Exhibit 10.11
AGREEMENT OF PURCHASE AND SALE
BETWEEN
UNIVERSITY PLAZA, L.P.
AS SELLER
AND
BRANDYWINE OPERATING PARTNERSHIP, L.P.
AS BUYER
December 15, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.......................................................1
Section 1.2 Terms Generally...................................................6
ARTICLE II
PURCHASE AND SALE OF PROPERTIES
Section 2.1 Sale..............................................................6
Section 2.2 Purchase Price....................................................7
Section 2.3 Due Diligence.....................................................9
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Buyer's Obligation to Purchase.....................10
Section 3.2 Conditions to Seller's Obligations to Sell.......................11
Section 3.3 Termination......................................................11
Section 3.4 Waiver by Buyer..................................................12
Section 3.5 [Intentionally Omitted]...........................................12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
BUYER'S EXAMINATION OF THE PROPERTIES
Section 4.1 Representations and Warranties of Seller.........................12
Section 4.2 Estoppels........................................................14
Section 4.3 Limitation on Claims; Survival of Representations and Warranties.15
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Section 4.4 Representations and Warranties of Buyer..........................16
Section 4.5 Buyer's Independent Investigation................................17
Section 4.6 Entry and Indemnity; Limits on Government Contacts...............20
Section 4.7 Release..........................................................22
ARTICLE V
TITLE
Section 5.1 Conveyance of Title..............................................22
Section 5.2 Evidence of Title................................................24
ARTICLE VI
BROKERS AND EXPENSES
Section 6.1 Brokers..........................................................24
Section 6.2 Expenses.........................................................24
ARTICLE VII
INTERIM OPERATION OF THE PROPERTIES
Section 7.1 Interim Operation of the Properties..............................25
Section 7.2 Tenant Improvement Costs, Leasing Commissions and Free Rent......26
Section 7.3 Seller's Maintenance of the Properties...........................26
Section 7.4 Lease Enforcement................................................27
Section 7.5 Lease Termination Prior to Closing...............................27
Section 7.6 Tenant Notices...................................................27
Section 7.7 Risk of Loss and Insurance Proceeds..............................27
Section 7.8 Notifications....................................................28
ARTICLE VIII
CLOSING AND ESCROW
Section 8.1 Escrow Instructions..............................................28
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Section 8.2 Closing..........................................................29
Section 8.3 Deposit of Documents.............................................29
Section 8.4 Estoppel Certificates............................................31
Section 8.5 Prorations.......................................................32
Section 8.6 Tax Certiorari Proceedings.......................................35
Section 8.7 Tenant Obligations...............................................36
Section 8.8 Seller Financial Statements.......................................36
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices..........................................................36
Section 9.2 Entire Agreement.................................................38
Section 9.3 Time.............................................................38
Section 9.4 Attorneys' Fees..................................................38
Section 9.5 No Merger........................................................38
Section 9.6 Assignment.......................................................38
Section 9.7 Counterparts.....................................................39
Section 9.8 Governing Law; Jurisdiction and Venue............................39
Section 9.9 Waiver of Trial by Jury..........................................40
Section 9.10 Confidentiality and Return of Documents.........................40
Section 9.11 Interpretation of Agreement.....................................42
Section 9.12 Amendments......................................................42
Section 9.13 No Recording....................................................42
Section 9.14 No Third Party Beneficiary......................................43
Section 9.15 Severability....................................................43
Section 9.16 Drafts not an Offer to Enter into a Legally Binding Contract....43
Section 9.17 Further Assurances..............................................43
Section 9.18 [Intentionally Omitted...........................................43
Section 9.19 Exculpation.....................................................43
Section 9.20 Counterparts....................................................43
EXHIBITS
EXHIBIT A REAL PROPERTY DEEDS
EXHIBIT B [INTENTIONALLY OMITTED ]
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EXHIBIT C INTENTIONALLY OMITTED
EXHIBIT D INTENTIONALLY OMITTED
EXHIBIT E ▇▇▇▇ OF SALE
EXHIBIT F ASSIGNMENT OF LEASES
EXHIBIT G ASSIGNMENT OF CONTRACTS, WARRANTIES AND
GUARANTEES AND OTHER INTANGIBLE PROPERTY
EXHIBIT H DESIGNATION AGREEMENT
EXHIBIT I BUYER'S AS-IS CERTIFICATE
EXHIBIT J TENANT ESTOPPEL CERTIFICATE
EXHIBIT K INTENTIONALLY OMITTED
EXHIBIT L SELLER'S AFFIDAVIT
EXHIBIT M [INTENTIONALLY OMITTED]
EXHIBIT N ESCROW AGREEMENT
SCHEDULES
SCHEDULE 1 SELLER
SCHEDULE 2.1.1 PROPERTY DESCRIPTIONS
SCHEDULE 2.1.3 EXISTING LEASES
SCHEDULE 2.1.5 PURCHASE RIGHTS
SCHEDULE 2.2.2 WIRING INSTRUCTIONS
SCHEDULE 4.1.1 REQUIRED CONSENTS
SCHEDULE 4.1.2 NON-TERMINABLE CONTRACTS
SCHEDULE 4.1.3 PENDING LITIGATION
SCHEDULE 4.1.4 MUNICIPAL VIOLATION NOTICES
SCHEDULE 7.2 LEASING COSTS
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AGREEMENT OF PURCHASE AND SALE
AGREEMENT OF PURCHASE AND SALE, dated as of December 15, 1997 (this
"Agreement"), between University Plaza, L.P., a Delaware limited partnership
("Seller"), and Brandywine Operating Partnership, L.P., a Delaware limited
partnership ("Buyer").
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below, which meanings shall be
applicable equally to the singular and plural of the terms defined:
"Additional Rents" shall have the meaning set forth in Section 8.5(a).
"Affiliate" shall mean with respect to any Person (i) any other Person
that directly or indirectly through one or more intermediaries controls or
is controlled by or is under common control with such Person, (ii) any
other Person owning or controlling 10% or more of the outstanding voting
securities of or other ownership interests in such Person, (iii) any
officer, director or partner of such Person, or (iv) if such Person is an
officer, director or partner, any other company for which such Person acts
in any such capacity.
"Agreement" shall have the meaning set forth in the first paragraph of
this Agreement.
"Assignment of Contracts" shall have the meaning set forth in Section
8.3(a).
"Assignment of Leases" shall have the meaning set forth in Section
8.3(a).
"▇▇▇▇ of Sale" shall have meaning set forth in Section 8.3(a).
"Business Day" shall mean any day other than a Saturday, a Sunday, or
a federal holiday recognized by the Federal Reserve Bank of New York.
"Buyer" shall have the meaning set forth in the first paragraph of
this Agreement and shall include any assignee of Buyer (including, without
limitation, any Permitted Assignee).
"Buyer Party" or "Buyer Parties" shall have the meaning set forth in
Section 4.6.
"Claim Notice" shall mean a written notice delivered by Buyer or a
Permitted Assignee to Seller setting forth (i) the identity of the Property
with respect to which a breach or inaccuracy of a representation or
warranty is alleged to have occurred, (ii) a reasonably detailed description
of the claimed breach or inaccuracy, including reasonably detailed
information as to the adverse effect on the value of the Property to which
such claimed breach relates, (iii) the specific provision of this Agreement
under which such breach is claimed and (iv) complete and detailed evidence
of the satisfaction of the conditions to Buyer's or a Permitted Assignee's
recovery set forth in Section 4.3.
"Claims" shall have the meaning set forth in Section 4.3(a).
"Closing" shall have the meaning set forth in Section 2.2(b).
"Closing Date" shall have the meaning set forth in Section 8.2.
"Closing Documents" shall have the meaning set forth in
Section 4.3(a).
"Code" shall mean the Internal Revenue Code of 1986, as amended, or
any corresponding provision(s) of any succeeding law.
"Confidential Information" shall have the meaning set forth in Section
9.10(c).
"Confidentiality Agreement" shall mean the Confidentiality Agreement,
dated October 8, 1997, between Brandywine Realty Trust and Seller.
"Contracts" shall have the meaning set forth in Section 2.1(e).
"Deed" shall have the meaning set forth in Section 5.1(a).
"Deposit" shall have the meaning set forth in Section 2.2(a).
"Designation Agreement" shall have the meaning set forth in Section
8.3(a).
"Document Delivery Date" shall have the meaning set forth in Section
8.3.
"Due Diligence Materials" shall mean all of the documents and other
materials delivered to, or made available for inspection by, Buyer, its
Permitted Assignees and their representatives including, without
limitation, the materials delivered to Buyer and its
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representatives on or about November 21, 1997, and on-site materials made
available to Buyer for inspection.
"Effective Date" shall mean the date of this Agreement.
"Evaluation Material" shall have the meaning set forth in
Section 9.10(a).
"Existing Leases" shall mean those leases, license agreements and
occupancy agreements identified on Schedule 2.1.3, as the same may be
amended or modified from time to time in accordance with the terms of this
Agreement.
"Fee Parcel" shall have the meaning set forth in Section 2.1(a).
"Governmental Authority" shall mean any federal, state, county or
municipal government, or political subdivision thereof, any governmental
agency, authority, board, bureau, commission, department, instrumentality,
or public body, or any court or administrative tribunal.
"Hazardous Materials" shall mean materials, wastes or substances that
are (A) included within the definition of any one or more of the terms
"hazardous substances," "hazardous materials," "toxic substances," "toxic
pollutants" and "hazardous waste" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601, et seq.), the Resource Conservation and Recovery Act of 1976
(42 U.S.C. Section 6901, et seq.), the Clean Water Act (33 U.S.C. Section
1251, et seq.), the Safe Drinking Water Act (14 U.S.C. Section 1401, et
seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801,
et seq.), and the Toxic Substance Control Act (15 U.S.C. Section 2601, et
seq.) and the regulations promulgated pursuant to such laws, (B) regulated,
or classified as hazardous or toxic, under federal, state or local
environmental laws or regulations, (C) petroleum, (D) asbestos or
asbestos-containing materials, (E) polychlorinated biphenyls, (F) flammable
explosives or (G) radioactive materials.
"Improvements" shall have the meaning set forth in Section 2.1(a).
"Indemnified Party" shall have the meaning set forth in Section 6.1.
"Initial Deposit Date" shall mean the first Business Day after the
Effective Date.
"Intangible Property" shall have the meaning set forth in Section
2.1(h).
"Leases" shall mean all Existing Leases and New Leases, collectively.
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"Leasing Costs" shall have the meaning set forth in Section 7.2.
"Licenses and Permits" shall have the meaning set forth in Section
2.1(h).
"New Leases" shall mean those leases, license agreements and occupancy
agreements encumbering any Real Property which are entered into after the
Effective Date in accordance with the terms of this Agreement, as the same
may be amended or modified from time to time in accordance with the terms
of this Agreement.
"Non-Terminable Contracts" shall have the meaning set forth in Section
4.1(h).
"Order" shall mean an order or decree of any Governmental Authority.
"Permitted Assignee" shall have the meaning set forth in Section 9.6.
"Permitted Exceptions" shall have the meaning set forth in Section
5.1.
"Person" shall mean any individual, partnership, corporation, limited
liability company, trust or other legal entity.
"Personal Property" shall have the meaning set forth in Section
2.1(c).
"Prescribed Form" shall have the meaning set forth in Section 8.4.
"Prime Rate" shall mean the prime (or base) rate of interest publicly
announced by Citibank, N.A. or its successors from time to time.
"Property" or "Properties" shall have the meaning set forth in Section
2.1.
"Purchase Price" shall have the meaning set forth in Section 2.2(a).
"Real Estate Taxes" shall have the meaning set forth in Section
4.5(b).
"Real Property" or "Real Properties" shall have the meaning set forth
in Section 2.1.
"Records and Plans" shall have the meaning set forth in Section
2.1(g).
"Related Purchase Agreement" shall mean those three Agreements of
Purchase and Sale, each of even date herewith, between Buyer, as buyer, and
one of the following persons, as seller: (i) The Berkshire Group, a
Pennsylvania limited partnership, (ii) Trend
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Associates, a Pennsylvania limited partnership, and (iii) Park 80, L.L.C.,
a New Jersey limited liability company.
