Sections 5.1, 5.2, 5.6, 5.8 (i), 5.11,
5.16, and 5.21 shall survive Closing and delivery of the Deed for the applicable
period of the statute of limitations pertaining thereto. The representation and
warranties of Seller set forth in Sections 5.3, 5.5, 5.8(ii), 5.19, 5.20, 5.25,
and 5.26 shall survive Closing and delivery of the Deed for six (6) months from
Closing. The representations and warranties of Seller set forth in Section 5.7
shall survive Closing and delivery of the Deed for three (3) months from
Closing. The remaining representations and warranties shall not survive Closing
and delivery of the Deed. Notwithstanding anything contained in this Agreement
to the contrary, except as expressly set forth in this Agreement, Seller makes
no representation, either prior to or at the Closing, with respect to the
condition or character of the Property or the use or uses to which the Property
may be put. Buyer acknowledges that Buyer has or will carefully and thoroughly
examine, inspect and investigate the Property, and the Seller's operations (as
to manner, income and expenses), and Buyer is or will be fully satisfied with
the same upon completion of the inspections and examinations; and Buyer is
purchasing the same on the basis of such examination, inspection and
investigation and not in reliance on any representation or warranty of Seller or
any agent, employee or representative of Seller of any kind or nature whatsoever
except as specifically set forth herein. Accordingly, Buyer hereby agrees to
accept all of the assets being acquired by Buyer hereunder, whether realty,
personalty or mixed, on an absolutely and unconditionally "as is" basis at the
time of Closing. Notwithstanding the time period for survival with respect to
Section 5.7, if prior to the expiration of such period, Seller delivers to Buyer
an estoppel certificate on Buyer's prescribed form, which certificate confirms
Seller's representations under Section 5.7 of this Agreement, Seller shall be
released from all liability with respect to its representations as they pertain
to such tenancy.
9. FIRE OR OTHER CASUALTY.
9.1 Maintain Insurance. Seller shall maintain in effect until
the Closing Date the insurance policies (or like policies) now in effect with
respect to the Premises and Personal Property as set forth in Exhibit F".
9.2 Minimal Damage. If prior to the Closing Date any portion
of the Property is damaged or destroyed by fire or other casualty, and the cost
of repair or restoration thereof
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shall be $250,000 or less (as established by good faith estimates obtained by
Buyer), this Agreement shall remain in force.
9.3 Substantial Damage. If prior to the Closing Date any
portion of the Property is damaged or destroyed by fire or other casualty, and
the cost of repair or restoration thereof shall be more than $250,000 (as
established by good faith estimates obtained by Buyer), Buyer may terminate this
Agreement by giving written notice thereof to Seller ("Buyer's Notice of
Election"), and if this Agreement is so terminated, then the Deposit shall be
immediately refunded to Buyer, and thereafter neither party shall have any
further liability hereunder thereafter. If Buyer does not so terminate this
Agreement, it shall remain in full force and effect, and the provisions of
Section 9.4 below shall apply.
9.4 Closing After Substantial Damage. So long as this
Agreement shall remain in force under Section 9.2 or 9.3, then (i) all proceeds
of insurance collected prior to Closing, plus the amount of deductible under
Seller's insurance policy, shall be adjusted subject to Buyer's approval and
participation in any adjustment, and shall be credited to Buyer against the
Purchase Price payable by Buyer at Closing, and (ii) all unpaid claims and
rights in connection with losses shall be assigned to Buyer at Closing.
9.5 Rent Insurance. All rental loss insurance and the proceeds
thereof allocable to any period subsequent to Closing shall be paid or assigned
to Buyer at Closing.
10. CONDEMNATION. If, prior to the Closing Date, all or any material
portion of the Premises (being any taking affecting the building or any other
taking involving 10% or more of the Premises or the parking area) is taken by
eminent domain or a notice of any eminent domain proceedings with respect to the
Premises or any part thereof is received by the Seller, then Seller shall within
five (5) days thereafter give notice thereof to Buyer and Buyer shall have the
option to (a) complete the purchase hereunder or (b) if such taking, in Buyer's
sole and absolute discretion, adversely affects the Premises or its current
economic viability, terminate this Agreement, in which event the Deposit shall
be immediately refunded to Buyer, and this Agreement shall be null and void.
Buyer shall deliver written notice of its election to the Seller within two (2)
days after the date upon which the Buyer receives written notice of such eminent
domain proceedings. If notice of condemnation is received by Buyer and it fails
to deliver said written notice of its election within said time period, such
failure shall constitute a waiver by Buyer of its right to terminate this
Agreement. If this Agreement is not so terminated, Buyer shall be entitled to
all awards or damages by reason of any exercise of the power of eminent domain
or condemnation with respect to or for the taking of the Premises or any portion
thereof, and until such time as closing has occurred, or this Agreement
terminates. Any negotiation for, or agreement to, and all contests of any offers
and awards relating to eminent domain proceedings shall be conducted with the
joint approval and consent of the Seller and the Buyer.
11. Expense Allocations.
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11.1 Seller shall pay for all applicable realty transfer taxes
related to the execution, delivery and recording of the Deed, Bill of Sale, and
other Closing Documents, and all related recording charges.
11.2 Subject to Section 13.3, Buyer shall pay for Buyer's
title examination for Buyer's title examination and premiums and for Buyer's due
diligence expenses, including survey, structural analysis and environmental
analysis.
11.3 Buyer and Seller shall be responsible for paying their
own attorney's fees in connection with this transaction.
12. CLOSING.
12.1 Time and Date and Place. The Closing on the sale of the
Property (herein referred to as the "Closing") shall take place on April 18,
1997, at the offices of Pepper, Hamilton & Scheetz LLP, Suite 500, 457
Haddonfield Road, Cherry Hill, New Jersey. Time is of the essence.
12.2 Documents. At Closing, the parties indicated shall
simultaneously execute and deliver the following:
12.2.1 Seller's Documents and Other Items. Seller
shall execute and deliver or cause to be executed and delivered to Buyer in
proper form for recording:
12.2.1.1 Deed. A bargain and sale deed with
covenants against grantor's acts prepared by Buyer's counsel in form acceptable
to Seller (the "Deed"), conveying the Premises to Buyer, duly executed by Seller
for recording. The Deed description shall be based upon the metes and bounds
description attached as Exhibit "A",; in addition, if Buyer requests that Seller
convey the Premises by the metes and bounds description shown on the new survey,
if any, obtained by Buyer, Seller covenants to execute a Quit Claim Deed for
such new description.
12.2.1.2 Bill of Sale. A bill of sale
prepared by Buyer's counsel in form acceptable to Seller, assigning, conveying
and transferring to Buyer, all of the Personal Property, without representation
or warranty.