"Rent Rolls" shall have the meaning set forth in Section 4.1(g).
"Representatives" shall have the meaning set forth in Section 9.10(a).
"Required Deletion Items" shall have the meaning set forth in
Section 3.1(c).
"Required Percentage" shall have the meaning set forth in Section
8.4(a).
"Schedule of Contracts" shall have the meaning set forth in Section
4.1(h).
"Seller" shall have the meaning set forth in the first paragraph of
this Agreement.
"Seller Party" shall have the meaning set forth in Section 4.7(a).
"Seller's Affidavit" shall have the meaning set forth in
Section 8.3(a)(ix).
"Significant Tenant" shall mean any Tenant occupying space equal to
twenty percent (20%) or more of the rentable square footage of any
Property.
"Survey" shall have the meaning set forth in Section 4.5(a).
"Tenant" shall mean the tenant, occupier or licensee under any lease,
license agreement or occupancy agreement encumbering any Real Property.
"Threshold Amount" shall have the meaning set forth in Section 4.3.
"Title Commitment" shall have the meaning set forth in Section 3.1(c).
"Title Company" shall have the meaning set forth in Section 2.2(b).
"Title Policy" shall have the meaning set forth in Section 5.2.
"Warranties" shall have the meaning set forth in Section 2.1(f).
Section 1.2 Terms Generally. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
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(a) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(b) the words "including" and "include" and other words of similar
import shall be deemed to be followed by the phrase "without limitation"; and
(c) any consent, determination, election or approval required to
be obtained, or permitted to be given, by or of any party hereunder, shall be
granted, withheld or made (as the case may be) by such party in the exercise
of such party's sole and absolute discretion.
ARTICLE II
PURCHASE AND SALE OF PROPERTIES
Section 2.1 Sale. Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, subject only to the Permitted Exceptions and to all
other terms, covenants and conditions set forth herein, all of Seller's
right, title and interest in and to the following: (a) each parcel of land
described in Schedule 2.1.1 attached hereto (each, a "Fee Parcel") identified
as being owned by Seller on Schedule 2.1.1, together with any and all rights,
privileges and easements appurtenant thereto owned by Seller (including any
rights of Seller as declarant), together with all buildings, improvements and
fixtures (other than fixtures owned or removable by any Tenant or third
party) located thereon (collectively, the "Improvements"; each Fee Parcel,
together with the Improvements thereon, a "Real Property" and, collectively,
the "Real Properties"); (b) [intentionally omitted]; (c) all tangible
personal property not owned or removable by any Tenant or third party, if
any, located on the Real Properties and owned by Seller and used in the
operation or maintenance of any one or more of the Real Properties (the
"Personal Property"); (d) (i) Seller's interest, as landlord, owner or
licensor, in each of the Existing Leases, (ii) Seller's interest, as
landlord, owner or licensor, in any New Leases and (iii) to the extent
assignable, any guarantees, letters of credit or other instruments that
secure or guarantee the performance of the obligations of each Tenant; (e) to
the extent assignable, all service contracts, maintenance contracts,
operating contracts, warranties, guarantees, listing agreements, parking
contracts and like contracts and agreements relating to the Real Properties,
and commission agreements, equipment leases, contracts, subcontracts and
agreements relating to the construction of any unfinished tenant improvements
(collectively, the "Contracts"); (f) to the extent assignable, all warranties
and guaranties made by or received from any third party with respect to any
building, building component, structure, fixture, machinery, equipment or
material situated on any Real Property, or contained in any or comprising a
part of any Improvement or Leasehold Improvement (collectively, the
"Warranties"); (g) to the extent Seller currently has such items in its
possession and to the extent assignable, all (i) preliminary, final and
proposed
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building plans and specifications (including "as-built" floor plans and
drawings) and tenant improvement plans and specifications for the
Improvements and (ii) surveys, grading plans, topographical maps,
architectural and structural drawings and engineering, soils, seismic,
geologic and architectural reports, studies and tests relating to any Real
Property ((g)(i) and (g)(ii) collectively, the "Records and Plans"); and (h)
to the extent transferable, any intangible personal property now or hereafter
owned by Seller and used in the ownership, use or operation of any one or
more of the Real Properties and/or the Personal Property, excluding materials
or information which in Seller's judgment is privileged or confidential
information, the name of the Seller and related names and proprietary
computer equipment, software and systems, but including all (i) licenses,
permits, building inspection approvals, certificates of occupancy, approvals,
subdivision maps and entitlements issued, approved or granted by Governmental
Authorities in connection with a Real Property, (ii) unrecorded covenants,
conditions and restrictions, reciprocal easement agreements, area easement
agreements and other common or planned development agreements or documents
affecting any Real Property and (iii) licenses, consents, easements, rights
of way and approvals obtained from private parties to make use of utilities
and to ensure vehicular and pedestrian ingress and egress for any Real
Property ((h)(i), (h)(ii) and (h)(iii) collectively, the "Licenses and
Permits") or other rights relating to the ownership, use or operation of any
of the Real Properties or the Personal Property (collectively, the
"Intangible Property"). Each Real Property, together with the Personal
Property, the Leases, the Contracts, the Warranties, the Records and Plans
and the Intangible Property relating thereto are referred to herein as a
"Property" and, collectively, as the "Properties."
Section 2.2 Purchase Price.
(a) The purchase price of the Properties is Ten Million Five
Hundred Thousand Dollars ($10,500,000) (the "Purchase Price"), subject to
prorations, credits and adjustments as set forth herein.
(b) The Purchase Price shall be paid by Buyer as follows:
(i) By 3:00 P.M. (Eastern Standard Time) on the Initial
Deposit Date, Buyer shall deposit by wire transfer (made in accordance with
the wiring instructions set forth on Schedule 2.2.2 attached hereto) of
immediately available funds, in escrow with Commonwealth Land Title Insurance
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Title Company"), a cash payment in the amount of
$525,000 (the "Deposit"). The Deposit shall be held by the Title Company
pursuant to an escrow agreement among Buyer, Seller and the Title Company in
the form of Exhibit N attached hereto.
(ii) The Deposit shall be held in an interest bearing account
reasonably designated by Buyer and all interest thereon shall be deemed a
part of the Deposit. If the sale of the Properties as contemplated hereunder
is consummated, then the Deposit (including the
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interest accrued on the Deposit) shall be paid to Seller at the consummation
of the purchase and sale of the Properties contemplated hereunder (the
"Closing") and credited against the Purchase Price.
(iii) The balance of the Purchase Price over and above the
Deposit, as adjusted pursuant to Section 8.5, shall be deposited by Buyer, by
wire transfer (made in accordance with the wiring instructions set forth on
Schedule 2.2.1 attached hereto) of immediately available funds, with the
Title Company and paid to Seller at the Closing.
(c) (i) IF THE SALE OF THE PROPERTIES IS NOT CONSUMMATED DUE TO
THE FAILURE OF ANY CONDITION TO BUYER'S OBLIGATION TO PURCHASE OR SELLER'S
INABILITY TO PERFORM OR SELLER'S DEFAULT HEREUNDER, THEN THE DEPOSIT SHALL BE
RETURNED TO BUYER, AND BUYER'S SOLE REMEDY, AT LAW OR IN EQUITY, SHALL BE THE
RETURN OF THE DEPOSIT, PROVIDED, THAT IF THE SALE OF THE PROPERTIES IS NOT
CONSUMMATED BECAUSE OF SELLER'S FAILURE TO CLOSE WHEN OBLIGATED TO DO SO
UNDER THIS AGREEMENT, BUYER MAY EITHER (A) TERMINATE THIS AGREEMENT BY
WRITTEN NOTICE OF TERMINATION TO SELLER ON THE CLOSING DATE, WHEREUPON THE
DEPOSIT SHALL BE IMMEDIATELY RETURNED TO BUYER AND SELLER SHALL BE OBLIGATED
TO REIMBURSE BUYER FOR ITS OUT OF POCKET EXPENSES (NOT TO EXCEED $25,000) OR
(B) CONTINUE THIS AGREEMENT PENDING BUYER'S ACTION FOR SPECIFIC PERFORMANCE,
IN WHICH LATTER EVENT BUYER, AS A CONDITION TO SUCH ACTION, SHALL NOT ACCEPT
RETURN OF THE DEPOSIT AND SHALL PLACE THE FULL AMOUNT OF THE PURCHASE PRICE
ABOVE THE DEPOSIT INTO ESCROW. (ii) IF THE SALE OF THE PROPERTIES IS NOT
CONSUMMATED AS A RESULT OF A DEFAULT BY BUYER HEREUNDER, THEN, AS ITS SOLE
AND EXCLUSIVE REMEDY, SELLER SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES.
THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES, IN THE EVENT OF A
FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER'S DEFAULT, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE
AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES
THAT SELLER WOULD INCUR IN SUCH EVENT. BY PLACING THEIR INITIALS BELOW, EACH
PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE
FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME
THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES
PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER'S INDEMNITY
OBLIGATIONS UNDER SECTIONS 4.6(a), 6.1, 9.4 AND 9.10(a) OR SELLER'S
OBLIGATIONS UNDER SECTIONS 6.1 0R 9.4.
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INITIALS: Seller ___________ BUYER ___________
(d) In the event that Buyer fails to fund within one Business Day
after the Initial Deposit Date or the Additional Deposit Date (with time
being of the essence) the full amount of the Initial Deposit or the
Additional Deposit, as the case may be, for any or no reason whatsoever in
accordance with the terms of Section 2.2(b)(i), this Agreement shall
immediately and automatically terminate. Upon any termination of this
Agreement pursuant to this Section 2.2(d) or Section 2.3, no party shall have
any further rights or obligations hereunder, except as provided in Sections
4.6(a), 6.1, 9.4 and 9.10(a).
Section 2.3 Due Diligence. Buyer has reviewed, accepted and
approved (and all representations and warranties of Seller made herein shall
be subject to and qualified by) all of the Due Diligence Materials.
Notwithstanding anything to the contrary herein, Seller shall have no
liability whatsoever to Buyer with respect to any matter disclosed to or
actually known by Buyer or its agents prior to the Closing Date.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Buyer's Obligation to Purchase. Buyer's
obligation to purchase the Properties is conditioned upon the satisfaction
(or Buyer's written waiver) on or prior to the Closing Date of the following
conditions:
(a) There shall exist on the Closing Date no pending Order
prohibiting, enjoining or restraining Seller from consummating the
transactions contemplated hereby with respect to any Property.
(b) All consents required to be obtained from, or filing required
to be made with, any Governmental Authority or third party in connection with
the execution and delivery of this Agreement by Seller or the consummation by
Seller of the transactions contemplated hereby shall have been obtained or
made.
(c) The Title Company has committed to issue, upon payment of the
applicable premium therefor, a 1992 ALTA Owner's Policy of Title Insurance
(provided, that in jurisdictions where local regulations require a form of
policy other than a 1992 ALTA Owner's Policy, such other required form shall
be used) with respect to each Real Property in the form of the title
insurance commitment (each, a "Title Commitment") obtained by Buyer from the
Title Company and delivered to Seller prior to the Effective Date, showing
title to such Real Property vested in Buyer, subject only to the Permitted
Exceptions. It shall not be a condition to Closing
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that Buyer obtain any endorsements or coverages not set forth in the
applicable Title Commitment. Seller shall be entitled, by notice to Buyer,
to adjourn the Closing one or more times for an aggregate period not to
exceed thirty (30) days in order to remove any exceptions to title that are
not Permitted Exceptions. Nothing contained herein shall require Seller to
bring any action or proceeding or otherwise to incur any expense to correct,
discharge or otherwise remove title exceptions or defects with respect to any
Property or to remove, remedy or comply with any other grounds for Buyer's
refusing to approve title, provided that Seller shall be obligated to remove
or discharge, or otherwise cause the Title Company to omit as an exception to
title or to insure against collection thereof from or against any Property
any mortgages or monetary liens created by Seller, any mechanics' liens or
judgment liens that are the obligation of Seller (as opposed to any Tenant or
other third party) and any liens and encumbrances voluntarily created by
Seller in violation of Section 7.1 (collectively, the "Required Deletion
Items"). If on the Closing Date there are any Required Deletion Items,
Seller may use any portion of the Purchase Price payable pursuant to Section
2.2(b) to satisfy same, provided the Title Company shall omit such lien or
encumbrance as an exception to title.