12.2.1.3 Original Leases. All original
Leases, tenant files, tenant correspondence and repair records.
12.2.1.4 Original Licenses, Contract
Documents and Other Personal Property. All original Licenses, Contract
Documents, and other Personal Property described in Section 1.2 of this
Agreement, to the extent same are in the Seller's possession.
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12.2.1.5 Assignment of Leases. An assignment
and assumption agreement with reciprocal indemnities, prepared by Buyer's
counsel in form acceptable to Seller (the "Assignment"), duly executed by Seller
and Buyer, assigning, conveying and transferring to Buyer the Leases.
12.2.1.6 Assignment of Licenses, Contract
Documents and Other Personal Property. An assignment agreement prepared by
Buyer's counsel, in form acceptable to Seller, assigning, conveying and
transferring to Buyer, to the extent the same are assignable the Licenses,
Contracts Documents and Other Personal Property, including, specifically, the
Names, without representation or warranty.
12.2.1.7 FIRPTA Certificates. All
certificate(s) required under Section 1445 of the Code.
12.2.1.8 Tenant Letter. Letters to each
tenant advising of the change in ownership and directing the payment of rent to
such party as the Buyer shall designate, said letter to be in form acceptable to
Buyer.
12.2.1.9 Estoppel Certificates. An Estoppel
Certificate in the form delivered to Seller and attached hereto as Exhibit
12.2.1.9, dated within ten (10) days of the Closing Date from McKay Corporation
and ADP Financial, Inc.
12.2.1.10 Title Insurance Certificates. Such
affidavits of title or other certifications as shall be required by the Title
Company to insure Buyer's title to the Premises as set forth in Section 3, and
to provide affirmative endorsements (a) against construction liens, (b) and
parties in possession other than tenants under the Leases.
12.2.1.11 Updated Rent Roll. An updated
schedule of Tenant Leases, containing all information required to be set forth
in Exhibit "D", which schedule is correct and complete as of the date of
Closing.
12.2.1.12 Seller Certificate. A written
certification confirming that as of Closing the representations and warranties
which are required to be true at and as of Closing, are true at and as of
Closing.
12.2.1.13 Organization Certifications.
Confirmation of the good standing and existence of Seller and the due authority
of those executing for them, including, without limitation, the following
documents issued no earlier than 30 days prior to Closing: (a) good standing
certificate in state of organization and in the State in which the Property is
located, and (b) partnership agreement.
12.2.1.14 Keys. All keys, combinations and
security codes for all locks and security devices on the Property;
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12.2.1.15 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.16 INTENTIONALLY OMITTED PRIOR TO
EXECUTION.
12.2.1.17 ISRA Non-Applicability Letter. A
written non- applicability letter issued within 30 days prior to Closing by the
New Jersey Department of Environmental Protection stating that the transaction
and the Property is not subject to ISRA.
12.2.2 Buyer's Documents. Buyer shall deliver or
cause to be delivered to Seller:
12.2.2.1 The amounts required to be paid to
Seller pursuant to this Agreement;
12.2.2.2 Confirmation of the existence and
subsistence of Buyer, and the authority of those executing for Buyer, including,
without limitation, the following documents issued no earlier than thirty (30)
days prior to Closing: (a) good standing certificate in State of Maryland, (b)
Buyer's Amendment and Restatement of Declaration of Trust filed on August 27,
1996, as amended, (c) a certificate from any officer of Buyer confirming the
incumbency of the signatories and the current force and effect of the resolution
authorizing their execution of the documents required under this Agreement.
12.2.3 Title Insurance. As a condition to Buyer's
obligations at Closing, Title Company shall furnish Buyer at Closing with the
Title Policy, in the form approved by Buyer pursuant to Section 3, in the full
amount of the Purchase Price, wherein the Title Company shall insure fee simple
title to the Property in Buyer or its designee as of the Closing Date containing
no exceptions to title other than the Permitted Exceptions and those which have
been approved by Buyer pursuant to the provisions of this Agreement and
providing the title endorsements specified in Section 12.2.1.10 above.
12.2.4 Necessary Documents. Buyer and Seller shall
execute and deliver such other documents and instruments as may be reasonably
necessary to complete the transaction contemplated by this Agreement.
13. DEFAULT; REMEDIES
13.1 Prior to title passing and the completion of
Closing, in the event of Seller's default hereunder, Buyer's sole remedies shall
be that of (i) specific performance without abatement of the Purchase Price or
(ii) termination of this Agreement and return of the Deposit. In no event shall
Buyer be entitled to damages of any kind or nature;
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13.2 Prior to title passing and completion of
Closing, with respect to any representations or warranties of Seller contained
in this Agreement, Buyer's obligations hereunder are contingent upon such
representations and/or warranties contained in this Agreement being true and
correct as of the date hereof and where the context indicates, as of the date of
Closing, but recision of this Agreement and return of the Deposit, shall be
Buyer's exclusive remedy for any breach of any representation and/or warranty by
Seller.
13.3 Notwithstanding the foregoing, in the event of a
willful or intentional breach of a covenant, obligation or warranty by Seller
under this Agreement or if Seller makes a willful or intentional material
misrepresentation in this Agreement, Buyer shall be entitled to terminate this
Agreement and to the return of the Deposit and Buyer's reasonably documented
Transaction Costs sustained by Buyer in connection with this Agreement; and the
foregoing shall be Buyer's sole remedies under this subparagraph.
13.4 Subsequent to title passing and completion of
Closing, Buyer shall have recourse against Seller for its reasonably documented
actual damages, sustained solely for Seller's breach of representations and
warranties which survive Closing, which breach is discovered by Buyer after
Closing; the right to pursue said recourse shall expire and terminate, as to any
right on which action has not then been initiated, at the expiration of the
survival periods set forth herein.
13.5 Buyer recognizes that the Property will be
removed by Seller from the market during the existence of this Agreement and
that if this purchase and sale is not consummated because of Buyer's default
Seller shall be entitled to compensation for such detriment. Seller and Buyer
acknowledge that it is extremely difficult and impracticable ascertain the
extent of the detriment, and to avoid this problem, Seller and Buyer agree that
if the purchase and sale contemplated in this Agreement is not consummated
because of Buyer's default under this Agreement, Seller shall be entitled to
retain the Deposit (whether or not same has theretofore been paid) as its sole
and liquidated damages. The parties agree that the sum stated above as
liquidated damages shall be in lieu of any other relief to which Seller might
otherwise be entitled, Seller hereby specifically waiving any and all rights
which it may have to damages or specific performance as a result of Buyer's
default under this Agreement.
13.6 Buyer's Out-of-Pocket Costs. In the event of
Seller's breach or default in accordance with Section 13.3 then, in any such
event, upon termination by Buyer hereunder, in addition to receiving the
immediate return of the Deposit, anything in the Agreement contained to the
contrary notwithstanding, Buyer shall also receive from Seller, upon demand,
Buyer's actual, documented out-of-pocket costs and expenses associated with this
Agreement and Buyer's anticipated acquisition of the Property including, without
limitation, Buyer's reasonable counsel fees and costs, title expenses, survey
costs, financial and accounting due diligence, Buyer's structural inspection of
the Property and Buyer's environmental assessment of the Property, and other
costs and expenses associated with Buyer's due diligence, (collectively,
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"Transaction Costs"). The foregoing list is not intended to be exclusive, but
representative of the costs and expenses that the parties anticipate that Buyer
will incur in anticipation of this transaction. Seller's maximum reimbursement
liability under this Section 13 shall not exceed $15,000.
14. CONDITIONS PRECEDENT TO CLOSING.
The obligations of Buyer 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 Buyer at or prior to the Closing)
and in the event any of the conditions are not complied with, Buyer may
terminate this Agreement by notifying the Seller and Escrow Agent and thereupon
shall be returned the Deposit and thereafter this Agreement shall be null and
void:
14.1 Correctness of Warranties and Representations. The
warranties and representations made by Seller which specifically are required to
be true and correct at and as of Closing shall be true and correct on the
Closing Date in all material respects as though such representations and
warranties were made on the Closing Date except that (i) variations which occur
in the ordinary course of Seller's business, (ii) variations disclosed in
writing to Buyer prior to Closing, or (iii) any matter or occurrence discovered
by the Buyer prior to Closing shall not be construed as a failure of the
condition set forth in this Section 14.1.
14.2 Compliance with Terms and Conditions. Seller shall have
performed and complied in all respects with all of the terms and conditions
required by this Agreement to be performed and complied with by it prior to or
on the Closing Date, including delivery of all of the Seller Documents.
14.3 No Willful Default. There shall have been no willful or
intentional breach of a covenant, representation or obligation by the sellers
under either of the Agreements of Sale listed on Exhibit "G" (the "Greentree
Agreements") attached hereto and made a part hereof, which willful or
intentional breach results in the termination of either or both of the Greentree
Agreements, provided that in such event, the Buyer's remedy hereunder, shall be
expressly limited to recision of this Agreement and a return of the Deposit.
15. PRORATIONS.
15.1 Operating Expenses. The following items shall be prorated
at Closing, as of close of business of the day immediately preceding Closing
"Adjustment Date":
15.1.1 Rents. All current collected rent, additional
rent, percentage rent (if any) and all other charges collected under the Leases
shall be apportioned on the Closing Date pro rata on a per diem basis. If any
tenant is in arrears in the payment of rent or additional rent on
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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
Buyer, so long as such tenant is in arrears for current or prior rent arising
after Closing, then (b) to Seller for all rent in arrears prior to the Closing
Date; and then (c) to Buyer with no further claim by Seller thereto. Except as
herein provided, Buyer is not under any obligation to collect rents in arrears
for the benefit of Seller. Any rents which are delinquent or otherwise not paid
at the time of Closing, and collected by Buyer within ninety (90) days after
Closing shall be apportioned as aforesaid and the portion to which Seller is
entitled shall be promptly remitted by Buyer to Seller. Seller shall have no
claim to rents collected ninety (90) days after the Closing Date.
15.1.2 Taxes. Real estate and personal property
taxes, if any, on the basis of the fiscal year for which assessed. If the
Closing shall occur before the tax rate or assessment is fixed, the
apportionment of such real estate and personal property taxes at the Closing
shall be upon the basis of the tax rate for the next preceding year applied to
the latest assessed valuation. Final adjustment will be made upon the actual tax
amount, when determined.
15.1.3 Deposits. Tax and utility company deposits, if
any.
15.1.4 Water and Sewer Charges. Water and sewer
charges and fire protection and inspection services based upon meter readings to
be obtained by Seller effective as of the Adjustment Date, or if not so
obtainable, a date not more than ten (10) days prior to the Adjustment Date, and
the unfixed meter charges based thereon for the intervening period shall be
apportioned on the basis of such last reading. Upon the taking of a subsequent
actual reading, such apportionment shall be readjusted and Seller or Buyer, as
the case may be, will promptly deliver to the other the amount determined to be
so due upon such readjustment. If Seller is unable to furnish such prior
reading, any reading subsequent to the Closing will be apportioned on a per diem
basis from the date of such reading immediately prior thereto and Seller shall
pay the proportionate charges due up to the date of Closing.
15.1.5 Assigned Contracts. Amounts paid or payable in
respect of any service and maintenance contracts assigned to Buyer in accordance
herewith.
15.1.6 Electricity, gas, steam and fuel. Electricity,
gas and steam and fuel oil, if any, based on meter readings or a fuel company
letter showing measurement on the day immediately preceding Closing, and valued
at current prices.
15.1.7 Security Deposits. Buyer shall receive a check
from Seller for the full amount of any security deposits, with accrued interest,
or a credit against the Purchase Price in said amount.
15.2 Custom and Practice. Except as set forth in this
Agreement, the customs of the State and County in which the Premises are located
shall govern prorations.
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15.3 Future Installments of Taxes. If at Closing, the Property
or any part thereof shall be or shall have been affected by an assessment or
assessments which are or may become payable in installments, then for purposes
of this Agreement, all unpaid installments of any such assessment, including
those which are to become due and payable after Closing shall be assumed by the
Buyer from and after Closing.
15.4 Application of Prorations. If such prorations result in a
payment due Buyer, the cash payable at Closing shall be reduced by such sum. If
such prorations result in a payment due Seller, the same shall be paid by wire
transfer of immediately available funds at Closing.
15.5 Schedule of Prorations. The parties shall endeavor to
jointly prepare a schedule of prorations for the Property no less than five (5)
days prior to Closing.
15.6 Escalations. With respect to any sums due under leases
for operating expenses incurred by the Seller in excess of that billed and
collected by Seller for the calendar year 1996 (the "1996 Expense Escalations"),
the Seller shall after Closing provide to each tenant a statement of the amount
of the 1996 Expense Escalations due from such Tenant, and Seller shall be
entitled to retain the entire amount of such sum, notwithstanding anything
contained in this Section 15 to the contrary. Any 1996 Expense Escalations paid
to the Buyer after Closing shall be immediately remitted to the Seller. With
respect to any sums due under leases for operating expenses incurred by the
Seller in excess of that billed and collected by Seller during 1997 (the "1997
Expense Escalations"), at the time that the Buyer bills and collects the 1997
Expense Escalations, the Buyer shall reimburse the Seller for the actual amount
incurred by Seller for 1997 in excess of that billed and paid by tenants during
1997.