(d) Buyer shall have received estoppel certificates for each Real
Property to the extent required by Section 8.4.
(e) Each of the documents required to be delivered by Seller
pursuant to Section 8.3 shall have been delivered as provided therein and
Seller shall not otherwise be in material default of its material obligations
hereunder, and all of Seller's representations and warranties contained
herein shall be true and correct in all material respects as of the Closing
Date (except that any representations and warranties which are made as of a
specified date shall be true and correct as of such specified date).
(f) Buyer shall not have previously terminated this Agreement
pursuant to and in accordance with Section 7.7.
Section 3.2 Conditions to Seller's Obligations to Sell. Seller's
obligation to sell the Properties is conditioned upon the satisfaction (or
Seller's written waiver) on or prior to the Closing Date of the following
conditions:
(a) There shall exist on the Closing Date no pending Order
prohibiting, enjoining or restraining Buyer from consummating the
transactions contemplated hereby with respect to any Property.
(b) Except as set forth in Section 3.5, all consents required to be
obtained from, or filings required to be made with, any Governmental
Authority or third party in connection with the execution and delivery of
this Agreement by Buyer or the consummation by Buyer of the transactions
contemplated hereby shall have been obtained or made.
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(c) Seller shall have actually received the Purchase Price in cash.
(d) Buyer shall not otherwise be in material default of its material
obligations hereunder.
(e) Each of the documents required to be delivered by Buyer
pursuant to Section 8.3 shall have been delivered as provided therein, and
all of Buyer's representations and warranties contained herein shall be true
and correct in all material respects as of the Closing Date.
(f) Closing shall have occurred under each of the Related Purchase
Agreements in accordance with the respective terms thereof.
Section 3.3 Termination. In the event that any condition set forth
in Section 3.1 or Section 3.2 is not satisfied on or prior to the Closing
Date, then the party to this Agreement whose obligations are conditioned upon
the satisfaction of such condition may in its sole and absolute discretion
terminate this Agreement, subject to Section 2.2(c), by written notice
delivered to the other party at or prior to the occurrence of the Closing.
Upon any termination of this Agreement pursuant to this Section 3.3, no party
shall have any further rights or obligations hereunder, except as provided in
Sections 2.2(c), 4.6(a), 6.1, 9.4 and 9.10(a).
Section 3.4 Waiver by Buyer. If Buyer and/or its Permitted
Assignees, with knowledge of (i) a default in any of the covenants,
agreements or obligations to be performed by Seller under this Agreement
and/or (ii) any breach of or inaccuracy in any representation or warranty of
Seller made in this Agreement, nonetheless elects to proceed to Closing,
then, upon the consummation of the Closing, Buyer and/or its Permitted
Assignees shall be deemed to have waived any such default and/or breach or
inaccuracy and shall have no claim against Seller with respect thereto.
Section 3.5 [Intentionally Omitted].
ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
BUYER'S EXAMINATION OF THE PROPERTIES
Section 4.1 Representations and Warranties of Seller. Subject to
(i) the provisions of Sections 2.3, 4.2 and 4.3 and (ii) the information
disclosed in the Due Diligence Materials (except that the representations and
warranties in clauses (a), (b), (c) and (d) of this Section 4.1 shall not be
subject to the information disclosed in the Due Diligence Materials), Seller
hereby makes the following representations and warranties:
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(a) Seller has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Seller's creditors, (iii) suffered the
appointment of a receiver to take possession of any of the Properties or all,
or substantially all, of Seller's other assets, (iv) suffered the attachment
or other judicial seizure of any of the Properties or all, or substantially
all, of Seller's other assets, (v) admitted in writing its inability to pay
its debts as they come due, or (vi) made an offer of settlement, extension or
composition to its creditors generally.
(b) Seller is not a "foreign person" as defined in Section 1445 of
the Code and any related regulations.
(c) Seller is duly organized and validly existing and in good
standing under the laws of its state of formation. Seller further represents
and warrants that this Agreement and all documents executed by Seller that
are to be delivered to Buyer at Closing (i) are, or at the time of Closing
will be, duly authorized, executed and delivered by Seller, (ii) do not, and
at the time of Closing will not, violate any provision of any agreement or
judicial order to which Seller is a party or to which Seller or any Property
owned by Seller is subject and (iii) constitute (or in the case of Closing
documents will constitute) a valid and legally binding obligation of Seller,
enforceable in accordance with its terms.
(d) Seller has full and complete power and authority to enter into
this Agreement and, subject to obtaining any consents or waivers required to
be obtained prior to Closing, to perform its obligations hereunder.
(e) Seller is not aware of any consents required for the
performance of Seller's obligations hereunder except as set forth on
Schedule 4.1.1.
(f) The Due Diligence Materials contain true, correct and complete
copies of all Existing Leases, all material Contracts and all environmental
and structural reports in the possession of Seller. This representation
shall not be deemed breached by virtue of any Leases or Contracts entered
into after the Effective Date in accordance with Section 7.1.
(g) Except as included in the Due Diligence Materials (including
the rent rolls, dated October 9, 1997, delivered to Buyer (the "Rent
Rolls")), (i) there are to Seller's knowledge no leases, license agreements
or occupying agreements (or any amendments or supplements thereto)
encumbering, or in force with respect to, any Property (except for any New
Leases entered into after the Effective Date in accordance with Section 7.1)
and (ii) as of the Effective Date, Seller has not received written notice
from any Significant Tenant that Seller has not performed its material
obligations under such Significant Tenant's Lease.
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(h) To Seller's knowledge, the only Contracts and amendments
thereto that will be in effect on the Closing Date that are not terminable
without cause or penalty on sixty (60) days notice with respect to any
Property (the "Non-Terminable Contracts") are as set forth in Schedule 4.1.2
(the "Schedule of Contracts") or as entered into in accordance with Section
7.1.
(i) As of the Effective Date, Seller has not received any written
notice of any pending or threatened condemnation of all or any portion of any
Property.
(j) Seller has not received written notice of any litigation that
is pending or threatened with respect to any Property, except (i) litigation
fully covered by insurance policies (subject to customary deductibles) or
(ii) litigation set forth in Schedule 4.1.3.
(k) As of the Effective Date, except as set forth in Schedule
4.1.4, Seller has not received any written notice from any Governmental
Authority that all or any portion of any Property is in material violation of
any applicable building codes or any applicable environmental law (relating
to clean-up or abatement), zoning law or land use law, or any other
applicable local, state or federal law or regulation relating to any
Property, which material violation has not been cured or remedied prior to
the Effective Date.
(l) Except as set forth in Schedule 2.1.5 or Schedule 4.1.1
attached to this Agreement, Seller has not granted any option or right of
first refusal or first opportunity to any party to acquire any fee or ground
leasehold interest in any portion of any Property.
(m) Employees. Seller will have no employees at Closing, and any
employees of Seller existing on the date hereof shall have been terminated by
Seller prior to Closing in accordance with all applicable law, non-compliance
with which could result in a claim against Buyer. Buyer shall not be
responsible for, nor assume any liabilities of Seller regarding, any such
employees.
Each of the representations and warranties of Seller contained in
this Section 4.1: (1) is made as of the Effective Date (subject to the
information disclosed in the Due Diligence Materials); (2) other than clauses
(i) and (k) above (which, in the case of clause (i) above, the parties
acknowledge shall be governed by Section 7.7 with respect to events occurring
after the Effective Date) shall be deemed remade by Seller, and shall be true
in all material respects, as of the Closing Date (except that any
representations and warranties which are made as of a specified date, shall
have been true and correct as of such specified date) subject to (A) the
information disclosed in the Due Diligence Materials, (B) litigation that is
not reasonably likely to have a material adverse effect on any Property, and
(C) other matters expressly permitted in this Agreement or otherwise
specifically approved in writing by Buyer; and (3) shall survive the Closing
only as and to the extent expressly provided in Section 4.2 and Section 4.3.
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Section 4.2 Estoppels. The representations and warranties of
Seller regarding Leases in Section 4.1(f) or 4.1(g) or in any estoppel
delivered by Seller pursuant to Section 8.4 shall terminate to the extent
specifically confirmed by a tenant estoppel certificate delivered by a Tenant.
Section 4.3 Limitation on Claims; Survival of Representations and
Warranties.
(a) Notwithstanding any provision to the contrary herein or in any
document or instrument (including, without limitation, any deeds or
assignments) executed by Seller and delivered to Buyer or any Permitted
Assignee at or in connection with the Closing (collectively, "Closing
Documents"), Seller shall have no liability whatsoever with respect to any
suits, actions, proceedings, investigations, demands, claims, liabilities,
fines, penalties, liens, judgments, losses, injuries, damages, expenses or
costs, including, without limitation, attorneys' and experts' fees and costs
and investigation, and remediation costs (collectively "Claims") under, and
Buyer shall be barred from bringing any Claims with respect to, any of the
representations and warranties contained in this Agreement or in any Closing
Document, except to the extent (and only to the extent) that (i) with respect
to Claims for breach of representations and warranties relating to a specific
Property, the amount of such Claims exceed One Hundred Thousand Dollars
($100,000) ("Threshold Amount") and, in such case, such Claims shall only be
valid (and the Seller shall only be liable) for the portion that exceeds the
Threshold Amount; provided, however, notwithstanding any provision to the
contrary herein or in any Closing Document, the (i) total liability of Seller
for any or all Claims (inclusive of Claims with respect to any estoppel
certificates delivered by Seller pursuant to Section 8.4(a)) with respect any
Property shall not exceed two and three quarters percent (2.75%) of the
Purchase Price. Further notwithstanding any provision to the contrary herein
or in any Closing Document, Seller shall have no liability with respect to
any Claim under any of the representations and warranties contained in this
Agreement or in any Closing Document, which Claim relates to or arises in
connection with (1) any Hazardous Materials (except solely to the extent that
Seller has breached its representation in Section 4.1(k)), (2) the physical
condition of any Property (except solely to the extent that Seller has
breached its representation in Section 4.1(k)) or (3) any other matter not
expressly set forth in the Seller's representations and warranties set forth
in Section 4.1. Buyer shall not make any Claim or deliver any Claim Notice
unless it in good faith believes the Claims would exceed the Threshold Amount
provided in this Section 4.3(a).
(b) Except as otherwise specifically set forth in this Agreement,
the representations and warranties of Seller contained herein or in any
Closing Document shall survive only until July 6, 1998. Any Claim that Buyer
may have at any time against Seller for a breach of any such representation
or warranty, whether known or unknown, with respect to which a Claim Notice
has not been delivered to Seller on or prior to July 6, 1998 shall not be
valid or effective. For the avoidance of doubt, on July 6, 1998, Seller shall
be fully discharged and released (without the need for separate releases or
other documentation) from any liability or
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obligation to Buyer, any Permitted Assignee and/or their successors and
assigns with respect to any Claims or any other matter relating to this
Agreement, any Closing Document or the Properties, except solely for those
matters that are then the subject of a pending Claim Notice delivered by
Buyer to Seller. Any Claim that Buyer may have at any time against Seller
for a breach of any such representation or warranty, whether known or
unknown, with respect to which a Claim Notice has been delivered to Seller on
or prior to July 6, 1998 may be the subject of subsequent litigation brought
by Buyer against Seller, provided that such litigation is commenced against
Seller on or prior to October 6, 1998. For the avoidance of doubt, on
October 6, 1998, Seller shall be fully discharged and released (without the
need for separate releases or other documentation) from any liability or
obligation to Buyer and/or its successors and assigns with respect to any
Claims or any other matter relating to this Agreement, any Closing Document
or the Properties, except solely for those matters that are the subject of a
litigation by Buyer against Seller that is pending on October 6, 1998.
(c) This Section 4.3 shall survive the Closing.