15.7 Readjustments. The parties shall correct any errors in
prorations as soon after the Closing as amounts are finally determined.
16. BROKERS. Each party hereby represents and warrants to the other
that it has not employed or retained any broker or finder in connection with the
transactions contemplated by this Agreement and that neither has had any
dealings with any other person or party which may entitle that person or party
to a fee or commission. Each party shall indemnify the other of and from any
claims for commissions by any person or party claiming such commission by or
through the indemnifying party.
17. ESCROW AGENT. The parties hereto have requested that the Deposit be
held in escrow by the Escrow Agent to be applied at the Closing or prior thereto
in accordance with this Agreement. The Escrow Agent will deliver the Deposit to
Seller or to Buyer, as the case may be under the following conditions:
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17.1 Payment to Seller. To Seller on the Closing Date upon the
consummation of Closing;
17.2 Notice of Dispute. If either Seller or Buyer believes
that it is entitled to the Deposit or any part thereof, it shall make written
demand therefor upon the Escrow Agent. The Escrow Agent shall promptly mail a
copy thereof to the other party in the manner specified in Section 18.1 below.
The other party shall have the right to object to the delivery of the Deposit,
by filing written notice of such objections with the Escrow Agent at any time
within ten (10) days after the mailing of such copy to it in the manner
specified in Section 18.1 below, but not thereafter. Such notice shall set forth
the basis for objection to the delivery of the Deposit. Upon receipt of such
notice, the Escrow Agent shall promptly deliver a copy thereof to the party who
filed the written demand.
17.3 Escrow Subject to Dispute. In the event the Escrow Agent
shall have received the notice of objection provided for in 17.2 above of this
Section, in the manner and within the time therein prescribed, the Escrow Agent
shall continue to hold the Deposit until (i) the Escrow Agent receives written
notice from both Seller and Buyer directing the disbursement of the Deposit in
which case the Escrow Agent shall then disburse said Deposit in accordance with
said direction, or (ii) litigation arises between Seller and Buyer, in which
event the Escrow Agent shall deposit the Deposit with the Clerk of the Court in
which said litigation is pending, or (iii) the Escrow Agent takes such
affirmative steps as the Escrow Agent may, at the Escrow Agent's option elect in
order to terminate the Escrow Agent's duties including, but not limited to,
deposit in Court and an action for interpleader.
17.4 Escrow Agent's Rights and Liabilities. Escrow Agent shall
not be required to determine questions of fact or law, and may act upon any
instrument or other writing believed by it in good faith to be genuine and to be
signed and presented by the proper person, and shall not be liable in connection
with the performance of any duties imposed upon Escrow Agent by the provisions
of this Agreement, except for Escrow Agent's own willful default or gross
negligence. Escrow Agent shall have no duties or responsibilities except those
set forth herein. Escrow Agent shall not be bound by any modification of this
Agreement, unless the same is in writing and signed by Buyer and Seller, and, if
Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have
given prior written consent thereto. In the event that Escrow Agent shall be
uncertain as to Escrow Agent's duties or rights hereunder, or shall receive
instructions from Buyer or Seller which, in Escrow Agent's opinion, are in
conflict with any of the provisions hereof, Escrow Agent shall be entitled to
hold and apply the Deposit, pursuant to Section 17.3, and may decline to take
any other action.
18. GENERAL PROVISIONS.
18.1 Notices. All notices or other communications required or
permitted to be given under the terms of this Agreement shall be in writing, and
shall be deemed effective when (i) personally delivered (ii) sent by
nationally-recognized overnight courier, (iii) facsimile with
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original following by regular mail, or (iv) deposited in the United States mail
and sent by certified mail, postage prepaid, addressed as follows:
18.1.1 If to Buyer, addressed to:
Brandywine Realty Trust
Newtown Square Corporate Campus
16 Campus Boulevard
Suite 150
Newtown Square, PA 19073
Attn: Gerard H. Sweeney,
President and Chief Executive Officer
with a copy in each instance to:
Brad A. Molotsky, Esquire
Pepper, Hamilton & Scheetz LLP
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103
18.1.2 If to Seller, addressed to:
LAKN Marlton Associates, L.P.
c/o Needleman Management Co., Inc.
1060 N. Kings Highway
Suite 250
Cherry Hill, NJ 08034
with a copy in each instance to:
Jack Weiner, Esquire
Feinman & Bock
---------------------------------
Philadelphia, Pennsylvania 19103
18.1.3 If to Escrow Agent, addressed to:
M. Gordon Daniels
Commonwealth Land Title Insurance Company
1700 Market Street
Philadelphia, PA
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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.
18.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
18.3 Entire Agreement. All Exhibits attached to this Agreement
are incorporated herein and made a part hereof. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
negotiations, understandings and agreements of any nature whatsoever with
respect to the subject matter hereof. This Agreement may not be modified or
amended other than by an agreement in writing. The captions included in this
Agreement are for convenience only and in no way define, describe or limit the
scope or intent of the terms of this Agreement.
18.4 Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey.
18.5 No Recording. This Agreement shall not be recorded in the
Clerk's Office for Burlington County or in any other office or place of public
record.
18.6 Tender. Tender of Deed by Seller and of the Purchase
Price by Buyer, are hereby mutually waived.
18.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
18.8 Further Instruments. Seller will, whenever and as often
as it shall be reasonably request so to do by Buyer, and Buyer will, whenever
and as often as it shall be reasonably requested so to do by Seller, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all conveyances, assignments, correction instruments and all other
instruments and documents as may be reasonably necessary in order to complete
the transaction provided for in this Agreement and to carry out the intent and
purposes of this Agreement. All such instruments and documents shall be
satisfactory to the respective attorneys for Buyer and Seller. The provisions of
this Article shall survive the Closing.
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18.9 Time. Time is of the essence. In the event the last day
permitted for the performance of any act required or permitted under this
Agreement falls on a Saturday, Sunday, or legal holiday of the United States or
the State of New Jersey, the time for such performance will be extended to the
next succeeding business day. Time periods under this Agreement will exclude the
first day and include the last day of such time period.
18.10 Designation of Nominee; Assignment of Agreement. Buyer
shall have the right to designate one or more of its subsidiaries or affiliate
entities to acquire title to the Premises hereunder.
18.11 Effective Date. Whenever the term or phrase "effective
date hereof" or "date hereof" or other similar phrases describing the date this
Agreement becomes binding on Seller and Buyer are used in this Agreement, such
terms or phrases shall mean and refer to the date on which a counterpart or
counterparts of this Agreement executed by Seller and Buyer.
18.12 Confidentiality. Each of the parties hereto covenants
and agrees to hold the nature and content of this Agreement, including without
limitation, the Purchase Price contained herein, in strict confidence, and other
than disclosure required by the SEC and except as may be necessary to comply
with this Agreement, neither party shall disclose the nature, content or the
Purchase Price of this Agreement without the express written consent of the
other party.
19. SEC REPORTING (8-K) REQUIREMENTS.
For the period of time commencing on the date hereof and
continuing through the first anniversary of the Closing Date, and without
limitation of other document production otherwise required of Seller hereunder,
Seller shall, from time to time, upon reasonable advance written notice from
Buyer, provide Buyer and its representatives, with (I) access to all financial
and other information pertaining to the period of Seller's ownership and
operation of the Property, which information is relevant and reasonably
necessary, in the opinion of Buyer's outside, third party accountants (the
"Accountants"), to enable Buyer and its Accountants to prepare financial
statements in compliance with any or all of (a) Rule 3-05 or 3-14 of Regulation
S-X of the Securities and Exchange Commission (the "Commission"), as applicable;
(b) any other rule issued by the Commission and applicable to Buyer; and (c) any
registration statement, report or disclosure statement filed with the Commission
by, or on behalf of Buyer; and (II) a representation letter, indicating (if such
be the case) that to the knowledge of the Seller, (i) although the financial
statements provided to the Buyer for the year ended 1996, in accordance with
this Section 19 are unaudited, and do not constitute full disclosure required by
generally accepted accounting principles, the net operating income of the Seller
set forth on such financial statement is in accordance with generally accepted
accounting principles, but the financial statements may not satisfy those
principles, and (ii) the Seller has made available to the Buyer all financial
records and related data requested by the Buyer.
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20. INTENTIONALLY OMITTED PRIOR TO EXECUTION.
21. EXCULPATION.
No recourse shall be had for any obligation of Brandywine
Realty Trust under this Agreement or under any document executed in connection
herewith or pursuant hereto, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, shareholder,
officer or employee of Brandywine Realty Trust, whether by virtue of any statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being expressly waived and released by the Seller and all
parties claiming by, through or under Seller.
22. Tax Deferred Exchange. The Seller intends to effectuate a
"like-kind exchange" pursuant to Section 1031 of the Internal Revenue Code, and
to utilize the Property as "Relinquished Property" and the sale thereof in
connection with such like-kind exchange. The Buyer shall fully cooperate with
Seller in effectuating any like-kind exchange, including, execution of exchange
documentation with a "qualified intermediary" who may take title to the
Replacement Property or other real property ("Replacement Parcel") identified by
the Seller provided that nothing herein contained is intended to require the
Buyer to close title to any Replacement Parcel. Seller's effectuation of a
like-kind exchange prior to any closing shall not be a condition or contingency
to the Seller's obligations hereunder. Seller shall be responsible for all costs
and expenses incurred in connection with the effectuation of a like-kind
exchange over and above those Buyer would incur in a straight purchase/sale.
Seller shall indemnify and hold harmless Buyer from any and all losses, costs,
expenses and damages associated with Buyer's participation in the exchange
transaction. The Property subject to this Agreement constitute Relinquished
Property in the Internal Revenue Code
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Section 1031 exchange.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
LAKN MARLTON ASSOCIATES, L.P. BRANDYWINE REALTY TRUST,
a New Jersey Limited Partnership a Maryland Real Estate Investment Trust
By: /s/ Howard E. Needleman By: /s/ Gerard H. Sweeney
----------------------------- ---------------------------------
Name: Gerard H. Sweeney, President and
Chief Executive Officer
JOINDER:
Howard Needleman and Ira Lubert (the "Guarantors"), hereby specifically
join in this Agreement for the sole purpose of guarantying the accuracy of the
representation and warranty contained in Section 5.7 of this Agreement. The
Guarantors shall indemnify, defend and save the Buyer harmless from any loss,
cost, damage and expense actually incurred by the Buyer after the Closing as a
result of a breach of any of the representations and warranties contained in
Section 5.7 of the Agreement, provided that (i) the Guarantors shall have no
liability hereunder unless and until the Buyer's losses as a result of such a
breach exceeds $5,000.00; (ii) the Guarantors' liability hereunder shall
terminate and be of no further effect with respect to any claim not made within
three months from the date of Closing; and (iii) with respect to any tenant for
which, Seller delivers to Buyer an estoppel certificate on Buyer's prescribed
form, which certificate confirms Seller's representations under Section 5.7 of
this Agreement, Seller shall be released from all liability with respect to its
representations as they pertain to such tenancy.
/s/ Howard E. Needleman
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HOWARD E. NEEDLEMAN
/s/ Ira Lubert
-------------------------------
IRA LUBERT
Agreed to by Escrow Agent with regard to the obligations, terms, covenants and
conditions contained in this Agreement relating to Escrow Agent.
By: /s/ M. Gordon Daniels
-----------------------
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AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") made the 18 day of February, 1997 by and
between Horsham Valley, Inc. a Pennsylvania Corporation having an address at 130
Buck Road, Suite 201, Holland, PA 18966,("Seller") and Brandywine Operating
Partnership, L.P., a Delaware limited partnership, having an address at 16
Campus Boulevard, Newtown Square, PA 19073("Buyer"), whereby the parties intend
to be legally bound.
WITNESSETH:
1. Sale. Seller agrees to sell and convey (or cause to be sold and conveyed) to
Buyer, and Buyer agrees to purchase from Seller, under the conditions
hereinafter set forth, all that certain 6.763 acre lot, tract or parcel of land
together with improvements located thereon, located in Horsham Business Center
in Horsham Township, Montgomery County, Pennsylvania, said parcel being known as
Parcel 8 Horsham Business Center and is more particularly described on Exhibit
"A" attached hereto, together with the easements, rights and privileges
appurtenant thereto (all of which are herein referred to as the "Property").
2. Purchase Price. Buyer agrees to pay to Seller, and Seller agrees to accept
from Buyer at Settlement hereunder, the sum of (a) Six Hundred and Forty Five
Thousand Two Hundred and Eighty Four ($645,284.00) Dollars by bank cashiers,
title company or certified check or by wire transfer of said funds and (b) a
Promissory Note in the form attached hereto in the amount of Three Hundred and
Sixty Nine Thousand One Hundred and Sixty Six ($369,166.00) Dollars to be paid
as provided therein upon the earlier to occur of (1) the first anniversary of
the date of Settlement hereunder or (2) the issuance by the Township of Horsham
of a building permit in connection with the construction of Phase II (the second
building) of the development of the Property as contemplated by Buyer.
The Purchase Price shall be "net" to Seller in that all
closing costs, transfer taxes, recording fees and title charges shall be the
Buyer's responsibility.