Section 4.4 Representations and Warranties of Buyer. Buyer hereby
makes the following representations and warranties:
(a) Buyer is a limited partnership duly organized and validly
existing and in good standing under the laws of the State of Delaware. Buyer
further represents and warrants to Seller that this Agreement and all
documents executed by Buyer that are to be delivered to Seller at Closing (i)
are, or at the time of Closing will be, duly authorized, executed and
delivered by Buyer, (ii) do not, and at the time of Closing will not, violate
any provision of any agreement or judicial order to which Buyer is a party or
to which Buyer or any property owned by Buyer is subject and (iii)
constitutes (or in the case of Closing Documents will constitute) a valid and
legally binding obligation of Buyer, enforceable in accordance with its terms.
(b) Buyer has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing, of any involuntary petition by Buyer's creditors, (iii) suffered the
appointment of a receiver to take possession of all, or substantially all, of
Buyer's assets, (iv) suffered the attachment or other judicial seizure of
all, or substantially all, of Buyer's assets, (v) admitted in writing its
inability to pay its debts as they come due, or (vi) made an offer of
settlement, extension or composition to its creditors generally. As of the
Closing Date, Buyer will have sufficient funds to pay the Purchase Price and
consummate the transactions contemplated by this Agreement.
(c) Buyer has full and complete power and authority to enter into
this Agreement and to perform its obligations hereunder.
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(d) Buyer (i) is a sophisticated investor, (ii) is represented by
competent counsel and (iii) understands the assumptions of risk and liability
set forth in this Agreement.
(e) No consents are required to be obtained from, and no filings
are required to be made with, any Governmental Authority or third party in
connection with the execution and delivery of this Agreement by Buyer or the
consummation by Buyer of the transactions contemplated hereby.
Each of the representations and warranties of Buyer contained in
this Section (i) is made on the Effective Date; (ii) shall be deemed remade
by Buyer and/or its assignee(s), as applicable and appropriate, and shall be
true in all material respects, as of the Closing Date; and (iii) shall
survive the Closing until July 6, 1998.
Section 4.5 Buyer's Independent Investigation.
(a) Buyer, for itself and any successors or assigns (including any
Permitted Assignees), acknowledges and agrees that it has been given the full
opportunity to inspect and investigate each and every aspect of each
Property, either independently or through agents, representatives or experts
of Buyer's choosing, as Buyer considers necessary or appropriate, and that
Buyer is completely satisfied with such independent investigation (but the
foregoing will not constitute a waiver of any breach of representation or
warranty set forth in Section 4.1 unless such breach is disclosed in the Due
Diligence Materials or is otherwise known by Buyer and/or any Permitted
Assignee before the Closing Date and Buyer and/or such Permitted Assignee(s)
elect to proceed with the Closing). Such independent investigation by Buyer
may include, without limitation:
(i) all matters relating to title to such Property;
(ii) all matters relating to governmental and other legal
requirements with respect to such Property, such as taxes, assessments,
zoning, use permit requirements and building codes;
(iii) all zoning, land use, building, environmental and other
statutes, rules, or regulations applicable to each Real Property;
(iv) the physical condition of each Real Property, including,
without limitation, the interior, the exterior, the square footage of the
Improvements and of each tenant space therein, the structure, the roof, the
paving, the utilities, and all other physical and functional aspects of such
Real Property, including the presence or absence of Hazardous Materials;
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(v) any easements and/or access rights affecting such Real
Property;
(vi) the Leases with respect to such Real Property and all
matters in connection therewith, including, without limitation, the ability
of the Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of
significance affecting such Property;
(viii) all matters that would be revealed by an ALTA as-built
survey (a "Survey"), a physical inspection or an environmental site
assessment of such Real Property;
(ix) all matters relating to the income and operating or
capital expenses of the Properties and all other financial matters; and
(x) all other matters of significance affecting, or otherwise
deemed relevant by Buyer with respect to, such Property.
(b) The Due Diligence Materials heretofore delivered or made
available to Buyer for its review and approval include:
(i) to the extent in the possession of Seller, a copy of a
Survey of each Real Property;
(ii) a Rent Roll for each Real Property, listing for any
Tenant the name, rent, amount of deposit and prepaid rent, if any, and lease
term and copies of the Existing Leases;
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for each Real
Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of
Seller;
(vi) to the extent in the possession of Seller or Seller's
property manager, reports, studies, assessments, investigations and other
materials related to the presence of Hazardous Materials at, on or under each
Real Property and the compliance of such Real Property with all environmental
laws, including recent Phase I (and, in some cases, Phase II) environmental
surveys; and
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(vii) to the extent in the possession of Seller or Seller's
property managers, copies of (i) the bills issued for the most recent year
for each Real Property for all real estate taxes and assessments, water
rates, water meter charges, sewer rates, sewer charges, and similar matters,
imposed by any Governmental Authority ("Real Estate Taxes") and personal
property taxes and (ii) all notices or documents for any assessments or bonds
relating to each Real Property.
(c) Buyer acknowledges and agrees that (i) it has completed its
independent investigation of the Properties and the Due Diligence Materials
and has obtained, reviewed and approved a Title Commitment for each Property,
(ii) it is acquiring the Properties based on such independent investigation
and subject to all information disclosed in the Due Diligence Materials (and
also in reliance on Seller's representations and warranties contained herein)
and (iii) Buyer shall have no right to terminate this Agreement based on any
further investigations of the Properties or the Due Diligence Materials.
Buyer has approved each and every aspect of such Properties. The preceding
sentence is not intended to relieve, and shall not relieve, Seller from any
of its obligations under Section 4.1.
(d) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT (i) SELLER
SHALL SELL AND BUYER SHALL PURCHASE EACH PROPERTY "AS IS, WHERE IS AND WITH
ALL FAULTS," (ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER IS
NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM
SELLER, NOR ANY PARTNER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF
SELLER, AS TO ANY MATTER, CONCERNING ANY PROPERTY, OR SET FORTH, CONTAINED OR
ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING WITHOUT LIMITATIONS, THE
COMPLETENESS THEREOF), INCLUDING WITHOUT LIMITATION: (i) the quality, nature,
habitability, merchantability, use, operation, value, marketability, adequacy
or physical condition of any Property or any aspect or portion thereof,
including, without limitation, structural elements, foundation, roof,
appurtenances, access, landscaping, parking facilities, electrical,
mechanical, HVAC, plumbing, sewage, and utility systems, facilities and
appliances, soils, geology and groundwater, (ii) the dimensions or lot size
of any Real Property or the square footage of the Improvements thereon or of
any tenant space therein, (iii) the development or income potential, or
rights of or relating to, any Real Property, or any Real Property's use,
habitability, merchantability, or fitness, or the suitability, value or
adequacy of such Real Property for any particular purpose, (iv) the zoning or
other legal status of any Real Property or any other public or private
restrictions on the use of such Real Property, (v) the compliance of any Real
Property or its operation with any applicable codes, laws, regulations,
statutes, ordinances, covenants, conditions and restrictions of any
Governmental Authority or of any other person or entity (including, without
limitation, the Americans with Disabilities Act), (vi) the ability of Buyer
to obtain any necessary governmental approvals, licenses or permits for
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Buyer's intended use or development of any Real Property, (vii) the presence
or absence of Hazardous Materials on, in, under, above or about any Real
Property or any adjoining or neighboring property, (viii) the quality of any
labor and materials used in any Improvements, (ix) the condition of title to
any Real Property, (x) the Leases, Contracts or any other agreements
affecting any Real Property or the intentions of any party with respect to
the negotiation and/or execution of any lease or contract with respect to any
Real Property, (xi) Seller's ownership of any Property or any portion thereof
or (xii) the economics of, or the income and expenses, revenue or expense
projections or other financial matters, relating to, the operation of any
Real Property. Without limiting the generality of the foregoing, except as
otherwise set forth herein, Buyer expressly acknowledges and agrees that
Buyer is not relying on any representation or warranty of Seller, nor any
partner, officer, employee, attorney, agent or broker of Seller, whether
implied, presumed or expressly provided at law or otherwise, arising by
virtue of any statute, common law or other legally binding right or remedy in
favor of Buyer. Buyer further acknowledges and agrees that Seller is under
no duty to make any inquiry regarding any matter that may or may not be known
to Seller or any partner, officer, employee, attorney, agent or broker of
Seller. This Section 4.5(d) shall survive the Closing, or, if the Closing
does not occur, beyond the termination of this Agreement.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE
RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT THERE IS NO OBLIGATION ON THE
PART OF SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO ANY PROPERTY OR
TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY
INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF
OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR OCCUPANCY
OF ANY PROPERTY AND FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE
SAME, ALL AT BUYER'S SOLE COST AND EXPENSE.
Section 4.6 Entry and Indemnity; Limits on Government Contacts.
(a) In connection with any entry by Buyer, its Permitted
Assignee(s) or any of their agents, employees or contractors (collectively,
the "Buyer Parties" and each a "Buyer Party") onto a Real Property, Buyer
shall give Seller reasonable advance notice of such entry and shall conduct
such entry and any inspections in connection therewith so as to minimize, to
the greatest extent possible, interference with Seller's business and the
business of the Tenants and otherwise in a manner reasonably acceptable to
Seller. Without limiting the foregoing, prior to any entry to perform any
necessary on-site testing, Buyer shall give Seller written notice thereof,
including the identity of the company or persons who will perform such
testing and the proposed scope of the testing and the party performing the
testing. Seller shall approve or disapprove any proposed testing and the
party performing the same within three (3) Business Days after receipt of
such notice. If a Buyer Party takes any sample from a Real Property in
connection with any
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such approved testing, Buyer shall provide to Seller a portion of such sample
being tested to allow Seller, if it so chooses, to perform its own testing.
Seller or its representative may be present to observe any testing, or other
inspection performed on any Real Property. Buyer shall promptly deliver to
Seller copies of any reports relating to any testing or other inspection of
any Real Property performed by or on behalf of any Buyer Party. Buyer shall
maintain, and shall ensure that its contractors maintain, public liability
and property damage insurance insuring the Buyer Parties against any
liability arising out of any entry or inspections of any Real Property
pursuant to the provisions hereof. Such insurance maintained by Buyer shall
be in the amount of Ten Million Dollars ($10,000,000) combined single limit
for injury to or death of one or more persons in an occurrence, and for
damage to tangible property (including loss of use) in an occurrence. The
policy maintained by Buyer shall insure the contractual liability of Buyer
covering the indemnities herein and shall (i) name Seller (and their
successors, assigns and Affiliates) as additional insureds, (ii) contain a
cross-liability provision, and (iii) contain a provision that "the insurance
provided by Buyer hereunder shall be primary and noncontributing with any
other insurance available to Seller." Buyer shall provide Seller with
evidence of such insurance coverage prior to any entry or inspection of any
Real Property. Buyer shall indemnify and hold the Seller Parties harmless
from and against any Claims arising out of or relating to any entry on any
Real Property by any Buyer Party, in the course of performing any
inspections, testings or inquiries. The foregoing indemnity shall survive
the Closing, or, if the Closing does not occur, beyond the termination of
this Agreement.
(b) Notwithstanding any provision in this Agreement to the
contrary, neither Buyer nor any other Buyer Party shall contact any
Governmental Authority regarding any Hazardous Materials on or the
environmental condition of any Real Property without Seller's prior written
consent thereto; provided that if Buyer or Buyer's consultant is
unconditionally obligated by applicable law to notify a Governmental
Authority regarding any Hazardous Materials on, or the environmental
condition of, any Real Property discovered by Buyer's environmental testing,
Buyer shall first provide prior written notice to Seller and shall not
contact any Governmental Authority except in conjunction with Seller. In
addition, if Seller's consent is obtained by Buyer, Seller shall be entitled
to receive at least five (5) Business Days prior written notice of the
intended contact and to have a representative present when Buyer has any such
contact with any governmental official or representative.
Section 4.7 Release.