3. Settlement. Settlement ("Settlement") shall (subject to the following
paragraph) be held at Buyer's offices on or about March 1, 1997. Buyer shall
advise Seller in writing as to the time and date of Settlement. If the date for
Settlement should fall on a weekend or holiday, settlement shall take place on
the first business day thereafter.
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Investigation by Buyer. Buyer acknowledges that the Property is to be
purchased by Buyer in its "AS IS" condition and the Seller desires to provide
Buyer with a Contingency period during which time Buyer may conduct, at its sole
expense with no reimbursement by Seller, an investigation of the Property to
determine its feasibility for the use contemplated by Buyer, such investigation
to include (a) status of title, (b) ability of Buyer to obtain preliminary site
plan approval for a one story 30,000 square foot building, availability of
water/sewer and fire protection, (d) engineering and environmental evaluation of
the Property and the written approval of Buyer's Board of Directors.
Accordingly, the parties agree that Buyer shall have until ten (10) days after
the date hereof within which to determine if it is satisfied with the
investigation ("Contingency Period"). Buyer may terminate this Agreement by
written notice of termination delivered to Seller prior to the expiration of the
Contingency Period if for any reason Buyer is not satisfied with the
investigation of the Property. Failure to so notify Seller shall be deemed to
mean that Buyer is satisfied with the Property. If Buyer terminates the
Agreement as herein provided prior to the end of the Contingency Period, neither
party shall have any further rights against or obligations to the other.
Property Information. Promptly after execution hereof Seller shall
deliver to Buyer whatever of the following Buyer may have in its possession:
title reports, easements, tax bills/assessment notices and any other agreements,
applications or reports relating to Property.
Right of Entry. Seller hereby grants to Buyer, its officers, agents and
engineers, the right at any time during the Contingency Period to enter into and
upon the Property for the purpose of inspecting the same in order to satisfy
itself as to the environmental and other physical conditions of the Property.
Buyer hereby indemnifies and agrees to hold Seller harmless and to defend Seller
from any claim, lien, liability, damage, loss, demand, action or cause of
action, costs and expenses arising out of or in any way connected with any entry
upon the Property pursuant to the terms of this Paragraph.
4. Apportionments. Seller shall be responsible for and pay all utility bills
and all other expenses of any business operations on the Property through the
date of Settlement as well as for all real estate taxes, water and sewer rents
and similar charges against the Property for the periods preceding the year in
which Settlement occurs. At the time of Settlement, real estate taxes, water and
sewer charges, if any, for the current year, if any, and all other apportionable
charges and expenses, shall be apportioned between Buyer and Seller to the day
of Settlement. In the case of real estate taxes, such apportionments are to be
based on the period for which such taxes are assessed as due and payable; that
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is, either on a calendar or fiscal year. All apportionments shall be based upon
a thirty (30) day month. The transfer taxes due on the sale shall be paid by the
Buyer as aforesaid.
5. Seller's Representation and Warranties. Seller represents and warrants to
Buyer that as of the date of this Agreement:
(a) Seller is the owner in fee simple of the Property, has good and
marketable title to the Property free of any leases or other encumbrances, and
has the authority to convey to Buyer the Property.
(b) There are no service, maintenance or management agreements with
respect to or affecting the Property.
(c) Seller has received no notice of any violations of any federal,
state or local law, including without limitation, any occupational, safety,
health, or environmental statute, act or any regulations promulgated thereunder
with respect to the Property.
(d) Sellers has no actual knowledge, without any independent
investigation,;
(i) of any underground storage tanks or any TCEs or other
hazardous or toxic materials, substances, pollutants,
contaminants or wastes present in the soil, subsoil, or
groundwater of or on the Property, or that they have been
deposited, discharged, placed or disposed of at, on or near
the Property;
(ii) of any asbestos, ureaformaldehyde, lead paint or any termites
or similar destructive insects, or "PCBs" present in the
improvements on the Property, any substance containing any
such materials present on the Property in contravention of any
applicable federal, state or local laws, rules or regulations;
(iii) of any governmental investigation or inquiry from any
governmental authority regarding the disposal of wastewater at
or from the Property; and
(iv) of any substance deemed hazardous by federal, state or local
laws, rules or regulations affecting the Property and/or the
improvements thereon.
(e) All taxes currently due and payable with respect to the Property
have been paid or will be paid prior to Settlement; the Property constitutes a
separate tax parcel and is separately assessed for real estate tax purposes.
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(f) Seller has not received any notice of condemnation proceeding or
other proceedings in the nature of eminent domain ("Taking") in connection with
the Property, and to Seller's knowledge no Taking has been threatened.
(g) All contractors, subcontractors and other persons or entities who
furnished work, labor, materials or supplies for the development and
construction of the Property have been paid in full and to best of Seller's
knowledge there are no claims against the Seller or the Property in connection
therewith.
(h) To the best of Seller's knowledge the description of the Property
contained in Exhibit "A" to this Agreement is accurate and complete and
constitutes the full legal description of the Real Property but such description
may be replaced by the survey description, if necessary to obtain title
insurance.
(i) There are no written or oral leases, tenancies or occupancy
agreements relating to the Property;
(j) Seller has received no notice of any pending or threatened
litigation or administrative proceeding which would prohibit Seller from
consummating the transaction provided for herein or which relates to Seller's
operation or management of the Property;
(k) That to best of Seller's knowledge there are not any special
assessments, special tax districts or outstanding obligations (contingent or
otherwise) to governmental entities with respect to the Property or any part
thereof.
The foregoing representations and warranties made by Seller
shall survive Settlement Closing for a period of one (1) year.
With respect to subparagraph (d) above, unless the Seller is
in breach thereof, Buyer shall not, bring or implead, cross-claim or otherwise
interpose any action, claim, or lawsuit against Seller or any of Seller's
successors in interest of assignees; or any of Seller's parent's subsidiaries,
affiliates, officers, directors or employees (in their capacity as such) if such
claim, action or lawsuit arises out of, is the result of, or is in any way
connected to : (i) the existence of any underground or above-ground storage
tanks or the registration or lack of registration thereof; (ii) the presence of
any hazardous substances, hazardous wastes, petroleum or petroleum by-products
(collectively "Hazardous Materials") on the premises: (iii) or the exposure of
any person or persons after Settlement hereunder to such Hazardous Materials,
whether such claim, action or lawsuit arises under common law or by virtue of
any local, state or federal statute, rule, ordinance, regulation and/or the like
including, without limitation, the Comprehensive Environmental Response,
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Compensation and Liability Act (42 U.S.C. section 9601 et seq.), the Resource
Conversation and Recovery Act (42 U.S.C. section 6901 et seq.), the Toxic
Substances Control Act (15 U.S.C. section 2601 et seq.), the Emergency Planning
and Community Right to Know Act of 1986 (42 U.S.C. section 11001 et seq.), the
Clean Water Act (33 U.S.C. section 1251 et seq.), the Safe Drinking Water Act
(42 U.S.C. section 300f et seq.), the Hazardous and Solid Waste Amendments of
1984 (Public Law 86-16, Nov. 9, 1984), the Hazardous Materials Transportation
Act (42 U.S.C. section 1801 et seq.), and the Federal Clean Air Act (42 U.S.C.
section 7401 section 7401 et seq.).
Buyer shall indemnify and hold Seller harmless from and
against any and all costs or damages, including, without limitation, reasonable
attorney's fees and expert's fees, incurred or suffered by Seller as a result of
the occurrence following the Settlement hereunder of items (i),(ii), or (iii) as
mentioned in the preceding paragraph.
6. Conditions Precedent. Buyer's obligation to complete Settlement hereunder is
conditioned upon each of Seller's representations and warranties contained in
Paragraph 6 hereof being true and correct as of the date of this Agreement and
as of the date of Settlement hereunder failing which (unless Seller can cure
such failure or agrees to indemnify Buyer therefrom) the Buyer shall have the
right to terminate this Agreement whereupon this Agreement shall be null and
void with neither party having any further rights or obligations hereunder.
7. Title, Conveyance and Costs.
(a) Title to the Property shall be conveyed in fee simple by a special
warranty deed. Title shall be good and marketable and such as will be insured in
the amount of the Purchase Price at regular rates by a reputable title insurance
company authorized to do business in Pennsylvania as selected by Buyer, such
title insurance to include both zoning and extended coverage endorsements
regarding survey, liens, contiguity and access. Said title shall be free and
clear of all liens, encumbrances, and easements, excepting Acts of Assembly,
local zoning ordinances, and those Permitted Title Exceptions set forth on
Exhibit B attached hereto. Buyer shall order a report of title from the First
American Title Insurance Company ("Title Insurer") promptly after execution
hereof and advise Seller within the Contingency Period if it has any objections
to any exceptions, other than the Permitted Title Exceptions, shown on said
report. Any items such as mortgages, liens, etc. requiring a payment of money
shall be satisfied by Seller on or prior to Settlement. Any other objections
shall be promptly removed by Seller (or indemnified against provided that the
amount involved is not more than $50,000) and if Seller is incapable of removing
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such objections and/or is unwilling to indemnify Buyer therefrom, Seller shall
promptly advise Buyer thereof and Buyer shall thereupon have the right to
terminate the Agreement as provided in subparagraph (d) hereof.
(b) The Buyer will pay the premium for the title search and insurance
or the fee for cancellation of same, if any and Buyer's normal settlement costs,
except that in the event of the Seller's default under this Agreement, title
insurance costs shall be paid by the Seller.
(c) If one is necessary, Buyer shall order, at its own cost and
expense, a current survey of the Property prepared by a surveyor licensed by the
State of Pennsylvania and certified to Buyer and the Title Insurer. The Survey
shall show no encroachments (of a permanent nature) onto the Property from any
adjacent premises, no encroachments (of a permanent nature) by or from the
Property onto any adjacent premises and no violation of or encroachments (of a
permanent nature) upon any restrictions or easements affecting the premises.
(d) In the event that Seller is unable to give a good and marketable
title and such as will be insured by a reputable title insurance company,
subject to aforesaid, or the survey is insufficient to have the "survey
exception" removed by the title insurance company, Buyer shall have the option
of taking such title as the Seller can give without abatement of price or of
terminating this Agreement and in the latter event there shall be no further
liability or obligation on either of the parties hereto and this Agreement shall
become null and void. The Buyer understands that title insurers in Pennsylvania
may charge a fee to Buyer (but not to a lender/mortgagee) for the removal of the
survey exception from the Owner's Policy of Title Insurance.
8. Commission. Each party represents and warrants that no broker or agent has
been involved in connection with this Agreement and agrees to indemnify and hold
harmless the other party against any claims for commissions or fees by any
broker or agent claiming to have dealt with the indemnifying party.
9. Maintenance and Risk of Loss.
(a) Seller shall maintain the Property through the date of Settlement
in its present condition, normal wear and tear excepted.
(b) In the event any portion of the Property is taken pursuant to
eminent domain proceedings, Buyer shall have the option to declare this
Agreement null and void and receive the return of its deposit money together
with interest earned thereon or accept the Property and Seller's assignment of
any eminent domain proceed which may be payable.
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10. Default. If Buyer fails after the Contingency Period to complete Settlement
on or before the date for Settlement provided for herein, or otherwise defaults
in any of the terms and conditions of this Agreement, the Sellers sole remedy
shall be to terminate this Agreement in which event the Buyer shall be obligated
to pay the Seller the sum of $20,000.00 as liquidated damages in consideration
of Seller's time and effort in engaging in this transaction. If there has been a
breach of Seller's representations or Seller otherwise defaults hereunder, then
Buyer may terminate this Agreement by written notice to Seller or seek specific
performance thereof, as it may elect.
11. Recording. Neither this Agreement of Sale, nor any copy or memorandum
hereof, shall be filed or recorded in any public recording office in the
Commonwealth of Pennsylvania.
12. Interpretation. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
13. Binding Effects. This Agreement shall be binding upon Buyer and Seller and
their respective heirs, successors or assigns.
14. Time of Essence. Time is of the essence in the performance of all the terms,
covenants, conditions and obligations of this Agreement.
15. Items to be Delivered at Closing.
(a) By Seller. At Closing, Seller shall deliver to Buyer the following:
(i) Deed. A special warranty deed for the Property, duly
executed and acknowledged by Seller.
(ii) A FIRPTA Certificate
(iii) Resolutions; Title Company Affidavits, Etc. Such
resolutions and certificates as Buyer or the Title Insurer shall reasonably
require (including as ALTA Statement) to evidence the due authorization of the
execution and performance of this Agreement and or in connection with the
documents to be delivered pursuant hereto required by the Title Insurer to
permit it to issue to Buyer the Owner's Policy of Title Insurance required
pursuant to Paragraph 8.
(b) By Buyer. At Closing, Buyer shall deliver to Seller the following:
(i) Purchase Price. The Purchase Price payable pursuant to
Section 2 hereof.
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(ii) Affidavits. Such affidavits as Seller and/or Title
Insurer may reasonably request.