(a) Without limiting the provisions of Section 4.5, Buyer, for
itself and any successors and assigns of Buyer (including, without
limitation, any Permitted Assignee), waives its right to recover from, and
forever releases and discharges, and covenants not to ▇▇▇, Seller, Seller's
Affiliates, Seller's asset manager, any lender to Seller, the partners,
trustees, shareholders, controlling persons, LLC members, directors,
officers, attorneys, employees and agents of each of them, and their
respective heirs, successors, personal representatives and
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assigns (each a "Seller Party", and collectively, the "Seller Parties") with
respect to any and all Claims, whether direct or indirect, known or unknown,
foreseen or unforeseen, that may arise on account of or in any way be
connected with any Property including, without limitation, the physical,
environmental and structural condition of the related Real Property or any
law or regulation applicable thereto, including, without limitation, any
Claim or matter relating to the use, presence, discharge or release of
Hazardous Materials on, under, in, above or about any Real Property;
provided, however, Buyer does not waive its rights, if any, to recover from,
and does not release or discharge or covenant not to ▇▇▇ Seller for (i) any
act that is found by a court of competent jurisdiction to constitute fraud,
(ii) any breach of Seller's representations or warranties set forth in
Section 4.1 or in Seller's estoppel certificate delivered pursuant to Section
8.4, subject to the limitations and conditions provided in this Agreement, or
(iii) any breach of Seller's obligations set forth in this Agreement that
expressly survive Closing.
(b) This Section 4.7 shall survive the Closing indefinitely.
ARTICLE V
TITLE
Section 5.1 Conveyance of Title. Buyer has obtained a Title
Commitment for each Property. A copy of each Title Commitment delivered to
Buyer has been delivered to Seller and its counsel. At the Closing, as a
condition precedent to Buyer's obligation to close, Seller shall have
delivered to Buyer a deed for the Real Property in the form of Exhibit A
(each, a "Deed"), each subject to no exceptions other than the following (the
"Permitted Exceptions"):
(i) Interests and rights of Tenants in possession under
Existing Leases and New Leases, including, without limitation, those Tenant
purchase rights listed on Schedule 2.1.5;
(ii) Liens for Real Estate Taxes that are apportioned as
provided in Section 8.5 (including special assessments and special
improvement district or local improvement district bonds);
(iii) Any exceptions, exclusions and other matters set forth
in or disclosed by the Title Commitment for such Real Property or other
documents made available to Buyer and any other exceptions to title that
would be disclosed by an inspection and/or survey of such Real Property,
including those disclosed on a Survey;
(iv) Any and all present and future laws, ordinances,
restrictions, requirements, resolutions, orders, rules and regulations of any
Governmental Authority, as now or hereafter existing or enforced (including,
without limitation, those related to zoning and land
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use), and all notes or notices of violation of any such laws, ordinances,
rules or regulations set forth in the Due Diligence Materials or in any title
reports, commitments or updates delivered to Buyer prior to the Effective
Date;
(v) Any lien or encumbrance encumbering such Property as to
which Seller shall deliver to Buyer, or the Title Company, at or prior to the
Closing, proper instruments, in recordable form, canceling such lien or
encumbrance, together with funds to pay the cost of recording and canceling
the same;
(vi) Such other exceptions as the Title Company shall commit
to insure over in a manner reasonably satisfactory to Buyer, without any
additional cost to Buyer, whether such insurance is made available in
consideration of payment, bonding or indemnity by Seller or otherwise;
(vii) Uniform Commercial Code filings that have expired or
terminated by operation of law on or prior to the Closing Date;
(viii) Any exceptions caused by Buyer, its agents,
representatives or employees; and
(ix) Any other matters affecting title to such Property that
have been approved or waived by Buyer pursuant to the terms hereof.
The acceptance by Buyer of the Deeds shall be deemed to be a full performance
and discharge of every obligation on the part of Seller to be performed under
this Agreement with respect to the applicable Property, other than those that
are specifically stated herein to survive the Closing.
Section 5.2 Evidence of Title. Delivery of title in accordance
with the foregoing shall be evidenced by the Title Company issuing, or to
committing to issue, at Closing, upon payment of the applicable premium
therefor, one or more 1992 ALTA Owner's Policies of Title Insurance
(provided, that in jurisdictions where local regulations require a form of
policy other than a 1992 ALTA Owner's Policy, such other required form shall
be used) in the aggregate amount of the Purchase Price for the Properties
showing title to each Property vested in Buyer or its Permitted Assignee or
designee, subject only to the Permitted Exceptions (the "Title Policy").
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ARTICLE VI
BROKERS AND EXPENSES
Section 6.1 Brokers. Seller and Buyer represent and warrant to
each other that no broker or finder, other GMH Realty, Inc. ("GMH"), whose
fees will be the responsibility of Seller pursuant to a separate agreement
among between GMH and Seller, was instrumental in arranging or bringing about
this transaction and that there are no claims or rights for brokerage
commissions or finders' fees in connection with the transactions contemplated
hereby by any person or entity other than GMH. If any person brings a claim
for a commission or finder's fee based upon any contact, dealings or
communication with Buyer or Seller, then the party through whom such person
makes its claim shall defend the other party (the "Indemnified Party") from
such claim, and shall indemnify the Indemnified Party and hold the
Indemnified Party harmless from any and all costs, damages, claims,
liabilities or expenses (including without limitation, reasonable attorneys'
fees and disbursements) incurred by the Indemnified Party in defending
against the claim. The provisions of this Section 6.1 shall survive the
Closing or, if the Closing does not occur, any termination of this Agreement.
Section 6.2 Expenses. Except as provided in Section 8.5(e), each
party hereto shall pay its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby.
ARTICLE VII
INTERIM OPERATION OF THE PROPERTIES
Section 7.1 Interim Operation of the Properties.
(a) Except as otherwise contemplated or permitted by this Agreement
or approved by Buyer in writing, from the Effective Date to the Closing Date,
Seller agrees that it will operate, maintain, repair and lease the Real
Property in the ordinary course, on an arm's-length basis and consistent with
Seller's past practices and will not dispose of or encumber any Property,
except for dispositions of personal property in the ordinary course of
business or as otherwise permitted by Section 7.1 or Section 7.3. Without
limiting the foregoing, Seller shall, in the ordinary course, negotiate with
prospective Tenants and enter into New Leases (on terms that Seller believes,
in its good faith business judgment, to be market terms), enforce Leases in
all material respects, perform in all material respects all of landlord's
obligations under the Leases (other than Leases that are or that are in the
process of being terminated due to Tenant's default thereunder, provided that
this provision shall not be deemed breached by virtue of Seller's failure to
perform under Leases expiring on or before December 30, 1997) and pay all
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costs and expenses of the Properties, including without limitation debt
service and Real Estate Taxes.
(b) Seller shall not, without Buyer's consent, enter into any New
Leases or materially modify any Existing Lease. Any consent to be given by
Buyer pursuant to this Section 7.1(b) shall not be unreasonably withheld or
delayed and shall be deemed granted if Buyer does not respond in writing to
Seller's request for consent within three (3) Business Days.
(c) Seller shall not enter into or terminate any operating
agreement or any contract, agreement or other commitment of any sort
(including any contract for capital items or expenditures, but excluding any
liens or other encumbrances on title other than Permitted Exceptions), with
respect to any one or more of the Properties that (A) requires payments to or
by Seller in excess of $50,000 per annum, or the performance of services by
Seller the value of which is in excess of $50,000 per annum and (B) is not
terminable without cause and without penalty on thirty (30) days' notice or
less; provided that Seller, in its good faith but sole discretion, believes
such contract is on market terms and will benefit the applicable Property. At
least three (3) Business Days prior to becoming legally bound with respect to
any such matter, Seller shall consult with and seek the consent of Buyer, and
shall provide reasonable detail to Buyer (including, at Buyer's request,
copies of the relevant documentation), with respect thereto. Any consent to
be given by Buyer pursuant to this Section 7.1(c) shall not be unreasonably
withheld or delayed and shall be deemed granted if Buyer does not respond in
writing to Seller's request for consent within three (3) Business Days.
(d) Except for New Leases or other agreements entered into in
accordance with this Section 7.1, Seller shall not enter into any agreement
to create a lien or encumbrance on any Property without Buyer's prior written
consent (which consent shall not be unreasonably withheld or delayed with
respect to any utility or similar easement necessary for the operation of a
Property, and which shall be deemed granted if Buyer does not respond in
writing to Seller's request for consent within three (3) Business Days).
(e) Prior to the Closing Date or the earlier termination of this
Agreement, Seller shall not sell any Property or portion thereof without
Buyer's prior written consent.
(f) Within three (3) days after the execution thereof, Seller shall
provide Buyer with copies of all Contracts entered into by Seller after the
Effective Date affecting any Property (other than Contracts terminable on 30
days' notice or less), and all operating statements, rent rolls, receivable
aging reports, leasing reports and other periodic reports prepared by or
delivered to Seller.
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Section 7.2 Tenant Improvement Costs, Leasing Commissions and Free
Rent. If the Closing occurs, Buyer shall be responsible and shall pay for
the costs of tenant improvement work or allowances, third-party leasing
commissions and other leasing costs (collectively, "Leasing Costs") relating
to or arising from (i) those Leases or modifications of Leases entered into
on or after October 9, 1997 (ii) the exercise by a Tenant of a renewal,
expansion or extension option contained in any Lease, which renewal or
extension period commences, or which expansion space such Tenant first has
the right to occupy, on or after October 9, 1997 (notwithstanding that such
Tenant may have exercised such option prior to October 9, 1997 and (iii) any
items set forth on Schedule 7.2.1, and any amounts paid by Seller in respect
of such Leasing Costs shall result in an upward adjustment to the Purchase
Price at Closing equal to the amounts so paid. Free rent periods provided for
in Leases entered into by Seller prior to October 9, 1997 that occur, in
whole or in part, after the Closing Date shall be for the account of, and
borne by, Buyer without adjustment to the Purchase Price at closing. The
provisions of this Section 7.2 shall survive the Closing.
Section 7.3 Seller's Maintenance of the Properties. Between the
Effective Date and the Closing Date, Seller shall (a) maintain each Real
Property in substantially the same manner as prior hereto pursuant to
Seller's normal course of business, subject to reasonable wear and tear and
further subject to the occurrence of any damage or destruction to such Real
Property by casualty or other causes or events beyond the control of Seller;
provided, however, that Seller's maintenance obligations under this Section
7.3 shall not include any obligation to make capital expenditures not
incurred in Seller's normal course of business or any other expenditures not
incurred in Seller's normal course of business; (b) continue to maintain its
existing insurance coverage; and (c) not grant any voluntary liens or
encumbrances affecting such Property other than Permitted Exceptions of the
type described in clauses (i) and (ix) of Section 5.1.
Section 7.4 Lease Enforcement. Subject to the provisions of
Section 7.1, prior to the Closing Date, Seller shall have the right, but not
the obligation, to enforce the rights and remedies of the landlord under any
Lease or New Lease, by summary proceedings or otherwise, and to apply all or
any portion of any security deposits then held by Seller toward any loss or
damage incurred by Seller by reason of any defaults by any Tenant, provided,
that (i) with respect to delinquent rents, Seller may (to the extent
permitted under the Lease) apply Tenant security deposits held by Seller only
to rents that are thirty (30) days or more past due and (ii) with respect to
any application by Seller of Tenant security deposits held by Seller, Seller
will deliver, in connection with any such application, written notice to the
affected Tenant(s) indicating that their security deposits have been or are
being so applied).
Section 7.5 Lease Termination Prior to Closing. The bankruptcy or
default of any Tenant or the termination of any Lease or New Lease or the
removal of any Tenant by reason of a default by such Tenant (by summary
proceedings or otherwise) or by operation of the terms of such Lease or New
Lease shall not affect the obligations of Buyer under this Agreement in any
25
manner or entitle Buyer to a reduction in, or credit or allowance against,
the Purchase Price or give rise to any other claim on the part of Buyer.
Section 7.6 Tenant Notices. At the Closing, Seller shall furnish
Buyer with a signed notice to be given to each Tenant. Such notice shall
disclose that the applicable Property has been sold to Buyer and that, after
the Closing, all rents should be paid to Buyer.