16. Notices. All communications required to be given will be in writing and will
be deemed to have been properly given if transmitted by facsimile transmission,
telexed, telegraphed or delivered to the address of the party directly, and will
be deemed to have been received, if transmitted by facsimile transmission, telex
or telegraph, or if delivered, upon the date of delivery or transmission. Such
communications will be sent the following addresses:
SELLER:
130 Buck Road
Suite 201
Holland, PA 18966
WITH A COPY TO:
John J. Hagan, Esq.
16 Campus Boulevard
Newtown Square, PA 19073
WITH A COPY TO:
Anthony A. Nichols
16 Campus Boulevard, Suite 150
Newtown Square, PA 19073
BUYER:
16 Campus Boulevard, Suite 150
Newtown Square, PA 19073
17. The Buyer represents to the Seller that the party executing this Agreement
on its behalf has full and complete authority to do so, that the Buyer is a
corporation in good standing under the laws of the State of Delaware, that the
Buyer has authority to execute and complete settlement of this Agreement in and
under the laws of Pennsylvania. Buyer further represents and warrants that the
foregoing warranties and all other warranties, representations, duties and
liabilities expressed in this Agreement shall apply with equal force to any
nominee, assignee or successor of named by Buyer to execute and/or complete
Settlement hereunder.
18. Entire Agreement. This Agreement represents the entire agreement between
Buyer and Seller and supersedes all prior oral and written proposals,
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communications and agreements regarding the Property. Neither Buyer nor Seller
shall be bound by any understanding, agreement, promise, representation or
stipulation, whether oral or written, expressed or implied, not specified in
this Agreement.
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IN WITNESS THEREOF, the parties have hereunto set their hands and seal the day
and year below.
SELLER:
HORSHAM VALLEY, INC.
Witness: /s/ By: /s/ C.W. Schrenk
- ----------------------- ------------------------------
Date: March 6, 1997 Title: President
BUYER:
BRANDYWINE OPERATING PARTNERSHIP, L.P.
Witness: /s/ By: Brandywine Realty Trust
- ----------------------- ------------------------------
By: /s/ Anthony A. Nichols, Sr.
----------------------------
Date:__________________ Chairman
<PAGE>
PROMISSORY NOTE
Brandywine Operating Partnership, L.P. Dated: March 7, 1997
16 Campus Boulevard
Newtown Square, PA 19073 at: Newtown Square
to
Horsham Valley, Inc.
130 Buck Road
Suite 130
Holland, PA 18966
FOR VALUE RECEIVED without defalcation, the undersigned
Brandywine Operating Partnership, L.P. having its principal place of business at
the above address (hereinafter called the "Maker"), does hereby promise to pay
to the order of HORSHAM VALLEY, INC. (hereinafter called the "Holder'), at the
office of said Holder unless otherwise directed by the Holder, the sum of Three
Hundred and Sixty Nine Thousand One Hundred and Sixty Six Dollars, lawful money
of the United States of America, said sum shall be payable without interest upon
demand of the Holder on or after the earlier of (a) March 1, 1998 or (b) the
date on which a building permit is issued by Horsham Township enabling the Maker
(or its affiliates) to commence construction on Phase II (the second Building)
on Parcel 8, Horsham Business Center, as contemplated presently by Maker and as
referred to in that certain Agreement of Sale under which this Note forms a
portion of the purchase price paid by Maker, as Buyer, to Holder, as Seller, for
the acquisition of the said Parcel 8.
In the event that this Note shall not be paid on demand of
Holder, then execution may immediately issue from any County Court in the
Commonwealth of Pennsylvania for the collection of the same, including a
reasonable attorney's fee for collection.
This Note has been made and is to be paid in the Commonwealth
of Pennsylvania and the rights, duties, and obligations of the parties hereunder
shall be governed by references tot he laws of that Commonwealth. Maker consents
to the jurisdiction of the Courts of Common Pleas of Chester County,
Commonwealth of Pennsylvania in any and all actions and proceedings whether
arising hereunder or under any other agreement or undertaking and irrevocably
agrees to service of process by certified mail, return receipt requested,
postage prepaid, to its address set forth herein or such other address of Maker
as is set forth in Holder's records.
The Maker does hereby authorize and empower the Prothonotary,
Clerk of Court or any Attorney of any Court of Record of Pennsylvania or
elsewhere to appear for and to confess judgment against it and in favor of said
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Holder, its successors or assigns, as of any term, past, present or future, with
or without declaration or to sign for the Maker an amicable action or actions
and confess a judgment therein against the Maker. The judgment shall be for the
debt evidenced by this Note and all other sums that additionally become payable
should Holder institute legal process to recover the proceeds hereof, including
interest at the legal rate and attorney's fees of five (5%) percent of the
amount unpaid. The sums owning may be established by Affidavit evidencing the
amount thereof signed by Holder (or any successor or assign of Holder) and such
Affidavit shall be sufficient proof thereof.
The Holder may issue or cause to be issued an execution or
executions and the Maker hereby releases all errors and waives inquisition and
condemnation as to any property levied upon by virtue of any such execution and
waives all exemption from levy and sale of any property, which now is or
hereafter may be exempt under any law except with respect to, and to the extent
that, any such property is pledged to or secured in favor of a third party.
Maker acknowledges that by agreeing to this confession of judgment Maker waives
the right to notice and a prior judicial proceeding to determine its rights and
liabilities and acknowledges that Holder may on default obtain a judgment
against Maker hereunder without Maker's prior knowledge or consent and without
Maker's opportunity to raise any defense, set-off, counterclaim, or other claim
Maker may have and that maker waives such rights as an explicit and material
part of the consideration bargained for between Holder and Maker. The authority
granted herein to confess judgment shall not be exhausted by any exercise
thereof but shall continue from time to time and at all times until payment in
full of all amounts due hereunder.
Maker agrees that its liability shall be unconditional,
without regard to the liability of any other party, and shall not be affected in
any manner by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Holder. Maker and any endorsers, sureties, and
guarantors hereby consent to any and all extensions of time, renewals, waivers
or modifications that may be granted by Holder with respect to the payment or
other provisions of this Note.
Holder shall not be deemed, by any act of omission or
commission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by Holder, and then only to the extent
specifically set forth in the writing. A waiver on one event shall not be
construed as continuing or as a bar to or waiver of any right or remedy to a
subsequent event.
Maker irrevocably as an independent covenant waives a jury
trial and the right thereto in any action or proceeding between Maker and
Holder, whether hereunder or otherwise.
Whenever used, the singular number shall include the plural,
the plural the singular, the use of any gender shall be applicable to all
genders, and the word "Holder" and "Maker" shall be deemed to include the
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respective heirs, personal representatives, successors and assigns of Holder and
Maker.
Maker:
Brandywine Operating Partnership, L.P.
By: Brandywine Realty Trust
By: /s/ Anthony A. Nichols, Sr.
----------------------------
Chairman
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