Section 7.7 Risk of Loss and Insurance Proceeds. Buyer shall be
bound to purchase the Properties for the full Purchase Price as required by
the terms hereof, without regard to the occurrence or effect of any damage to
the related Real Properties or destruction of any improvements thereon or
condemnation of any portion of any Property, provided that upon the Closing,
there shall be a credit against the Purchase Price due hereunder equal to the
amount of any insurance proceeds or condemnation awards collected by Seller
as a result of any such damage or destruction or condemnation, plus the
amount of any insurance deductible or any uninsured amount or retention, less
any sums reasonably expended by Seller prior to the Closing for the
restoration or repair of any Property. Seller has provided Buyer with a
certificate of insurance for Seller's casualty insurance policy so that Buyer
can confirm its satisfaction with such policy. Seller agree that it will
maintain such policy in full force and effect until the Closing. If the
proceeds or awards have not been collected as of the Closing, then such
proceeds or awards shall be assigned to Buyer, except to the extent needed to
reimburse Seller for sums it reasonably expended prior to the Closing for the
restoration or repair of such Property. Notwithstanding the foregoing, (i)
Seller shall not settle, compromise or otherwise stipulate any award or
recovery in connection with any damage, destruction or condemnation, in each
case if such damage, destruction or condemnation impairs the value of a
Property by at least $250,000 without the prior written approval of Buyer,
which approval shall not be unreasonably withheld, (ii) Buyer shall have the
right to participate in any such settlement or other proceedings, and (iii)
if the amount of the damage or destruction as described in this Section 7.7
exceeds ten percent (10%) of the Purchase Price, then Buyer may, at its
option to be exercised within five (5) Business Days of Seller's written
notice of the occurrence of the damage or destruction, either terminate this
Agreement or consummate the purchase for the full Purchase Price as required
by the terms hereof. If Buyer elects to terminate this Agreement, then the
Deposit shall be immediately returned to Buyer and neither party shall have
any further rights or obligations hereunder except to the extent set forth in
Sections 4.6(a), 6.1, 9.4 and 9.10(a). If Buyer elects to proceed with the
purchase, then upon the Closing, Buyer shall be entitled to a credit against
the Purchase Price and shall receive an assignment of any uncollected
proceeds or awards, all as set forth in this Section 7.7 above. The
provisions of this Section 7.7 shall survive the Closing.
Section 7.8 Notifications. Between the Effective Date and the
Closing, Seller shall promptly notify Buyer of any condemnation,
environmental, zoning or other land-use regulation proceedings relating to
any of the Properties of which Seller obtains actual knowledge by written
notice, any notices of violations of any legal requirements relating to any
of the
26
Properties received by Seller, any litigation of which Seller obtains actual
knowledge by written notice that arises out of the ownership of any of the
Properties unless fully covered by insurance (subject to customary
deductibles), and any other matters that would materially affect Seller's
representations and warranties hereunder.
ARTICLE VIII
CLOSING AND ESCROW
Section 8.1 Escrow Instructions. Upon execution of this Agreement,
the parties hereto shall deposit an executed counterpart of this Agreement
with the Title Company, and this instrument shall serve as the instructions
to the Title Company as the escrow holder for consummation of the purchase
and sale contemplated hereby. Seller and Buyer agree to execute such
reasonable additional and supplementary escrow instructions as may be
appropriate to enable the Title Company to comply with the terms of this
Agreement; provided, however, that in the event of any conflict between the
provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control, unless a contrary intent is expressly
indicated in such supplementary instructions.
Section 8.2 Closing. The Closing hereunder shall be held and
delivery of all items to be made at the Closing under the terms of this
Agreement shall be made at the offices of Seller's counsel (or such other
location as the parties may agree) at 10:00 A.M. (Eastern Standard Time) on
January 5, 1998 or such earlier or later date and time as Buyer and Seller
may mutually agree upon in writing (the "Closing Date"), in either case, with
time being of the essence. Except as otherwise permitted under this
Agreement, such date and time may not be extended without the prior written
approval of both Seller and Buyer.
Section 8.3 Deposit of Documents.
(a) On or before the December 16, 1997 (the "Document Delivery
Date"), at the offices of Seller's counsel (or such other time and location
as the parties may agree) Seller shall deposit into escrow with the Title
Company the following items (pursuant to escrow instructions reasonably
acceptable to Seller and Buyer):
(i) a duly executed and acknowledged Deed for each Real
Property;
(ii) [intentionally omitted];
(iii) [intentionally omitted]
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(iv) a duly executed counterpart of a ▇▇▇▇ of Sale for each
Real Property in the form attached hereto as Exhibit E (each, a "▇▇▇▇ of
Sale");
(v) a duly executed counterpart of an Assignment and
Assumption of Leases for each Real Property in the form attached hereto as
Exhibit F (each, an "Assignment of Leases");
(vi) a duly executed counterpart of an Assignment and
Assumption of Contracts, Warranties and Guaranties and Other Intangible
Property for each Real Property in the form attached hereto as Exhibit G
(each, an "Assignment of Contracts");
(vii) a duly executed counterpart of an agreement designating
the Title Company as the "Reporting Person" for the transaction contemplated
hereby pursuant to Section 6045(e) of the Federal Code and the regulations
promulgated thereunder, substantially in the form of Exhibit H attached
hereto (the "Designation Agreement");
(viii) a duly executed counterpart of such disclosures and
reports (including withholding certificates) as are required by applicable
state and local law in connection with the conveyance of the Properties;
(ix) the Seller's affidavit to the Title Company, in the form
of Exhibit L attached hereto (the "Seller's Affidavit"); and
(x) an affidavit pursuant to Section 1445(b)(2) of the Code,
and on which Buyer is entitled to rely, that Seller is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Code.
(b) On or before the Document Delivery Date, at the offices of
Seller's counsel (or such other time and location as the parties may agree),
Buyer shall deposit into escrow with the Title Company the following items
(pursuant to escrow instructions reasonably acceptable to Seller and Buyer):
(i) [intentionally omitted];
(ii) a duly executed counterpart of each ▇▇▇▇ of Sale;
(iii) a duly executed counterparts of each Assignment of Leases;
(iv) a duly executed counterpart of each Assignment of
Contracts;
(v) a duly executed counterpart of the Designation Agreement
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(vi) a duly executed counterpart of Buyer's As-Is Certificate
and Agreement, substantially in the form of Exhibit I attached hereto; and
(vii) a duly executed counterpart of such disclosures and
reports as are required by applicable state and local law in connection with
the conveyance of the Properties.
(c) On the morning of the Closing Date, Buyer shall effect a wire
transfer of federal funds to the Title Company's escrow account (in
accordance with the wiring instructions set forth on Schedule 2.2.1) in an
amount equal to the sum of (i) the Purchase Price and (ii) the amount (if
any) of the costs, expenses and adjustments payable by Buyer under this
Agreement. The amount of the funds to be wired to the Title Company's escrow
account shall be reduced by the Deposit (including all interest thereon).
After Seller's confirmation of receipt of the Purchase Price (as reduced by
the costs, expenses, prorations and adjustments payable by Seller under this
Agreement) by wire transfer of federal funds by the Title Company to one or
more accounts designated by Seller: (i) the Title Company shall be authorized
to record the Deed for each Real Property, (ii) the Title Company shall
deliver to Buyer all other documents and instruments received by it which, in
accordance with the terms of this Agreement, are to be delivered by Seller to
Buyer on the Closing Date, and (iii) the Title Company shall deliver to Buyer
all other documents and instruments received by it which, in accordance with
the terms of this Agreement are to be delivered by Buyer to Seller on the
Closing Date. Buyer and Seller shall each deposit such other instruments as
are reasonably required by the Title Company or otherwise required to close
the escrow and consummate the purchase and sale of the Properties in
accordance with the terms hereof; provided, that Seller shall not be required
to provide any indemnities or affidavits or to escrow any funds other than
the Seller's Affidavit.
(d) Seller shall deliver to Buyer originals of the Leases (or, if
originals are not available, copies), copies of the tenant correspondence
files of the Real Properties in Seller's possession, a set of keys to each
Real Property and originals (or copies, if originals are not available) of
any other items in Seller's possession relating to the use, ownership,
operation, maintenance, leasing, repair, alteration, management or
development of the Real Properties, on the Closing Date (at such location as
Buyer and Seller shall mutually agree). Following the Closing, Buyer shall
make all Leases, Contracts, other documents, books, records and any other
materials in its possession, to the extent the same relate to the period of
Seller's ownership of the Properties, available to Seller or its
representatives for inspection and/or copying at Buyer's offices (at Seller's
sole cost and expense) at reasonable times and upon reasonable notice.
Section 8.4 Estoppel Certificates. Seller shall use its reasonable
efforts (without incurring any additional expense) to obtain prior to the
Closing Date tenant estoppel certificates from each Tenant substantially in
the form attached hereto as Exhibit J; provided, however, that if a form of
estoppel certificate is attached to or otherwise prescribed in a particular
lease document, that form (the "Prescribed Form") shall be deemed to be
acceptable to Buyer in the
29
event that any Tenant is unwilling to sign the form attached hereto as
Exhibit J. It shall be a condition to Buyer's obligation to close the sale
and purchase of a Property that on or before the Closing Seller delivers to
Buyer tenant estoppel certificates substantially in the form attached hereto
as Exhibit J (or in the Prescribed Form, if applicable) from (i) Tenants
occupying seventy five percent (75%) of the total leased square footage of
the Properties; and (ii) Significant Tenants occupying seventy five percent
(75%) of the total leased square footage covered by such Significant Tenants'
Leases (with respect to each of preceding clauses (i)-(ii), the "Required
Percentage"); provided, however, if Seller is unable to obtain the aforesaid
tenant estoppel certificates from Tenants or Significant Tenants (as the case
may be) occupying the Required Percentage, Seller may, but shall not be
obligated to, provide a certificate to Buyer, with respect to such missing
estoppel certificates, as chosen by Seller, to the effect that (except as
disclosed in the Due Diligence Materials or in the Leases to which such
estoppels relate): (i) to Seller's knowledge the Leases for those Tenants or
Significant Tenants (as the case may be) are in full force and effect; (ii)
the amount of the Tenants' or Significant Tenants' security deposits; (iii)
the dates through which rent has been paid; (iv) neither Seller nor, to
Seller's knowledge, any of those Tenants or Significant Tenants (as the case
may be) is in default thereunder; (v) a true, correct and complete copy of
the Leases are attached; (vi) the Leases expire on the dates specified and
are not subject to any renewal or extension options, except as specified, and
(viii) there are no options to purchase or rights of first refusal except as
specified. Buyer shall be obligated to accept Seller's certification in lieu
of any missing estoppel certificates. Seller's representations and
warranties in the certificate shall survive the Closing, provided that (i)
Buyer must give Seller a Claim Notice with respect to any claim it may have
against Seller for a breach of any such representation and warranty by July
6, 1998, and must commence litigation (if any) relating to such Claim Notice
not later than October 6, 1998 (and any claim that Buyer may have that is not
so asserted, or litigation by Buyer that is not so commenced, shall be barred
and not be valid or effective and Seller shall have no liability whatsoever
with respect thereto) and (ii) any certificate delivered by Seller pursuant
to this Section 8.4 shall cease to survive the Closing to the extent
specifically confirmed by a tenant estoppel certificate delivered by a Tenant
or a Significant Tenant. In no event shall the minimum thresholds to Buyer's
recovery set forth in Section 4.3(a) apply to any certificates delivered by
Seller (but Buyer's recovery under any such certificates shall be limited by
the maximum limitations set forth in Section 4.3(a)).
Section 8.5 Prorations.
(a) Rents, including, without limitation, percentage rents,
escalation charges for Real Estate Taxes, parking charges, marketing fund
charges, operating expenses, maintenance escalation rents or charges,
cost-of-living increases or other charges of a similar nature ("Additional
Rents"), and any additional charges and expenses payable under Leases; Real
Estate Taxes and personal property taxes, including refunds with respect
thereto, if any; the current installment (only) of any improvement bond or
assessment that is a lien on any Property or that is pending and may become a
lien on any Property; water, sewer and utility charges; amounts
30
payable under any existing Contract, Contract entered into after the
Effective Date and in accordance with this Agreement; annual permits and/or
inspection fees (calculated on the basis of the period covered); and any
other income or expenses relating to the operation and maintenance of each
Property (other than any Leasing Costs and free rent which shall be prorated
as provided in Section 7.2), shall all be prorated as of 12:01 a.m. Eastern
Standard Time on the Closing Date, on the basis of a 365-day year, with Buyer
deemed the owner of the Properties on the entire Closing Date. Rent which is
due but uncollected as of the Closing Date shall not be adjusted. On the
Closing Date, Seller shall deliver to Buyer a schedule of all such past due
but uncollected rent owed by tenants. Buyer agrees to cause the amount of
such rental arrears to be included in the first bills thereafter submitted by
Buyer to such tenants after the Closing Date. Any rents collected from a
tenant after the Closing Date shall be applied first to the month in which
the Closing Date occurs, next to any rents payable by such tenant after the
Closing Date and thereafter to any arrearage owed by such tenant on the
Closing Date in the inverse order of maturity. Additional rent payments (and
estimated additional rent payments) actually paid by tenants prior to Closing
attributable to real estate taxes and operating costs shall be adjusted as of
the Closing Date. Additional rent payments (and estimated additional rent
payments) attributable to real estate taxes and operating costs to be paid by
tenants after the Closing shall be adjusted upon receipt by Buyer. The
adjustments of additional rent payments shall be based upon the number of
days in the period for which such payment relates that are before or after
the Closing Date. In no event will Buyer be entitled to receive any payments
on or under the promissory notes or other agreements referred to in Section
8.7. Buyer shall use reasonable efforts until October 6, 1998 to collect any
delinquent rents that accrued prior to the Closing Date (but Seller shall
have the right to commence and pursue litigation against any Tenant to
collect delinquent rents and/or expense reimbursements, provided that Seller
may not seek as a remedy in any such litigation the termination of any Leases
or the dispossession of any Tenant). Seller agrees to forward any rents
received by it after the Closing Date to Buyer for application in accordance
with the provisions hereof. The amount of any security deposits that are
required to be returned to Tenants under Leases shall be credited against the
Purchase Price (and Seller shall be entitled to retain such security
deposits). In the event any Property has been assessed for property taxes
purposes at such rates as would result in reassessment (i.e., "escape
assessment" or "roll-back taxes") based upon the change in land usage or
ownership of such Property resulting from or after the consummation of the
transactions described in this Agreement, as between Buyer and Seller, Buyer
hereby agrees to pay all such taxes and to indemnify and save Seller harmless
from and against all claims and liability for such taxes. Such indemnity
shall survive the Closing.
(b) Seller and Buyer hereby agree that if any of the aforesaid
prorations cannot be calculated accurately on the Closing Date, then the same
shall be calculated as soon as reasonably practicable after the Closing Date,
and that if any Tenant is required to pay Additional Rents and such
Additional Rents are not finally adjusted between the landlord and tenant
under the applicable Lease until after the end of the 1997 calendar year,
then such prorations shall be calculated as soon as reasonably practicable
after such Additional Rents have been finally
31
adjusted. Either party owing the other party a sum of money based on
proration(s) calculated after the Closing Date shall promptly pay said sum to
the other party, together with interest thereon at the rate of two percent
(2%) per annum over the Prime Rate from the Closing Date to the date of
payment, if payment is not made within ten (10) days after delivery of a ▇▇▇▇
therefor. If the real estate and/or personal property tax rate and
assessments have not been set for the calendar year in which the Closing
occurs, then the proration of such taxes shall be based upon the rate and
assessments for the preceding calendar year, and such proration shall be
adjusted between Seller and Buyer as soon as reasonably practicable after
such tax rate or assessment has been set.
(c) Buyer shall calculate the prorations contemplated by Section
8.5(b). Seller and its representatives and auditors shall be afforded the
opportunity to review all underlying financial records and work papers
pertaining to the preparation of Buyer's proration statements, and Buyer
shall permit Seller and its representatives and auditors during regular
business hours and upon reasonable prior written notice to have reasonable
access to the books and records in the possession of Buyer or any party to
whom Buyer has given custody of the same relating to the Properties to permit
Seller to review Buyer's proration statements. Seller shall have sixty (60)
days after receipt of Buyer's calculations to accept or contest such
prorations.
(d) Buyer shall pay for all recording and escrow fees. Buyer shall
also pay the costs of the Title Commitments, Title Policies and all
endorsements thereto, and Surveys and Survey updates, and all costs of any
appraisal, engineering and environmental reports not delivered by Seller.
Seller and Buyer each shall pay one-half the realty transfer taxes payable
with respect to the deed. Seller and Buyer shall each be responsible for
paying their respective attorneys' fees and costs. Buyer and Seller agree
that, given the de minimis amount of Personal Property included within the
Properties, no portion of the Purchase Price is allocable or attributable to
such Personal Property.
(e) Buyer agrees that for purposes of any appeals relating to Real
Estate Taxes after the Closing Date, Buyer shall not value the Properties in
a manner (or otherwise take a position) inconsistent with the relative
Purchase Price set forth herein.
(f) Notwithstanding anything to the contrary herein, to the extent
set forth in Section 8.6 Seller reserves the right to protest any Real Estate
Taxes relating to the period prior to the Closing Date and to receive and
retain any refunds on account of such Real Estate Taxes.
(h) The obligations of Seller and Buyer under this Section 8.5
shall survive the Closing until October 6, 1998 (except with respect to
prorations of taxes and municipal assessments).
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Section 8.6 Tax Certiorari Proceedings. Seller is hereby
authorized, but not obligated, to (a) commence (prior to the Closing Date) or
continue (after the Effective Date and after the Closing Date) any proceeding
for the reduction of the assessed valuation of any Property for any tax year
which, in accordance with the laws and regulations applicable to such
Property, requires that, to preserve the right to bring a tax certiorari
proceeding with respect to such tax year, such proceeding be commenced prior
to the Closing Date and (b) endeavor to settle any such proceeding in
Seller's discretion. After the Closing, with respect to any Property, (i)
Seller shall retain all rights (subject to any rights of Tenants under their
Leases) with respect to any tax year ending prior to the tax year (and all
refunds relating thereto) in which the Closing Date occurs, and shall have
the sole right to participate in and settle any proceeding relating thereto
(provided, that such settlement does not affect the assessed tax value for
any subsequent tax year), and (ii) Buyer shall have all rights (subject to
any rights of Tenants under their Leases) with respect to any tax year (and
all refunds relating thereto) which ends after the Closing Date; provided,
however, that if the proceeding is for a tax year in which the Closing Date
occurs, such settlement shall not be made without Buyer's prior consent,
which consent shall not be unreasonably withheld or delayed. With respect to
any such proceeding for a tax year in which the Closing Date occurs (whether
commenced by Seller or Buyer), any refund or credit of taxes for such tax
year shall be applied first to the unreimbursed out-of-pocket expenses,
including reasonable counsel fees, necessarily incurred in obtaining such
refund or credit, and second, to any Tenant entitled to same, and the balance
shall be apportioned between Seller and Buyer as of the Closing Date in
accordance with the proportion of the applicable tax year occurring before
and after the Closing Date. In each case, the party which prosecuted the
proceeding shall deliver to the other copies of receipted tax bills and any
decision or settlement agreement evidencing the reduction in taxes. If any
refund shall be received by Seller which is for the account of Buyer as
provided in this Section 8.6, then Seller shall hold Buyer's share thereof in
trust for Buyer and, promptly upon receipt thereof, pay such share to Buyer
or any other party entitled to same as provided above. If any refund shall
be received by Buyer which is for the account of Seller as provided in this
Section 8.6, then Buyer shall hold Seller's share thereof in trust for Seller
and, promptly upon receipt thereof, pay such share to Seller or any other
party entitled to same as provided above. Each party shall execute any and
all consents or other documents as may be reasonably necessary to be executed
by such party so as to permit the other party to commence or continue any tax
certiorari proceeding which such other party is authorized to commence or
continue pursuant to the terms of this Section 8.6, or to collect any refund
or credit with respect to any such tax proceeding. The provisions of this
Section 8.6 shall survive the Closing.
Section 8.7 Tenant Obligations. Notwithstanding anything herein
that may be construed to the contrary (including, without limitation, Section
8.5), promissory notes or other agreements (other than the Leases) delivered
to Seller that evidence, deal with or otherwise relate solely to a Tenant's
rental or expense reimbursement obligations under its Lease that, as of the
Closing Date, are or were past due, shall not be conveyed to Buyer and shall
be retained by Seller. Seller agrees that in enforcing its rights against
Tenants under any such promissory notes
33
or other agreements, Seller will not seek to exercise any remedies that may
be available to it under the affected Leases.
Section 8.8 Seller Financial Statements. Upon the request of Buyer,
Seller shall make available to Buyer's third party accountants, Seller's
audited financial statements for the 1997 calendar year.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. Any notices required or permitted to be given
hereunder shall be given in writing and shall be delivered (a) in person, (b)
by certified mail, postage prepaid, return receipt requested, (c) by a
commercial overnight courier that guarantees next day delivery and provides a
receipt, or (d) by legible facsimile (followed by hard copy delivered in
accordance with preceding subsections (a)-(c)), and such notices shall be
addressed as follows:
To Buyer: Brandywine Operating Partnership, L.P.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Facsimile No.(▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel
c/o Brandywine Realty Trust
▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.(▇▇▇) ▇▇▇-▇▇▇▇
To Seller: University Plaza, L.P.
c/o GMH Associates, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be effective only upon receipt
(or refusal by the intended recipient to accept delivery). Notices may be
given by attorneys for the notifying partner.
34
Section 9.2 Entire Agreement. This Agreement, together with the
Exhibits and Schedules hereto, and the Confidentiality Agreement, contains
all representations, warranties and covenants made by Buyer and Seller and
constitutes the entire understanding between the parties hereto with respect
to the subject matter hereof. Any correspondence, memoranda or agreements
between the parties, including, without limitation, or any oral or written
statements made by Seller, its Affiliates, employees or agents, are not
binding on or enforceable against any party, and are superseded and replaced
in total by this Agreement together with the Exhibits and Schedules hereto.
Section 9.3 Time. Time is of the essence in the performance of
each of the parties' respective obligations contained herein.
Section 9.4 Attorneys' Fees. If either party hereto fails to
perform any of its obligations under this Agreement or if any dispute arises
between the parties hereto concerning the meaning or interpretation of any
provision of this Agreement, then the defaulting party or the party not
prevailing in such dispute, as the case may be, shall pay any and all costs
and expenses incurred by the other party on account of such default and/or in
enforcing or establishing its rights hereunder, including, without
limitation, court costs (including costs of any trial or appeal therefrom)
and reasonable attorneys' fees and disbursements.
Section 9.5 No Merger. The obligations contained herein, the
performance of which is contemplated after the Closing, shall not merge with
the transfer of title to the Properties but shall remain in effect until
fulfilled.
Section 9.6 Assignment. Buyer's rights and obligations hereunder
shall not be assignable, directly or indirectly, without the prior written
consent of Seller; provided, that Buyer may, by written notice delivered to
Seller not less than ten (10) Business Days prior to the Closing, designate
any Affiliate of Buyer ("Permitted Assignees") as grantee or assignee, as the
case may be, of one or more of the Properties and Seller shall convey at
Closing such Property or Properties (on behalf of Buyer) in accordance with
such written instructions. Nothing contained in the preceding sentence shall
be deemed to diminish or otherwise affect the obligations of Buyer hereunder,
including the obligations to pay the Purchase Price at Closing and to
indemnify Seller and the other Seller Parties in accordance with the terms
hereof. Subject to the limitations described herein, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
Section 9.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
35
Section 9.8 Governing Law; Jurisdiction and Venue.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA. THE PARTIES RECOGNIZE
THAT, WITH RESPECT TO SOME OF THE PROPERTIES, IT MAY BE NECESSARY FOR THE
PARTIES TO COMPLY WITH CERTAIN ASPECTS OF THE LAWS OF OTHER STATES IN ORDER
TO CONSUMMATE THE PURCHASE AND SALE OF SUCH PROPERTIES PURSUANT HERETO. THE
PARTIES AGREE TO COMPLY WITH SUCH OTHER LAWS TO THE EXTENT NECESSARY TO
CONSUMMATE THE PURCHASE AND SALE OF SUCH PROPERTIES. IT IS THE PARTIES'
INTENT THAT THE PROVISIONS OF THIS AGREEMENT BE APPLIED TO EACH PROPERTY IN A
MANNER THAT RESULTS IN THE GREATEST CONSISTENCY POSSIBLE.
(b) For the purposes of any suit, action or proceeding involving
this Agreement, Buyer and Seller hereby expressly submit to the jurisdiction
of all federal and state courts sitting in the Commonwealth of Pennsylvania
and consent that any order, process, notice of motion or other application to
or by any such court or a judge thereof may be served within or without such
court's jurisdiction by registered mail or by personal service, provided that
a reasonable time for appearance is allowed, and Buyer and Seller agree that
such courts shall have the exclusive jurisdiction over any such suit, action
or proceeding commenced by any party. In furtherance of such agreement,
Buyer and Seller agree upon the request of the other party to discontinue (or
agree to the discontinuance of) any such suit, action or proceeding pending
in any other jurisdiction.
(c) Buyer and Seller each hereby irrevocably waive any objection
that it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement brought in any
federal or state court sitting in the Commonwealth of Pennsylvania and hereby
further irrevocably waive any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 9.9 Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES,
IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON,
UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE
DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE PROPERTIES, OR ANY CLAIMS,
DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR TO ANY OF
THE FOREGOING.
36
Section 9.10 Confidentiality and Return of Documents.
(a) As a condition to Seller's agreement to furnish and/or disclose
Evaluation Material (as defined below) to Buyer, any Permitted Assignee(s)
and their Affiliates and representatives for review and inspection, Buyer (on
behalf of itself, any Permitted Assignee(s), and their respective Affiliates
and representatives) hereby agrees to be bound by the terms set forth in this
Section 9.10(a).
(i) "Evaluation Material" shall include all documents, and other
written or oral information, as well as diskettes and other forms of
electronically transmitted data, furnished to Buyer, a Permitted Assignee,
or their respective officers, directors, employees, agents, advisors,
Affiliates or representatives (collectively "Representatives") by Seller or
its Affiliates relating to the Properties, as well as written memoranda,
notes, analyses, reports, compilations, or studies prepared by Buyer or its
Representatives (in whatever form of medium) that contain, or are derived
from, such information provided by Seller. Notwithstanding the foregoing,
information provided by Seller shall not constitute "Evaluation Material"
if such information (i) is or becomes generally available to the public
other than as a result of a disclosure by or through Buyer or its
Representatives in contravention of this Section 9.10(a) or (ii) is or
becomes available to Buyer from a source (other than Seller) not bound, to
the knowledge of Buyer, by any legal or contractual obligation prohibiting
the disclosure of Evaluation Material by such source to Buyer.
(ii) Buyer agrees that it and its Representatives will use the
Evaluation Material exclusively for the purpose of evaluating the merits of
a possible purchase of the Properties as contemplated by this Agreement and
not for any other purpose whatsoever. Buyer (on behalf of itself and its
Representatives) further agrees that it will not disclose any Evaluation
Material or use it to the detriment of Seller or its Affiliates; provided,
however, that Buyer may without liability disclose Evaluation Material
(x) to any Representative of Buyer who needs to know such Evaluation
Material for the purpose of evaluating the transactions described in this
Agreement involving Seller and the Properties and Buyer or its Permitted
Assignee(s) (it being understood and agreed that Buyer shall be fully
responsible for any disclosures by any such Person) and (y) pursuant to
administrative order or as otherwise required by law.
(iii) In the event that Buyer desires to disclose Evaluation
Material under the circumstances contemplated by clause (y) of the
preceding paragraph, Buyer will (x) provide Seller with prompt notice
thereof, (y) consult with Seller on the advisability of taking steps to
resist or narrow such disclosure, and (z) cooperate with Seller (at
Seller's cost) in any attempt that Seller may make to obtain an order or
other reliable
37
assurance that confidential treatment will be accorded to
designated portions of the Evaluation Material.
(iv) Buyer agrees that, in the event this Agreement is terminated
prior to the consummation of the purchase and sale contemplated hereunder,
all written Evaluation Material and all copies thereof will be returned to
Seller promptly upon Seller's request. All analyses, compilations, studies
or other documents prepared by or for Buyer and reflecting Evaluation
Material or otherwise based thereon will be (at Buyer's option) either
(x) destroyed or (y) retained by Buyer in accordance with the
confidentiality restrictions set forth in this Section 9.10(a).
(v) Buyer acknowledges that significant portions of the
Evaluation Material are proprietary in nature and that Seller and its
Affiliates would suffer significant and irreparable harm in the event of
the misuse or disclosure of the Evaluation Material. Without affecting any
other rights or remedies that either party may have, Buyer acknowledges and
agrees that Seller shall be entitled to seek the remedies of injunction,
specific performance and other equitable relief for any breach, threatened
breach or anticipatory breach of the provisions of this agreement by Buyer
or its Representatives.
(vi) Buyer agrees to indemnify and hold harmless Seller from and
against all loss, liability, claim, damage and expense arising out of any
breach of this Section 9.10(a) by Buyer or any of its Representatives
(except that Buyer shall not be liable for consequential or punitive
damages unless such breach was intentional).
(vii) This Section 9.10(a) shall survive, if the Closing does not
occur, any termination of this Agreement, but shall terminate upon the
Closing.
(b) Seller and Buyer hereby covenant that (i) prior to the Closing
it shall not issue any press release or public statement (a "Release") with
respect to the transactions contemplated by this Agreement without the prior
consent of all parties to this Agreement, except to the extent required by
law or the regulations of the Securities and Exchange Commission or the New
York Stock Exchange, and (ii) after the Closing, any Release issued by Seller
or Buyer shall be subject to the review and approval of all such parties
(which approval shall not be unreasonably withheld). If Seller or Buyer is
required by law to issue a Release, such party shall, at least two (2)
Business Days prior to the issuance of the same, deliver a copy of the
proposed Release to the other parties for their review. In response to
inquiries concerning a Release, Buyer cannot release any information
concerning Seller without Seller's prior written consent.
(c) Seller agrees for a period of one (1) year after the Closing
Date not to disclose capitalization rates and rates of return relating to the
Properties (the "Confidential Information"), provided that such disclosure
may be made (a) to any Person who is a member,
38
partner, officer, director or employee of Seller or counsel to or accountants
of Seller solely for their use and on a need-to-know basis, provided that
such Persons are notified of Seller's confidentiality obligations hereunder,
(b) with the prior consent of Buyer, or (c) subject to the next sentence,
pursuant to legal, regulatory or administrative process. In the event that
Seller shall receive a request to disclose any Confidential Information under
clause (c) of the preceding sentence, Seller shall (i) promptly notify Buyer
thereof, (ii) consult with Buyer on the advisability of taking steps to
resist or narrow such request and (iii) if disclosure is required or deemed
advisable, reasonably cooperate with Buyer (at no cost to Seller) in any
attempt it may make to obtain an order or other assurance that confidential
treatment will be accorded such Confidential Information.
Section 9.11 Interpretation of Agreement. The article, section and
other headings of this Agreement are for convenience of reference only and
shall not be construed to affect the meaning of any provision contained
herein. Where the context so requires, the use of the singular shall include
the plural and vice versa and the use of the masculine shall include the
feminine and the neuter. The term "person" shall include any individual,
partnership, joint venture, corporation, trust, limited liability company,
unincorporated association, any other entity and any government or any
department or agency thereof, whether acting in an individual, fiduciary or
other capacity.
Section 9.12 Amendments. This Agreement may be amended or modified
only by a written instrument signed by each of Buyer and Seller.
Section 9.13 No Recording. Neither this Agreement nor any
memorandum or short form thereof may be recorded by Buyer.
Section 9.14 No Third Party Beneficiary. The provisions of this
Agreement are not intended to benefit any third parties.
Section 9.15 Severability. If any provision of this Agreement, or
the application thereof to any person, place or circumstance, shall be held
by a court of competent jurisdiction to be invalid, unenforceable or void,
the remainder of this Agreement and such provisions as applied to other
persons, places and circumstances shall remain in full force and effect.
Section 9.16 Drafts not an Offer to Enter into a Legally Binding
Contract. The parties hereto agree that the submission of a draft of this
Agreement by one party to another is not intended by either party to be an
offer to enter into a legally binding contract with respect to the purchase
and sale of the Properties. The parties shall be legally bound with respect
to the purchase and sale of the Properties pursuant to the terms of this
Agreement only if and when the parties have been able to negotiate all of the
terms and provisions of this Agreement in a manner acceptable to each of the
parties in their respective sole discretion, including, without limitation,
39
all of the Exhibits and Schedules hereto, and each of Seller and Buyer have
fully executed and delivered to each other a counterpart of this Agreement.
Section 9.17 Further Assurances. Each party shall, whenever and as
often as it shall be requested to do so by the other party, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any and all such other documents and do any and all other acts as may be
necessary to carry out the intent and purpose of this Agreement.
Section 9.18 [Intentionally Omitted].
Section 9.19 Exculpation. No recourse shall be had for any
obligation under this Agreement , or any document executed and delivered by
Buyer in connection with the Closing, 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 Seller and all parties claiming by, through or under Seller
Section 9.20 Counterparts. This Agreement may be executed in
counterparts, all of which taken together shall constitute one and the same
original, and the execution of counterparts by Buyer and Seller shall bind
Buyer and Seller as if they had executed the same counterpart.
[Signatures on following page]
40
The parties hereto have executed this Agreement as of the date first
written above.
Buyer: BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, General Partner
By: ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Seller: UNIVERSITY PLAZA, L.P., a
Delaware limited partnership
By: GH University Plaza, Inc.,
A Delaware corporation
By: _________________________
Name:
Title
41
EXHIBIT N
ESCROW AGREEMENT
Commonwealth Land Title Insurance Company ("Escrowee") agrees to hold in
escrow pursuant to this Agreement the sum of $525,000 ("Deposit") to be
deposited by Brandywine Operating Partnership, L.P. ("Buyer") pursuant to a
certain Agreement of Purchase and Sale dated December 15, 1997 ("Agreement"),
between Buyer and University Plaza, L.P. ("Seller"), the provisions of which
(including, without limitation, the defined terms) are hereby incorporated
herein by reference. The Deposit shall be paid to Seller by Escrowee at the
time of Closing under the Agreement, or if Closing does not take place,
distributed in accordance with the terms of the Agreement. Escrowee shall,
immediately upon receipt of the Deposit, deposit same in an interest bearing,
money market type escrow account with a federally insured bank or savings and
loan association located in Philadelphia, Pennsylvania. All interest which
shall accrue on the Deposit shall be in accordance with the Agreement.
Escrowee shall pay such interest to such party contemporaneously with
Escrowee's payment of the Deposit. Seller and Buyer agree that Escrowee is
an escrow holder only and is merely responsible for the safekeeping of the
Deposit and interest and shall not be required to determine questions of fact
or law. If Escrowee shall receive notice of a dispute as to the disposition
of the Deposit or the interest, then Escrowee shall not distribute the
Deposit or interest except in accordance with written instructions signed by
both Buyer and Seller. Pending resolution of any such dispute, Escrowee is
authorized to pay the Deposit and interest into court. If Escrowee pays the
Deposit and interest into court, it shall be discharged from all further
obligations hereunder. This Escrow Agreement shall be governed by the laws
of the state of New York.
Seller's Federal Tax ID Number is ▇▇-▇▇▇▇▇▇▇.
Buyer's Federal Tax ID Number is ▇▇-▇▇▇▇▇▇▇.
IN WITNESS WHEREOF, Buyer, Seller and Escrowee, for valuable
consideration, each intending to be legally bound and to bind their
respective successors and assigns, have caused this Escrow Agreement to be
executed and delivered as of December 15, 1997.
Escrowee: COMMONWEALTH LAND TITLE INSURANCE COMPANY
By: ___________________________
Name:
Title:
Buyer: BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, General Partner
By: ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Seller: UNIVERSITY PLAZA, L.P., a
Delaware limited partnership
By: GH University Plaza, Inc.,
A Delaware corporation
By: _________________________
Name:
Title